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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ijaz ul Ahsan Mr. Justice Syed Mansoor Ali Shah Suo Motu Case No. 03 of 2017 (Regarding the issue as to whether compounding of an offence under section 345, Cr.P.C. amounts to acquittal of the accused person or not) In attendance: Syed Nayyab Hussain Gardezi, Assistant Attorney-General for Pakistan Mr. Tariq Mehmood Jahangiri, Advocate- General, Islamabad Mr. Qasim Ali Chauhan, Additional Advocate- General, Punjab Mr. Shehryar Qazi, Additional Advocate-General, Sindh Mr. Zahid Yousaf Qureshi, Additional Advocate- General, Khyber Pakhtunkhwa Mr. Ayaz Khan Swati, Additional Advocate- General, Balochistan Date of hearing: 27.06.2018 JUDGMENT Asif Saeed Khan Khosa, J.: One Waheed Ahmad had allegedly murdered a person named Tariq Hussain on 05.06.2007 in a village in the area of Police Station Mangla Cantonment, District Jhelum and for committing the said offence he was booked Suo Motu Case No. 03 of 2017 2 in case FIR No. 68 registered at the said Police Station on the same day for an offence under section 302 of the Pakistan Penal Code, 1860 (PPC). After a regular trial the said Waheed Ahmad was convicted by a learned Additional Sessions Judge, Jhelum on 19.02.2009 for an offence under section 302(b), PPC and was sentenced to death as Ta’zir and to pay a sum of Rs. 1,00,000/- to the heirs of the deceased by way of compensation under section 544-A of the Code of Criminal Procedure, 1898 (Cr.P.C.) or in default of payment thereof to undergo simple imprisonment for six months. The said Waheed Ahmad challenged his conviction and sentence before the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No. 75 of 2009 which was heard by a learned Division Bench of the said Court along with Murder Reference No. 20/RWP of 2009 seeking confirmation of the sentence of death and vide judgment dated 22.05.2012 the appeal was dismissed, the conviction and sentence were upheld and the sentence of death was confirmed. The said Waheed Ahmad then filed Criminal Petition for Leave to Appeal No. 216 of 2012 before this Court wherein leave to appeal was granted by this Court on 06.07.2012 in order to reappraise the evidence in the interest of safe administration of criminal justice. As a result of grant of leave to appeal Waheed Ahmad preferred Criminal Appeal No. 328 of 2012 before this Court and during the pendency of that appeal Criminal Miscellaneous Application No. 185 of 2017 was filed seeking acquittal of the convict-appellant on the basis of a compromise with the heirs of Tariq Hussain deceased and the matter of compromise was referred by this Court to the learned District & Sessions Judge, Jhelum for verification. The report dated 27.02.2017 submitted by the learned District & Sessions Judge, Jhelum in that regard confirmed the fact that a genuine, voluntary and complete compromise between the parties had been affected, the heirs of Tariq Hussain deceased had forgiven the convict-appellant, had waived their right of Qisas and had not claimed any Diyat in that respect. After going through the said report a 3-member Bench of this Court comprising of our learned brothers Amir Hani Muslim, Qazi Faez Isa and Sardar Tariq Suo Motu Case No. 03 of 2017 3 Masood, JJJ. unanimously accepted Criminal Miscellaneous Application No. 185 of 2017 on 21.03.2017 and allowed the compromise between the parties but their lordships differed on how the main appeal was to be disposed of upon acceptance of the compromise. Writing for the majority Sardar Tariq Masood, J. disposed of the appeal in the following terms and Amir Hani Muslim, J. agreed with his lordship: “In this view of the matter, Criminal Miscellaneous Application No. 185 of 2017 filed under Section 345 Cr.P.C. is accepted and the compromise arrived at between the parties is allowed. As according to sub-section (6) of Section 345 of the Code of Criminal Procedure, 1898, the composition of an offence shall have the effect of an acquittal, hence Criminal Appeal No. 328 of 2012 is allowed, the sentence of Waheed Ahmad (appellant) recorded and upheld by the courts below is set aside and he is acquitted of the charges on the basis of the compromise. He shall be released from jail forthwith if not required to be detained in connection with any other case.” Qazi Faez Isa, J., however, wrote a separate note on that occasion and the said note read as follows: “Whilst I agree with my learned brother that the application under section 345(6) of the Code of Criminal Procedure (“the Code”) be accepted, I most respectfully cannot bring myself to agree that the convict/appellant be “acquitted of the charges on the basis of the compromise”. Subsection (6) of section 345 of the Code does not envisage an acquittal, as it provides: “(6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.” 2. The appellant was convicted by the Additional Sessions Judge, Jhelum, under section 302(b) of the Pakistan Penal Code (“PPC”) for the murder of Tariq Hussain, and was sentenced to death. The Trial Court sent the Murder Reference to the Lahore High Court for confirmation under section 374 of the Code whilst the appellant/convict preferred an appeal under section 410 of the Code. The High Court dismissed the appeal of the appellant, confirmed the Murder Reference and the sentence of death awarded to the appellant/convict. The appellant then preferred a criminal petition for leave to appeal before this Court, which granted leave, “to reappraise the evidence available on record in the interest of safe administration of criminal justice”. However, during the pendency of this appeal a compromise was effected by the appellant/convict with the legal heirs of the deceased. 3. Section 345 of the Code enables compounding of offences and sets out the methodology thereof. It mentions the offences Suo Motu Case No. 03 of 2017 4 punishable under the PPC which can be compounded either before or after an accused is convicted. The table contained in subsection (1) of section 345 specifies, “persons by whom offences may be compounded”. But, subsection (5) of section 345 stipulates that once an accused has been convicted, “no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard”. Undoubtedly, the prescribed offences can be compounded, but the composition of such offences has to be in terms of subsection (6) of section 345 which stipulates that, “the composition … shall have the effect of an acquittal”. 4. In my opinion “the effect of an acquittal” is different from an acquittal. The guilt of an accused, that is ascertaining whether the accused has committed the offence for which he is charged, is determined by the Trial Court. Once the guilt of the accused has been determined the judgment is delivered by the Court. The judgment has two components, conviction, which means he is guilty, and the sentence, which is the punishment awarded to him. If the legal heirs of the deceased compound the offence it does not mean that the appellant/convict was not guilty of the murder for which he was convicted, which would be the case if, as a consequence of allowing the composition, he is “acquitted”. Subsection (6) of section 345 also avoids creating such a fiction as it provides that the “composition of an offence … shall have the effect of an acquittal”, which means that the punishment (sentence) part of the judgment is brought to an end; neither this subsection states, nor it could, that the convict is “acquitted of the charges”. The verdict of guilt (the conviction part of the judgment) that the Trial Court had recorded could only have been undone by the High Court, failing which by this Court; it cannot be undone by the legal heirs of the murdered person. 5. The law permits the legal heirs of a murdered person to compound the offence with the convict, with or without receiving badal-i-sulh/diyat (sections 310 and 323 PPC). When the legal heirs compounded the offence they elected not to seek retribution or the enforcement of the sentence. The very premise of compounding the offence is the acknowledgment of guilt by the accused who is then forgiven by the legal heirs; the affidavits filed by the legal heirs clearly also state this. 6. Section 338-F of the PPC stipulates that in the interpretation and application of Chapter XVI (“Offences Affecting the Human Body”) “and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah”. The aforesaid interpretation of subsection (6) of section 345 is in conformity with a number of verses of the Holy Qur’an: surah Al-Baqarah (2) verses 178-9, surah Al-Maidah (5) verse 45, surah Al-Isra (17) verse 33 and surah Ash-Shura (42) verse 40. In these verses our Merciful Creator suggests that forgiveness and reconciliation is preferable to revenge or retaliation. A person can only be forgiven if he is guilty. The cited verses neither state nor imply that the finding of guilt is effaced. 7. Therefore, whilst I agree with the conclusion reached by my learned brother that the application for compounding the offences be accepted, I cannot agree that as a consequence the appellant/convict should be “acquitted of the charges” and thus completely exonerated. However, since section 345(6) of the Code has not been examined and interpreted in the aforesaid manner therefore the Hon’ble Chief Justice is requested to take notice of this matter under Article 184(3) of the Constitution as it is a Suo Motu Case No. 03 of 2017 5 question of public importance involving the enforcement of Fundamental Rights. The office is directed to place the matter before the Hon’ble Chief Justice of Pakistan for appropriate orders.” The matter was thereafter put up before the Hon’ble Chief Justice of Pakistan and his lordship was pleased to pass the following order: “Let the issue raised in the order by my learned brother Justice Qazi Faez Isa be taken up under Art. 184(3) of the Constitution and the matter be fixed before the bench headed by my brother Justice Asif Saeed Khan Khosa.” It is in the above mentioned background that the matter has been fixed for hearing before the present Bench today. 2. We have heard the learned Assistant Attorney-General for Pakistan, the learned Advocate-General for the Islamabad Capital Territory, the learned Additional Advocate-General, Punjab, the learned Additional Advocate-General, Sindh, the learned Additional Advocate-General, Khyber Pakhtunkhwa and the learned Additional Advocate-General, Balochistan at some length. They have all submitted in complete unison that in Islamic jurisprudence and in the system of administration of criminal justice in vogue in this country a composition of a compoundable offence leads to and results in acquittal of the accused person or convict concerned. They have also submitted that any confusion created by the words “effect of an acquittal” used in section 345(6), Cr.P.C. now stands removed by the word “acquit” used in the subsequently introduced first proviso to section 338-E(1), PPC and its interpretation by this Court in the case of Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695). 3. The issue before us is as to whether a successful and complete compounding of an offence leads to acquittal of the accused person or convict from the allegation or charge or it is only to have an effect of acquittal which may be something short of or Suo Motu Case No. 03 of 2017 6 other than acquittal. After hearing the learned Law Officers and going through the relevant legal provisions and the precedent cases available on the subject we have explored and attended to the issue at hand from diverse angles and in the following paragraphs we embark upon an effort to find an answer to this question and to resolve the controversy. 4. Section 345, Cr.P.C. deals with compounding of offences and it provides as follows: 345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:- Offence Sections of Penal Code applicable Persons by whom offence may be compounded ------- ------- ------- ------- ------- ------- (2) Subject to sub-section (7), the offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table:- Offence Sections of Penal Code applicable Persons by whom offence may be compounded ------- ------- ------- ------- ------- ------- (2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (3) Where any offence is compoundable under this section, the abetment of such offence or any attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner. (4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence. Suo Motu Case No. 03 of 2017 7 (5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. (5-A) A High Court acting in the exercise of its power of revision under section 439 and a Court of Session so acting under section 439-A, may allow any person to compound any offence which he is competent to compound under this section. (6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (7) No offence shall be compounded except as provided by this section and section 311 of the Pakistan Penal Code, 1860 (Act XLV of 1860). A plain reading of this section shows that compounding of a compoundable offence may be possible before the trial, during the trial or even during the pendency of an appeal or a revision petition and that in some cases compounding of an offence does not require permission of the court whereas in some other cases permission or leave of the relevant court is required for composition. However, the question before us is not as to how a compounding is to take place with or without permission or leave of a court but the controversy before us is about the consequence after a valid compounding has taken place and for resolving the said controversy it is important to appreciate what compounding of an offence actually means. 5. Before we dig deep into the controversy at hand it may be advantageous to mention that there are shorter answers available to the questions involved in this matter and they may be recorded straightaway. Chapter XVI of the Pakistan Penal Code, 1860 deals with offences affecting human body including murder and causing of hurt and all such offences are compoundable by virtue of the provisions of section 309, PPC (Waiver-Afw), section 310, PPC (Compounding-Sulh) and section 345, Cr.P.C. Section 338-E(1), PPC and the first proviso to the same (falling in Chapter XVI of the Pakistan Penal Code, 1860) provide as follows: 338-E. Waiver or compounding of offences. (1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may Suo Motu Case No. 03 of 2017 8 be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta’zir to the offender according to the nature of the offence. ------- (bold letters have been supplied for emphasis) These provisions show, and show quite clearly, that all the offences affecting human body including murder and causing of hurt falling in Chapter XVI of the Pakistan Penal Code, 1860 are capable of being waived or compounded and that in case of waiver or compounding of such offences the court concerned, after granting the discretionary permission or leave to compound where necessary, is to acquit the person accused or convicted if it is a case of Ta’zir but in a case of Qisas it has a discretion either to acquit or to pass a sentence of Ta’zir against the accused person or convict in view of the peculiar facts and circumstances of the case. It has already been clarified by this Court in the case of Zahid Rehman v. The State (PLD 2015 SC 77) that the discretion to punish by way of Ta’zir under section 311, PPC and other similar provisions after waiver or compounding of the right of Qisas is relevant only to cases of Qisas and not to cases of Ta’zir. It is true that section 345(6), Cr.P.C. does not speak of “acquittal” as a consequence of compounding of an offence and it only speaks of the “effect of an acquittal” but it is now clear through the subsequently introduced section 338-E, PPC that a compounding of a compoundable offence in a case of Ta’zir is to lead to acquittal of the accused person or convict. When the law itself, as it stands today, speaks of acquittal as a consequence of compounding of an offence then any ambiguity in that regard created by the previous state of the law may not confound us anymore. 6. Another short answer to the core question involved in this matter is available in the judgment handed down by this Court in the case of Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695) involving the Suo Motu Case No. 03 of 2017 9 same issue which is under our consideration in the present matter. In that case the respondent was an employee of a Bank and on account of his involvement in and conviction for an offence of murder he was removed from service but later on he was acquitted on the basis of a compromise with the heirs of the deceased and a question arose as to whether a compromise or compounding could validly be treated as acquittal or not for the purposes of his reinstatement in service of the Bank. This Court had categorically held in that case that compounding of an offence through a court in a case of Ta’zir amounted to an acquittal and speaking for the Court on that occasion one of us (Asif Saeed Khan Khosa, J.) had observed as follows: “7. ------- After introduction of the Islamic provisions in the Pakistan Penal Code, 1860 it has now also become possible for an accused person to seek and obtain his acquittal in a case of murder either through waiver/Afw under section 309, PPC or on the basis of compounding/Sulh under section 310, PPC. In the case of waiver/Afw an acquittal can be earned without any monetary payment to the heirs of the deceased but in the case of compounding/Sulh an acquittal may be obtained upon acceptance of Badal-i-Sulh by the heirs of the deceased from the accused person. In the present case the respondent had been acquitted of the charge of murder by the learned Sessions Judge, Lakki Marwat as a result of compounding of the offence and such compounding had come about on the basis of acceptance of Badal-i-Sulh by the heirs of the deceased from the respondent. --- ---- 8. The provisions of the first proviso to sub-section (1) of section 338-E, PPC clearly contemplate acquittal of an accused person on the basis of compounding of an offence by invoking the provisions of section 310, PPC and the effect of such compounding has also been clarified in most explicit terms by the provisions of sub-section (6) of Section 345, Cr.P.C. in the following words: “The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.” 9. The legal provisions mentioned above leave no ambiguity or room for doubt that compounding of an offence of murder upon payment of Badal-i-Sulh -------and that such compounding of the offence leads to nothing but an acquittal of the accused person. It has already been clarified by this Court in the case of Dr. Muhammad Islam v. Government of N-W.F.P. through Secretary Food, Agricultural, Live Stock and Cooperative Department, Peshawar (1998 SCMR 1993) as follows: “We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason Suo Motu Case No. 03 of 2017 10 that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals.” The said precedent case also involved a question of reinstatement in service of an accused person implicated in a criminal case who had been acquitted by the criminal court and this Court had declared that an acquittal had no shades and there was no concept of honourable or dishonourable acquittals. It had specifically been noted by this Court in that case that there could also be cases involving acquittals on the basis of compromise between the parties and after raising a query regarding the status of such acquittals this Court had hastened to add that “All acquittals are certainly honourable”. ------- 10. ------- Be that as it may, an ultimate acquittal in a criminal case exonerates the accused person completely for all future purposes vis-à-vis the criminal charge against him as is evident from the concept of autrefois acquit embodied in section 403, Cr.P.C. and the protection guaranteed by Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and, according to our humble understanding of the Islamic jurisprudence, Afw (waiver) or Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime. In this backdrop we have found it difficult as well as imprudent to lay it down as a general rule that compounding of an offence invariably amounts to admission of guilt on the part of the accused person -------.” (underlining has been supplied for emphasis) 7. Delving deeper into the issue we note that the concept of compounding of an offence, also termed as composition of an offence, is an old concept recognized not only in the Islamic law and the Pakistan Penal Code, 1860 but also in the Anglo-Saxon jurisprudence. In his book An Introduction to the Philosophy of Law (revised edition 1954) Roscoe Pound had observed about the concept of composition of an offence as follows: “The first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one’s power. The idea is put strikingly in the Anglo-Saxon proverb, ‘Buy spear from side or bear it’, that is, buy off the feud or fight it out. --- As the social interest in peace and order – the general security in its lowest terms – comes to be secured more effectively by regulation and ultimate putting down of feud as a remedy, payment of composition becomes a duty rather than a privilege --- The next step is to measure the Suo Motu Case No. 03 of 2017 11 composition not in terms of the vengeance to be bought off in terms of the injury. A final step is to put it in terms of reparation.” In Black’s Law Dictionary (Ninth Edition) the definition of ‘composition’ includes “A payment of money or chattels as satisfaction for an injury. In Anglo-Saxon and other early societies, a composition with the injured party was recognized as a way to deter acts of revenge by the injured party.” In the same dictionary the definition of ‘Compound’ includes “To agree for consideration not to prosecute (a crime)”. The meaning of the word ‘Compound’ in The Concise Oxford Dictionary of Current English (Ninth Edition) includes “settle (a debt, dispute, etc.) by concession or special agreement”, “condone (a liability or offence) in exchange for money etc.”, “forbear from prosecuting (a felony) from private motives” and “come to terms with a person, for forgoing a claim etc. for an offence”. In Pakistan the Islamic concepts of Afw and Sulh (two different ways of compounding an offence which is made compoundable by the legislature) are an important part of our criminal law and in cases of murder and causing of hurt sections 309, 310 and 338-E, PPC provide for Waiver-Afw (forgiveness without accepting any compensation) and Compounding-Sulh (compounding on accepting badal-i-sulh/compensation) and section 345, Cr.P.C. provides the mechanism for such compounding. According to Islamic jurisprudence Afw and Sulh are based upon forgiveness and reconciliation and in his lordship’s separate note dated 21.03.2017 passed in this very matter our learned brother Qazi Faez Isa, J. had referred to the verses of the Holy Qur’an [Surah Al-Baqarah (2) verses 178-9, Surah Al-Maidah (5) verse 45, Surah Al-Isra (17) verse 33 and Surah Ash-Shura (42) verse 40] wherein our Merciful Creator has suggested that forgiveness and reconciliation is preferable to revenge or retaliation. Without burdening this judgment with copious references in that regard it may suffice to state for the present purposes that the Islamic scholars around the globe agree that Afw (forgiveness) means to hide an act, to obliterate, remove and pardon it and to erase and efface it from the record as if it had Suo Motu Case No. 03 of 2017 12 never been committed and, likewise, Sulh (reconciliation) means that the act or offence is forgiven and forgotten as if it had never happened. In his A Dictionary of Islam (The Unit Printing Press, Lahore, 1964) Thomas Patrick Hughes had recorded as follows: “AFU. Lit. “erasing, cancelling.” The word is generally used in Muhammadan books for pardon and forgiveness. It occurs eight times in the Qur’an, e.g. Surah ii. 286, “Lord, make us not to carry what we have not strength for, but forgive us and pardon us and have mercy on us.” Surah iv. 46, “Verily God pardons and forgives.” Al-‘Afu is one of the ninety-nine special names of God. It means “one who erases or cancels;” “The Eraser (of sins).” See Qur’an, Surah iv. 51.” 8. According to various dictionaries of English language, reference to which may not be necessary here, setting free from guilt, sin or penalty and forgiveness of an offence is also termed as absolution or absolving of the person concerned. As a consequence of Afw or Sulh resulting in obliteration and removal of the offence and its erasing and effacing from the record the accused person or convict stands absolved of what had been done by him or of what was attributed to him and such absolving effect of the act of compounding is recognized in the following treatises: English Synonymes Explained In Alphabetical Order; with Copious Illustrations and Examples by George Crabb, A. M. (published by William Clowes and Sons, London, 6th Edition, 1837): “To ABSOLVE, ACQUIT. ABSOLVE, in Latin absolvo, is compounded of ab from and solvo to loose, signifying to loose from that with which one is bound. ACQUIT, in French acquitter, is compounded of the intensive syllable ac or ad, and quit, quitter, in Latin quietus quite, signifying to make easy by the removal of a charge. These terms imply the setting free from guilt or its consequences. Absolving may sometimes be applied to offences against the laws of man, but more frequently to offences against God; acquitting applies solely to offences against man. The conscience is released by absolution; the body, goods, or reputation, are set free by an acquittal. Yet to be secret, makes not sin the less; ‘Tis only hidden from the vulgar view, Maintains indeed the reverence due to princes, Suo Motu Case No. 03 of 2017 13 But not absolves the conscience from the crime. DRYDEN. The fault of Mr. Savage was rather negligence than ingratitude; but Sir Richard Steele must likewise be acquitted of severity; for who is there that can patiently bear contempt from one whom he has relieved and supported? JOHNSON. To ABSOLVE, ACQUIT, CLEAR. ABSOLVE in this case, as distinguished from the former article, (v. To absolve,) is extended to all matters affecting the conscience generally. ACQUIT (v. To absolve, acquit) and CLEAR in the sense of making clear or free from, are applied to everything which may call for blame, or the imputation of what is not right. A person may be absolved from his oath, acquitted or pronounced quit of every charge, and cleared from every imputation. Compell’d by threats to take that bloody oath And the act ill, I am absolv’d by both. WALKER. Those who are truly learned will acquit me in this point, in which I have been so far from offending, that I have been scrupulous perhaps to a fault in quoting the authors of several passages which I might have made my own. ADDISON. He set himself with very great zeal to clear the Romish church of idolatry. BURNET.” English Synonymes Explained In Alphabetical Order; with Copious Illustrations by George Crabb, A. M. (published by LEIPSIC, a New Edition, 1839): “To ABSOLVE, ACQUIT, CLEAR. ABSOLVE, in Latin absolvo, is compounded of ab from and solvo to loose, signifying to loose from that with which one is bound. ACQUIT, in French acquitter, is compounded of the intensive syllable ac or ad, and quit, quitter, in Latin quietus quite, signifying to make easy by the removal of a charge. These 2 words convey an important distinction between the act of the Creator and the creature. To absolve is the free act of an omnipotent and merciful being towards sinners; to acquit is the act of an earthly tribunal towards supposed offenders. By absolution, we are released from the bondage of sin and placed in a state of favour with God; by an acquittal we are released from the charge of guilt, and reinstated in the good estimation of our fellow creatures. One is absolved from an oath, acquitted of a charge, and cleared from actual guilt. Absolve is also sometimes used in the sense of setting free from a charge, as from an obligation in which sense it comes still nearer to the words acquit and clear; but it is thus used mostly in the Suo Motu Case No. 03 of 2017 14 grave style, and carries with it the idea of setting one altogether free from the consequences of a charge.” Crabb’s English Synonymes by George Crabb, A. M. (published by Grosset & Dunlap Publishers, New York, 1917): “ABSOLUTION. See FORGIVE. ABSOLVE, ACQUIT. Absolve, in Latin absolvo, is compounded of ab, from, and solvere, to loose, signifying to loose from that with which one is bound. Acquit, in French acquitter, is compounded of the intensive syllable ac or ad, and quit, quitter, from Latin quietus, quite, signifying to make easy by the removal of a charge. These terms imply the setting free from guilt or its consequences. Absolving may sometimes be applied to offences against the laws of man, but more frequently to offences against God; acquitting applies solely to offences against man. The conscience is released by absolution; the body, goods, or reputation are set free by an acquittal. See also FORGIVE. Absolve, Acquit, Clear. – Absolve in this case, as distinguished from the former article, is extended to all matters affecting the conscience generally. Acquit and clear, in the sense of making clear or free from, are applied to everything which may call for blame, or the imputation of what is not right. A person may be absolved from his oath, acquitted or pronounced quit of every charge, and cleared from every imputation.” Webster’s New International Dictionary of the English Language by William Allan Neilson, Thomas A. Knott, Paul W. Carhart (published by G. & C. Merriam Company Publishers, 2nd Edition, 1957): “Ab-solve’ 1. To set free, or release, as from some obligation, debt, or responsibility, or from the consequences of guilt or from such ties as it would be guilt to violate; to pronounce free; as, to absolve a subject from his allegiance. 2. To acquit; to adjudge or pronounce not guilty. Halifax was absolved by a majority of fourteen. Macaulay. 3. To free from a penalty; to pardon; remit (a sin); - said of the sin or guilt. In his name I absolve your perjury. Gibbon. 4. To finish; accomplish. The work begun, how soon absolved. Milton. 5. To resolve or explain, as a difficulty. Obs. Syn. – Exonerate, discharge, forgive. See EXCULPATE.” Suo Motu Case No. 03 of 2017 15 The material mentioned above shows that obliteration and removal of the offence and its erasing and effacing from the record as a result of compounding has the effect of absolving the accused person or convict of the act, acquittal from the charge and clearance from the actual guilt and the legislature in 1898, when section 345, Cr.P.C. was introduced, was aware of the fact that in English language as well as in legal literature the word ‘absolve’ was synonymous with the words ‘acquit’ and ‘clear’. The legislature was cognizant of the legal position at that time that compounding of an offence ipso facto amounted to absolution which automatically had the effect of acquittal from the charge and clearance from guilt and, therefore, there was hardly any occasion for the legislature to provide in section 345, Cr.P.C. that upon a successful composition of an offence the accused person or convict would be acquitted by the court concerned. It was already understood quite well that compounding of an offence would have an automatic “effect of an acquittal” and that was exactly what was legislated through section 345(6), Cr.P.C. and no need was felt to expressly provide for an order of acquittal to be passed by a court on the basis of compounding. 9. A successful and complete composition of a compoundable offence having the “effect of an acquittal” in terms of section 345(6), Cr.P.C. came under discussion in the cases of Kumarasami Chetty v. Kuppusami Chetty and others (AIR 1919 Madras 879(2)), Ram Richpal v. Mata Din and another (AIR 1925 Lahore 159), Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409), Dharichhan Singh and others v. Emperor (AIR 1939 Patna 141), Mt. Rambai w/o Bahadursingh v. Mt. Chandra Kumari Devi (AIR 1940 Nagpur 181), Godfrey Meeus v. Simon Dular (AIR (37) 1950 Nagpur 91) and Prithvi Bhagat and another v. Birju Sada (AIR 1962 Patna 316) and the ratio decidendi of the said cases is summed up as follows: (i) A compounding can take place during the trial or during the pendency of an appeal or a revision Suo Motu Case No. 03 of 2017 16 petition and it can take place even before the case has reached the trial court for trial. (ii) A complete compounding fulfilling the requirements of sub-sections (1) or (2) of section 345, Cr.P.C., as the case may be, cannot be withdrawn or resiled from by any party at any later stage because it has already created the effect of an acquittal of the accused person. (iii) Composition of a compoundable offence not requiring permission of the court deprives the court of its jurisdiction to try the case or ousts the jurisdiction of the court to try the offence and the court has no other option but to acquit the accused person. (iv) Composition of a compoundable offence not requiring permission of the court and grant of permission or leave to compound by the relevant court in cases where such permission or leave is required result in immediate acquittal of the accused person. (v) In some of the above mentioned cases acquittal of the accused person was ordered on the basis of successful and complete composition rather than observing that the composition would only have the effect of an acquittal. All the above mentioned precedent cases had been taken notice of by this Court in the case of Tariq Mehmood v. Naseer Ahmed, etc. (PLD 2016 SC 347) but the issue relating to compounding of an offence involved in that case was different from the one under discussion here. 10. In the context of the issue at hand it is of critical importance to notice that the heading of section 345, Cr.P.C. is ‘Compounding of offences’ and the said heading itself says it all that we are trying to find out. A compounding is in respect of the offence regarding which a person has been accused or convicted and it has no direct relevance to his guilt or punishment or even to his conviction or sentence and this is more so because a compounding can take place even before any finding of guilt or conviction is recorded. Through compounding the offence itself is compounded and resultantly the accused person or convict ipso facto stands absolved of the allegation leveled or the charge framed against him Suo Motu Case No. 03 of 2017 17 regarding commission of that offence and that is why there is no need for recording his acquittal in that connection because through the act of compounding the offence itself has disappeared or vanished. As already mentioned above, in English language the words “absolve”, “acquit” and “clear” are synonymous words and can be used interchangeably in the context of criminal law and this was so acknowledged in the treatises referred to hereinbefore. 11. We find that the controversy over “acquittal” and “effect of an acquittal” in the context of section 345(6), Cr.P.C. and drawing a distinction in this regard between guilt and punishment may be quite unnecessary because for all practical purposes an acquittal or any other dispensation having the effect of an acquittal may not make any difference to the parties to the case or the system of administration of justice in the larger context. An acquittal of an accused person or convict from an allegation or charge of committing an offence entails that he cannot again be subjected to investigation in connection with the same allegation, he cannot be arrested, prosecuted or punished again for committing the same offence and the principle of autrefois acquit enshrined in Article 13(a) of the Constitution of Pakistan and also in section 403, Cr.P.C. becomes applicable to him. The acquittal of an accused person or convict also leads to his release from custody if he is in confinement and discharge of his bail bonds and sureties if he is on bail. Such consequences of an acquittal of an accused person or convict can also quite conveniently be called or termed as effects of his acquittal. In this backdrop the only rationale we can decipher as to why the legislature spoke of “effect of an acquittal” in the context of compounding of an offence and did not use the word “acquittal” in section 345(6), Cr.P.C. is that it could not employ or utilize the word acquittal in that context because an acquittal can be ordered in connection with an existing allegation or charge but where the allegation or the charge itself has disappeared, evaporated or vanished or it stands erased or effaced on account of composition of the offence itself there is hardly any occasion for recording an acquittal. In case of such a Suo Motu Case No. 03 of 2017 18 metamorphosis brought about by a composition of the offence the best that the legislature could do was to extend all the benefits and effects of an acquittal to the concerned person and this is exactly what had been done by it through the provisions of section 345(6), Cr.P.C. 12. The issue regarding compounding being relevant only to punishment and not to guilt of the accused person or convict may also be viewed from the angle of conviction and sentence and we note in that context that in the Code of Criminal Procedure, 1898 the legislature was quite conscious of the distinction between a conviction and a sentence or, in other words, between guilt and punishment. Section 412, Cr.P.C. speaks of conviction and sentence separately and provides for a situation where relief may be extended only in the matter of sentence and not in the matter of conviction. Sections 169 and 249, Cr.P.C. speak only of an accused person’s release pending an investigation or trial when he is in custody without making any mention of his guilt. In the same statute the legislature, if it was so minded, could have provided in section 345, Cr.P.C. that as a result of compounding of an offence the person concerned would be released from custody or that he would not be liable to any punishment but his guilt in the matter would stand undisturbed but the legislature did not say that. In that section the legislature did not even provide for release of the accused person or convict from custody or his acquittal as a consequence of compounding and such silence of the legislature in those regards was a silence which said it all when it mentioned that all the effects of acquittal would automatically flow from the compounding. Such effects of acquittal could not be ordered to flow from the compounding unless the compounding itself amounted to, without saying so, nothing but acquittal by operation of the law. It may be appreciated in this context that an acquittal or the effects of it in criminal law are necessarily relevant to guilt of a person and criminal jurisprudence and law do not envisage or contemplate removal of punishment while impliedly maintaining a person’s guilt. Such an approach may be debated in theological or Suo Motu Case No. 03 of 2017 19 sociological contexts and that too only in an academic sense but for importing the same into criminal jurisprudence and law one would have to rewrite the same which exercise we are neither ready nor equipped or qualified to undertake. 13. The stance sometimes taken in favour of keeping the relevant person’s guilt intact while doing away with his punishment on the basis of compounding of an offence is premised upon considerations other than legal. According to this stance such a person should be kept away from public offices and civil services, etc. because he is an adjudged criminal who was once found guilty of an offence but he got away with his punishment because of compounding of the relevant offence. In his separate note recorded in the case of Mureed Sultan and others v. The State through P. G. Punjab and another (2018 SCMR 756) our learned brother Qazi Faez Isa, J. had raised similar concerns in this regard as had been voiced by his lordship in his lordship’s separate note dated 21.03.2017 recorded in the present matter. In the said case of Mureed Sultan and others our learned brother had observed as under: “7. Some may question the significance of the entire discussion, and enquire, if a court has accepted the application under section 345 of the Code and the convict has been released from jail what difference would his acquittal make. There are grave consequences. A man who has committed murder but is “acquitted” merely because the legal heirs of the murdered person compound the offence, would enable the murderer, for instance, to honestly declare on a job application that he is not and has never been a convict; he could thus be eligible to apply for government employment, be employed as a teacher, be inducted into the Armed Forces, enter the judicial service or even be appointed as a judge of the superior courts. There is then the religious aspect to the discussion. The person who has committed the sin of murder if he professes his guilt or is convicted in this world, and serves out his sentence or is released as a consequence of the legal heirs forgiving him, may be spared the agony of punishment in the Hereafter.” While appreciating the intensity and sincerity of the sentiment expressed and also the gravity of the concerns voiced by our learned brother in respect of different ramifications of the issue not only in the context of public life in this world but also regarding the Hereafter we have, with utmost respect, not been able to bring Suo Motu Case No. 03 of 2017 20 ourselves to agree with his lordship so as to interpret the existing law in the light of some hypothetical possibilities in this world and retribution or redemption in the Hereafter. It is not for us to consider as to how such a person would be dealt with by Almighty Allah in the next world or on the Day of Judgment as our job is only to interpret and apply the law of the land as it exists. Our short response to such stance is that it is based upon nothing but good intentions and pious wishes, it stems from mere possibilities conjured up by a noble and public-spirited mind, it involves public policy and it is for the legislature to amend the relevant laws, etc. to keep such a person out of the public life, if it so desires and decides. Without introducing appropriate amendments in the criminal law in vogue in the country there is little scope for canvasing such collateral or incidental punishments for a person and as long as the law of the land stands as it is all the fruits and effects of acquittal have to be extended to such person on the basis of a complete and lawful compounding of the offence with him. Be that as it may, this Court has already rejected a similar argument based upon this very stance in the above mentioned case of Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695) with the following observations: “9. ------- It has already been clarified by this Court in the case of Dr. Muhammad Islam v. Government of N-W.F.P. through Secretary Food, Agricultural, Live Stock and Cooperative Department, Peshawar (1998 SCMR 1993) as follows: “We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals.” The said precedent case also involved a question of reinstatement in service of an accused person implicated in a criminal case who had been acquitted by the criminal court and this Court had Suo Motu Case No. 03 of 2017 21 declared that an acquittal had no shades and there was no concept of honourable or dishonourable acquittals. It had specifically been noted by this Court in that case that there could also be cases involving acquittals on the basis of compromise between the parties and after raising a query regarding the status of such acquittals this Court had hastened to add that “All acquittals are certainly honourable”. If that be the case then the respondent in the present case could not be stigmatized or penalized on account of his acquittal on the basis of a compromise. -------. 10. As regards the submission made by the learned counsel for the appellants based upon the issue of propriety of reinstating in service a person who, by virtue of compounding of an offence of murder, is a self-condemned murderer we may observe that we have pondered over the said issue from diverse angles and have not felt persuaded to agree with the learned counsel for the appellants. Experience shows that it is not always that a compromise is entered into by an accused person on the basis of admission of guilt by him and in many cases of false implication or spreading the net wide by the complainant party accused persons compound the offence only to get rid of the case and to save themselves from the hassle or trouble of getting themselves acquitted from courts of law after arduous, expensive and long legal battles. Even in the present case the respondent and his brother were accused of launching a joint assault upon the deceased upon the bidding and command of their father and before the learned trial court the respondent’s brother had maintained in unequivocal terms that he alone had murdered the deceased and the respondent and their father had falsely been implicated in this case. Be that as it may, an ultimate acquittal in a criminal case exonerates the accused person completely for all future purposes vis-à-vis the criminal charge against him as is evident from the concept of autrefois acquit embodied in section 403, Cr.P.C. and the protection guaranteed by Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and, according to our humble understanding of the Islamic jurisprudence, Afw (waiver) or Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime. In this backdrop we have found it difficult as well as imprudent to lay it down as a general rule that compounding of an offence invariably amounts to admission of guilt on the part of the accused person or that an acquittal earned through such compounding may have ramifications qua all spheres of activity of the acquitted person’s life, including his service or employment, beyond the criminal case against him. We may reiterate that in the case of Dr. Muhammad Islam (supra) this Court had categorically observed that “All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals”. The sway of those observations made by this Court would surely also encompass an acquittal obtained on the basis of compounding of the offence. It is admitted at all hands that no allegation had been leveled against the respondent in the present case regarding any illegality, irregularity or impropriety committed by him in relation to his service and his acquittal in the case of murder had removed the only blemish cast upon him. His conviction in the case of murder was the only ground on which he had been removed from service and the said ground had subsequently disappeared through his acquittal, making him reemerge as a fit and proper person entitled to continue with his service.” (underlining has been supplied for emphasis) Suo Motu Case No. 03 of 2017 22 14. Ordinarily an acquittal recorded by a trial court in a criminal case means that the charge framed against an accused person in respect of committing an offence has not been proved and he is, thus, judicially exonerated from the allegation. In our country in some special circumstances provided for in sections 249-A and 265-K, Cr.P.C. an acquittal can also be recorded by a trial court even before framing of a formal charge where the allegation leveled is found to be groundless or there is no probability of the accused person’s conviction even if a trial is conducted. After an accused person is convicted and sentenced by a trial court he can be acquitted by a higher Court through an appeal or a revision petition and upon such acquittal his conviction and sentence are set aside. Compounding or composition of an offence is, however, a distinct dispensation of its own kind and it has to be understood in its own context without mixing or confusing it with concepts of conviction, sentence and acquittal. The references made above to Roscoe Pound’s book, Black’s Law Dictionary and Concise Oxford Dictionary show that composition of an offence serves a purpose different from that ordinarily served by the judicial process, i.e. retribution through law. Instead of retribution a composition brings about reconciliation between the parties, it buys off the vengeance of him to whom an injury had been done by buying spear from side rather than bearing it, through it vengeance of the victim is bought off through reparation, it achieves satisfaction for an injury rather than punishment for the injury and it deters acts of revenge by the injured party. Likewise, to compound means to agree not to prosecute a crime, to settle a dispute by concession or special agreement, to condone an offence in exchange for money or any other consideration, to forbear from prosecuting a crime and to come to terms with a person for forgoing a claim, etc. for an offence. We understand that the true meanings and objects of the special dispensation of compounding or composition of offences are to be appreciated and recognized in this context rather than in the narrow context of conviction, sentence and acquittal and this is probably why section 345(6), Cr.P.C. speaks of a composition to Suo Motu Case No. 03 of 2017 23 have the effect of an acquittal and does not speak of setting aside of conviction and sentence and the resultant acquittal from the charge. 15. Any controversy over the issue that a person’s guilt already determined judicially cannot be undone by the victim or his heirs on their own has appeared to us to be misconceived as the same overlooks the provisions of sub-sections (5) and (5-A) of section 345, Cr.P.C. according to which (5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. (5-A) A High Court acting in the exercise of its power of revision under section 439 and a Court of Session so acting under section 439-A, may allow any person to compound any offence which he is competent to compound under this section. (bold letters have been supplied for emphasis) It is, thus, obvious that in a case where a court has already convicted a person of a compoundable offence and has held him guilty there no compounding of the offence by the victim or his heirs with the convict can take effect or can be said to be successful or complete unless the relevant appellate or revisional court grants leave to compound or allows the proposed composition. The law, therefore, clearly envisages not only involvement but also decision of the relevant court in finalization of the proposed composition of offence in such a case and it cannot be said that guilt of the convicted person is undone by the victim or his heirs on their own. It goes without saying that the matter of granting or refusing leave to compound and allowing or disallowing the same lies in the discretion of the relevant court and before taking a decision in that regard the court concerned has to apply its judicial mind to the facts and circumstances of the case in their totality and also to consider desirability or otherwise of granting permission in that respect. This aspect of the matter had been Suo Motu Case No. 03 of 2017 24 considered by this Court in the case of Naseem Akhtar and another v. The State (PLD 2010 SC 938) and it was observed as under: “5. In the above context, the relevant parts of the section 345(5) and (7), Cr.P.C. are reproduced as below. S.345(5) "When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard." S.345(7) "No offence shall be compounded except as provided by this section". Before proceeding to analyze the noted provision, it may be pertinent to mention here that the expressions "an appeal is pending" and "the Court" appearing ibid (section 345(5) for all intents and purposes of the law shall also mean the leave petition pending before this Court. Be that as it may, because of the use of word `No', in both the subsections the command of law is in the negative form, thus, the composition of an offence is prohibited lacking (without) the leave of the Court. As per the Black's Law Dictionary (Fifth Edition 801), the noted expression is defined to mean "Permission obtained from a Court to take some action which, without such permission, would not be allowable." Thus, the object requiring leave from the Court as per the clear intention of the legislature is neither meaningless nor purposeless and it cannot be construed that while considering the compromise plea, even of a compromise which is lawfully entered, by free consent of the legal heirs, the Court, should act in a mechanical manner and allow the same as a matter of course or routine; should sit as a silent spectator or to conduct as a post office simpliciter and affix a judicial stamp upon it. Rather it is the duty and the prerogative of the Court to determine the fitness of the case for the endorsement and sanction of the compromise and in appropriate cases, where the compromiser and offender is directly or indirectly beneficiary of the crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of the deceased by the compromiser, through his off spring, who may ultimately benefits himself (the offender) as well, the Court may refuse to give an effect to such a deal, especially coupled with the scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society.” (underlining has been supplied for emphasis) There is no dearth of authority in our country where compounding of offences had been refused by the courts in view of some peculiar features of those cases which fact clearly demonstrates that the ultimate decision whether a compounding of an offence (in serious cases requiring permission or leave of the court as opposed to less Suo Motu Case No. 03 of 2017 25 serious cases involving petty offences not requiring permission of the court for the purpose) is allowed or not lies with the courts and not with the victims or their heirs. The issues highlighted by our learned brother Qazi Faez Isa, J. and mentioned above may be relevant to the concerned court at the time of granting or refusing permission or leave in respect of the proposed composition but after such permission or leave has been granted by the court and the proposed composition is successfully completed the accused person or convict is to be acquitted and such acquittal is to entail all the fruits and effects of a lawful acquittal. This Court has already declared, as referred to above, that an acquittal has no shades and there are no honourable or dishonourable acquittals. 16. It may be appreciated in this context that the law of the land permits compounding of some offences and through the act of compounding the victim or his heirs absolve the accused person or convict of the guilt and if such composition is allowed or permitted by the relevant court, where required, then because of a successful and complete composition the offence itself vanishes leaving no issue about guilt or otherwise alive. An offence is generally against the State and the society at large but the legislature has made some of the offences compoundable which is a recognition that wishes of the victims or their heirs have an important role in prosecution of such offences and adjudication regarding guilt and punishment therein, subject of course to permission or leave of the court for composition where required. In some of the precedent cases referred to above it had categorically been held that once a composition is complete in respect of a compoundable offence not requiring permission of the court the concerned court is divested of its jurisdiction to try the case or the offence. The references made to Black’s Law Dictionary and Concise Oxford Dictionary also amply demonstrate that to compound means to agree not to prosecute a crime, to settle a dispute by concession or special agreement, to condone an offence in exchange for money or any other consideration, to forbear from prosecuting a crime and to come to terms with a person for forgoing a claim, etc. for an Suo Motu Case No. 03 of 2017 26 offence. The decision not to prosecute a person for a compoundable offence allegedly committed by him or the decision to absolve him of his guilt even where it has been judicially determined are decisions which have been given by the legislature in the hands of the victims or their heirs by making the offence compoundable and in cases where permission or leave of a court is required for composition of such offence this spirit of the law is to be kept in view and the requisite permission or leave may ordinarily not be withheld or refused unless the facts and circumstances of the case persuade the relevant court otherwise. Carrying the spirit of composition (forgiveness and reconciliation) forward we may add that grant of the requisite permission or leave by the court in such cases should be a rule and its withholding or refusal an exception. Composition of a compoundable offence is a concession extended by the legislature and also by the religion of Islam to the victims and their heirs and the same may not lightly be taken away or whittled down by the courts. 17. As a result of the discussion made above we declare the legal position as follows: (i) As provided by the provisions of section 338-E(1), PPC and the first proviso to the same and as already declared by this Court in the case of Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695) as a result of a successful and complete compounding of a compoundable offence in a case of Ta’zir under section 345, Cr.P.C., with permission or leave of the relevant court where required, an accused person or convict is to be acquitted by the relevant court which acquittal shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any. (ii) In the context of the provisions of section 345(6), Cr.P.C. the effect of an acquittal recorded by a court on the basis of a Suo Motu Case No. 03 of 2017 27 successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal. (Asif Saeed Khan Khosa) Judge (Ijaz ul Ahsan) Judge (Syed Mansoor Ali Shah) Judge Islamabad June 27, 2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU CASE NO.3 OF 2018 (Dual Nationality of Hon'ble Judges and Officials of Courts and Government Officials) AND CIVIL PETITION NO.53-K OF 2018 (Against the judgment dated 14.12.2017 of the High Court of Sindh, Karachi passed in C.P.S- 1753/2016) AND CIVIL MISCELLANEOUS APPLICATIONS NO.6853 AND 6854 OF 2018 S.M.C.3/2018: Dual Nationality of Hon'ble Judges and Officials of Courts and Government Officials C.P.53-K/2018: Muhammad Ibrahim Shaikh Vs. Government of Pakistan through Secretary M/o Defence etc. In attendance: Mr. Sajid Ilyas Bhatti, Addl. A.G.P. (Assisted by Barrister Minaal Tariq) Mr. Tariq Mehmood Jehangiri, AG Islamabad Mr. Qasim Ali Chohan, Addl.A.G., Punjab Mr. Shehryar Qazi, Addl. A.G., Sindh Mr. Zahid Yousaf Qureshi, Addl. A.G. KPK Mr. Ayaz Swati, Addl. AG, Balochistan Mr. Sajid Ahmed Abr o, Secretary Services, Sindh Mr. Kashif Bara, Dy. Secretary Services, Punjab Mr. M. Bashir Memon, D.G., FIA Dr. M. Rizwan, Director Immigration, FIA Mr. Qaiser Masood, Addl. Dir. Law, FIA (For FIA) Mr. Zulfiqar Ali, D.G. Projects, NADRA Mr. Mujahid Ali Khan, A.D. NADRA Mr. Umar Ali Khan, A.D. NADRA S.M.C. No.3 of 2018 etc. -: 2 :- (For NADRA) On Court’s Notice: Mr. Waqar A. Sheikh, ASC for Dr. Michele Tariq, Health Deptt. Pb. Mr. Faisal Shafait, NUST Mr. Zakir Hussain, NUST Mr. Muhammad Fahim, NUST Dr. M. Yousaf Miraj, Health Deptt. Pb. Dr. Ashma Khan, Health Deptt. Pb. Dr. Naeem Dilawar, Consultant, Labour Deptt. Pb. Dr. Ali Raza Khan, Health Deptt. Pb. Ms. Farzana Akram (Education Deptt. Pb.) Mr. Adnan Mehmood (NAB) Sardar Tariq Farid Gopang, ASC Barrister Talha Alizai, ASC Mr. Tariq Aziz, AOR (For PARCO) Mir Afzal Malik, ASC (For Dr. Jamshed Iqbal, Tahir Aziz Khan, Ms. Nabah Ali) (COMSATS) Mr. Amir Iqbal Basharat, ASC Mr. Zahoor ul Haq Chishti, ASC (For Dr. M. Shafique) Ch. Akhtar Ali, AOR (For Ms. Meena Kharal) Mr. Shahid Khalid, Legal Advisor Raja Abdul Ghafoor, AOR (For HEC) Amicus curiae: Mr. Shahid Hamid, Sr. ASC Mr. Shahzad Ata Elahi, ASC Date of Hearing: 24.9.2018 JUDGMENT MIAN SAQIB NISAR, CJ:- While hearing Civil Petitions No.3334 and 3340 of 2016 pertaining to a service matter, the attention of this Court was drawn to the question of whether or not the petitioners (therein) had secured foreign nationality while they were on deputation; as a consequence vide order dated 17.01.2018 they were required to submit affidavits to the effect that they did not apply for or obtain any foreign nationality. Be that as it may, vide the said order, it was directed as under:- “…Mr. Sajid Ilyas Bhatti, learned DAG shall get in touch with the Secretary Establishment Division who is directed to provide S.M.C. No.3 of 2018 etc. -: 3 :- complete information to this Court by the next date of hearing as to how many civil servants working in BPS-17 and above, both at Federal and Provincial level, have dual nationality. Moreover, the Registrar(s) of the Supreme Court and all the High Courts shall also obtain information from the Hon’ble Judges of the superior Courts and also from the District Courts and to apprise the Court as to how many Judges have dual nationality…” The instant suo motu case arose out of the order ibid (whereas the said petitions were dismissed vide order dated 13.02.2018) and the respective Registrars of the Supreme Court and all the High Courts filed their replies and we took cognizance of the matter regarding dual nationality of all Government employees, both Federal and Provincial, above the rank of BPS-17, including those working in all the Ministries, Divisions, Departments, autonomous and semi-autonomous bodies1, etc. Vide order dated 05.03.2018 we constituted a Committee headed by the Director General, Federal Investigation Agency (FIA) and including the Chairman, National Database Registration Authority (NADRA); Director General, Immigration and Passports; Secretary, Ministry of Interior; Additional Secretary, Establishment Division; and Member (Administration), Federal Board of Revenue (FBR). The Committee worked hard to collect the requisite data and the respective heads of all the concerned Government departments, etc. were also required to submit duly signed and verified affidavits to this Court that the particulars of all the officers (BPS-17 and above) working under their administrative jurisdiction had been provided. An executive summary of the final report is scanned as under:- 1 A list of bodies is provided in the order dated 27.06.2018. S.M.C. No.3 of 2018 etc. -: 4 :- S.M.C. No.3 of 2018 etc. -: 5 :- It transpired that 24 persons working in various Government departments, etc. were foreign nationals; upon issuance of notices some of them appeared and made their submissions (the case to their extent shall be discussed later in this opinion). Be that as it may, the list of such persons is scanned as under:- Mr. Khalid Jawaid Khan, ASC, the then learned Attorney General and Mr. Shahid Hamid, Sr. ASC and Mr. Shahzad Ata Elahi, ASC (the latter two were appointed as amici curiae in this case) assisted this Court on the current legal status of dual nationals or those persons who do not hold Pakistani citizenship or who have spouses who are either dual nationals or foreigners and who are employed in the Federal and/or Provincial service and in autonomous statutory bodies or companies which are governed/owned/controlled by the Federal or Provincial Governments and suggested what further steps may be taken in this regard. Their respective submissions for the sake of brevity shall not be recorded separately, rather shall be reflected in the course of this opinion. S.M.C. No.3 of 2018 etc. -: 6 :- Constitutional provisions on the service of Pakistan 2. Article 27(1) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) provides as a fundamental right with specific references to the service of Pakistan, that:- “No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth:” [Emphasis supplied] Article 260(1) of the Constitution defines “service of Pakistan” as under:- “…any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e- Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney- General, Advocate-General, Parliamentary Secretary, Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly;” The phrase “service of Pakistan” has been elaborately discussed in the judgment reported as Muhammad Mubeen-us-Salam and others Vs. Federation of Pakistan and others (PLD 2006 SC 602). Articles 240 to 242 of the Constitution, contained in Chapter 1 titled “Services”, relate to the appointments of persons to the service of Pakistan, whereas the terms and conditions of such persons are to be determined by the Parliament and the S.M.C. No.3 of 2018 etc. -: 7 :- Provincial Assemblies as appropriate. The said Articles provide for the creation of Public Service Commissions at the Federal and Provincial level. It is important to note that no specific qualification or disqualification has been prescribed in the Constitution regarding the nationality of persons to be appointed to the service of Pakistan. Therefore, there is neither a constitutional requirement for a person in the service of Pakistan to be a citizen of Pakistan, nor a specific constitutional disqualification in this regard. 3. By way of contrast there are specific constitutional qualifications and disqualifications with respect to elected representatives of the National Assembly, Senate and Provincial Assemblies:- “62. Qualifications for membership of Majlis-e-Shoora (Parliament): (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless– (a) he is a citizen of Pakistan; 63. Disqualifications for membership of Majlis-e-Shoora (Parliament): (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if:– (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or 113. Qualifications and disqualifications for membership of Provincial Assembly. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to “National Assembly” were a reference to “Provincial Assembly”.” [Emphasis supplied] With respect to the appointment of Judges of the Supreme Court and High Courts of Pakistan, Articles 177 and 193 provide:- S.M.C. No.3 of 2018 etc. -: 8 :- “177. Appointment of Supreme Court Judges. (2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan… 193. Appointment of High Court Judges. (2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan…” [Emphasis supplied] The Constitution does not require a person in the service of Pakistan to take oath while assuming office. Only members of the armed forces are required to take oath while assuming office. In this regard, Article 244 of the Constitution and the relevant oath contained in the Third Schedule read as under:- “244. Oath of Armed Forces. Every member of the Armed Forces shall make oath in the form set out in the Third Schedule. Third Schedule Oaths of Office Members of the Armed Forces [Article 244] (In the name of Allah, the most Beneficent, the most Merciful.) I, __________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A’meen).” Statutory provisions on the service of Pakistan S.M.C. No.3 of 2018 etc. -: 9 :- 4. We now consider whether there are any other statutory provisions governing the service of Pakistan which provide conditions of citizenship/nationality. Federation of Pakistan 5. The Civil Servants Act, 1973 (Civil Servants Act) does not provide for any citizenship requirements. It is interesting to note that in 2013, the Civil Servants (Amendment) Bill, 2013 was tabled in the Senate in terms of which the following amendment was proposed in Section 9(1) of the Civil Servants Act in the form of a second proviso thereto:- “Provided further that a civil servant holding dual nationality or citizenship of any foreign country shall not be entitled for promotion to posts in Basic Pay Scale 20 or equivalent and above.” But this Bill was not passed by Parliament. Rule 13 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provides that:- “13. A candidate for appointment shall be a citizen of Pakistan: Provided that this requirement may be relaxed with the approval of the Establishment Division: Provided further that, in the case of candidates to be appointed on temporary basis to posts in the Pakistan Missions abroad, such relaxation shall not be accorded for a period of (sic) exceeding one year at a time.” [Emphasis supplied] 6. The Government Servants (Marriage with Foreign Nationals) Rules, 1962 apply to the following persons:- S.M.C. No.3 of 2018 etc. -: 10 :- “1. Short title, application and commencement.—(2) They shall apply to every person who is a member of an All-Pakistan Service or who is serving in a civil capacity in connection with the affairs of the Federal Government, but shall not apply to any person who is employed on contract.” Rule 3 of the said Rules provides as under:- 3. Marriage with Foreign nationals prohibited.–(1) Subject to the provisions of sub-rule (2), a government servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973. (2) A government servant, may with the prior permission of the Federal Government marry or promise to marry a foreign national of any country recognized by Federal Government. (3) The grant of permission under sub-rule (2) shall be at the discretion of the Federal Government, and may be subject to such conditions, if any, as it may specify.” [Emphasis supplied] According to Rule 2(a) of the said Rules, “foreign national” means:- “2. Definitions.– In these rules, unless there is anything repugnant in the subject or context:- (a) “foreign national” means a person who is not a citizen of Pakistan;” [Emphasis supplied] 7. With respect to the armed forces as a general rule, no person who is not a citizen of Pakistan is eligible for employment therein. In this regard, Sections 10, 12 and 10 of the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961, respectively provide as follows:- S.M.C. No.3 of 2018 etc. -: 11 :- “10. Ineligibility of aliens for service in the Army. No person who is not a citizen of Pakistan shall, except with the consent of the Federal Government signified in writing, be granted a commission or warrant or be enrolled in the Pakistan Army. 12. Ineligibility of aliens for enrolment. No person who is not a citizen of Pakistan shall, except with the consent of the Federal Government signified in writing, be granted a commission or a junior commission or be enrolled in the Air Force. 10. Eligibility for employment. No person who is not a citizen of Pakistan shall except with the consent of the Central Government signified in writing, be eligible for appointment or enrolment in the Pakistan Navy.” [Emphasis supplied] The aforesaid three statutes do not contain any provisions prohibiting or even imposing any restrictions on marriage with foreign nationals, as is the case with the other persons in the service of Pakistan (as mentioned above) and the Provinces (as shall be seen below). Province of Punjab 8. With respect to the Province of Punjab, the Punjab Civil Servants Act, 1974 does not provide for any citizenship requirements. However, Rule 19(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 requires that:- “19. (1) No person shall be appointed to a post unless he is a citizen of Pakistan: Provided that this restriction may be relaxed by Government in suitable cases. [Emphasis supplied] S.M.C. No.3 of 2018 etc. -: 12 :- 9. With respect to spouses of civil servants of the Province of Punjab, Rule 19(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provides that:- 19. (2) No person, who has married a foreign national shall be appointed to a post: Provided that this restriction may be relaxed by Government in case of a person who has married a citizen of India or citizen of Bangladesh.” [Emphasis supplied] Furthermore, there are the Punjab Civil Servants (Restriction on Marriages with Foreign Nationals) Rules, 2011 which apply to the following:- “1. Short title, commencement and application,- (3) They shall apply to the civil servants as defined in the Punjab Civil Servants Act 1974 and to such other persons as are regulated by the rules framed under the Act.” Rules 3 and 4 of the said Rules provide that:- “3. Prohibition on marriage with Foreign National.- Save as provided in rule 4, a Government Servant who marries or promises to marry a foreign national shall be guilty of misconduct and shall be liable to any of the major penalties under the Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006 (XII of 2006). 4. Permission to marry a foreign national.- (1) A Government servant may, with the prior permission of the Government, marry or promise to marry a foreign national of any country recognized by the Federal Government for the purpose. S.M.C. No.3 of 2018 etc. -: 13 :- (2) The grant of permission under sub-rule (1) shall be at the sole discretion of the Government and shall be subject to such conditions, if any the Government may specify. (3) The discretion under sub-rule (2) shall be exercised if the circumstances or public interest so warrant and after recording reasons in writing.” [Emphasis supplied] According to Section 2 of the said Rules, “foreign national” means:- “2. Definitions.- In these rules, unless the context otherwise requires, the following expressions shall have the meaning hereby respectively assigned to them, that is to say: (a) “foreign national” means a person who is not a national of Pakistan;” [Emphasis supplied] Province of Sindh 10. With respect to the Province of Sindh, the Sindh Civil Servants Act, 1973 does not provide for any citizenship requirements. However, Rule 13 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provides that:- “13. A candidate for appointment shall be a citizen of Pakistan and a domicile of the Province of Sindh. Provided that this requirement may be relaxed with the approval of the Services and General Administration Department.” [Emphasis supplied] 11. As far as spouses of civil servants of the Sindh Government are concerned, Rule 2 of the Sind Civil Servants (Restriction on Marriage with Foreign Nationals) Rules, 1982 states as under:- S.M.C. No.3 of 2018 etc. -: 14 :- “2. (1) Subject to the provisions of sub-rule (2), a civil servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties specified in the Sind Civil Servants (Efficiency & Discipline) Rules, 1973. (2) A civil servant may, with the prior permission of the government, marry or promise to marry a foreign national of any country recognized by Federal Government. (3) The grant of permission under sub-rule (2) shall be at the discretion of the Government and may be subject to such conditions, if any, as it may specify.” [Emphasis supplied] Province of Khyber Pakhtunkhwa 12. As regards the Province of Khyber Pakhtunkhwa (KPK), as with the Provinces of Punjab and Sindh, the Khyber Pakhtunkhwa Civil Servants Act, 1973 does not contain any provisions relating to citizenship of civil servants of the Government of KPK. Nonetheless, Rule 11(1) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 provides as follows:- “11. Eligibility. (1) A candidate for appointment shall be a citizen of Pakistan and bona fide resident of the Khyber Pakhtunkhwa. Provided that for reasons to be recorded in writing, Government may, in a particular case, relax this restriction.” [Emphasis supplied] S.M.C. No.3 of 2018 etc. -: 15 :- 13. With respect to spouses, the West Pakistan Government Servants (Restrictions on Marriages with Foreign Nationals) Rules, 19632 are germane, Rule 1(3) whereof reads as follows:- “1. Short title, commencement and application:- (3) They shall apply to all Government servants under rule making authority of the Governor of West Pakistan other than the persons employed on contract basis.” Rules 3 and 4 of the said Rules state as under:- 3. Prohibition on marriages with foreign nationals:- Save as provided in rule 4, a Government servant who marries or promises to marry a foreign national shall be guilty of mis- conduct and shall be liable to be removed from service. 4. Permission to marry a citizen of India:- *(1) A Government servant may, with the prior permission of Government marry or promise to marry a person who is a citizen of India. (2) The grant of permission under sub-rule(1) shall be at the sole discretion of Government and shall be subject to such conditions, if any, as may be specified by Government. *Note:- This concession is also extended to the nationals of Bangladesh vide Khyber Pakhtunkhwa Notification No.SORI(S&GAD)4-1/80(Vol.III), dated 21.5.97.” Rule 2(a) of the said Rules defines a “foreign national” as:- “2. Definition:- In these rules, unless the context otherwise requires, the following expression shall have the meanings hereby respectively assigned to them, that is to say- (a) “Foreign national” means a person who is not a national of Pakistan.” 2 Applicable to KPK as per the KPK Estacode. S.M.C. No.3 of 2018 etc. -: 16 :- [Emphasis supplied] Province of Balochistan 14. Finally, adverting to the Province of Balochistan, as with the other Provinces, the Balochistan Civil Servants Act, 1974 does not contain any provisions with respect to the citizenship of civil servants. However, Rule 9 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 states that:- “9. (4) A candidate for appointment shall be the citizen of Pakistan and a domicile/local of the Province of Balochistan.” [Emphasis supplied] Notably however, unlike the corresponding provisions contained in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, there is no provision for relaxation of the foregoing restriction in the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009. 15. As far as spouses are concerned, Rule 1(2) of the Balochistan Government Servants (Marriage with Foreign Nationals) Rules, 2011 provides as under:- “1. Short title, application and commencement.- (2) They shall apply to every person who is a member of a service of Government of Balochistan or who is serving in a civil capacity in connection with the affairs of the Provincial Government, but shall not apply to any person who is employed on contract basis.” Rule 3 of the said Rules states that:- S.M.C. No.3 of 2018 etc. -: 17 :- “3. Marriage with Foreign Nationals prohibited.- (1) Subject to the provisions of sub-rule (2), a Government servant who marries or promises to marry a Foreign National shall be guilty of misconduct and render himself liable to remove (sic) from Service under the Balochistan Employees’ Efficiency and Discipline Act, 2011 or any other law/rules for the time being in force. (2) A Government servant may, with the permission of the Government, marry or promise to marry a Foreign National of any Country recognized by Federal Government. (3) The grant of permission under sub-rule (2) shall be at the discretion of the Government and may be subject to such conditions, if any, as it may prescribe.” [Emphasis supplied] Rule 2(d) of the said Rules defines “foreign national” as:- “2. Definitions.- In these rules, unless there is anything repugnant in the subject or context, (d) “Foreign National” means a person who is not a citizen of Pakistan within the meaning of the Pakistan Citizenship Act 1951 (Act No. II of 1951);” [Emphasis supplied] Law relating to autonomous/semi-autonomous bodies/organizations and companies etc. owned/controlled/governed by the Federal and/or Provincial Governments 16. There does not appear to be any general constitutional requirement or general statutory framework with respect to appointment in, and the terms and conditions of service of, persons employed in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or S.M.C. No.3 of 2018 etc. -: 18 :- Provincial Governments. Such employees would generally not be considered to be in the “service of Pakistan” and therefore would not be governed by the laws and rules discussed above. We are fortified in this view by the Mubeen- us-Salam case (supra). As such, the specific statute, law, rule or constitutive document applicable to each autonomous/semi-autonomous statutory body/organization and company etc. would need to be examined on an individual basis to identify whether there is any qualification or disqualification with reference to the nationality of its officers/employees as well as their spouses. By way of example, Rule 8(b) of the Pakistan WAPDA Common Cadre Administrative Posts Service Rules, 1980 provides that:- “8. Qualifications.- Except as otherwise decided by the Authority, by general or special order:- (a) No person shall be appointed to any post in the Service by initial recruitment, unless he possess (sic) the qualifications and experience prescribed for the post in column 3 of the Appendix to these Rules. (b) No person, not already in the service of the Authority, shall be appointed to a post in the Service unless he has satisfied the appointing authority with regard to his character and antecedents and has furnished a certificate of Pakistani Citizenship from the authority competent to issue such certificates in the appropriate form.” [Emphasis supplied] Law regarding foreign employment of ex-Government servants 17. The provisions of Section 3 of the Ex-Government Servants (Employment with Foreign Governments) (Prohibition) Act, 1966 (Act of 1966) are relevant which read as under:- “3. Prohibition of employment, etc.__(1) No ex-Government servant shall, except with the previous permission in writing of S.M.C. No.3 of 2018 etc. -: 19 :- the Federal Government, or a person or authority authorised by it in this behalf seek or take up employment as an officer or servant of a foreign government or a foreign agency. (2) No ex-Government servant who is, at the commencement of this Act, in the service of a foreign government or a foreign agency shall, except with the permission in writing of the Federal Government, continue in such service after the expiry of three months from such commencement.” “Ex-Government servant” has been defined in Section 2(a) of the Act of 1966 to mean:- “…any person who was, at any time, appointed or employed as an officer or servant of the Federal Government or a Provincial Government and has ceased to be so appointed or employed.” The penalty for contravention of Section 3 of the Act of 1966 is provided in Section 4 thereof which reads as under:- “…imprisonment for a term which may extend to seven years or with fine which may extend to fifty thousand rupees, or with forfeiture of property, or with any two or more of the said punishments.” Laws on citizenship/nationality and dual nationality 18. We shall now advert to the laws pertaining to citizenship and dual nationality. Before proceeding further, the following categorization of the aforementioned persons may prove to be expedient:- i. Dual nationals (Category A); ii. Those who are not Pakistani citizens but may be of Pakistani origin only (Category B); and S.M.C. No.3 of 2018 etc. -: 20 :- iii. Those whose spouses are either dual nationals or foreigners (Category C). Article 260 of the Constitution defines “citizen” as under:- “260. Definitions. (1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say, “citizen” means a citizen of Pakistan as defined by law;” [Emphasis supplied] 19. The Pakistan Citizenship Act, 1961 (Citizenship Act) provides for various types of citizenship including, inter alia, citizenship by birth (Section 4 of the Citizenship Act), by descent (Section 5 of the Citizenship Act), by migration (Section 6 of the Citizenship Act) and by naturalization (Section 9 of the Citizenship Act). However for our purposes, Section 14 of the Citizenship Act is germane which reads as follows:- 14. Dual citizenship or nationality not permitted.— (1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan. (IA) Nothing in sub-section (1) applies to a person who has not attained twenty-one years of his age: (2) Nothing in sub-section (1) shall apply to any person who is a subject of an Acceding State so far as concerns his being a subject of that State. (3) Nothing in sub-section (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being, or having at any time been, a citizen of Pakistan, is also S.M.C. No.3 of 2018 etc. -: 21 :- the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf. (4) Nothing in sub-section (1) shall apply to a female citizen of Pakistan who is married to a person who is not a citizen of Pakistan. [Emphasis supplied] Upon a plain reading of Section 14(1) ibid, it is clearly beyond any doubt that as a general rule, a Pakistani citizen who is also a citizen/national of any other country shall lose his Pakistani citizenship unless he renounces his citizenship/nationality of the other country. However, there are certain exceptions to this general rule where the said provision shall not apply to a person who:- i. Has not attained the age of 21 years [Section 14(1A) ibid]; ii. Is not a subject of an Acceding State so far as concerns his being a subject of that State [Section 14(2) ibid]; iii. Being or having at any time been, a citizen of Pakistan, is also a citizen of the United Kingdom (UK) and Colonies, or of such other country as the Federal Government may, by notification in the Official Gazette, specify in this behalf [Section 14(3) ibid]; and iv. Is a female citizen of Pakistan who is married to a person who is not a citizen of Pakistan [Section 14(4) ibid]. In addition to the UK, which is specifically mentioned in Section 14(3) of the Citizenship Act, the Government of Pakistan has specified 18 other countries in terms of Section 14(3) ibid such that on acquisition of citizenship of these countries a Pakistani citizen does not automatically lose his Pakistani nationality as per Section 14(1) ibid. The list of countries3, including the UK, is as under:- i. UK; 3 Obtained from the website of the Directorate General of Immigration and Passports, Ministry of Interior. S.M.C. No.3 of 2018 etc. -: 22 :- ii. France; iii. Italy; iv. Belgium; v. Iceland; vi. Australia; vii. New Zealand; viii. Canada; ix. Finland; x. Egypt; xi. Jordan; xii. Syria; xiii. Switzerland; xiv. Netherlands; xv. United States of America; xvi. Sweden; xvii. Ireland; xviii. Bahrain: and xix. Denmark. In other words, a Pakistani citizen who acquires the citizenship of a country other than the 19 countries (including the UK) falling under Section 14(3) ibid mentioned above, shall cease to be a Pakistani citizen unless he renounces his other nationality, by making a declaration according to the law of that country. However, it is clear that Pakistani citizens have the right to hold dual nationality, as has been held in the concurring note of Justice Jawwad S. Khawaja (as he was then) in the judgment reported as Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan (PLD 2012 SC 1089):- “We may clarify that section 14(1) of the Citizenship Act, 1951, confers upon Pakistani citizens the right to hold the citizenship of certain other countries without having to forego their Pakistani citizenship. The right, therefore, of Pakistani citizens to hold dual citizenship, as per law, remains very much a statutory right vested in them.” 20. It is pertinent to note that there are no guidelines in respect of the discretion available to the Federal Government under Section 14(3) of the S.M.C. No.3 of 2018 etc. -: 23 :- Citizenship Act. The statute does not provide the grounds for exercising the executive power of specifying as to which countries Section 14(1) of the Citizenship Act would not apply. This was broadly the argument made by the learned amici curiae in the judgment of the learned Lahore High Court reported as Umar Ahmad Ghumman Vs. Government of Pakistan and others (PLD 2002 Lahore 521). Regardless of the fact that in the intra- Court appeal filed against the cited judgment the learned Division Bench seized thereof dismissed the writ petition as having been withdrawn, we are unable to subscribe to the view set out in the judgment passed in the writ petition in Umar Ahmad Ghumman’s case (supra) that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit dual nationality. This interpretation of linking Pakistani citizenship with reference to the law of another country cannot prevail keeping in mind the spirit and intent of Section 14 supra which is clear from a plain reading thereof. However, we are of the opinion that the unqualified power vested with the Government is inconceivable in the democratic government prevailing in Pakistan under the Constitution. Discretion ought to be guided and qualified in order to meet the requirements of sound administrative policy. Therefore while all the orders passed and notifications issued till date are kept intact and are valid for all intents and purposes, the Federal Government shall formulate the guidelines and parameters for the exercise of power under Section 14(3) supra. 21. At the cost of repetition, persons in Category A are essentially citizens of Pakistan who are additionally also citizens of any of the 19 countries mentioned above. There is no restriction in the Constitution on persons in Category A from being employed in the service of Pakistan. Furthermore, since persons in Category A are Pakistani citizens, they fulfil the requirements for employment as Federal and Provincial civil servants under the applicable rules as well as enrolment in the Army, Air Force and S.M.C. No.3 of 2018 etc. -: 24 :- Navy under the applicable Acts, as discussed in detail above. There also does not appear to be any general prohibition on persons in Category A being employed by or in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments. Certain restrictions could however exist in the specific statute, law, rule or constitutive document applicable to each body which would have to be examined on a case-to-case basis. Laws pertaining to foreigners (Pakistani and non-Pakistani origin) 22. Section 2(a) of the Foreigners Act, 1946 (Foreigners Act) defines a foreigner as “a person who is not a citizen of Pakistan”. Foreigners have been granted certain benefits and some restrictions have also been imposed on them through various laws and rules, etc. Section 10 of the Foreigners Order, 1951 (Foreigners Order) promulgated under the Foreigners Act imposes certain restrictions on foreigners vis-à-vis employment and reads as follows:- “10. Restrictions on employment. No foreigner shall without the general or special permission in writing of the civil authority, enter any premises relating to, or be employed in, or in connection with- (1) Any undertaking for the supply to Government or to the public of light, petroleum, powers or water, or- (2) Any other undertaking which may be specified by the Central Government in this behalf.” [Emphasis supplied] According to the Ministry of Interior, it has not exercised its power under Section 10(2) of the Foreigners Order, as is evident from its letter dated 31.07.2018 which is scanned as under:- S.M.C. No.3 of 2018 etc. -: 25 :- Certain restrictions have also been placed on the acquisition of land or landed property in Pakistan by foreigners vide Order dated 09.09.1984 [No. 18/153/84-Poll.E(II)] issued by the Ministry of Interior under Section 3 of the Foreigners Act, 1946 which basically provides that no foreigner shall, directly or indirectly, acquire any land or any interest in land, without the previous written permission of the Federal or Provincial Government. Section 3(d) of the Registration of Foreigners (Exemption) Order, 1966 exempts foreigners in the service of the Federal or Provincial Government (and his wife and children) from some of the requirements of the Registration of Foreigners Rules, 1966. 23. Within the category of foreigners fall those persons who are not Pakistani citizens but are of Pakistani origin only. Pursuant to the provisions of Section 11 of the National Database and Registration Authority Ordinance, 2000 (Ordinance of 2000) read with the National Database and S.M.C. No.3 of 2018 etc. -: 26 :- Registration Authority (Pakistan Origin Card) Rules, 2002 (POC Rules), certain eligible foreigners of Pakistani origin and their eligible family members may obtain a Pakistan Origin Card (POC) on fulfillment of certain qualifications and requirements described in detail in Rules 2(d), 2(e), 3, 4 and 5 of the POC Rules. Rule 17 of the POC Rules confers certain benefits on POC holders, which (Rule) reads as under:- “17. Benefits for holder of card.- (1) During the validity of a card and without prejudice to any other rights, benefits, privileges or capacities enjoyed by, or available to, the holder of card, every holder of card validly issued to him under these rules- (a) may enter into Pakistan without a visa from such port or place, by such route and in accordance with such conditions, if any, as are prescribed for citizens of Pakistan under section 13 of the Passports Act, 1974 (XX of 1974); (b) shall have permission to stay in Pakistan till the validity of the card; (c) shall, during his stay in Pakistan, be exempt as a foreigner from reporting to or registering with, any law enforcing or other governmental agency to whom or with which such report or registration in the capacity of a foreigner is otherwise required under any law in force in Pakistan; (d) may open bank accounts anywhere in Pakistan and transact business therein subject to fulfilment of the requirements of any other law for the time being in force; (e) may, subject to any other law for the time being in force, enter into transactions of purchase and sale of moveable or immoveable property anywhere in Pakistan and deal with and dispose of such property; and S.M.C. No.3 of 2018 etc. -: 27 :- (f) may use the card for establishing and proving his identity anywhere in Pakistan where a National Identity Card is required for the purpose. (2) The Authority may arrange for other lawful benefits, rights and privileges for holders of card, as it may deem fit, in association with governmental and private organizations or entities in order to incentivize their registration.” [Emphasis supplied] 24. As examined in the earlier portion of this opinion, the Government has not exercised its power under Section 10(2) of the Foreigners Order to invoke the prohibition on employment in any undertaking of the Government. Accordingly, at present the concession applies to Federal and Provincial civil servants or persons who are in Category B being employed as Federal or Provincial civil servants. However, in the discussion that follows in paragraph No.27 below, such restriction may nevertheless be presumed of foreigners and persons in Category B by virtue of the rules framed under the respective Federal and Provincial Acts. 25. Furthermore, while there is no prohibition in the Constitution on persons in Category B enrolling in the Pakistan Armed Forces, however, by virtue of the respective Acts governing the Pakistan Armed Forces, persons in Category B shall not, except with the permission of the Federal Government, enroll in the Army, Air Force or Navy. Additionally, any person enrolled in the Armed Forces shall be required to take an oath as specified in Article 244 read with the Third Schedule of the Constitution (see paragraph No.3 of this opinion). 26. There does not appear to be any general prohibition on persons in Category B being employed by or in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments. Restrictions may apply generally to certain kinds of employment, irrespective S.M.C. No.3 of 2018 etc. -: 28 :- of legal status/ownership/control of the employer (e.g. by virtue of Section 10 of the Foreigners Order as discussed above). Certain restrictions could exist in the specific statute, law, rule or constitutive document applicable to each body which would have to be examined on a case-to-case basis. 27. We find it pertinent to mention that the views set out in paragraphs No.24 to 26 hereinabove are subject to the following discussion. Generally speaking, a person who is not a Pakistani citizen and is only of Pakistani origin is by definition a foreigner and thus would be subject to the same benefits, restrictions and limitations in Pakistan as a foreigner of non- Pakistani origin. However, a foreigner of Pakistani origin is eligible to obtain a POC and thereafter enjoy certain rights/benefits specified in paragraph No.23 above. At this juncture we find it appropriate to consider an ancillary issue which potentially has far-reaching practical implications. A bare perusal of the Foreigners Act and the Foreigners Order suggests that the appropriate Government is given the power to invoke the general bar contained in Section 10(1) of the Foreigners Order upon the employment of foreigners in Pakistan. This only restriction on the employment of foreigners in Pakistan is contained in Section 10 of the Foreigners Order as mentioned in paragraph No.22 above. The effect of Section 10 ibid which is the law governing foreigners, regardless of their origin, is that they are, unless the appropriate Government specifies their employer to be subject to the statutory restriction and/or for which permission is required. However, it appears that Rule 17 of the POC Rules read with Section 10 of the Foreigners Order specifies only six “permissions” as mentioned in parts (a) to (f) of sub-Rule (1) of Rule 17 ibid to have been conferred upon POC holders. These do not include the right to employment in Pakistan (generally, and not specifically with respect to government service). The statutory prohibition under Section 10 of the Foreigners Order accordingly triggers into effect to restrict the privileges excluded in Rule 17 ibid. Thus in effect, Rule 17(1)(a) to (f) of the POC Rules places a restriction on POC holders with respect to employment S.M.C. No.3 of 2018 etc. -: 29 :- in Pakistan that would not have otherwise been imposed on them had they not applied for a POC and remained as a foreigner of non-Pakistani origin allowed. This appears to be an anomaly whereby foreigners of Pakistani origin are not entitled to work in Pakistan by virtue of their POC whereas foreigners of non-Pakistani origin are (subject to, of course, work permit requirements). The foregoing interpretation of the law as it stands at present would mean that foreigners of Pakistani origin are not allowed to hold any sort of employment in Pakistan by virtue of their POC. We find the said legal position to be illogical, absurd and inherently inconsistent. Therefore we hereby place a beneficial construction on Rule 17(1) supra by holding that the general permission of working in Pakistan that foreigners have (subject to work permit requirements) is retained by those foreigners of Pakistani origin who hold POCs by virtue of the saving clause in the opening portion of Rule 17(1) ibid which provides that the holders of such cards would be entitled to the additional benefits provided therein “without prejudice to any other rights, benefits, privileges or capacities enjoyed by, or available to, the holder of card.” Thus it is categorically held that holders of POCs are allowed to work in Pakistan just as are any other foreigners (i.e. not entitled to POCs) as defined under the law. 28. Be that as it may, this perhaps explains the list of 24 persons working in various Government departments, etc. submitted by the Committee constituted by this Court, who are considered to be foreign nationals. The foreign nationalities they hold are of countries which are not in the list of 19 countries of which dual nationality is allowed. It appears that the said persons have been able to secure employment on the basis of an identity card number issued to them by NADRA and printed on their POC. Furthermore, it has come to this Court’s notice that the relevant Pakistani authorities, including the Board of Investment (BOI), do not issue work permits to POC holders for the very same reason that they (the authorities) are under the impression that such persons are legally entitled to work in Pakistan. This practice was exemplified by Dr. Faisal Shafait, a foreign S.M.C. No.3 of 2018 etc. -: 30 :- national (at Serial No.10 in the list of 24 government officers with foreign nationality), who stated in Court that he personally approached BOI for the issuance of a work visa but his request was turned down on the ground that the BOI had never processed work visas for POC holders as according to them POC holders do not require a work visa and can legally work in Pakistan without the same. It seems that all the public and private organizations, and the general public for that matter, have been oblivious of the true legal position and hence have been employing POC holders and refusing to grant them work permits. Therefore the relevant authorities, including the Ministry of Interior, the Directorate General of Passports and Immigration, NADRA and BOI are directed to review their existing practice and procedures in light of the foregoing position and to facilitate the issuance of visa/work permits to all those POC holders who require the same. As this would affect all the POC holders who are currently working in Pakistan without a visa/work permit, such persons should apply for the same and the Ministry of Interior is directed to decide the applications in accordance with law within a period of two months, after which the law shall take its own course. Alternatively, the Federal Government may in conjunction with NADRA consider amending Rule 17(1) of the POC Rules to reflect the correct position of the law allowing POC holders to work in Pakistan by virtue of their POC divesting them of any requirement to separately apply for a work visa/permit as foreigners of non- Pakistani origin are required to. The Federal Government is required to take a final decision in this regard within one month from the issuance of this order and till such decision is reached, the status quo shall be maintained. 29. There are two more issues pertaining to POC holders. The first is whether Rule 17(1) of the POC Rules is valid as it provides certain substantive rights mentioned above which generally ought to be contained in the statute and not in the rules. The POC Rules have been framed “[i]n exercise of the powers conferred by section 44 of the National Database and Registration Authority Ordinance, 2000 (VIII of 2000), read with clause (b) of sub-section (4) of section 5, S.M.C. No.3 of 2018 etc. -: 31 :- section 8, section 11 and sub-section (3) of section 17 thereof…” which (provisions) read as under:- “44. Power to make rules.- The Federal Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Ordinance: Provided that… 5. Purpose, objects, functions and power of the Authority.- (4) In particular and without prejudice to the generality of the foregoing powers and functions, the Authority– (b) may issue or renew, or cause to be issued or renewed, to any prescribed class or class of persons, including citizens, foreigners and emigrants, or to any prescribed class or classes of things, who have got themselves, or who or which have been, registered in the prescribed manner issued cards in the prescribed form and manner and on such criteria and for such period of validity thereof on such terms and conditions as may be prescribed and may receive applications therefor (sic) in the prescribed form; 8. Registration of persons, etc.- (1) The Federal Government may by rules provide for the registration of different persons or classes thereof wherever they may be including citizens, foreigners and emigrants, and for different things or classes thereof whatever they may be and along therewith provide for the method of such registration, manner and form of applications to be made therefor (sic), fee or other sum to be charged therefor (sic). (2) Notwithstanding anything contained in any other law for the time being in force the Federal Government may, by rules, for the purpose of incentivizing registration of a particular class of persons under this Ordinance, provide for any right, interest, privilege, benefit, reward or other advantage, tangible or intangible, available under Pakistan Law, to be extended to, or made available to or withdrawn from such class of persons required to be registered under this Ordinance and such right, S.M.C. No.3 of 2018 etc. -: 32 :- interest, privilege, benefit reward or other advantage shall accordingly become extended, or available to or withdrawn from, as the case may be, to such class of persons. 11. Pakistan Origin Cards.- The authority shall issue or renew, or cause to be issued or renewed, in the prescribed manner and on prescribed criteria, terms and conditions, cards to such prescribed class of foreigners and such prescribed class of citizens with dual nationality who have got themselves registered in the prescribed manner, in such form and with such periods of validity thereof upon payment of such fee in such form and manner as may be prescribed, to be called Pakistan Origin Cards and receive applications for registration therefor (sic) in the prescribed form. 17. Surrender of cards.- (3) The Authority shall issue such receipt in relation to the card or certificate surrendered under this section in such form and manner and containing such information relating to the person whose card or certificate has been surrendered as may be prescribed.” [Emphasis supplied] The words “rules” and “prescribe” have been defined in the Ordinance of 2000 as follows:- “2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context,– (n) “prescribed” means prescribed by rules; (r) “rules” means rules made under this Ordinance;” [Emphasis supplied] The aforementioned provisions of the Ordinance of 2000, in particular Section 8(2) thereof, authorize the Federal Government to frame rules to provide such class of persons required to be registered under the said Ordinance, in this case eligible foreigners of Pakistani origin or eligible family members, with any right, interest, privilege, benefit, reward or other advantage (tangible or intangible) available under Pakistan Law. Therefore the S.M.C. No.3 of 2018 etc. -: 33 :- framing of the POC Rules including Rule 17(1) thereof conferring substantive rights onto certain persons was a valid exercise of power by the Federal Government. 30. The second issue is with respect to Section 11 of the Ordinance of 2000 itself which authorizes NADRA to issue (or renew) POCs to “such prescribed class of foreigners and such prescribed class of citizens with dual nationality who have got themselves registered in the prescribed manner…” The vague aspect is the issuance of POCs to citizens with dual nationality as per Section 11 ibid. As held in this opinion, dual nationals are, for all intents and purposes, citizens of Pakistan according to the Citizenship Act. This legal position is also evident from the fact that dual nationals are issued National Identity Cards for Overseas Pakistanis (NICOP) which are identical to the regular National Identity Cards (NIC) issued to those who hold only Pakistani citizenship. The legal framework of the Ordinance of 2000 in this regard is as under:- “10. National Identity Cards.—(1) The Authority shall issue or renew, or cause to be issued or renewed, in such manner and on terms and conditions, subject to every citizen who has attained the age of eighteen years and got himself registered under section 9, a card to be called National Identity Card in such form, with such period of validity upon payment of such fee in such form and manner as may be prescribed: ⋮ 19. Cards necessary for certain purposes.—(1) No citizen who has attained the age of eighteen years but does not possess or produce a National Identity Card shall be granted a passport, permit or other travel document for going out of Pakistan. (2) Any officer charged with the duty of conducting the poll at an election to the National Assembly or a Provincial Assembly or to a Municipal Committee, Cantonment Board or other local authority or body may, S.M.C. No.3 of 2018 etc. -: 34 :- for the purpose of satisfying himself as to the identity of any person, require such person to produce his National Identity Card. (3) The Federal Government may, by notification in the Official Gazette, specify any other purpose for which the production of any card or certificate or receipt issued under this Ordinance shall be necessary. (4) A card including a National Identity Card, issued to a person under this Ordinance shall be proof of his identity as could be established from the contents of such card for any purpose for which his identity is required to be established.” The relevant provisions of the National Database and Registration Authority (National Identity Card) Rules, 2002 (NIC Rules) are reproduced below:- “5. Registration.- All citizens shall get themselves registered with the Authority in accordance with section 9 of the Ordinance under these rules and the regulations. 2. Definitions.- (1)(d) “citizen” means, for the purposes of these rules, a citizen of Pakistan who has attained the age of eighteen years and includes both a resident and a non-resident citizen; 2. Definitions.- (1)(q) “resident citizen” means a resident citizen under rule 3; 3. Resident citizen.- A citizen shall be a resident citizen if he is not a non-resident citizen. 2. Definitions.- (1)(j) “non-resident citizen” means a non- resident citizen specified in rule 4; 4. Non-resident citizen.- (1) A citizen shall be a non-resident citizen if he,– (a) is an emigrant or intending emigrant; (b) is, or is intending to be, resident abroad; S.M.C. No.3 of 2018 etc. -: 35 :- (c) holds nationality or citizenship of any other country or state pursuant to sub-section (3) of section 14 of the Pakistan Citizenship Act, 1951 (II of 1951); or (d) holds an emigrant or resident visa, permanent or otherwise, or equivalent authorization, permit or status, as the case may be, of a foreign state or country. ⋮ 15. Benefits.- (1) Without prejudice to any other rights, benefits, privileges or capacities enjoyed by or available to a non-resident citizen specified in clause (c) of sub-rule (1) of rule 4 who simultaneously holds the nationality or citizenship of any other country or state together with his Pakistani citizenship, such non-resident citizen shall, upon issuance of the card to him in the form set out in Schedule II and during the period of validity of his said card, have the right to enter into Pakistan without a visa from such port or place, by such rout (sic) and in accordance with such conditions, if any, as are prescribed pursuant to section 13 of the Passport Act, 1974 (XX of 1974). (2) A card validly issued to a non-resident citizen in the form given in Schedule II shall be the conclusive proof of his being a citizen of Pakistan for the purposes of availing protection of the Government of Pakistan in any foreign country or state as a Pakistani citizen. The Federal Government shall recognize, afford and ensure full protection as citizens of Pakistan available under the law to all card holders abroad. (3) The Authority may arrange for and make available other lawful benefits, rights and privileges for holders of the card, as it may deem fit, in association with governmental, private organizations or entities in order to incentivize registration of the citizens under these rules.” [Emphasis supplied] According to the foregoing provisions, all citizens of Pakistan, resident or non-resident (the latter including dual nationals under Section 14(3) of the Citizenship Act) are S.M.C. No.3 of 2018 etc. -: 36 :- to be issued NICs and holders of such cards are to enjoy the same rights, privileges and benefits, etc. being citizens of Pakistan, with dual nationals enjoying the extra benefit of visa-free entry into Pakistan as per Rule 15 of the NIC Rules. Thus the mere mention of the phrase “such prescribed class of citizens with dual nationality” in Section 11 supra has created an anomaly. This anomalous position has also been candidly conceded by the NADRA officials who stated that an error had occurred when the Ordinance of 2000 was being drafted which had been overlooked and went unnoticed till such time as the NIC Rules and the POC Rules were framed and the system of issuing NICs and POCs was put in place once NADRA was set up and became functional. In light of the above, we find that the Federal Government should reconsider Section 11 of the Ordinance in light of the observations made above to remove the contradictions arising therefrom in the NADRA laws. 31. In light of the above discussion, we now examine the position of the 24 government officers with foreign nationality. We have held that under the existing law such foreigners, albeit of Pakistani origin, are not allowed to become civil servants by virtue of the rules framed under the respective Federal and Provincial Acts, and similarly may not enroll in the Armed Forces by virtue of the respective Acts governing the Pakistan Armed Forces (save, in both cases, where permission has been granted by the competent authority where applicable); however there does not appear to be any general prohibition on such persons being employed by or in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments, save for the restrictions contained in Section 10 of the Foreigners Order, 1951. In the absence of any specific restrictions in the specific statute, law, rule or constitutive document applicable to each body, such persons are theoretically entitled to work therein under the existing legal framework, until of course it is reconsidered by the Government (should that be the case). However since the legal position with respect to employment of POC holders S.M.C. No.3 of 2018 etc. -: 37 :- was unclear till date with the relevant authorities refusing to issue work visas to such persons, it is hereby held (as we had done in paragraph No.28) that should the Federal Government decide not to make the relevant amendments to Rule 17(1) of the POC Rules, they should apply for work visas and the concerned authority is directed to decide such applications in accordance with law within a period of two months, after which the law shall take its own course. However till the Federal Government takes a decision within one month either way, the status quo shall be maintained. It is worthy to note that at least two of the persons in the list, namely Dr. M. Yousaf Mairaj and Dr. M. Numan at Serials No.14 and 15 respectively, have stated that they do not hold Malaysian nationality as stated in the list, rather are Pakistani citizens but only hold Malaysian permanent residency. Be that as it may, they, along with any other person whose name has appeared incorrectly in the list as they hold Pakistani citizenship, are not required to apply for the work permit as mentioned above. Persons whose spouses have a nationality other than that of Pakistan 32. This category needs to be divided into two sub-categories:- i. Persons whose spouses are dual nationals, i.e. the spouses are citizens of Pakistan and also citizens of any of the 19 countries with which Pakistan has arrangements for dual nationality (Category C1); ii. Persons whose spouses are foreigners (of Pakistani or non-Pakistani origin), i.e. not citizens of Pakistan (Category C2). There does not appear to be any restriction on or qualification of persons in Category C1 in terms of their employment as a Federal or Provincial civil servant or enrolment in the Army, Air Force or Navy. Since their spouses are citizens of Pakistan, they will not be considered to be “foreign nationals” within the meaning of the rules specified in paragraphs No.6, 9, 11, 13 and 15 above. S.M.C. No.3 of 2018 etc. -: 38 :- 33. For persons in Category C2, the following restrictions appear to be applicable in terms of their employment as a Federal or Provincial civil servant:- i. For the Federation, a government servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973, unless prior permission of the Federal Government has been sought to marry or promise to marry a foreign national of any country recognized by Federal Government; ii. For Punjab, no person, who has married a foreign national shall be appointed to a post unless this restriction has been relaxed by the Provincial Government in case of a person who has married a citizen of India or Bangladesh; furthermore, a government servant who marries or promises to marry a foreign national shall be guilty of misconduct and shall be liable to any of the major penalties under the Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006 (XII of 2006) unless prior permission of the Government is sought to marry or promise to marry a foreign national of any country recognized by the Federal Government for the purpose; iii. For Sindh, a civil servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties specified in the Sind Civil Servants (Efficiency & Discipline) Rules, 1973, unless prior permission of the Provincial Government is sought to marry or promise to marry a foreign national of any country recognized by Federal Government; iv. For KPK, a government servant may, with the prior permission of Government marry or promise to marry a person who is a citizen of India or Bangladesh; v. For Balochistan, a Government servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to removal from Service under the Balochistan Employees’ Efficiency and Discipline Act, 2011 or S.M.C. No.3 of 2018 etc. -: 39 :- any other law/rules for the time being in force, unless prior permission of the Provincial Government is sought to marry or promise to marry a foreign national of any Country recognized by Federal Government. There does not appear to be any restriction on persons either in Category C1 or C2 who are enrolled in the Army, Air Force or Navy. However if there are any internal notifications, office memorandums of SOPs issued by the competent authority providing for certain restrictions in this regard then they shall be accordingly applicable. 34. While considering the POC Rules with respect to spouses of Pakistani citizens/foreigners of Pakistani origin, an ancillary matter came to this Court’s attention. According to Rule 4(5) of the POC Rules as originally promulgated, foreign spouses were allowed to be issued POCs. The said Rule read as under:- “4. Eligible foreigner of Pakistan origin.- (5) A foreigner who is married to a citizen of Pakistan shall, till the time he or she remains married to such citizen, also be an eligible foreigner of Pakistan origin: Provided that in case the citizen of Pakistan to whom such foreigner is married dies during the subsistence of their marriage, such foreigner shall continue to be an eligible foreigner of Pakistan origin till the time he or she contracts a second marriage: Provided further that such foreigner married to a citizen of Pakistan is- (i) not a citizen or national of India; (ii) not a citizen or national of a state or country not recognized by Pakistan; and (iii) not a citizen of any enemy country: Provided also that the Federal Government may, in special extraordinary circumstances and upon an application S.M.C. No.3 of 2018 etc. -: 40 :- made in this behalf by the concerned person, allow a foreigner married to a citizen of Pakistan not otherwise eligible under the second proviso, to be registered for an issued a card as an eligible foreigner of Pakistan origin and such person shall, upon issuance of the card and till the expiry or early termination of validity thereof for a reason other than such person’s ineligibility cured under this proviso, be treated as an eligible foreigner of Pakistan origin for all purposes under these rules.” However, the said rule was amended vide notification No.4/2/2012-NADRA dated 30.12.2015 according to which issuance of POCs to foreign spouses of Pakistani citizens was discontinued. Thereafter, considering the immense difficulties faced by foreign spouses of Pakistani citizens, the Ministry of Interior forwarded a summary for the Cabinet dated 20.02.2018 recommending therein (in paragraph No.5) withdrawal of the aforementioned notification along with restoration of the corresponding rule(s). The Cabinet vide its decision considered the aforesaid summary and approved the proposal contained in paragraph No.5 thereof, resultantly the said notification was withdrawn, and the rules were restored to their previous position. Despite this, the Ministry of Interior vide letter No.4/2/2012- NADRA dated 08.03.2018 introduced the eligibility condition of five years of marriage in violation of the approval of the Federal Government (Cabinet) which had stipulated that the rules had been restored to the previous position as mentioned above. Since the power to make rules lies only with the Federal Government as per Section 44 of the NADRA Ordinance, the introduction of the condition of five years marriage by the Ministry of Interior is ultra vires, and therefore hereby set aside. Armed forces 35. As far as the armed forces (military, naval and air forces and their allied departments) are concerned, according to the Secretary, Ministry of Defense, S.M.C. No.3 of 2018 etc. -: 41 :- recruitment of dual nationals is not permitted therein for which there exist relevant instructions/policies of the Army, Air Force and Navy; any dual nationals are required to surrender their foreign nationality prior to enrolment for induction in the armed forces of Pakistan. According to him, this position is reflected in the advertisements for recruitment and presently, there are no dual nationals recruited in such forces. However, as directed vide order dated 01.08.2018, the Secretary, Ministry of Defense, is required to continue the exercise to ascertain whether any dual nationals have been recruited in the armed forces on the basis of misdeclaration, concealment or non-disclosure and requisite action be taken in accordance with law by the concerned authority. 36. With respect to General (R) Raheel Sharif, documents were filed showing No Objection Certificates (NOC) from the General Headquarters (GHQ) and the Ministry of Defence, but according to Section 3 of the Act of 1966, it is in fact the Federal Government (or a person or authority authorized by it in this behalf) which can grant permission to an ex-Government servant to seek or take up employment as an officer or servant of a foreign government or a foreign agency; and according to the law laid down by this Court in the judgment reported as Messrs Mustafa Impex, Karachi and others Vs. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808) the Federal Government means the Cabinet and the said judgment was in the field when the NOCs were granted. Vide order dated 07.08.2018, the learned Attorney General for Pakistan and the Additional Secretary, Ministry of Defense were granted time to look into the matter and apply to the Federal Government for an ex-post facto NOC/permission. Let the Secretary, Ministry of Defense file a report in this regard within one month from the issuance of this judgment and in case the requisite NOC is not granted by the Federal Government within such time, the foreign employment of General (R) Raheel Sharif shall cease with immediate effect. S.M.C. No.3 of 2018 etc. -: 42 :- 37. As regards Lt. General (R) Ahmad Shuja Pasha, he has filed a duly signed certificate dated 25.09.2018 which is scanned as under:- Dual nationality and the issue of divided loyalty 38. Contrary to what many may think, the purpose of this opinion was not to cast any sort of reservation, skepticism or mistrust against dual nationals or foreigners of Pakistani origin. The importance of the overseas Pakistani community cannot be overstated. In Syed Mehmood Akhtar Naqvi’s case4 (supra), Justice Jawwad S. Khawaja (as he was then) mentioned in his concurring note that:- “4. In fact, on numerous occasions in the recent past, this Court has expressed the national sentiment of gratitude for our expatriates, estimated to be in the range of 7 to 8 million in number. Most of them, particularly those working in Middle Eastern countries do not hold dual citizenship. These sons and daughters of Pakistan toil in foreign lands, away from their hearths, homes and loved ones and, in the process, provide an economic lifeline to Pakistan in these critical times. In the last financial year, these overseas Pakistanis remitted more than US$ 13 billion in hard cash, to bolster the economy of the country. This figure is slated to increase in the current financial year. Yet, at times, these hardworking and patriotic Pakistani 4 PLD 2012 SC 1089. S.M.C. No.3 of 2018 etc. -: 43 :- expatriates receive short shrift and humiliating treatment from government agencies such as the Immigration and other services, Civil Aviation Authority (CAA) and the Overseas Pakistanis Foundation (OPF), when they return to Pakistan after months or even years away from home. This Court has taken suo moto notice (HRC No. 24770-G/2011) of the maltreatment which overseas Pakistanis receive at the hands of such authorities.” In the judgment reported as Ch. Nasir Iqbal and others Vs. Federation of Pakistan thr. Secy. Law and others (PLD 2014 SC 72) in which the Supreme Court held that the right to vote of overseas Pakistanis was a fundamental right guaranteed by the Constitution, it was observed that:- “…the Pakistani citizens living abroad earn money by working there and then send the same in the shape of foreign remittances to the country. In this manner, they contribute to the welfare of the state, well-being of the citizens and good governance of the country by providing financial support through their families living inside Pakistan.” The practical implementation of the right to vote of overseas Pakistanis was ensured recently vide order dated 17.08.2018 passed in Dr. Farhat Javed Siddique etc. Vs. Government of Pakistan etc. (Const. P. No.74/2015 etc.). 39. The foregoing is a clear indication of the fact that this Court has always held the interests of overseas Pakistanis in the highest esteem. We acknowledge the services rendered by the overseas community which is not only providing the much needed foreign remittances that contribute to the economy of Pakistan, but immense support by representing Pakistan before various international bodies and organizations. The overseas Pakistani community comprises of professionals including doctors, engineers, solicitors, accountants, etc. who have contributed vastly in their respective S.M.C. No.3 of 2018 etc. -: 44 :- professions while gaining respect and credibility for their motherland, Pakistan. We would like to bring it on the record that the nation is proud of its overseas community. With this background in mind, we would like to emphasize that the instant matter in which information was sought about dual nationals holding important posts in the Government is not directed against those patriotic overseas Pakistanis, rather it was an exercise prompted by the acts of those Pakistani government officials who acquired nationalities of other countries during their tenure without disclosing the same to the Government, and have transferred the proceeds of their corruption abroad, and also relocated their families and themselves post- retirement while continuing to draw pension (themselves and their family members after their death) from the national exchequer. It is such people who have undermined the value of the bona fide overseas Pakistanis. It is clarified that the genuine overseas Pakistanis and their families and children are real assets of Pakistan and are more than welcome, rather we encourage them, to return to Pakistan to work in the public and private sectors to contribute as per their choice and experience. 40. Be that as it may, there can be no two opinions that the issue of dual nationality does raise potential concerns regarding loyalty. At this point it would be relevant to consider Article 5 of the Constitution which reads as under:- “Loyalty to State and obedience to Constitution and law 5. (1) Loyalty to the State is the basic duty of every citizen. (2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.” [Emphasis supplied] S.M.C. No.3 of 2018 etc. -: 45 :- In Syed Mehmood Akhtar Naqvi’s case5 (supra), Justice Jawwad S. Khawaja (as he was then) discussed the concept of divided loyalty by stating in his concurring note that:- “6. When trying to understand the spirit behind Article 63(1)(c), the first point that needs to be considered is the fiduciary role envisaged for members of Parliament in our Constitution. In a number of judgments, we have emphasized the notion that all state authority is in the nature of a “sacred trust” and its bearers should therefore be seen as fiduciaries. In Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we held that “holders of public office ... are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan...”. Parliamentarians, while acting as trustees and the chosen representatives of the people, take decisions which are often of grave consequence for the protection of the economic, political and over-all national interests of the people of Pakistan. In other words, theirs is a fiduciary duty of the highest order… 7. It is well settled that the foremost obligation of a fiduciary is to show complete loyalty to the principal and to scrupulously avoid situations which may create a conflict of interest in the performance of such duty. Cognizant of this principle, our Constitution requires constitutional functionaries including members of the National Assembly, Senators and members of Provincial Assemblies to solemnly swear that they will “bear true faith and allegiance to Pakistan” and act “always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan.” (Third Schedule, Constitution) 8. It should be obvious that holding dual citizenship is likely to create situations for the holder where he faces a conflict of interest in the discharge of fiduciary duty to the people of Pakistan. The conflict of interest is particularly 5 Ibid. S.M.C. No.3 of 2018 etc. -: 46 :- evident when the acquisition of foreign citizenship entails taking an oath of allegiance to the foreign state and renunciation of allegiance to Pakistan…Clearly, oaths of this nature, do conflict with the fiduciary obligation of unswerving and undivided loyalty to Pakistan and its people. It is hard to see how someone who has openly “renounce[d] and abjure[d]” all allegiance to Pakistan or who has sworn allegiance to a foreign monarch, can then be safely entrusted with the “sacred trust” of protecting the interests of the people of Pakistan. In sum, therefore, acquiring the citizenship of a foreign state does create a serious conflict of interest; such conflict of interest renders a person unsuited for discharging a fiduciary duty as onerous as being a public representative. This is precisely the spirit in which the framers have enacted Article 63(1)(c) of the Constitution, which prevents citizens who acquire the citizenship of another state from entering or remaining in Parliament and in the Provincial Assemblies.” [Emphasis supplied] Whether dual nationality ought to be recognized or not is a policy decision that varies from country to country. Developed countries such as USA have adopted a general policy of tolerance therefore blanket bans or rules against dual nationality are not in vogue. Instead, there are mechanisms of security clearance evaluations and determinations in accordance with government- wide orders and standards.6 However in Pakistan, Section 14 of the Citizenship Act imposing a blanket ban against dual nationality from its very inception indicated a less tolerant approach towards this concept (of dual nationality). It was only 21 years later through the Pakistan Citizenship (Amendment) Act, 1972 that sub-Section (3) was inserted into Section 14 ibid permitting dual nationality basically at the pleasure of the Federal Government. At the very least, this indicated a shift in Pakistan’s stance regarding dual nationality which should not be considered to be abnormal considering the advantages of dual nationality that cannot be ignored in today’s day and age of globalization. Apart from enabling political integration 6 US Department of State, Dual Citizenship – Security Clearance Implications. S.M.C. No.3 of 2018 etc. -: 47 :- and participation, it allows people to live and work in either of the countries of which they are nationals and facilitates visits and travel to and fro, without forcing one to sever ties with his country of origin (or either country for that matter). 41. The statements regarding dual nationality in the extract reproduced hereinabove do not have a direct bearing on the instant matter which differs somewhat from the issue before the Court in Syed Mehmood Akhtar Naqvi’s case7 (supra) which concerned the Framers’ intent and the Constitutional bar against dual nationality on elected representatives. However no such bar exists in the Constitution with respect to the non- elected government officials who are not required to take oath as the others are required to including elected representatives and members of the armed forces. Be that as it may, we cannot lose sight of the fact that divided loyalty does not necessarily mean disloyalty to Pakistan. There are many dual nationals or even foreigners of Pakistani origin for that matter who possess great love and affection for Pakistan and express it in the form of foreign remittances or by working in Pakistan, etc. Nonetheless, a real concern as raised by the opponents of dual nationality is that of divided loyalties leading to potential national security risks. It is in light of both the advantages and disadvantages of dual nationality that leads us to consider the adoption of a balanced approach where certain important positions in government service and public offices where indeed complete and undivided loyalty to Pakistan is required ought to be restricted to those who are citizens of Pakistan only. At the same time, keeping the door open for the Pakistani diaspora abroad who are an immense source of talent, skills, experience and competence, dual nationals and foreigners of Pakistani origin (and even non-Pakistani origin for that matter) ought to be allowed to work in various public and private sector entities in Pakistan such as health, education, etc. where they can share 7 Ibid. S.M.C. No.3 of 2018 etc. -: 48 :- their wisdom, training, skills and learning and contribute to a better Pakistan. Proposals 42. This opinion indicates certain concerns which are of such fundamental nature that cannot be addressed through judicial interpretation. Hence the proper course would be for Parliament to consider the following proposals in light of the existing law discussed and the concerns raised herein. 43. Insofar as dual nationals are concerned, they fall within the definition of citizens. It is for the Federal and Provincial Governments to consider whether they should:- i. Formulate negative list(s) of posts within the Government service to which citizens holding dual nationalities or whose spouses are dual nationals, should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective Cabinets; ii. Place before the Parliament and the respective Provincial Assemblies at the end of each financial year list(s) of Government servants who are dual nationals and/or married to dual nationals, and the posts held by them; iii. Formulate negative list(s) of posts (decision-making/top managerial posts perhaps) within autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments, to which citizens holding dual nationalities or whose spouses are dual nationals, should not normally be appointed for reasons of safeguarding national security and/or vital national S.M.C. No.3 of 2018 etc. -: 49 :- interest, except with the permission of the respective organization or parent department; and iv. Place before the respective organizations or parent departments at the end of each financial year list(s) of employees of autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments who are dual nationals and/or married to dual nationals, and the posts held by them. 44. With regard to the government servants whose spouses possess nationalities other than that of Pakistan, i.e. who are foreigners (including those of Pakistani origin), the respective Governments may consider that the proposals mentioned in paragraph No.41(i) to (iv) should also apply to the concerned officers. 45. With respect to foreigners, which include those of Pakistani origin who hold POCs, it is for the Federal and Provincial Governments to consider whether they should:- i. Impose a blanket ban on employment of non-citizens, i.e. foreigners (of Pakistani or non-Pakistani origin) on employment within the Government service; ii. The Federal and Provincial Governments should, preferably in conjunction with each other, develop criteria and standard operating procedures with regard to the employment of non-citizens within the Government service where relaxation from the general prohibition is deemed necessary in the public interest. The employment of non-citizens should be subject to approval of the respective Cabinets; iii. Formulate negative list(s) of posts within autonomous/semi- autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or S.M.C. No.3 of 2018 etc. -: 50 :- Provincial Governments, to which non-citizens should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective organization or parent department; and iv. Place before the respective organizations or parent departments at the end of each financial year list(s) of employees of autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments who are non-citizens, and the posts held by them. 46. The Federal Government should also be required to submit annual reports to Parliament with regard to the enforcement/implementation of the Act of 1966 prohibiting employment of ex-Government servants with foreign governments and agencies. 47. The acquisition of foreign nationalities and permanent residence permits, etc. by citizens during employment in the Government service or autonomous/semi-autonomous statutory bodies/organizations and companies etc. which are owned/controlled/governed by the Federal and/or Provincial Governments, indicates, prima facie, and indeed in many cases (but not all) is, an intention to securely dispatch ill-gotten gains procured during service and to relocate their families and/or themselves during service and/or after retirement. Such individuals deserve no leniency. After determination by the competent authority, such officials must be given a deadline of either rescinding their foreign nationalities obtained during service or resign from service immediately. This is intended to send a strong signal to all officials in the employment of the Government of Pakistan at any level that they must not deceive Pakistan by breaking the trust that they have been bestowed upon by virtue of their office. The necessary S.M.C. No.3 of 2018 etc. -: 51 :- rules/regulations in this regard may be made/amended by the Federal and/or Provincial Governments, preferably in conjunction with each other. Furthermore, the Federal and/or Provincial Governments should develop criteria and standard operating procedures requiring disclosure of the intent to seek such foreign nationalities and permanent residence permits, etc., and adopt methods to check such instances and enforce penalties for non- disclosure. Such criteria and standard operating procedures could possibly be incorporated into the existing efficiency and discipline rules/regulations etc. by way of amendment or be adopted independently. 48. Before parting we would like to express our appreciation for the valuable assistance rendered by the learned amici curiae. The instant matter is accordingly disposed of in the foregoing terms. The noted civil miscellaneous applications are also disposed of accordingly. Civil Petition No.53-K/2018:- 49. As has been held above in this opinion, dual nationals are citizens under the Citizenship Act, however in the instant case it was established on the record that the petitioner failed to disclose the factum of obtaining green card of USA particularly when he was reinstated in government service. The office memoranda issued by the competent authority directing the petitioner to surrender his green card failure of which would result in disciplinary proceedings under the relevant law have been correctly upheld by the learned High Court in its constitutional jurisdiction vide impugned judgment which does not warrant interference by this Court. Besides, according to the documents filed vide C.M.A. No.4428/2018 the petitioner has been issued a show cause notice by the competent authority to which he has responded. Therefore the matter may be dealt with by such authority in accordance with law. S.M.C. No.3 of 2018 etc. -: 52 :- In light of the above, this petition is accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 15.12.2018 at Lahore Approved for Reporting M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Mr. Justice Jamal Khan Mandokhail Mr. Justice Muhammad Ali Mazhar SUO MOTO CASE NO.3 OF 2022 (Re: Independent and Transparent Investigation into the Murder of Renowned Journalist, Mr. Arshad Sharif in Kenya). In attendance: Ch. Aamir Rehman, Addl. AGP Dr. Akbar Nasir, IG ICT Mr. Awais Ahmad, DIG Mian Shahbaz, IO Mr. Irfan, Director Law M/o Information Mr. Israr Ahmad Khan, Director Law FIA Mr. Waqas Rasool, Deputy Director Law Mr. M. Syrus Sajjad Qazi, Addl. Secretary M/o Foreign Affairs Mr. Murad Wazir, DG M/o Foreign Affairs Mr. Asad Khan Burki, LA M/o Foreign Affairs Syed Faraz Raza, ALA M/o Foreign Affairs Date of Hearing: 05.01.2023 ORDER The learned Addl. Attorney General has referred to the report filed by the Special Joint Investigation Team (“SJIT”) on 04.01.2023 which recounts the progress made so far in its investigative work since constitution of the SJIT on 07.12.2022. He has informed us that the Federal Government has provided requisite funds for investigative work to be done by the SJIT in two foreign countries, namely, UAE and Kenya. Requests for Mutual Legal Assistance (“MLA”) to the government in these countries were issued by the Federal Government on 04.01.2023. In this behalf he acknowledges that the Foreign Office is cooperating fully to secure the requisite help and collaboration of SMC 3 OF 2022 2 the concerned police/investigative authorities in both foreign States for the SJIT. As soon as the MLA requests are responded favourably by the two foreign governments, the SJIT shall be visiting the said States for commencing their investigation abroad. 2. We note that the SJIT has performed some investigative work within Pakistan. 41 witnesses are reported to have been examined by it so far. The real issues of the cause and perpetrators of the assassination of Mr. Arshad Sharif would be unravelled after the relevant evidence available abroad in the afore-noted two countries is collected. We expect that the SJIT is fully prepared with its priorities, scenarios and areas of inquiry in the investigation and the persons and material that would be relevant and useful solving the crimes committed. The learned Addl. Attorney General submits that a month’s time may be given for the next report of the SJIT. Relist in the first week of February, 2023. CHIEF JUSTICE JUDGE JUDGE JUDGE Islamabad 05.01.2023 Rashid+Naseer JUDGE

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Umar Ata Bandial, HACJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Muhammad Ali Mazhar SUO MOTO CASE NO.4 OF 2021 (In re: order dated 20.08.2021 in SMC No.4 of 2021) In attendance: Mr. Khalid Javed Khan, Attorney General for Pakistan. Mr. Aamir Rehman, Addl. AGP. Mr. M. Latif Afridi, President SCBAP. Mr. Khushdil Khan, VC, PBC. Mr. Jehangir Khan Jadoon, ASC. Mr. Amjad Nazir Bhatti, Journalist. Mr. Qayyum Siddiqui, Journalist. Date of hearing: 26.08.2021. O R D E R For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise: 1. It is declared that the invocation/assumption of the suo motu jurisdiction of this Court under Article 184(3) of the Constitution is based on, and shall be guided by, the following principles: a. The Chief Justice of Pakistan is the sole authority by and through whom the said jurisdiction can be, and is to be, invoked/ assumed. b. The Chief Justice may invoke/assume the said jurisdiction in his discretion and shall do so if so requested or recommended by a Bench of the Court. c. No Bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the SMC 4/2021 2 Chief Justice has invoked/assumed the said jurisdiction. 2. All matters already pending in respect of, or involving, the suo motu jurisdiction of the Court shall, notwithstanding para 1, continue to be heard and disposed of by such Benches as are constituted from time to time by the Chief Justice. 3. In view of the above, the order dated 20.08.2021 stands recalled. SMC No.4 of 2021 and all filings therein shall stand disposed of. 4. The substantive claims made by the Press Association of Supreme Court and others in the application presented in Court on 20.08.2021 shall be placed before the Chief Justice of Pakistan for consideration. Sd/- ACJ Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Announced in Court, On 26th August, 2021 Sd/- ACJ. Islamabad. Irshad Hussain /* NOT APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR MRS. JUSTICE AYESHA A. MALIK MR. JUSTICE SYED HASAN AZHAR RIZVI SUO MOTO CASE NO.04 of 2022 (GRANT OF ADDITIONAL 20 MARKS TO HAFIZ-E-QURAN WHILE ADMISSION IN MBBS/BDS UNDER REGULATION 9 (9) OF THE MBBS AND BDS (ADMISSION HOUSE JOB AND INTERNSHIP) REGULATIONS, 2018). IN ATTENDANCE: For PMDC : Mr. Afnan Karim Kundi, ASC On Court’s Notice : Ch. Aamer Rehman, Addl. Attorney General for Pakistan Date of Hearing : 04.04.2023 ORDER This Suo Motu Case bearing No.4 of 2022 was initiated pursuant to an order passed by a two member Bench of this Court dated 10.01.2022 in the following terms: “However, this petition has brought to the fore regulation 9(9) of the Regulations and the awarding of twenty additional marks to those candidates who had memorized the Holy Qur’an. Whether the memorization of the Holy Qur’an is a relevant criteria for the determination of the candidates for an MBBS or BDS degree needs consideration. It also needs to be considered whether regulation 9(9) of the Regulations conforms with Article 25 of the Constitution of the Islamic Republic of Pakistan. Therefore, while dismissing this petition we retain its paper-book to consider this aspect of the case. Notice be issued to the Pakistan Medical and Dental Council, which we are informed is now the Pakistan Medical Council, (‘the Council’) and the Council is directed to submit a concise statement which should address the aforesaid queries and to explain how the memorization of the SMC.No.04/2022 2 Holy Qur’an makes a candidate more eligible for an MBBS or BDS degree. The Council should also file the decision which lead to the incorporation of regulation 9(9) in the Regulations and the reasons, if any, for such incorporation. Notice be also issued to the Attorney-General for Pakistan in terms of Order XXVII-A of the Code of Civil Procedure, 1908.” 2. It appears that the office issued notices to all concerned to file concise statements. Such concise statements were not filed and this fact was brought to the notice of the learned members of the Bench by way of an office note placed before them in Chambers. The record indicates that the office was directed in the following terms: “Since the concerned, despite four reminders, have adamantly refused to respond, it may be appropriate to fix this matter in Court to the extent of the points noted in paragraph 2 of the order dated 10.01.2022.” The office accordingly sought appropriate orders of the Hon’ble Chief Justice of Pakistan. On the said office note, the HCJP passed the following order: “Treat the order dated 10.1.22 as recommendation for invocation of suo motu jurisdiction. Allowed.” 3. In view of the above, the HCJP constituted a three member Bench comprising Mr. Justice Qazi Faez Isa, Mr. Justice Amin ud Din Khan and Mr. Justice Shahid Waheed, JJ to consider the questions framed in the order dated 10.01.2022 passed in Civil Petition No.397-K of 2020. The matter was fixed before the said Bench on 15.03.2023 when the learned Bench instead of examining the matter regarding grant of additional 20 marks to Hafiz e Quran for admission in MBBS and BDS programs under Regulation 9(9) of the SMC.No.04/2022 3 MBBS and BDS (Admissions, Examinations, House Job and Internship) Regulations, 2018 made an order released on 29.03.2023 on matters which were neither raised in the petition (CP#397-K of 2020) which had already been dismissed nor had any nexus or connection with such questions and was totally alien to the lis before the Court. This order was clearly not final and was of an interim nature since the SMC was not disposed of by means thereof, but remained pending. 4. In response to the notice, Pakistan Medical & Dental Council (“PM&DC”) has filed a CMA bearing No.2057 of 2023 which consists of a report in compliance with the orders of this Court dated 10.01.2022 and 15.03.2023 on behalf the PM&DC. Paragraphs 11 & 12 of the report state as follows:- “11. That after repealment of the Pakistan Medical Commission Act, 2020 by the presently enacted Pakistan Medical and Dental Council Act, 2022, no fresh criteria has yet been provided for admissions to MBBS and BDS. Under section 51(2) of the PMDC Act, 2022, the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations 2021 made under the repealed Pakistan Medical Commission Act, 2020 have been saved which are being enforced at present till such time as the PMDC is full (sic) constituted and amends the said regulations or makes new ones. 12. That the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 do not grant any additional marks to students who are Hafiz-e-Quran.” SMC.No.04/2022 4 Further, in paragraph 14 of the report it has been reiterated as follows: “14. That in view of the aforementioned facts, it is apprised to the Honorable Court that the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2018 (approved by this Hon’ble Court) and amended in 2019 which allowed grant of 20 additional marks to Hafiz e Quran for admission in medical/dental college are not in force at present.” 5. The learned counsel for Pakistan Medical Commission (“PMC”) has reiterated the stance taken in paragraphs 11, 12 & 14 reproduced above and has categorically stated in view of the fact that under the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 which are the current Regulations, do not grant any additional marks to the students who are Hafiz e Quran and the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2018 and amended in 2019 which allowed grant of 20 additional marks to Hafiz e Quran for admission in Medical/Dental Colleges are not in force. He therefore maintains that this Hon’ble Court was not properly assisted in the matter as it was already a dead issue when the order dated 10.01.2022 was passed. This position is dispositive of the SMC. 6. Turning to the order dated 15.03.2023 announced on 29.03.2023 its perusal clearly shows that it constitutes a fresh suo motu invocation of jurisdiction relating to questions involving constitution of Benches, the power of the HCJP as SMC.No.04/2022 5 the Master of Rolls to constitute Benches and a prohibition order bearing No.F.No.3(07)/2023/OPS-BM/4419 dated 09.03.2023. Through the said prohibition order, Pakistan Electronic Media Regulatory Authority (“PEMRA”) had forbidden all satellite TV channels to telecast anything against the State institutions and not to discuss the conduct of Hon’ble Sitting Judges of the High Courts and the Supreme Court in any manner. 7. In paragraph 28 of the interim order in question it was stated as follows: “The interest of citizens therefore will be best served to postpone the hearing of this case and of all other cases under article 184(3) of the Constitution till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution” The order sheet reflects that the order was signed on 29.03.2023 by two Hon’ble members of the Bench namely Qazi Faez Isa and Amin ud Din Khan, JJ while the third Hon’ble member of the Bench Shahid Waheed, J noted as follows : “As the points raised and discussed in the order were not the subject matter of the case, I disagree and will record separate dissenting note”. Such dissenting note was accordingly issued on 30.03.2023. We have carefully examined the majority judgment as well as the dissent recorded by Shahid Waheed, J. We are in no manner of doubt that the order dated 15.03.2023 invokes suo motu jurisdiction of this Court and is therefore clearly violative of the principles settled in a five SMC.No.04/2022 6 member judgment of this Court recorded in SMC No.4 of 2021 reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306) which clearly and categorically lays down the rule that the suo motu jurisdiction of this Court can only and solely be invoked by the HCJP. The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that the Chief Justice is the master of the roster. The order was therefore both without and beyond jurisdiction. Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two Hon’ble members of the Bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so. 8. It appears that the order was brought to the notice of the HCJP who was pleased to observe as follows: “The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction. The unilateral assumption of judicial power in such a manner violates the rule laid down by a 5 Member judgment of this Court reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306). Such power is to be invoked by the Chief Justice on the recommendation of an Hon’ble Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court. SMC.No.04/2022 7 Any observation made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the forgoing legal position for the information of all concerned.” Accordingly, the Registrar of this Court issued a Circular dated 31.03.2023 with copies endorsed to all concerned. On perusal of the circular in question, we are of the view that the observations made by the HCJP are unexceptionable and simply rectify an unwarranted assumption of jurisdiction and intrusion into, and interference with, powers that the principles laid down in the case law place firmly in the hands of the Chief Justice alone. We accordingly affirm the observations of the HCJP as incorporated in the Circular and the directions issued therein. In view of the foregoing, the interim order dated 15.03.2023 (released on 29.03.2023) is recalled. 9. In view of the stance taken by the PM&DC in their report and as submitted by their learned counsel on instructions that the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2018 and amended in 2019 which allowed grant of 20 additional marks for Hafiz e Quran for admission in Medical and Dental Colleges are not in force and the current Regulations namely Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 do not grant any additional marks to students who are Hafiz e Quran, no SMC.No.04/2022 8 further proceedings in this suo motu case are required. The SMC is accordingly disposed of as having been infructuous. File may be consigned to the record. Judge Judge Judge Judge Judge Judge ISLAMABAD, THE 4th April, 2023 ZR/* Not Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Ch. Ijaz Ahmed Mr. Justice Ghulam Rabbani SUO MOTU CASE NO. 5 OF 2010 (Action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by Awarding LNG Contract) On Court notice : Mr. Abdul Rauf Kalasra, Senior Correspondent, The News. For Ministry of Finance : Mr.M. Iqbal Awan, Addl. Secy Finance. For Cabinet Division : Mr. Muhammad Afzal, JS. For Fauji Foundation : Barrister Sajid Zahid, ASC. Mr. Arshad Ali Ch. AOR. Gen. (R) Hamid Rab Nawaz, MD. For Ministry of Petroleum : Mr. S.M. Zafar, Sr. ASC. Raja Abdul Ghafoor, AOR. Mr. Kamran Lashari, Secy Petroleum. For GDF Suez : Mr. Abdul Hafeez Pirzada, Sr. ASC. Mr. Sikandar Bashir Momand, ASC. Mr. M. S. Khattak, AOR. For SSGCL : Mr. Ali Zafar, ASC Syed Safdar Hussain, AOR. Mr.M.Naim Sharafat, Sr. Project Manager. For Mr. G.A. Sabri, : Mr. Anwar Mansoor Khan, Sr. ASC. Special Secretary Petroleum Mr. Umar Mehmood Qasuri, ASC. Ch. Muhammad Akram, AOR a/w Mr. G.A. Sabri, Special Secy. Dates of hearing : 14th, 21st to 23rd and 26th to 28th April, 2010. JUDGMENT. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – This Human Right case was initiated on news item appearing in daily newspaper ‘the News’ dated 28th March, 2010, of which note was put up by the Registrar of this Court and the same was treated as petition under Article 184(3) of the Constitution for the facts disclosed therein in respect of alleged massive Suo Moto Case No.5 of 2010 2 corruption in awarding contract of supply of LNG. Upon the office note, following order was passed:- “A perusal of the above note indicates that a huge loss has been caused to the public exchequer as a result whereof public at large has been deprived from this amount, which could be utilized for their welfare and, prima facie, such actions seem to be violation of fundamental rights, principle of transparency and equal opportunity. Therefore, this office note be treated as petition under Article 184(3) of the Constitution and be fixed before the Court tomorrow i.e. 2nd April, 2010. Notice be also issued to Mr. Rauf Klasra, reporter of ‘the News’ to appear and place on record the documents on the basis of which he has flashed this news item.” 2. In pursuance of above order Mr. Rauf Kalasra appeared and placed on record a copy of letter dated 10th February, 2010, issued by Mr. Shaukat Tarin, former Finance Minister to Mr. G.A. Sabri, Special Secretary, Ministry of Petroleum and Natural Resources; contents whereof read as under:- “Please refer to the captioned agenda item discussed at the ECC meeting of February 09, 2010. Today, I was contacted by the Managing Director of Fauji Foundation who enquired from me as to why their joint bid with VITOL was not entertained despite being the lowest. Given, that the VITOL/FAUJI proposal was not even presented, I could not give him a satisfactory answer. 2. Therefore, I would like you to advise me urgently as to why their offer was not considered by your Ministry and the evaluation committee. Thanks and regards. Sd/- (SHAUKAT TARIN)” Suo Moto Case No.5 of 2010 3 Mr. Rauf Kalasra stated that when he learnt about awarding of contract for supply of LNG, he probed into the matter and discovered that before awarding the contract to one of the foreign firm, the Ministry of Petroleum had, in principle, decided to give contract to Shell Gas & Power Co. and towards that end, the Minister for Petroleum was invited to Doha to witness signing of relevant documents in due course. He referred to a letter addressed to Mr. Naveed Qamar, Minister for Petroleum and Natural Resources, dated 4th February, 2010 by H.E. Abdulla Bin Hamad Al- Attiyah, Deputy Premier, Minister of Energy & Industry, State of Qatar. He explained that the Ministry of Petroleum, in order to provide the contract for supply of LNG to Shell Gas & Power, prepared a summary dated 8th February, 2010 and referred the matter to ECC, recommending the name of Shell Gas & Power and GDF Suez, leaving behind the FAUJI/VITOL, a Pakistan-based company, which was interested in Short Term LNG Supply project. The ECC, due to intervention of the Ministry of Petroleum, declined to approve the name of Shell Gas & Power for supply of LNG and recommended the name of GDF Suez. Mr. Kalasra stated that the proceedings for completion of the contract were not carried on in a transparent manner. 4. Mr. S.M. Zafar, Sr. ASC appeared on behalf of Federation of Pakistan, Mr. Abdul Hafeez Pirzada, Sr. ASC for GDF Suez, Mr. Ali Zafar, ASC for Sui Southern Gas Co. Ltd. (SSGCL), Barrister Sajid Zahid, ASC for Fauji Foundation and Mr. Anwar Mansoor Khan, Sr. ASC appeared on behalf of Mr. G.A. Sabri, Special Secretary, Ministry of Petroleum. 5. Initially, in order to comprehend the nature of this complex issue Mr. Naim Sharafat, Senior Project Director, SSGCL was heard in Suo Moto Case No.5 of 2010 4 detail, who explained his view point as follows:- “In February, 2005 Planning Commission presented an Energy Security Plan to the then President and the Prime Minister, wherein the gap between demand and supply of gas in the long term was projected containing gap coverage strategy. It was mentioned in the plan that there should be LNG Projects and pipelines for supply of gas from outside the country. It was proposed that Sui Southern Gas Co. Ltd. (SSGCL) should be made facilitator as the LNG was to reach at Karachi and the terminal was to be built there and then it will be the responsibility of the SSGCL to supply. The role of facilitator, as per LNG policy, was to move with the project and obtain the approval of Government of Pakistan, wherever it is identified and required. First of all, when the SSGCL was appointed as facilitator, it appointed a consultant on the project after due process; seven international and local consortiums applied for the same; one of them namely consortium of ABN Amro (local company) and Poten and Partner (from Australia) were selected; this consortium was of international repute. Board of Directors of SSGCL approved the process and granted permission for award of contract to them. The contract was awarded in October, 2005. After their appointment, they prepared a concept report in order to determine as to in what form this project would be suitable for Pakistan. (copy of the same shall be submitted). Since the international market demands the policy of the Government of Pakistan, therefore, Pakistan’s first LNG Policy was formulated which was approved by the Economic Coordination Committee (ECC) in April, 2006; thereafter, SSGCL initiated the Expression of Interest (EoI) process in terms of LNG Policy and an advertisement in this behalf, which was as per the LNG Policy, was made in International Dailies i.e. Khaleej Times and Financial Times London as well as in national dailies. In response to that advertisement, 53 companies applied for registration out of which after evaluation, 36 companies were supplied with a document called Expression of Interest, prepared by the consultant. Out of those 36 companies, only 14 companies provided their statement of qualification document /Pre- qualification, as per the EoI document. Out of these 14 companies, six companies applied for integrated projects (including construction and operation of the terminal as well as supply of Suo Moto Case No.5 of 2010 5 LNG and we will only purchase gas from them); second process was that one company will construct the terminal and the other will supply/bring the LNG); third process was only for supply; so the six companies were for integrated project, six for construction of terminal and two for only supply. Since the integrated projects suits us because we had no experience in LNG process being a different market world, therefore, we opted for integrated project and we placed the same before ECC, who approved the same in February, 2007. After that approval, we floated the tendered document i.e. Request for Proposal document to five companies as the sixth one (i.e. Fauji Foundation) who had applied for both the projects merged into one. Out of those five companies, three withdrew their proposal as at that time internationally the LNG market was very tight and supply was not available. So only two companies namely Shell Gas & Power and Consortium of Fore Gas, Fauji Foundation, Fotco and Soges submitted their bids. This bid was subject to two bid package system i.e. Technical and Commercial (after evaluation the price was to be considered). On receipt of bid, the Consortium reduced to three companies as the fourth one Soges withdrew from the same. Our consultant evaluated them and we made a presentation before the Ministry of Petroleum. Upon clearance from the Ministry of Petroleum, the proposal call was made to both the companies i.e. Shell and the Consortium of Foregas, Fauji and Fotco. In September, 2007, both of them submitted their price proposals, containing both the proposals i.e. land based terminals and floating terminals. Since the land based terminals require long time of about 5/6 years for construction and we had specifically mentioned in the tender that we need early supply possibility, as energy supply gap was being faced since 2005, therefore, the floating terminal option, offered by the Consortium of 4-Gas, Fauji Foundation and Fotco was accepted. However, in April, 2008 the Fauji Foundation and Fotco withdrew from the Consortium. So far, award is under process. We asked the 4-Gas whether it will continue on the project as on stand on basis, to which they replied that they take the responsibility and will continue on the project. After the price proposal, etc. as the market was very tight and no supply was available, some LNG projects also started in the private sector. For this reason, it was said by the LNG supplier (i.e. Qatar Petroleum, the largest supplier of LNG in the international market and the Foregas has to take Suo Moto Case No.5 of 2010 6 supply from it) that it will only deal with the Company having Letter of Exclusivity. Since there was no provision in the tender document for issuance of Letter of Exclusivity, therefore, Ministry of Petroleum after approval of ECC, issued Letter of Support not Letter of Exclusivity on 17th December, 2008, which was valid only for nine months, during which the Foregas had to identify the suppliers and those suppliers had to submit original documents showing their capacity to supply and the period of supply. On 26th August, 2009 these documents were supplied to us. After that Price Negotiation Committee (PNC) was constituted, who also negotiated the matter with Shell, GDF Suez, BP, Total, Woodside and Mitsubishi for supply. Ultimately, best offer was made by GDF Suez for the first six years. In July, 2009 fresh Expression of Interest was invited for short term supply of LNG on the direction of Minister for Petroleum. At that time Dr. Aasim was Incharge of the Ministry. Letter in this behalf was issued by the Director General Gas to issue Expression of Interest ad for supply of gas for short term i.e. five years. Upon receipt of bids, the same were sent to the Ministry of Petroleum with our reservations over it that it will complicate the situation and both the processes are to be dealt with separately and a clear line is to be drawn between both the processes. However, we received instructions to proceed as such we continued the process. In end of July, 2009, we received ten bids from different companies/consortium including Shell, Fauji Foundation/Vitol, Engro Exel, etc. in response to advertisement made in all local leading newspapers including Dawn, News, Jang, etc. Since it was not the Mashal Project and was short term LNG Project, therefore, we did not involve our Consultant. After general evaluation of these ten bids, we proposed to the Ministry of Petroleum that Shell Gas & Power is a company, which can supply LNG; secondly we proposed though Fauji/Vitol has offered the package for supply along with terminal, having capacity of 1 million ton of LNG but it is not involved in the LNG business, as evident from their web-site. Since Price Evaluation Committee was constituted in the meantime and it also considered Shell as it was included in the suppliers of Mashal project as well as in short term LNG project and Fauji/Vitol. These negotiations were only for supplies as it had already been decided that terminal would be of Foregas because it was installing both land based as well as floating terminals; although our main concern was land based Suo Moto Case No.5 of 2010 7 terminal but its cost was too high, which would result in high tariff of the gas so we preferred the floating terminal option; we asked to establish floating terminal for 5/6 years and then to convert it into land based terminal. Negotiations were made on price formula and volume of supply; the final result of the negotiations was sent to the Consultants for their opinion; on 22nd January, 2010 they opined that the offer of GDF Suez with regard to medium term supply is very attractive and if there is no other proposal like it, we should go by it (copy of that opinion shall be supplied). They also opined that in case of supply for 20 years, there will be greater risk; the supplier will not take such risk and put it in the price formula as well as we also cannot take risk, but for the supply of 5/6 years there is calculated risk therefore, the cost will be less. The final summary is made by the Ministry of Petroleum, however, we just submit the evaluation report as well as other documents along with our recommendations made in line with the recommendations of the Consultant. We are not involved in the preparation of summary. Since, in the instant case the summary was prepared on the basis of price negotiation and the Price Negotiation Committee, Chaired by Special Secretary, who had all the necessary documents with him, was involved in it and we just forwarded the opinion of our Consultant. So further process was completed by them without our involvement except the fact that I also remained as member of the Price Negotiation Committee after October, 2009. The main recommendation was of GDF Suez for six years as per the quoted price rate, whereafter GDF Suez was offering 1 million ton which could go up to 1.5 million ton per year. Fauji/Vitol had not made any separate offer for supply of LNG alone as their offer made in July, 2009 was for supply with terminal. The advertisement made in July, 2009 was for supply only whereas the Fauji/Vitol made offer for supply with terminal. It was not recommended as it was not in Mashal Project whereas this summary was for Mashal Project. Though they had made new offer for short term project but they had withdrawn from Mashal Project. Mashal Project is separate and short term LNG Project is separate. We have not considered the Fauji/Vitol in Mashal Project.” 6. Likewise, Mr. G.A. Sabri, Special Secretary Petroleum appeared with the permission of the Court and narrated the steps taken so Suo Moto Case No.5 of 2010 8 far in the LNG supply project. He also submitted his written reply along with all supportive documents, which are made part of the record of the case. 7. Mr. S.M. Zafar, Sr. ASC appearing on behalf of the Federation of Pakistan disowned the stand taken by the above two officers and argued the case on behalf of the Federation on its independent footing. Similarly Mr. Ali Zafar, ASC made his submissions on behalf of SSGCL. Mr. Abdul Hafeez Pirzada, Sr. ASC stated that the company being represented by him enjoys international recognition in the business of LNG and it could not involve itself in any sham-deal, if at all it had taken place, because being one of the interested companies to supply LNG in Pakistan it came forward and quoted its rates. As far as the procedure of finalizing the same is concerned, it has nothing to do with the same and it was for the Government of Pakistan to decide it. 8. We have heard the learned counsel for the Federation of Pakistan, SSGCL and for FAUJI/VITOL as well as Special Secretary, Ministry of Petroleum. From the facts narrated hereinabove, it is to be observed that as:-- a) In 2006 the LNG Policy was approved for the sustainable development of the energy sector including the provision of reliable and competitively-priced energy. b) In pursuance of above policy SSGCL was appointed as facilitator whereas RBS and Poten & Partners were appointed as consultant by the SSGCL to take forward the project. c) On 10th May, 2006, by making publications, applications were invited for Registration for Expression of Interest Process from the companies interested, for the purpose of following integrated project:- Suo Moto Case No.5 of 2010 9 a) Supply of regasified LNG to SSGCL, including LNG procurement, transportation, setting up LNG terminal and operating the same; b) LNG tolling terminal by construction, owning, operating and maintaining an LNG import terminal; c) Supply of LNG to SSGCL on a long-term, take- or-pay basis using customary international terms and conditions. d) In response to above, initially 53 companies got themselves registered and after short listing 14 companies were approved for issuance of Letter of Expression of Interest; out of them six got the said letter including the 4-Gas. e) 4-Gas was a consortium comprising of 4-Gas, FAUJI FOUNDATION, FOTCO, VITOL. f) It appears that except the Consortium of 4-Gas, no other company was declared qualified by the Consultant, ultimately. g) 4-Gas Consortium applied for Letter of Exclusivity in December, 2008 and the matter was placed before the ECC, who agreed upon issuance of such letter but Ministry of Petroleum issued Letter of Support to 4-Gas in December, 2008, contents whereof read as under:- “Sui Southern Gas Company Ltd (“SSGCL”) with the consent of the Ministry of Petroleum of the Government of Pakistan (“GOP”), is pleased to issue this Pre-Award letter to the 4-Gas consortium (the “Consortium) for the Pakistan Mashal LNG Project (“PMLP”) a project with a base load capacity of 3.5 mtpa to be located at the proposed Consortium site (“Site”) at Port Qasim near Karachi, Pakistan. The PMLP will supply, on a long- term (20-25 year) basis, approximately 500 MMSCFD of Regasified Liquefied Natural Gas (“RLNG”) to SSGCL at the agreed quality which is almost 50% of the country’s gas shortfall in 2010/11. The PMLP is to be developed on an integrated basis and as such the Consortium shall be responsible for LNG supply, marine transportation, unloading, storage and regasification at the terminal to be built and operated by the Consortium in Pakistan. Suo Moto Case No.5 of 2010 10 SSGCL, with the approval of GOP initiated a Request for Proposal (“RFP”) process in February 2007 and has no wreached a stage where project award decision can be made in favour of bidder meeting all or most of the RFP requirements and submitting suppliers documentation as confirmation of LNG volumes for PMLP. The Consortium has emerged from the PMLP RFP process, facilitated by SSGCL, as the bidder meeting most of the RFP requirements and is given exclusivity in progressing the Project further to a stage where project can be awarded and executed in accordance with the agreed contract structure, subject to providing evidence of LNG supply of PMLP. The PMLP is of national importance and the completion of this strategic infrastructure for Pakistan is considered by GOP to be of the top most priority. The LNG supply for Pakistan to be secured at international competitive LNG price. SSGCL further confirms that GOP will enter into an Implementation Agreement with the Consortium after project award. The Implementation Agreement will contain standard concessions and permissions and provide protection against political risks, as per GOP Policies and other Pakistan infrastructure projects. The Implementation Agreement will also provide guarantees for SSGCL’s RLNG cost (including LNG, freight, terminal and regasification charges) payment obligations under the proposed Gas (RLNG) Sale and Purchase Agreement. This letter is issued to confirm our intentions and to assist the Consortium to progress discussions with LNG suppliers and contractors for all aspects of the PMLP. The Consortium has permission to communicate the contents of this letter to LNG suppliers and EPC contractors. As a fundamental requirement, the PMLP will be developed to satisfy both Pakistan and international standards and codes of practice. On the basis this requirement is met, GOP will facilitate in obtaining approvals sought by the Consortium for the Site on a timely basis. On receipt of this letter, 4-Gas Consortium is required to coordinate with Port Authorities and finalize a date for presenting the site specific Qualitative Risk Assessment Study (QRA), Preliminary Risk Analysis (PRA) and results of Suo Moto Case No.5 of 2010 11 Navigational Simulation Study in order to start the PQA NOC process. Upon submission by the Consortium of satisfactory documentary evidence that a minimum LNG volume for PMLP has been secured and a NOC from the PQA for the terminal has been obtained, a formal and final PMLP award decision will be made after GOP approval. Upon issue of this letter, the Consortium, at its own cost and risk, will promptly demonstrate commitment to a FEED study and continue to submit available documentation to SSGCL/GOP as confirmation of progress towards securing LNG volumes for PMLP. The Consortium will be ready to award an EPC contract for the project within the validity of this letter and financial close as expediently as possible thereafter. It is expected that a Heads of Agreement for the minimum LNG supply will also be ready to be signed within the validity of this letter. The Consortium shall provide SSGCL/GOP with regular (fortnightly) progress reviews on all aspects of the PMLP. This letter is valid for 9 months from the date of issue, however, lack of progress on the Project may result in withdrawal of this letter at SSGCL’s sole discretion. Keeping in view the LNG supply and demand situation, this letter is seen as a critical step in proceeding further with the PMLP and towards securing long-term LNG volumes for Pakistan, being a new entrant in the LNG world.” h) In the meantime, vide another advertisement dated 18th July, 2009, SSGCL invited Expression of Interest for Short Term LNG Supply, contents whereof read as under:- “The Government of Pakistan (GOP) through the Ministry of Petroleum & Natural Resources, has been progressing the long term, base load, integrated “Pakistan Mashal LNG Project” with facilitation by Sui Southern Gas Company Ltd. In view of the acute shortage of natural gas in the country and consequent shortfall in electricity generation, GOP now wishes to separately secure readily available Liquefied Natural Gas (LNG) on short term basis (up to 5 years). Parties having access to LNG volumes for immediate delivery are requested to provide an either FOB or CIF basis, an “Expression of Interest” to the General Manager (Materials Management) on the address given below by 31 July, 2009.” Suo Moto Case No.5 of 2010 12 j) It seems that in response to above advertisement, 10 companies got registration including FAUJI/VITOL in this project and ultimately except FAUJI/VITOL, remaining companies were short listed. 9. It is alleged on behalf of the FAUJI/VITOL that they submitted their conditions of Short Term LNG Supply and Price Negotiating Committee (PNC) had been negotiating with them by convening number of meetings but surprisingly instead of recommending their name, the Ministry of Petroleum put up a summary on 9th February, 2010 to ECC for approving the Shell Gas & Power or GDF Suez to award contract of Mashal Project, therefore, on acquiring knowledge of this fact, they agitated the matter before the Minister for Petroleum. 10. A careful perusal of the above facts reveals that the Ministry of Petroleum and SSGCL had not followed the process for awarding contract for LNG Supply for Mashal or Short Term Project seriously and with high order of transparency as it is evident from the facts and circumstances narrated above. We also find from the documents made available that there is price slope averaging from 0.145 to 0.155, which need to be kept in view. Here we may observe that it is duty of the Court to ensure that the Public Procurement Regulatory Authority Ordinance, 2002 read with the Public Procurement Rules, 2004 are adhered to strictly to exhibit transparency. It is universally recognized principle that such type of transactions must be made in transparent manner for the satisfaction of the people, who are the virtual owners of the national exchequer, which is being invested in these projects. [Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi (1998 SCMR 2268) and M/s Ramna Pipe and General Mills (Pvt) Ltd. v. M/s Sui Northern Gas Pipe Lines (Pvt) Ltd. (2004 SCMR 1274)]. Suo Moto Case No.5 of 2010 13 11. During the course of hearing, it was observed by the Court that since Letter of Support (LOS) dated 17th December, 2008 was issued by the SSGCL in favour of 4-Gas on the recommendations of ECC as no other developer was declared to be qualified by the Consultants of SSGCL, introducing Shell Gas & Power and GDF Suez at this stage seems to be not covered by the documents in pursuance whereof 4-Gas was declared qualified for Integrated Project; therefore, to achieve the transparency, openness, fairness and justness in awarding contract, the Ministry of Petroleum ultimately has to commence the proceedings of awarding of the contract from the stage where it was left, when instead of approving the name of 4-Gas for Mashal Project and the name of FAUJI/VITOL for short term LNG supply were not mentioned in the summary submitted to ECC and the names of Shell Gas & Power and GDF Suez were recommended. Upon this, the learned counsel requested for time to seek instructions from the concerned authority. As such on 27th April, 2010, following order was passed:- “Learned counsel appearing for the parties have stated that this case may be adjourned enabling the learned counsel appearing for the Federation of Pakistan to seek instructions from the Prime Minister of Pakistan on the following lines:- a) In view of the importance of the matter, put up before the Court in pursuance of news clipping dated 29th March, 2010, appearing in “the News” and on hearing the observations of the Court during the course of hearing, would it be possible to direct the Ministry of Petroleum to put up a fresh summary through a responsible officer before Economic Coordination Committee (ECC) for considering the case of 4-Gas for Mashal Pakistan Project and on the basis of the same, fresh decision shall be taken Suo Moto Case No.5 of 2010 14 for awarding the contract for supply of LNG to 4-Gas, declared qualified by the Consultant of SSGCL. b) As simultaneously Short Term LNG Supply Project is also under consideration in which Fauji/Vitol are the lowest bidders; their cases shall also be considered by the ECC, beside the case of Mashal to take decision thereon independently. c) Earlier decision of the ECC, agreeing to award the contract of LNG supply to any firm/company/party would not give right to any of such firm/company/party to make claim in this behalf and the same shall be of no consequence. Request is allowed. Adjourned for tomorrow i.e. 28th April, 2010.” 12. It is to be noted that on the even date Mr. Kamran Lashari, incumbent Secretary Petroleum contended that in view of the observations of the Court, made during the course of hearing, Government was ready to place fresh summary to the ECC by commencing the proceedings, wherefrom the same were left. 13. Today, the Ministry of Petroleum, Government of Pakistan, through Mr. S.M. Zafar, Sr. ASC has come forward with the following statement and has requested to dispose of the matter in terms thereof:- “STATEMENT ON BEHALF OF GOVERNMENT OF PAKSITAN, MINISTRY OF PETROLEUM, ISLAMABAD. That without prejudice to its stand taken in Court the Government confirms that it shall 1. Put up a summary relating to the Mashal Pakistan Project before the Economic Coordination Committee (ECC) for a fresh decision for awarding the contract for supply of LNG to 4-Gas, the Developer declared qualified by the Consultant SSGCL. 2. Simultaneously put up a summary relating to the Fauji/Vitol proposal against advertisement for Expression of Interest dated 18 July 2009 for consideration and decision independently and separately from the case of Mashal. Suo Moto Case No.5 of 2010 15 3. As a consequence of 1 above, the ECC decision dated 9th February 2010 to award the contract of supply to any person would not give any right to such person to make any claim in this behalf and shall be of no consequence. Sd/- Kamran Lashari Secretary Petroleum. Dated 28.04.2010.” Learned counsel also stated that the above stand of the Federation is with the concurrence of Worthy Prime Minister of Pakistan. Copy of the above statement was handed over to Mr. Abdul Hafeez Pirzada, Sr. ASC, Mr. Anwar Mansoor Khan, Sr. ASC, Mr. Ali Zafar, ASC Barrister Sajid Zahid, ASC and Mr. Rauf Kalasara on which they have expressed their satisfaction on the above statement and desired for decision of the petition in terms thereof. 14. Thus in view of statement made by the Federal Government, reproduced above, this petition is disposed of accordingly, with the hope that now the matter shall be considered in a highly transparent manner, both for Mashal Pakistan and Short Term LNG Supply Projects. No order as to costs. 15. Mr. Abdul Hafeez Pirzada, Sr. ASC states that GDF Suez is not involved in any manner in deal causing loss to the nation of Pakistan yet on appearing of the news item and initiation of instant proceedings thereon, has caused damage to its goodwill, therefore, appropriate order protecting its position be passed in this behalf. Mr. Rauf Kalasra, Senior Correspondent, daily newspaper ‘The News ’, however, reaffirms the stand taken by him in the news item. Be that as it may, as determination on merits has not been made by this Court to declare the involvement of GDF Suez, no order/observation is required to be passed in this behalf. Suo Moto Case No.5 of 2010 16 16. In view of illegalities, irregularities, omissions and commissions, noted in instant case, we are constrained to make observation that the officers/functionaries responsible for the same are required to be dealt with in accordance with law and we hope that Chief Executive/Prime Minister of Pakistan shall probe into the matter accordingly. Mr. Kamran Lashari, Secretary Petroleum has stated that as now he is Secretary, he would deal with the matter himself and Mr. G.A. Sabri, Special Secretary Petroleum shall not be associated with it. Before parting with the judgment, we would like to place on record our thanks to Mr. Rauf Kalasra, Mr. S.M. Zafar, Sr. ASC, Mr. Abdul Hafeez Pirzada, Sr. ASC, Mr. Anwar Mansoor Khan, Sr. ASC, Mr. Ali Zafar, ASC and Barrister Sajid Zahid, ASC for providing valuable assistance in disposal of this matter. CJ. J. J. Islamabad, 28.04.2010. Irshad /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Suo Motu Case No.5 of 2012 (Suo Motu Action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process On Court Notice: Mr. Irfan Qadir, Attorney General for Pakistan Mr. Bani Amin Khan, IGP, Islamabad For Dr. Arsalan Iftikhar: Sardar M. Ishaq Khan, Sr. ASC With Dr. Arsalan Iftikhar For Malik Riaz Hussain: Mr. Zahid Hussain Bokhari, ASC For Compnay Secy. Bahria Town: Mr. Arshad Ali Chaudhry, AOR For GEO TV. Mir Ibrahim Rehman, CE, GEO Mr. Kamran Khan, Sr. Anchor, GEO Mr. Hamid Mir, Sr. Anchor, GEO Date of Hearing : 07.06.2012 ORDER In response to notice Mr. Kamran Khan and Shaheen Sehbai have filed written statements and extracts of the interview and their view point in respect of the instant case. We may note that being believers and faithful to the Almighty Allah and the Holy Prophet Hazrat Muhammad (PBUH) in the presence of Quranic injunctions (4.135) where it is strongly held that we should stand firmly for justice even against ourselves or our kin etc. There are glorious examples in the Islamic history that whenever there was a call to administer justice there had been no distinction between the nearest one and the general public. In as much as during the days of Khulafa-e-Rashideen sentences were invoked on the direction of father to his son because it is the conscious of a person who believes in the Almighty Allah that he is performing his duties to administer justice without any fear or favour and there are also judgments, (precedented law) which leave it for a Judge to decide on a Bench to hear a case or not. Undoubtedly, the superior judiciary in this country is also guided by the code of conduct of the Judges and they are bound to follow the same. In the instant case, on having taken notice of a campaign against the Chief Justice of the country and his family and the judiciary, the Registrar of this Court requested to take some action as such proceedings in terms of Article 184(3) of the Constitution were drawn. Preliminary hearings were conducted to procure the attendance of Dr. Arsalan Iftikhar and Malik Riaz Hussain. Dr. Arsalan is present alongwith his counsel. Malik Riaz Hussain, despite notice, did not turn up. Mr. Zahid Hussain Bokhari, learned counsel has appeared and stated that he has been engaged as counsel by Malik Riaz Hussain and he will file power of attorney on his behalf as his client is in U.K. in connection with medical treatment. The learned Attorney General is also available to assist the Court and in due course of hearing attendance of the same and other responsible officers/officials of the Bahria Town, whose names have been mentioned in the order of 6th June, 2012 have also been procured. Having gone of these proceedings and taking into consideration arguments so put forth by the learned Attorney General and also considering the Islamic Injunctions the hearing of this case shall continue by this Bench minus one of us (Iftikhar Muhammad Chaudhry, CJ) and the case shall be fixed before the said Bench after the conclusion of regular hearing listed before us today. Chief Justice Judge Judge ISLAMABAD 07.06.2012 M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN SUO MOTU CASE NO. 5 OF 2018 REGARDING PAYMENT OF OUTSTANDING SALARIES TO REPORTERS/WORKERS OF PRINT AND ELECTRONIC MEDIA. In attendance: Rose TV Sahibzada Ahmed Raza Qasuri, Sr. ASC Channel -7 Mr. Naeem Bukhari, ASC. Express TV & Daily Express Mr. Tariq Aziz, AOR. Capital TV Mr. Faisal Hussain, ASC Daily Times and Daily TV Mr. Ali Masood Hayat, ASC. Sachal TV (in CMA 2362/18) Barrister Masroor Shah, ASC Channel-5 Ms. Shaista Altaf, ASC. Mr. Zia Shahid (CMA 2320/2018) Qazi Sheryar Iqbal, ASC. (CMA 2188/2018) Mr. Qausain Faisal Mufti, ASC. Bol TV Mr. Sami Ibrahim, Director News Kashish TV Mr. Abdul Jabbar, Regional Manger Daily Jinnah Mr. Shamshad Ahmed, Chief Editor Rose Channel Mr. Inayatullah Khan, G.M. Mr. Raza Abid Mustafa, Chief Reporter Nawa-i-Waqt group For SC Reporters Association Mr. Matiullah Jan Tayyab Baloch, Reporter Geo TV HRC No.8468-P/2018 (on Court’s call) Mr. Salar Janjua, Director HR Syed Afaq Zaidi Mr. Waqar Ahmed Rana, Addl. AGP Sardar Ahmad Nawaz Sukhera, Secretary Information Date of Hearing: 04.04.2018 ORDER Pursuant to our order directing Media houses to provide information about unpaid salaries of their employees, the following information has been provided: - SMC 5/2018 -: 2 :- 2. Channel-7: Learned counsel representing Channel-7 concedes that payment of salaries for some months were overdue to the employees. However, he categorically states that now those have been paid. No employee came forward to contradict the above assertion. Therefore, proceedings against Channel-7 are dropped. However, it is directed that in case the salary of any of its employee is still outstanding, the same must be paid within a period of 15 days. 3. Rose TV: Learned counsel representing Rose TV states that no salary of any of its employees is outstanding. This fact is also affirmed by Mr. Raza Abid Mustafa, Chief Reporter Rose TV and not contested by any of the persons present in Court. Therefore, proceedings against Rose TV are also dropped. However, it is directed that in case the salary of any of its employee is still outstanding, the same must be paid within a period of 15 days. 4. Capital TV: Learned counsel representing Capital TV states that there are 315 employees working in the channel and salaries to all the employees have been paid till the month of January, 2018. However, salaries for the months of February and March, 2018 shall be paid till 30.04.2018. Let all salaries due be paid by 30.04.2018 without fail and a certificate in this regard along with an affidavit of the owner of the said TV channel be placed on record confirming that all salaries due to its employees have been paid. Accordingly, proceedings against Capital TV are dropped. 5. Channel-5: Learned counsel representing Channel-5 states that salaries have been paid to all the employees and there is no outstanding salary of any employee. However, Syed Afaq Zaidi has filed a complaint (H.R.C. No.8468-P/2018) stating therein that he SMC 5/2018 -: 3 :- is an ex-employee of the said TV channel and has not been paid his dues. Let him provide details of his dues to Mr. Zia Shahid. He undertakes that he will look into the matter and redress the grievance of the applicant. He shall also apprise the Court in this regard. Therefore, proceedings against Channel-7 are dropped. 6. Daily Jinnah: Mr. Shamshad Ahmed, Chief Editor Daily Jinnah has appeared and stated that all salaries of its employees have been paid till March, 2018 and nothing is outstanding. Further, that salaries are paid to employees on 10th of each month (i.e. the salary of the month of April shall be paid on 10.05.2018). This statement is not controverted by any person present in Court. Proceedings against Daily Jinnah are accordingly dropped. 7. Sachal TV: Learned counsel representing Sachal TV states that no salary of any of its employees is outstanding. This is not contested by any person present in Court. Therefore, proceedings against Sachal TV are also dropped. 8. Express TV & Daily Express: Learned counsel representing Express TV channel and Daily Express newspaper states that no salary of any employee is outstanding against the TV channel or the newspaper. This version is not contested by any person present in Court. Therefore, proceedings against Express TV and Daily Express are also dropped. 9. Daily Times and Times TV: Learned counsel representing Daily Times TV and newspaper states that all outstanding salaries of employees shall be cleared by 30.04.2018 except those with whom there is some litigation pending before the Courts. On the basis of the undertaking given above, it is directed that excluding the employees who have gone to the Courts in SMC 5/2018 -: 4 :- litigation for recovery of their dues, salaries of all other employees must be paid by 30.04.2018 without fail. A certificate along with affidavit of the owner of the said channel and newspaper shall be placed on record stating that all salaries due to the employees have been paid. Accordingly, proceedings against Daily Times TV and newspaper are dropped. 10. Daily Nawa-e-Waqt and Waqt TV: There is a complaint about non-payment of salaries by Nawa-e-Waqt group made by Mr. Matiullah Jan. None is present to represent the administration of the said group despite notice to them. We direct the Chief Executive of the Group to ensure that all outstanding salaries of employees shall be cleared by 30.04.2018 without fail. A certificate in this regard along with affidavit of the owner shall be placed on the record confirming that all salaries due to employees have been paid. Accordingly, proceedings against Daily Nawa-e- Waqt TV and newspaper are also dropped. 11. News One TV: There are complaints by the employee of the said TV channel regarding the non-payment of their salaries. None is present to represent the administration of the channel, despite notice. However, we direct that outstanding salaries of all employees must be cleared by 30.04.2018 without fail. A certificate in this regard along with affidavit of the owner of the said TV channel be placed on record confirming that all salaries due to employees have been paid. Accordingly, proceedings against News One TV are dropped. 12. Kashish TV: The representative of the Kashish TV states that no salary of any employee is outstanding against the said channel and all dues have been cleared till 31.03.2018. This SMC 5/2018 -: 5 :- is also not contested by any person present in Court. Therefore, proceedings against Kashish TV are also dropped. 13. Geo TV: It has been complained to us in open Court that salaries of the employees of GEO TV channel have not been paid for the last few months. We have summoned Mr. Salar Janjua, Director HR who in unequivocal terms has accepted that some of the employees have not been paid salaries for a few months. Be that as it may, to receive a salary for the job done by a person is his fundamental right guaranteed by Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. Thus, the Chief Executive/owners of GEO TV channel are directed to clear all dues/salaries of their employees by 30.4.2018 without fail. A certificate confirming payment to all employees of their dues accompanied by an affidavit of the C.E.O. to that effect shall also be filed by the next date of hearing. 14. PTV: Learned counsel representing Mr. Tanvir Iqbal (in CMA 2320/2018) states that his client has conducted more than 128 programs on Current Affairs but he has not been paid from April, 2016. Sardar Ahmad Nawaz Sukhera, Secretary Information and MD of PTV on additional charge, present in Court shall look into the matter and redress the grievance of the applicant. 15. Bol TV: Mr. Qausain Faisal Mufti, learned ASC (in C.M.A. 2188/2018) states that salaries of 192 employees are outstanding against Bol TV from September, 2015 which are collectively worth more than rupees 35 crores. Most of them have resigned from Bol TV. Some of them have joined other channels, others are jobless. Let Mr. Sami Ibrahim, Director News Bol TV apprise this Court by tomorrow about the outstanding salaries of the employee of Bol TV. The learned Additional Attorney General SMC 5/2018 -: 6 :- shall also apprise the Court about the appropriate forum for redressal of the grievance of such employees. 16. We, however, direct that all TV Channels and newspapers who are not represented today shall clear salaries of their employees by April 30, 2018. It may be noted that no employee of any other print or electronic media (company/group) has come forward to complain about non-payment of his or her salary. Therefore, we drop the proceedings against all other TV channels as well as newspapers. 17. We had taken notice of government advertisements appearing in the print media carrying pictures of public office holders, to determine if public money was being misused for self projection and personal aggrandizement. During the course of hearing of this matter various other issues cropped up. We therefore divided the main issue of media advertisements into three separate heads to be dealt with separately. These were:- i) guidelines for content regulation and discouragement of personal projection and self aggrandizement of public and political figures; ii) a just, fair and equitable system of distribution of government advertisements in the print and electronic media amongst different stakeholders, including media houses and advertisement companies; and iii) putting in place a system of payment by the Government and its Departments/Corporations, etc within a reasonable time so that huge amounts of money owed by the Government to media outlets whether print or electronic do not get stuck over long periods of time causing hardships for media companies and their workers. 18. Mr. Munir A Malik, learned Sr.ASC was directed by us to submit proposed Guidelines for Content Regulation of SMC 5/2018 -: 7 :- Government Advertisement in Print and Electronic Media. These Guidelines have been prepared in consultation with all major stakeholders of the Electronic & Print Media and with the consent and approval of All Pakistan Newspapers Society (APNS) and Council of Pakistan Newspapers Editors (CPNE). 19. We have also heard Mr. Hussain Haroon; Sardar Khan Niazi; Mr. Faisal Hussain, ASC; Mr. Zia Shahid as well as Sardar Ahmed Nawaz Sukhera, Secretary Information and Ms. Asma Hamid, Additional Advocate General, Punjab in the matter. All concerned have in unison approved and accepted the proposed Guidelines which are being incorporated and made part of this order in toto as follows:- “PROPOSED GUIDELINES FOR CONTENT REGULATION OF GOVERNMENT ADVERTISEMENTS IN PRINT AND ELECTRONIC MEDIA 1. Guiding principles for dissemination of information 1.1 Constitutional freedom of speech and right to information guaranteed under Articles 19 and 19A of the Constitution include freedom of press. The executive ought not use its discretionary authority in a manner aimed at encouraging censorship or influencing editorial policy of media outlets in favour of the political party in power. 2. Definitions of Classified Advertisement and Government Advertisement 2.1 Classified Advertisements include public notices, tenders, recruitment notices and statutory notifications etc. 2.2 Government advertisements include dissemination of information to members of the public about a government program, policy or initiative, or about any public health, safety or other matter, that is funded by or on behalf of a government, government agency or statutory body, but does not include classified advertisements. 3. Scope and Object of the Guidelines for Government Advertisements 3.1 There shall be no arbitrary use of public funds for Government advertisements aimed at projecting political SMC 5/2018 -: 8 :- leaders, political parties, partisan agendas or governments without any attendant public purpose. 4. Purpose of Government Advertising 4.1 The following includes categories of permissible Government Advertisements. i. To inform citizens about their rights, obligations, entitlements and responsibilities, about government policies, programmes, services or initiatives. ii. To inform citizens regarding the policies, programs, services, initiatives and decisions of the Government in compliance with the principles of parliamentary democracy and responsible governance. The public has a right to such information. iii. To encourage public involvement in government decision- making. iv. To educate and inform the public about community interests and dangers or risks to public health, safety or the environment etc. v. To use publicity to encourage behaviour that is in the public interest (for example crime prevention or road safety etc.) vi. To achieve public policy goals. vii. To provide information regarding the performance of the Government, including information regarding milestones achieved and new projects and public interest programs, thereby facilitating public accountability. viii. To ensure that institutions of the Government are visible, accessible and accountable to the public they serve. ix. To communicate and explain changes in the law that affect individuals or businesses. x. To commemorate national heroes not linked to a political party. 5. Content Regulation 5.1 Prohibitions: The following forms of Government Advertisements shall be prohibited: i. Including material that gives prominence to the voice or image of the head of an institution or individual, including, SMC 5/2018 -: 9 :- inter alia, a past or incumbent Prime Minister, Chief Minister, Minister, member of Parliament or candidate for an election to Parliament or portraying or promoting the said public office holder in a manner regarded as excessive or gratuitous, except in a limited case of Government Advertisements involving a public awareness campaigns in pursuit of legitimate state purpose where such voice or image is essential to such information, message or campaign. ii. Seeking to influence public support for an electoral candidate for election to Parliament or a Provincial Assembly or local body. iii. Including material with the name, logo or slogan of a political party. iv. Including links to the websites of a political party, a candidate for election to Parliament, Provincial Assembly or local body. v. Disparaging, ridiculing, attacking the opposition parties, political party leaders, state institutions or the government of a federating unit. 6. Government Advertisement during the election period: 6.1 Government Advertisements shall exclude the category of advertisements referred to in Clause 4.1(vii) above during the election period until the new government is formed after the notification of election results. For purposes of determining the election period reference is made to following provisions of the Election Act, 2017: “180. Regulation of publicity.—(1) No political party shall run a publicity campaign in print and electronic media at the cost of public exchequer.” “181. Prohibition of announcement of development schemes.—No Government functionary or elected representative including a local government functionary or elected representative, shall announce any development scheme for a constituency after the announcement of the Election Programme of that constituency.” 20. Ms. Asma Hamid, learned Additional Advocate General, Punjab has pointed out that the Government of Punjab through its Information Department has discussed and deliberated upon the above proposed Guidelines and may wish to suggest some improvements and additions in the same. We are of the view that the proposed Guidelines in their present form constitute the SMC 5/2018 -: 10 :- basic theme and foundation for content regulation of government advertisements in Print and Electronic Media considering the fact that a balance has to be stuck between freedom of speech, right to information, freedom of press and discouragement of expending public funds on personal projection and aggrandizement of individuals holding public offices. However, there is bar on any of the parties against suggesting improvements and additions which may be brought to the notice of this Court through appropriate applications. If and when such applications are moved, the additions and improvements suggested therein shall be debated, deliberated upon and in case found suitable shall be added to the existing Guidelines by this Court. 21. The first issue stands addressed in the form of above proposed Guidelines which have been adopted with consent of concerned parties including the Government as well as the Media Houses. It is therefore directed that all stakeholders shall strictly and faithfully comply with, abide by and follow the said Guidelines in letter and spirit. It is also reiterated that the Government advertisements which include material that gives prominence to the holders of public offices or heads of institutions or individuals including inter alia “past or incumbent Prime Minister, Chief Ministers, Ministers, Members of Parliament or candidates for election to the Parliament or portraying or promoting the said public office holders in a manner regarded as excessive or gratuitous shall be strictly prohibited and shall not be carried by any newspaper, television channel, radio broadcast, etc if it is paid for by the Government and public funds are expended for the same. It is, however, clarified that there shall be no prohibition in the case of government advertisements involving public awareness, campaigns in pursuit of legitimate State purposes, classified SMC 5/2018 -: 11 :- advertisements and government advertisements as defined and explained in the guidelines reproduced above. 22. As far as the second and third issues are concerned, the parties shall furnish their proposals and input in writing which shall be taken up at a subsequent stage. In this regard, notice shall also be issued to the Pakistan Advertisers Association for the next date of hearing, who may provide their input in the matter involving the second and third issues enumerated above. Let this matter be relisted for hearing on 07.05.2018. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 4th April, 2018. Not approved for reporting Mudassar/

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED S.M.C. NO. 06 OF 2014 (Suo moto action regarding rape victim sets herself ablaze after accused freed on bail) In Attendance: Mr. Mustafa Ramday, Acting Advocate General, Punjab Dr. Muhammad Abid Khan, DPO, D.G. Khan / additional charge of Muzaffargarh Mr. Ahmed Raza Gillani, Addl. P.G. Mst. Nizam Mai and Ghulam Farid, parents of the deceased Amna Date of Hearing: 02.04.2014 ORDER Learned Acting Advocate General, Punjab, submits that the investigation is in progress in terms of the previous order of this Court and the same would be finalized soon after the receipt of the report from the Punjab Forensic Science Laboratory, Lahore. Requests for two weeks time. 2. At this stage, the mother of Mst. Amna deceased and her father namely Mst. Nizam Mai and Ghulam Farid have appeared to submit that since certain police officials are involved in the affair which led her daughter to set herself ablaze, they feel insecure in the area. They further submitted that all the police officials who tried to protect the accused should also be brought to justice and they be provided State protection. 3. Confronted with the above grievance of the parents of Mst. Amna deceased, learned Acting Advocate General, Punjab, Mr. Mustafa Ramday submitted that he will get in touch with District S.M.C. NO. 06 OF 2014 2 Police Officer, Muzaffargarh to ensure that all the accused are brought to justice and that the parents of Mst. Amna and their family is provided protection as and when needed. Learned Law Officer submits that the police officer who earlier on was accused of partisan investigation is behind the bars and the DSP who verified and confirmed the report of innocence of the accused is also nominated in the second case registered vide FIR No. 31/2014 dated 15.3.2014 at Police Station Bait Mir Hazar under Sections 201/322 PPC read with Section 7 of the Anti Terrorism Act and Section 5-C of Police Order, 2002 but he is on pre-arrest bail. Assures that the family would be extended full protection. To come up on 21.4.2014 at Lahore, on the availability of Bench. The I.G. Punjab shall ensure that the final report of the investigation is submitted by or before the said date. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd of April, 2014 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Qazi Faez Isa S.M.C.7 of 2017 and C.M.As. 8732 and 8803 of 2017 in S.M.C.7 of 2017 Suo Moto Action Regarding Islamabad -Rawalpindi Sit-in (Dharna) Case (S.M.C.7/2017) Impleadment Application by S. Iftikhar Gillani (C.M.A.8732/2017 S.M.C.7/2017) Impleadment Application by Siraj Ahmed and others (C.M.A.8803/2017 S.M.C.7/2017) For Federation: Mr. Ashtar Ausaf, Attorney General for Pakistan For Islamabad: Mian Abdur Rauf, AG, Islamabad. For Govt of Punjab: Mr. Razzaq A. Mirza, Addl. AG Pb. For M/o Defence: Lt. Cdr. Shafiq ur Rehman, Dy. Director (Legal) For PEMRA: Hafiz S. A Rehman, Sr.ASC Ms. Amna Nasir, Head (Legal) Mr. Sardar Irfan, DG PEMRA In CMA 8732 of 2017: Syed Iftikhar Hussain Gillani, Sr.ASC In CMA 8803 of 2017: Nemo Date of Hearing: 03.01.2018 ORDER Mushir Alam, J: C.M.As. 8732 and 8803 of 2017 The Civil Misc. Applications No.8732 and 8803 of 2017 seek impleadment as a party in this Suo Moto Case No.7 of 2017. This Court has already taken notice of the matter and adding parties may encourage uncalled for further applications that may detract from the issue in hand, accordingly, both these application are dismissed. It may however be noted that the learned Attorney General for Pakistan has undertaken to look into the grievance of Syed Iftikhar Hussain Gillani, S.M.C.7 of 2017 and C.M.As. 8732 and 8803 of 2017 in S.M.C.7 of 2017 2 learned Sr. ASC as mentioned in his application (CMA 8732 of 2017) which pertains to the right of way under the Constitution and to access this Court. 2. PEMRA has filed a report with loads of documents, we may observe that such report is not in compliance with the order of this Court dated 30.11.2017. The report called for was required to be confined to the matter in issue. The report filed is self laudatory and refers to action taken by PEMRA against various media houses in respect of other matters. We were dismayed by the assistance rendered by Ms. Amna Nasir, Head (Legal) and Sardar Irfan, DG, PEMRA on behalf of the PEMRA, they, however, apologized for the inconvenience caused to the Court sought to withdraw CMA No.26 of 2018, which is allowed to be withdrawn. Let the fresh concise statement confining to the matter in issue be filed within ten days with advance copy to the learned Attorney General for Pakistan who may assist the Court, as to the manner in which PEMRA, is required to act and perform its duties in accordance with law and whether it did so in this matter. 3. The representatives of PEMRA stated that the office of Chairman, PEMRA is vacant. It may be observed that under the law absence of any member of the authority does not make the authority non-functional. The legal department and other departments continue their working and independently assist the authority, therefore, such plea is not accepted. 4. Lt. Cdr. Shafiq ur Rehman, Deputy Director Ministry of Defence (an officer of BPS-18) is in attendance and states that the Inter Services Intelligence (ISI) is under the control of Ministry of Defence and Intelligence Bureau (IB) is under the domain and control of the Ministry of Interior. He however was not able to respond to the matters raised in S.M.C.7 of 2017 and C.M.As. 8732 and 8803 of 2017 in S.M.C.7 of 2017 3 the orders passed by this Court nor did ISI file any report in this regard. The learned Attorney General is also not satisfied with such representation and concedes that in a matter of such sensitivity and importance senior officers of not less than Secretary grade and who are fully conversant with the matter in issue and in a position to answer questions with full responsibility should appear and assist the Court to arrive at a just conclusion, accordingly, we so direct. 5. The learned Attorney General for Pakistan states that in view of the importance of this case he may be briefed by ISI himself and if satisfied that the matter in issue as divulged by the agency concerned cannot be disclosed in open Court he may request for in-camera briefing, but will only make this request if necessary and not otherwise as it may sensationalize the issue. ISI should submit fresh report within a fortnight which shall comprehensively attend to all matters which they were required to in previous orders. ISI shall also mention whether the organization/s and their leadership, which had taken the law into their own hands and paralyzed the twin cities, are under surveillance and whether their antecedents have been determined. In this regard we expect that comprehensive information should be provided. In addition the Court be informed whether ISI monitors extremist organizations/ persons and those who jeopardize the functioning of the State. ISI should also report on whether the social media presence of those spewing hatred/extremism and attacking the State is monitored and what, if any, steps taken to contain them. 6. The learned Attorney General shall also assist the Court as to the authority that monitors, and may regulate/control, social media (such as Youtube, Facebook and Twitter) as it is noted that extremism and/or terrorism is being advocated thereon and is freely circulated on social media unchecked; and if it remains unchecked it may well become S.M.C.7 of 2017 and C.M.As. 8732 and 8803 of 2017 in S.M.C.7 of 2017 4 impossible to control, with grave consequences. In addition we be informed whether those who are violating the Constitution and laws of Pakistan on social media are prosecuted. 7. We appreciate the concern expressed by senior counsel Syed Iftikhar Hussain Gillani who was deeply saddened by the manner in which the situation was handled by the State functionaries. We also appreciate his offer of assistance as and when required in the matter. 8. Report of loss and damaged caused to the public and private property, persons and members of law enforcing agencies have been filed, however, deaths caused on account of inability to reach hospitals, etc. has not been mentioned, which should also be submitted before the next date of hearing. 9. A report disclosing the cost, incurred by the State on the dharna, which needless to state is borne by the public exchequer, must also be submitted, including the cost incurred in treating the injured and the compensation, if any, paid with regard to destruction/damage to property and on account of injuries/deaths. 10. The learned Attorney General states that he will be out of Pakistan on official duty and will not be available before 19th January, 2018. 11. Re-list in the first week of February, 2018. As we have been hearing this matter on a number of dates it would be appropriate to treat it as part-heard. Judge Judge ISLAMABAD, THE 3rd of January, 2018 arshed

IN THE SUPREME COURT OF PAKISTAN (Appellate/Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL SUO MOTU CASE NO.8 OF 2018 AND CIVIL MISC. APPLICATION NO.649-L OF 2018 IN SUO MOTU CASE NO.8 OF 2018 S.M.C.8/2018: Regarding dual nationality of Parliamentarians C.M.A.649-L/2018: Impleadment application by Shahzad Ali Khan In attendance: Syed Nayyar Abbas Rizvi, Addl. A.G.P. a/w Barrister Minaal Tariq Syed Ali Zafar, ASC (For Mr. Haroon Akhtar) Mr. Aleem Baig Chughtai, ASC (For Mrs. Nuzhat Sadiq) Mr. Hamid Khan, Sr. ASC Mr. Rashid Hanif, ASC (For Ch. Muhammad Sarwar) Mr. Ahmer Bilal Soofi, ASC (For Ms. Saadia Abbasi) Sardar M. Latif Khan Khosa, Sr. ASC (In C.M.A.649-L/2018) Mr. Bilal Hassan Minto, ASC (Amicus Curiae) Mr. Muhammad Arshad, D.G. (Law) (For ECP) Date of hearing: 17.10.2018 SMC No.8/2018, etc. 2 JUDGMENT SH. AZMAT SAEED, J.- During the course of hearing of Suo Motu Case No.3 of 2018, pertaining to dual nationality of Civil Servants and Officials of Autonomous Bodies, etc., it came to light that at least four newly elected Senators, namely, Ch. Muhammad Sarwar, Mr. Haroon Akhtar Khan, Ms. Nuzhat Sadiq and Ms. Saadia Abbasi, held dual nationality and apparently no conclusive evidence of their having renounced or relinquished such foreign nationality was available. Consequently, vide Order dated 05.03.2018, notices were directed to be issued for 8th of March, 2018, to the aforesaid newly elected Senators to provide proof of relinquishments of their foreign nationality. 2. In pursuance to the aforesaid notices, the said Senators entered appearance before this Court on 8th of March, 2018. On the said date, Mr. Bilal Hassan Minto, learned ASC and Mr. Khalid Javed, learned ASC, were both appointed as amicus curiae. Notices were also issued to the Election Commission of Pakistan (ECP) and the case was adjourned to 10th of March, 2018. On the said date i.e. 10th of March, 2018, the matter was referred to the present Larger Bench. The instant Larger Bench was SMC No.8/2018, etc. 3 tasked with the interpretation of Article 63(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973, along with the provisions of Section 14 of the Pakistan Citizenship Act, 1951 (Act of 1951), and to examine whether the law as laid down in the previous judgments of this Court mentioned in the aforesaid Order dated 10.03.2018, needed to be revisited. The relevant portion of the Order dated 10.03.2018, is reproduced hereunder for ease of reference: “… in order to interpret the provisions of Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973, whether a person acquiring citizenship of another country is permanently debarred and disqualified to contest the election for the Parliament and also to examine whether the law laid down in the judgment reported as Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) is a correct enunciation of law while interpreting the aforesaid Article (supra) as also the provisions of Section 14 of the Pakistan Citizenship Act 1951, we issue notice to all concerned and the matter must be fixed before a larger Bench to be constituted by the Honourable Chief Justice of Pakistan. As far as the interim relief is concerned, in the light of the law laid down in the judgment reported as Syed Masroor Ahsan Vs. Muhammad Tariq Chaudhry and others (1991 SCMR 668), we allow the Election Commission of Pakistan to issue the notice of the candidates those have been succeeded in the elections. Office is directed to separately number this aspect of the matter from the main case SMC No.8/2018, etc. 4 which is regarding Dual national of Hon’ble Judges and Officials of Courts and Government officers.” 3. On behalf of Mr. Haroon Akhtar Khan, a concise statement i.e. Civil Misc. Application No.8461 of 2018, was filed, followed by another Civil Misc. Application bearing No.8599 of 2018. Through the latter application i.e. CMA No.8599 of 2018, an affidavit was filed wherein it was deposed by Mr. Haroon Akhtar Khan that in the year 2014 when he was contemplating to contest the elections for the Senate, he tore his Canadian Passport and the Citizenship Card and mailed these documents back to Canada. As per his understanding, such an act was the procedure necessary for relinquishing a Canadian citizenship. However, appended with Civil Misc. Application bearing No.8599 of 2018, was a copy of an “Application To Renounce Canadian Citizenship under subsection 9(1)” (available at page 4 of the said CMA). This application appears to have been singed by him on 2nd of February, 2018. Furthermore, on a Court query, Syed Ali Zafar, learned ASC, appearing on behalf of Mr. Haroon Akhtar Khan, informed the Court that the process of relinquishment of Canadian citizenship though initiated in terms of the applicable SMC No.8/2018, etc. 5 Canadian law has till date not been completed and concluded. Thus, admittedly on the date of filing of the Nomination Papers for the elections to the Senate, in 2018, and even upon the hearing of these instant proceedings Mr. Haroon Akhtar Khan, in law, was and continued to be a Canadian citizen. 4. However, Syed Ali Zafar, learned ASC contended that Article 63(1)(c) of the Constitution, must be interpreted in the context of globalization, which has led to the metaphoric shrinking of the world, and an archaic interpretation is no longer valid. It was also contended that the said Article must be read in conjunction with the Fundamental Rights, as guaranteed under Article 17 of the Constitution, and an interpretation limiting the right of a citizen contest elections or to hold Public Office should be avoided. He further contended that nationality of an enemy State alone could be an impediment in holding a Public Office or from being a Member of Parliament in Pakistan. However, the mainstay of the contentions of the learned counsel was that in the phrase “ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State” as appearing in Article 63(1)(c) of the Constitution, the word SMC No.8/2018, etc. 6 ‘or’ must be read as ‘and’. Consequently, unless the acquisition of citizenship of a foreign State simultaneously results in loss of citizenship of Pakistan, the disqualification from being elected or chosen as a Member of Parliament, including the Senate, does not arise. In this behalf, he referred to the judgment of the learned Lahore High Court, reported as Umar Ahmad Ghumman v. Government of Pakistan and others (2002 Lahore 521) and contended that the dictum of this Court as laid down in the case reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), needs to be revisited and reconsidered. 5. Mr. Ahmer Bilal Soofi, learned ASC appearing on behalf of Ms. Saadia Abbasi, adopted the contentions of Syed Ali Zafar, learned counsel for Mr. Haroon Akhtar Khan, on the legal plane. However, on the factual aspect of the matter, it was contended that indeed Ms. Saadia Abbasi, was, at one point of time, a citizen of the United States of America, however, she has renounced her such nationality through an affirmation dated 08.02.2018. A copy whereof was appended with Civil Misc. Application No.651 of 2018, filed on her behalf. It was further SMC No.8/2018, etc. 7 contended that such an affirmation has been accepted on 20.02.2018 and a “Certificate of Loss of Nationality of the United States” was issued, (available at page 3 of the said CMA), which also bears the Certificate of Loss of Nationality from the Overseas Citizens Services Department of State. The learned counsel referred to the printed note on the foot of the document of renunciation of nationality of United States of America, available at page 5 of the said CMA, which reads as follows: “Note: A renunciation of United States nationality/citizenship is effective only upon approval by the U.S. Department of State but when approved, the loss of nationality/citizenship occurs as of the date the above Oath/Affirmation was taken.” 6. On the basis of the aforesaid documents, it was contended that in fact Ms. Saadia Abbasi had ceased to be an American citizen with effect from 08.02.2018, when affirmation was made, hence, she was not disqualified from being elected or chosen as a Senator nor from holding such an Office. 7. On behalf of Ms. Nuzhat Sadiq, a copy of Certificate of Loss of Nationality of the United States dated 09.02.2012, was filed, which was purportedly approved by the Overseas Citizens Services Department of State on 23.03.2012. The learned counsel contended SMC No.8/2018, etc. 8 that she was not an American citizen at the time when she submitted her Nomination Papers for the elections to the Senate of Pakistan. 8. Similarly, on behalf of Ch. Muhammad Sarwar, it was contended that he has relinquished his British citizenship and to evidence the same he filed a copy of “Declaration of Renunciation of British Citizenship, British Overseas Citizenship, British Overseas Territories Citizenship, British National (Overseas) or British Subject Status” dated 02.07.2013, alongwith a letter from the Home Office, UK Border Agency, dated 18.07.2013, which confirmed the renunciation of his British citizenship. A Certificate dated 09.03.2018 from British High Commission, Islamabad, confirming that he had renounced his citizenship in July, 2013, has also been filed on his behalf. 9. Mr. Bilal Hassan Minto, learned ASC, amicus curiae, contended that the true impact of Article 63(1)(c) of the Constitution is that a person who ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State, is not qualified to be elected or chosen as a Member of Parliament. With regard to the acquisition of nationality of another State, he contended that such an SMC No.8/2018, etc. 9 acquisition triggers the disqualification under the aforesaid provision of the Constitution and the disqualification was permanent. Subsequent relinquishment/renunciation of citizenship of a foreign State, in his view, would not cure the disqualification in terms of Article 63(1)(c) of the Constitution. The learned ASC further contended that even otherwise, such relinquishment or renunciation of citizenship of a foreign State would require interpretation of the laws of such State. It is added that the foreign law in view of Article 59 of the Qanun-e-Shahadat Order, 1984, is considered to be a question of fact. This Court should avoid venturing into the domain of interpretation of any foreign law. The only exception, perhaps, would be an admitted document clearly, unequivocally and conclusively evidencing such relinquishment/renunciation of citizenship. 10. The learned Additional Attorney General for Pakistan canvassed at the bar that the true and faithful interpretation of the provisions of Articles 62 and 63 of the Constitution and the relevant provisions of the Elections Act, 2017, and also the Pakistan Citizenship Act, 1951, leave no manner of doubt that, a person, who SMC No.8/2018, etc. 10 is a citizen of Pakistan and acquires the citizenship of a foreign State, is not qualified to contest the elections until and unless, he renounces the citizenship of the foreign State and such an act of renunciation is complete under the laws of the said foreign State. In this behalf, he referred to the laws of the United Kingdom, United States of America and Canada to contend that at the relevant point of time, Ms. Saadia Abbasi and Mr. Haroon Akhtar Khan were and the latter continues to be a citizen of a foreign State, hence, are disqualified to be elected or chosen and from being a Member of Parliament, including the Senate. With regard to Ch. Muhammad Sarwar and Ms. Nuzhat Sadiq, the learned Additional Attorney General for Pakistan took up the plea that the documents submitted by them to establish their effective renunciation of citizenship of the foreign State prior to filing of their Nomination Papers for the elections to the Senate, need to be authenticated and verified and the Federation is ready, able and willing to facilitate such verification. He, however, did not endorse the view of Mr. Bilal Hassan Minto, amicus curiae that disqualification arising from acquiring the citizenship of a foreign State is permanent and submitted that such disqualification SMC No.8/2018, etc. 11 would cease upon the legally effective renunciation and the relinquishment of the citizenship of the foreign State. 11. Heard. Available record perused. 12. The primary contention canvassed at the bar by Syed Ali Zafar, learned ASC that the word ‘or’ as appearing in Article 63(1)(c) of the Constitution, is to be read as ‘and’. Therefore, the lack of qualification mentioned in the said sub-article would only be attracted, if a person ceases to be a citizen of Pakistan on account of having acquired the citizenship of another country; therefore, a dual nationality i.e. being a citizen of Pakistan and of another country, if so, permitted by the laws of Pakistan, would continue to be eligible to be elected or chosen as a Member of Parliament, as such duality of citizenship does not imply the loss of the citizenship of Pakistan. 13. There can be no escape from the fact that in common parlance ‘and’ is used in the conjunctive sense, while ‘or’ is employed in the disjunctive sense. It is equally true that in legislative instruments, the words ‘and’ and ‘or’ may in certain circumstances be interchangeable. In this behalf, reference may be made to the passage from the Maxwell on Interpretation of SMC No.8/2018, etc. 12 Statutes, 12th Edition at page 232, wherein it is stated as follows: “In ordinary usage, “and” is conjunctive and “or” disjunctive. But to carry out the intention of the legislature it may be necessary to read “and” in place of conjunctive “or”, and vice versa.” (emphasis supplied) In Bindra’s Interpretation of Statutes 7th Edition at page 537, it is stated as follows: “Conjunctive and disjunctive words.-- The word “and” in a statute may be read as “or” and vice versa, whenever the change is necessary to effectuate the obvious intention of the Legislature. The Courts should, however, have recourse to this exceptional rule of construction only when the conversion of the words “and” and “or” one into the other, is necessary to carry into effect the meaning and the intention of the Legislature; or produces unintelligent or absurd result. …” (emphasis supplied) 14. The learned Lahore High Court in its judgment reported as Farooq Ahmad Khan Leghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another (PLD 1981 Lahore 159), held as follows: “58. Even otherwise, it is not a conclusive rule of interpretation that the word ‘and’ is to be always used conjunctively. In fact it is for the Court to interchange these words to save redundancy, anomaly absurdity or to SMC No.8/2018, etc. 13 conform to the clear intention of the Legislature. …” (emphasis supplied) This Court, in its judgment reported as Khadim Hussain and another v. The Additional District Judge, Faisalabad and others (PLD 1990 SC 632), after taking note of the aforesaid passages in the treatises on the Interpretation of Statutes as well as the aforesaid judgment of the learned Lahore High Court and the judgments reported as Salehon and others v. The State (PLD 1969 SC 267), Federation of Pakistan v. Hazoor Bukhsh and 2 others (PLD 1983 FSC 255), Farooq Ahmad Khan Leghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another (PLD 1981 Lahore 159), Muhammad Hussain v. The Additional District Judge, Lahore and others [PLD 1966 (W.P.) Lahore 128], Muhammad Amin v. Sh. Jamshed Ali [PLD 1963 (W.P.) Lahore 523], Badsha Mian v. The State (PLD 1966 Dacca 1), Chief Inspector of Factories, U.P. v. V.K. Modi (AIR 1952 Allahabad 804), The King v. Governor of Brixton Prison Ex parte Bidwell [(1937) 1 KB 305] and R. v. Oakes [(1959) 2 All E.R.] and held as follows: “4. From the above-cited cases and the passage from the well-known treatises on the Interpretation of Statutes, it is evident that the words SMC No.8/2018, etc. 14 “and” and “or” are interchangeable and the word “and” can be construed as “or” and vice versa if the change is necessary to effectuate the obvious intention of the law-maker or the statutory rules framer.” (emphasis supplied) 15. Thus, it appears that no doubt occasionally ‘and’ may be used disjunctively and ‘or’ conjunctively. Both can be used interchangeably. However, such a course of action is only permissible in order to give effect to the clear and obvious intention of the legislature or to avoid absurdity, unreasonableness or redundancy. In every eventuality ‘or’ cannot necessarily be read as ‘and’ or vice versa, nor is there a prohibition on the legislature or the framers of the Constitution to employ ‘or’ in its common parlance i.e. “disjunctively”. 16. In order to persuade us to read the word ‘or’ in Article 63(1)(c) of the Constitution, it was necessary for the learned counsel to exhibit that such an interpretation would be in consonance with the clear and obvious intention of the framers of the Constitution and to construe it disjunctively would result in an absurdity, unreasonableness or redundancy. The learned counsel could not demonstrate that the intention of the legislature by enacting the aforesaid Article would be SMC No.8/2018, etc. 15 effectuated by construing the word ‘or’ therein as ‘and’. In fact, no serious effort, in this behalf, was made. An interpretation of Articles 62 and 63 of the Constitution as well as the relevant provisions of the Elections Act, 2017, read along with the Pakistan Citizenship Act, 1951, in fact, leads to an obvious conclusion to the contrary. 17. A person to be eligible to be elected or chosen as a Member of Parliament is required to be a citizen of Pakistan as is obvious from the provisions of Article 62(1)(a) of the Constitution. 18. The lack of qualification, in this behalf, is set forth under Article 63(1)(c) of the Constitution, and an interpretation thereof is perhaps necessary for adjudication of the lis at hand. Article 63(1)(c) of the Constitution, reads as under: “63(1)(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or” 19. Before proceeding further, it may be noted that a “citizen” has been defined under Article 260(1) of the Constitution in the following terms: “260. (1) …………………………………….. “citizen” means a citizen of Pakistan as defined by law;” SMC No.8/2018, etc. 16 20. The mode of acquiring or loss of citizenship has not been set forth in detail in the Constitution of the Islamic Republic of Pakistan, 1973. The law to which Article 260(1) of the Constitution reproduced herein above is referring to is the Pakistan Citizenship Act of 1951. 21. An overview of the said Act, 1951, as amended from time to time reveals that as a general principle, dual citizenship or nationality is not permitted. Reference, in this behalf, may be made to Section 14(1) of the Act of 1951, which reads as follows: “14. Dual citizenship or nationality not permitted.—(1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless […] he makes a declaration according to the laws of that other country renouncing his status as citizen or national whereof, cease to be a citizen of Pakistan.” A plain reading of the aforesaid makes it clear and obvious that a Pakistani citizen who is incidentally a citizen or national of another State must make a choice and as a general rule cannot be a citizen of both countries. Until and unless he severs his relationship of nationality and/or citizenship with the foreign State in terms of laws of such State, he will cease to be a citizen SMC No.8/2018, etc. 17 of Pakistan. Section 14(1) of the Pakistan Citizenship Act, as originally framed in 1951, envisaged a grace period of one year from coming into force of the Act for citizen of Pakistan and another State to make up his mind. This obviously catered for the situation that a large number of people who by birth or migration were entitled to be the citizen of both Pakistan and India. It is, in this context, that the grace period appears to have been granted. However, the general principle that a Pakistani citizen cannot also a citizen of another State was without exception the law of the land till 1972, when by way of an amendment, sub-section (3) of the Act of 1951, was added to Section 14, which reads as follows: “14(3) Nothing in sub-section (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being or having at any time been, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf.” 22. Various notifications have been issued under Section 14(3) of the Act of 1951, to extend the privilege of dual nationality to persons acquiring citizenship of, inter alia, United States of America and Canada in addition to the United Kingdom countries relevant for the adjudication of the lis at hand. SMC No.8/2018, etc. 18 23. Currently, a person can be a citizen of Pakistan as well as a citizen of, inter alia, United Kingdom, United States of America and Canada without ceasing to be a citizen of Pakistan. It is in the above context, that the provisions of Article 63(1)(c) of the Constitution, must necessarily be interpreted. Where a citizen of Pakistan acquires the nationality of or is also a citizen of another country other than a country covered by the provisions of Section 14(3) of the Act of 1951, or the Notifications issued thereunder, permitting dual nationality, referred to above, he automatically ceases to be a citizen of Pakistan, and therefore, cannot be elected or chosen as a Member of Parliament or hold such Office in view of the Article 63(1)(c) of the Constitution in as much as it states “ceases to be citizen”. In fact, he is not qualified in terms of Article 62(1)(a) of the Constitution. If the contentions of the learned counsel are to be accepted with regard to a person, would come within the mischief of Article 63(1)(c) of the Constitution, only if he looses his Pakistani citizenship on account of acquiring citizenship/ nationality of another State than the latter portion of the Article would become redundant and the intention of the SMC No.8/2018, etc. 19 framers of the Constitution would be frustrated rather than actualized. 24. The upshot of the above is that it was clear intention of the framers of the Constitution that the word ‘or’ has been used disjunctively in order to cater for a separate distinct situation, where a Pakistani citizen acquires a dual nationality of a foreign State as mentioned or notified under Section 14(3) of the Act of 1951, without loss of his Pakistani citizenship in terms of Section 14(1) of the said Act. An interpretation to the contrary would render the phrase “acquires the citizenship of a foreign State” under Article 63(1)(c) of the Constitution redundant, which intention can never be attributed to the framers of the Constitution, as is the settled law, in this behalf. Reference, in this behalf, may be made to the judgments of this Court reported as Malik Shakeel Awan v. Sheikh Rasheed Ahmed and 21 others (PLD 2018 SC 643), Justice Shaukat Aziz Siddiqui and others v. Federation of Pakistan through Secretary Law and Justice, Islamabad and others (PLD 2018 SC 538), Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others (PLD 2018 SC 405), Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SMC No.8/2018, etc. 20 SC 189), District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), Application by Abdul Rehman Farooq Pirzada (PLD 2013 SC 829), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61) and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32). 25. Thus, the conclusion drawn by this Court in the case reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), that the word ‘or’ used in Article 63(1)(c) of the Constitution, is disjunctive and that a person holding a dual nationality of a foreign State though legally in view of Section 14(3) of the Act of 1951, nevertheless will not be entitled to be elected or chosen as, or hold the Office of a Member of Parliament, is correct interpretation of the Constitution and does not merit any reconsideration. Incidentally, the aforesaid view has been reiterated by this Court in its judgments reported as Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary, M/o Law, Islamabad and others (PLD 2013 SC 413) and Sadiq Ali Memon v. SMC No.8/2018, etc. 21 Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246). 26. The contentions of Mr. Bilal Hassan Minto, learned ASC, amicus curiae, must necessarily be examined in the context that the word ‘or’ as used in Article 63(1)(c) of the Constitution, has been employed disjunctively with the effect that lack of qualification(s) under the said provision caters for two separate legal situations. Firstly, where a person who once being a citizen of Pakistan ceases to be a citizen of Pakistan (say under Section 14 of the Act of 1951), or secondly acquires the citizenship of a foreign State [as is permissible under Section 14(3) of the Act of 1951]. The later disqualification i.e. acquiring citizenship of a foreign State needs to be interpreted on stand alone basis as a separate category of disqualification. In the above context, Mr. Bilal Hassan Minto, learned ASC, amicus curiae, perhaps, correctly canvassed that such a disqualification is triggered by acquiring of the citizenship of a foreign State. We noticed that the term “acquire” has not been defined in the Constitution. Thus, we must search for its ordinary dictionary meanings. In “Words and Phrases, Permanent Edition, West Publishing Co. SMC No.8/2018, etc. 22 Volume 1A, at page 556-557”, the words “acquire” and “acquired” have been defined as under: “ACQUIRE; ACQUIRED In General: To “acquire” means to gain, usually by one’s own exertion; to get, as one’s own, as to acquire a title, riches, knowledge, skill, good or bad habits. U.S. v. Hibernia Bank Bldg., D.C.La., 76 F.Supp. 18, 19.” In Black’s Law Dictionary, Fifth Edition by the Publisher’s Editorial Staff, at page 23, stated as under: “To gain by any means, usually by one's own exertions; to get as one's own; to obtain by search, endeavour, investment, practice, or purchase; receive or gain in whatever manner; come to have. In law of contracts and of descents, to become owner of property; to make property one's own.” In Legal Terms & Phrases, Judicially defined from 1947 - 2012, by M. Ilyas Khan, 2013 Edition at page 38, the word “Acquire”, has been defined, while referring the judgment rendered by Mr. Justice Shabbir Ahmed, Judge, Lahore High Court, in the judgment reported as M. Aslam v. Umar Bibi (PLD 1960 Lahore 312) in the following words: “Acquire. - “To obtain or gain usually by one’s own efforts.” The phrase “acquires the citizenship of a foreign State” when examined in the context of the aforesaid definitions SMC No.8/2018, etc. 23 of the word “acquire”, leads to an irresistible conclusion that a person is not qualified, if he, obtains or gains the citizenship of a foreign State. The lack of qualification is the consequence of gaining, obtaining or acquiring a legal status i.e. citizenship of a foreign State. As long as such legal status i.e. citizenship of a foreign State holds the field the disability resulting therefrom i.e. lack of qualification to be elected or chosen or being a Member of Parliament would also exist. If such disabling legal status disappears so too will the disability. This is the only conclusion which can be drawn from a plain reading of the aforesaid provision. In this view of the matter, where a citizen of Pakistan acquires the citizenship of a foreign State, he shall not be qualified to be elected or chosen or being a Member of Parliament until and unless such legal status i.e. being a citizen of a foreign State is obliterated or extinguished. This is only possible when the citizenship of the foreign State is renounced or relinquished and such process of relinquishment or renouncement is completed and concluded. Mere initiation of the process of relinquishment is not sufficient as during the course of such process, the dual national does not cease to be a SMC No.8/2018, etc. 24 citizen of a foreign State and the disqualification exists. This view has already been taken by this Court in the judgments reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054), Dr. Ahmed Ali Shah and others v. Syed Mehmood Akhtar Naqvi and others (2018 SCMR 1276), Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) and Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246), we have not been persuaded to take a different view in the matter. 27. Adverting now to the matter of the newly elected Senators at hand. With reference to Ch. Muhammad Sarwar, no doubt, he was once the citizen of United Kingdom and thereafter, he has purportedly relinquished/renounced such citizenship well before the Senate elections in question. In support of his contentions, he filed a copy of “Declaration of Renunciation of British Citizenship, British Overseas Citizenship, British Overseas Territories Citizenship, British National (Overseas) or British Subject Status” dated 02.07.2013, along with a letter from the Home Office, UK Border Agency, dated 18.07.2013, which SMC No.8/2018, etc. 25 confirmed the renunciation of his British Citizenship (available at pages 5 and 6 of CMA No.8575 of 2018). A Certificate dated 09.03.2018 from the British High Commission, Islamabad, confirming that he had renounced his citizenship in July, 2013, has also been filed on his behalf. 28. The aforesaid documents, ex facie, established that Ch. Muhammad Sarwar, did not hold dual nationality when he contested the elections to the Senate. However, the said documents need to be authenticated and verified. 29. On behalf of Ms. Nuzhat Sadiq, it has been submitted that she was a citizen of United States of America and renounced her nationality in the year 2012. In support of her contentions, she filed a copy of Certificate of Loss of Nationality of the United States dated 09.02.2012, which was approved by the Overseas Citizens Services Department of State on 23.03.2012. The aforesaid documents, ex facie, established that Ms. Nuzhat Sadiq, was not a dual national when she contested the elections to the Senate. However, the said documents need to be verified. SMC No.8/2018, etc. 26 30. With regard to Mr. Haroon Akhtar Khan, as noted above, he admittedly is a Canadian citizen, having acquired Canadian citizenship in the year 1980, as mentioned in his Affidavit and the process for renunciation of such citizenship has been initiated by him. However, it was candidly conceded by his learned counsel that such process has not been completed, hence, Mr. Haroon Akhtar Khan, continues to be a Canadian citizen. In this view of the matter, Mr. Haroon Akhtar Khan, in view of Article 63(1)(c) of the Constitution was not qualified to be elected or chosen as a Member of Senate or to hold the Office of Senate, under the Constitution. 31. Adverting now to the matter of Ms. Saadia Abbasi, it is an admitted fact that she had a dual nationality of United States of America. It is her case that she had renounced and surrendered such nationality. In support of her contention, she has filed a copy of the Statement of Understanding Concerning the Consequences and Ramifications of Renunciation or Relinquishment of U.S. Nationality, attested on 08.02.2018, in the Consul of the United States of America; a copy of the Certificate of Loss of Nationality of SMC No.8/2018, etc. 27 the United States dated 13.02.2018, approved on 20.02.2018; and also a copy of Oath/Affirmation of Renunciation of Nationality of United States dated 08.02.2018. 32. That by way of the Elections Act, 2017, inter alia, the Representation of the People Act, 1976, as well as the Senate (Election) Act, 1975, have been repealed, consolidated and re-enacted. In Halsbury’s Laws of England (Second Edition), Volume 31 at page 565, para 771, it is observed as under: “771. … Where a consolidating statute re- enacts sections that have come into existence at different previous dates, the statute must be construed on the same principles as one which enacts the provisions in question for the first time. …” Thus, provisions of the Elections Act, 2017, must necessarily be construed as they were previously interpreted. Sections 107, 110, 112 and 156(1)(b) of the Elections Act, 2017, in fact, are reenactment of Sections 10, 11, 13 and 49(1)(b) of the Senate (Election) Act, 1975, and legally identical to Sections 11, 12, 14 and 68(1)(b) of the Representation of the People Act, 1976. The latter provisions have been interpreted by this Court by holding SMC No.8/2018, etc. 28 that a person must be qualified and not disqualified on the last date of filing of the Nomination Papers. This Court, in the case reported as Waqas Akram v. Dr. Muhammad Tahirul Qadri and others (2003 SCMR 145), held as follows: “6. … the qualifying age has to be determined on the last date for filing of nomination papers, notified by the Election Commission of Pakistan. In other words the cut-off date is the last date for filing of nomination papers.” And in the case reported as Atique Rehman v. Haji Khan Afzal and others (2007 SC M R 507), it was held that: “… so long the decree of the Civil Court determining the age of appellant above 25 years on the date of filing of nomination papers was intact, the objection that he was less than 25 years of age on the date of filing of nomination papers could not be raised to contend that he was suffering from disqualification to contest the election. …” And in the case reported as Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430), it was observed as under: “11. … Disqualification on account of dual citizenship … is not attracted in instant case as on the date of nomination papers, the petitioner was admittedly not holding any dual citizenship. …” SMC No.8/2018, etc. 29 Even otherwise, a plain reading of Sections 107, 110, 112 and 156(1)(b) of the Elections Act, 2017, would reveal that the accumulated effect is that the critical date for being qualified or not being qualified to be a Member of Parliament is the date when the Nomination Papers are filed. 33. The elections of the Senate were held under Chapter VII of the Elections Act, 2017, and as per Notification dated 02.02.2018, the schedule of Senate elections was issued by the ECP, with regard to Senate elections from the Provincial Assembly, Punjab, and in terms whereof, notice for invitation of Nomination Papers was issued on 03.02.2018. The last date for filing of the Nomination Papers was 08.02.2018 and the date of scrutiny was fixed as 12.02.2018. The appeals, if any, filed were required to be disposed of as on 17.02.2018. The last date of withdrawal was 19.02.2018. 34. Obviously, Ms. Saadia Abbasi, filed her Nomination Papers by or before 08.02.2018 and on that date, even as per her own case, at that point of time, she was a dual national and the alleged relinquishment still under process, leaving no room for doubt that on such dates, at such point of time, even as per her own case, SMC No.8/2018, etc. 30 the renunciation of dual citizenship had not been approved. Hence, she was not qualified to be elected or chosen as a Member of Senate and her Nomination Papers were invalid, liable to be rejected and any election thereupon void. The subsequent approval of her renunciation even with retrospective effect could not cure the defect of not being qualified in terms of Section 103 of the Elections Act, 2017, which existed at that point of time, when she filed her Nomination Papers, on the last date of Nomination Papers and when her Nomination Papers were scrutinized. In this view of matter, her election to the Senate is vitiated and liable to be annulled, as she was not qualified at the relevant point of time. 35. The aforesaid are the detailed reasons of our short Oder of event date, which reads as follows: “As regards Ch. Muhammad Sawar, vide order dated 10.10.2018 we have required the verification and confirmation of certain documents and granted a period of six weeks for doing the needful. Such verification has not so far been received. Resultantly, let the case be listed for hearing before a regular Bench after a period of six weeks. SMC No.8/2018, etc. 31 2. The learned counsel appearing for Mrs. Nuzhat Sadiq has brought on the record her certificate of relinquishment of nationality/citizenship dated 23.3.2012 which needs verification with regards to its genuineness. Therefore, the said document be sent to the Ministry of Foreign Affairs for verifying the authenticity thereof from the US Embassy in Pakistan and also from the State Department of US. Relist for hearing before a regular Bench after six weeks. 3. As far as Mr. Haroon Akhtar and Mrs. Saadia Abbasi are concerned, for the reasons to be recorded later, we hold and declare that on account of having dual nationality on the relevant dates, they were disqualified under the provisions of Article 63(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, upon the announcement of this order they have effectively ceased to be the Members of the Senate and accordingly are directed to be denotified by the Election Commission of Pakistan, which shall take steps for the purposes of re-election on those seats within the time provided by the law. SMC No.8/2018, etc. 32 4. As far as the case of Mr. Shahzad Ali Khan is concerned, it has been informed that he has lost the elections, therefore, C.M.A.No.649-L/2018 stands disposed of as having become infructuous.” Chief Justice Judge Judge Judge Judge Judge Islamabad, the Judge 17th October, 2018 ‘APPROVED FOR REPORTING’ Mahtab H. Sheikh

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Suo Moto Case No. 9 of 2011 (Suo Motu action regarding illegal selling out the Auqaf Properties by the Chairman, Evacuee Trust Property Board) And Constitution Petition No. 93 of 2012 And Crl. Original Petition No. 71 of 2013 (Contempt proceedings against Shirjeel Shah Muhammad, CE, Highland Living Concept) For the applicant(s) : Mr. Shehram Sarwar, ASC Mr. Zulfiqar Khalid Maluka, ASC For Asif Akhtar Hashmi, ex Chairman ETPB : Nemo For the ETPB : Hafiz S.A. Rehman, Sr. ASC Raja Abdul Ghafoor, AOR Mr. Junaid Iqbal, Secretary For the FIA : Mr. Muhammad Azam Khan, Addl. D.G. Mr. Qudratullah Khan, Director (Pb) Mr. Naveed Tareen Dy.Director, Crime Circle For DHA, Lahore : Mr. Asim Hafeez, ASC For DHA Rwp/Islamabad : Col (R) Ejaz Hussain, Secretary For M/s Highland Living Concept : Kh. Muhammad Farooq, Sr. ASC with Sharjeel Shah Muhammad, CE (in Crl.O.P No.71/2013) For M/s Elysium Holdings Pakistan : Mr. Tariq Hassan, ASC Mr. Atif Amin, ASC Raja Abdul Ghafoor, AOR With Mr. Hammad Arshad, CE Date of Hearing : 25.07.2013 SMC 9/2011 etc. 2 ORDER Iftikhar Muhammad Chaudhry, CJ.— Instant case was initiated by exercising suo moto jurisdiction conferred upon this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, on a letter sent by members of Sikh community stating therein that Mr. Asif Akhtar Hashmi, Chairman Evacuee Trust Property Board had been selling the evacuee property especially attached to their worship places. Copies of the news items published in daily “Jang” Rawalpindi, “The News” Islamabad dated 21.04.2010 and the Herald (March Edition) reporting the irregularities being committed by the Evacuee Trust Property Board (ETPB) were also attached with the letter. Initially, the matter was registered as HRC No.28464-K/2010 and report was called from Chief Secretary, Government of Punjab on the matter mentioned in the said letter. The report was received from the Secretary, Ministry of Minorities, Government of Pakistan, Islamabad stating therein “that the allegation in the application have already been probed into by Public Accounts Committee, special Public Accounts Committee, Prime Minister, Inspection Commission and Special Audit. The allegations are nothing but to spoil the name of the department as well as the image of Pakistan. Furthermore, the matter in issue was also challenged in the Honourable Lahore High Court wherein it was dismissed”. On 16.04.2011, the matter was placed before one of us (Chief Justice of Pakistan) in Chambers for necessary orders, thus an order to the following effect was passed:- “Put up in court as petition under Article 184(3) of the Constitution. Notice to the applicant and Chairman, Evacuee Trust Board of Pakistan be issued…” SMC 9/2011 etc. 3 Resultantly, the matter was registered as SMC No.09/2013 and fixed before the Court. 2. It is to be mentioned that Asif Akhtar Hashmi, former Chairman ETPB appeared in person on 7.5.2013 but on the next date of hearing i.e. 24.05.2013 his counsel appeared and when his attendance was required to be procured by passing a specific order, he did not appear on 7.06.2013. He engaged Mr. Hamid Khan, learned Sr. ASC to appear on his behalf, however, despite issuance of directions he failed to appear in person before the Court. Inasmuch as, his counsel submitted before the Court that the order of this Court, had been communicated to him. At one stage it was pointed out by his counsel that he could not manage to come back to Pakistan as he had deposited his passport in Dubai with the Saudi Embassy for performing Umra and sought adjournment enabling the latter to appear in Court. At his request, case was adjourned on different dates and ultimately on 14.06.2013 learned counsel stated that this Court accommodated him twice by adjourning the case with the observations to produce him but despite all his efforts he could not succeed, therefore, in principle it would not be fair for him to make any further request to the Court in this regard, hence, he would be allowed to withdraw from appearing before this Court on his behalf in this case. The request was allowed and at the same time DG, FIA was directed to effect service of the notice upon him. In the meantime, FIA submitted a report stating therein that Syed Asif Akhtar Hashmi was still abroad and the matter had also been referred to Interpol for the service of the notice upon him. Interpol authority in Pakistan, in reply, informed that he has SMC 9/2011 etc. 4 departed from UAE to UK on 14.06.2013, therefore, the matter was referred to Interpol UK and reply is awaited. 3. The background to the case is that in the Evacuee Trust Property Board’s (ETP Board) meeting held on 14.05.2007, the then chairman brought to the knowledge of the Board the request of Defence Housing Authority (DHA), Lahore to acquire three pieces of Evacuee Trust land situated in Mauza Lidhar (75 acres, 2 kanals and 14 marlas), Mauza Mota Singh Wala (142 acres and 14 marlas) and Mauza Dera Chahal (26 acres, 1 kanal and 13 marlas), Lahore Cantonment falling in Phase-VI and VII of DHA. The options offered by DHA in this regard were:- Option-I Price of the aforementioned ETPB land be received by the Board. Option-II These ETPB lands be handed over to the DHA for development and in exchange developed plots as per laid down procedure will be given to ETPB. Option-III ETPB may exchange its aforesaid land with DHA land in mauza Halloki (84 acres, 4 kanals and 10 marlas) adjacent to Khayaban-e-Amin and Doctor’s Colony, Kahna Road/ Defence Road, Lahore. 4. In the said meeting, the Chairman sought guidance of the Board for proceeding further with reference to the above proposal and he also apprised the Board about the estimated cost of land prevailing in market of ETPB and DHA. General practice of DHA, regarding allotment of two developed residential plots of one kanal each in lieu of SMC 9/2011 etc. 5 one acre land, was also discussed. The Board, after due deliberations and keeping in view the existing and future potential of the DHA land situated in Mauza Halloki, rejected Option-III. Moreover, after discussing pros and cons of the remaining two options, the Board considered Option-II as more workable due to increase in the cost of developed plots. However, the Board desired that instead of consenting to two developed plots measuring one kanal in return to land measuring one acre to be handed over to DHA (i.e. 25% of land), at least 33% land of developed plots to be claimed. It was further suggested that in addition to residential plots, commercial plots situated on the main roads/nearest to main roads preferably to be claimed. 5. Subsequent thereto, the ETPB vide letter dated 10.07.2007 issued by Deputy Secretary (P), informed the DHA, Lahore as regards approval of Option-II by the Board. The Option-II, mentioned in the said letter, reads as follows: Option-II: ETPB lands to be given to DHA in exchange for developed plots. 33% land of developed plots to be given by DHA. (This means that instead of 2 x one kanal plots, 3Xone kanal plots per acre of ETPB land). Besides, 10% of commercial plots to be offered to ETPB on the rates as for members of DHA. 6. It was further mentioned in the said letter that on 19.06.2007, the matter was discussed on a courtesy call by the Chairman, ETPB with the Commander 4 Corps and that the Corps Commander appreciated the proposal. It was, therefore, requested that the above proposal be confirmed in order to enable the ETPB to obtain formal approval of the Board and Federal Government, necessary for transfer of ETPB land. SMC 9/2011 etc. 6 7. In response to the above mentioned letter, the DHA sent a letter dated 20.07.2007 to the Chairman, ETPB which reads as under:- “Subject: Acquisition of Evacuee Trust Land Please refer to ETPB letter No. P(3)- DSP/530/ETPB/07LHR/7789 dated 10 July 07 on the above subject. 1. the management of DHA has approved following compensation in lieu of the valuable contribution by Evacuee Trust Property Board and your personal efforts:- a. ETPB land will be acquired by DHA at 33% exemption as enunciated in Para 2 of ETPB letter quoted above. The detailed distribution will be as follows:- (1) Total land 1946 Kanals (approx) (2) Total residential plots to be carved on the land as per DHA standard town planning 973 Residential plots (3) Share of Residential Plots (a) ETPB 642 Plots (b) DHA 331 Plots 2. The option of 10% commercial plots to be offered to ETPB on the rates as per members of DHA was analysed. It will be appreciated that DHA adds value to its property by maintaining highest standard of town planning thus maintaining a certain ration of open spaces to constructed areas. Similarly a ration in line with the international standards is maintained in residential area vs. commercial area. Being a welfare organization, DHA acquires the land and develops it for allotment to the landowners (who contribute the land) and a portion of it for armed forces personnel for whom the society is primarily functioning. In this case under consideration, total number of commercial plots being carved out is 194. it is submitted that as per SMC 9/2011 etc. 7 10% formula DHA is not left with a single plot, therefore, the matter may be reconsidered and an equitable distribution be agreed upon to facilitate early resolution of the issue. The suggested distribution is as following:- a. Total commercial plots to be carved on the land per DHA std town planning 194 Commercial Plots b. Recommended Share of Commercial Plots (1) ETPB 100 Plots (2) DHA 94 Plots 3. Foregoing in view, it is requested that above mentioned allotment may please be approved by ETP Board and kindly detail a representative to carry out necessary coordination with DHA at its earliest, please. Lft. Col For ADHA (Amer Baig Mirza)” 8. Accordingly, the matter was discussed in the 263rd meeting of the ETP Board held on 23.07.2007 wherein following observation/directions were made:- “The Board, after due deliberation, rejected Option-III keeping in view the existing and future potential of the DHA land situated in Mauza Halloki. The Board after discussing pros and cons of the remaining two options, considered Option-II as more beneficial due to increasing trend in the cost of developed plots. However, the Board desired that instead of consenting to two developed one kanal plots for each acre of land to be handed over to DHA (i.e. 25% of land), 33% land of developed plots may be claimed. In addition to residential SMC 9/2011 etc. 8 plots, commercial plots may also be claimed on payment as for member of DHA. The Board also stressed that as the matter was potentially beneficial to the Board, therefore, pursuing it should be done on priority basis. The matter was discussed with DHA at various levels. The DHA vide letter dated 20.07.2007 has intimated that the management of DHA has approved that ETP Board land will be acquired by DHA at 33% exemption of residential plots (measuring 1 kanal each). Thus for 1946 K of ETPB land, DHA would provide 642 residential plots. In addition, DHA has offered 100 commercial plots on payment as for DHA members i.e. 16% of residential plots instead of, 10%.” 9. Later on, the ETPB vide letter dated 11.08.2007 informed the Ministry of Minorities (Minorities Affairs Division), Government of Pakistan through a letter captioned “Acquisition of Evacuee Trust Land by The Defence Housing Authority, Lahore Cantt.” about the decision of ETP Board. Paragraph 7 therefrom, being relevant, is reproduced hereinbelow:- “The matter was then placed before the Board vide Item No.10 of its 263rd Meeting held on 23.07.2007. The Board decided to proceed further with the arrangement agreed between ETPB and DHA as it was beneficial to the Board due to the increasing value of the developed plots in DHA. Photocopies of working paper and extract of minutes of Item No. 10 of Board’s 263rd Meeting held on 23.07.2007 are attached as Annex ‘D’ & ‘E’. Approval of the Federal Government to the aforementioned decision of the Board may be conveyed to this office to implement the arrangement with DHA”. SMC 9/2011 etc. 9 10. The Ministry of Minorities responded to the above mentioned letter vide letter dated 28.08.2007 advising the ETPB to furnish information and not to initiate any further action in the matter without prior approval of the Federal Government. The said latter is reproduced hereinbelow:- “Government of Pakistan Ministry of Minorities (MINORITIES AFFAIRS DIVISION) No.F.4(11)/2007-P-II Islamabad, the 28th August, 2007 The Chairman, Evacuee Trust Property Board, 9-Court Street, Lahore Subject:- ACQUISITION OF EVACUEE TRUST LAND BY THE DEFENCE HOUSING AUTHORITY, LAHORE CANTT. Please refer to ETP Board’s letter No. P(3)DSP/530/ETPB/07/LHR/8822 dated 11th August, 2007 on the above subject. 2. The matter is under process in the Ministry and ETP Board is advised to urgently furnish the following information for proceeding further in the matter:- i) The option of open auction has not been considered by the ETPB. The same may be considered and expected return/income so generated may be compared with the above mentioned option-II approved by the ETP Board. ii) The legal status about the lessees who are on extension and the procedure/terms & conditions to be adopted for settlement of such cases. iii) A copy of DHA’s policy according to which developed plots will be given to ETPB. iv) Details of all the lessees clearly mentioning their history whether they are original lessees or changes of tenancy has taken place, subsequently. v). Minutes of the meetings between DHA and ETP Board for warranting the instant recommendations. SMC 9/2011 etc. 10 3. ETP Board is further advised that no action will be initiated without prior approval of the Federal Government. 4. This issues with the approval of the Secretary. (Naeem Ahmad) Section Officer (P-II) Ph.9208487” 11. The ETPB vide letter dated 11.09.2007 addressed to the Ministry of Minorities Affairs furnished the requisite information. Paragraph 2(b) and (c) wherefrom are reproduced below:- “2. … … (a) … … (b) Out of total land of 1964(sic.)-Kanals (approx.), 973 residential plots can be carved as per D.H.A Standard. ETPB share would be 642 plots (33% of 1946) and that of D.H.A 331 plots. When developed the value of 642 plots would be approximately Rs.6420 million (@ Rs.10.0 million per plot). This is much more than the price expected from open auction of raw land in its present state. (c) It has been agreed by the D.H.A. that is will be their responsibility to get possession of aforesaid land from the lessees of ETPB. D.H.A. would use their resources for the purpose. ETPB would not be involved in this process. 3. You are requested to expedite approval of the plan as D.H.A. is pressing for an early decision. 4. This letter is issued with the approval of the Chairman. (Ch.Riaz Ahmad) Secretary” 12. The Ministry of Minorities Affairs vide letter dated 28.09.2007 again asked the ETPB to provide some further information and once again advised it not to initiate any action in this regard without prior approval of the Federal Government. The said letter reads as under:- SMC 9/2011 etc. 11 “Government of Pakistan Ministry of Minorities (MINORITIES AFFAIRS DIVISION) No.F.4(11)/2007-P-II Islamabad, the 28th September, 2007 The Chairman, Evacuee Trust Property Board, 9-Court Street, Lahore Subject:- ACQUISITION OF EVACUEE TRUST LAND BY THE DEFENCE HOUSING AUTHORITY, LAHORE CANTT. Please refer to ETP Board’s letter No.P(3)DSP/530/ETPB/07/LHR/9806 dated 11th September, 2007 on the above subject. 2. The matter is under process in the Ministry and ETP Board is again advised to urgently furnish the following information for proceeding further in matter:- i) The calculation of plots and expected value to be generated has not been calculated correctly, the same may be done accordingly. ii) Details of all the lessees clearly mentioning their history whether they are original lessees or changes of tenancy has taken place, subsequently. iii) The legal status about the lessees who are on extension and the procedure/terms & conditions to be adopted for settlement of such cases. iv) Minutes of the meetings between DHA and ETP Board for warranting the instant recommendations. 3. ETP Board is further advised that no action will be initiated without prior approval of the Federal Government. 4. This issues with the approval of the Secretary. (Naeem Ahmad) Section Officer (P-II) Ph.9208487” 13. The requisite information was provided by the ETP Board vide letter dated 19.10.2007 addressed to the Ministry of Minorities, SMC 9/2011 etc. 12 wherein it was reiterated that “approval of the Federal Government to the decision of the Board taken vide item No.10 of its 263rd meeting held on 23.07.2007 may be conveyed to this office to implement the arrangement with DHA”. 14. In the meanwhile, the ETP Board was reconstituted vide notification dated 14.11.2007 enlisting the following non-official members: (b) Non-official Members (1) Brig (R) Ijaz Ahmad Shah (2) Mr. Muhammad Nawaz Tishna (3) Mr. Nayyar Ali Dada (4) Mian Yousuf Salauddin (5) Mr. M. Fazal Durrani (6) Col. (R) S.K. Tressler (7) Mr. M. Parkash, Advocate (8) Sardar Sham Singh (9) Prof. Sajida Haider Vandal (10) Mr. Ashraf Ali Khawaja (11) Ch. Bashir Ahmad. 15. Thereafter, the Ministry of Minorities vide letter dated 03.12.2007 advised the ETPB to place the matter in question before the newly constituted ETP Board for re-examination and to refer the matter subsequently to the Federal Government for consideration along with recommendations of the Board. The ETPB vide letter dated 26.12.2007 addressed to the Ministry of Minorities claimed that all the queries raised by the Federal Government had been addressed and recommendations were made by a duly constituted Board, hence, there was no justification or rationale for referring the matter back to SMC 9/2011 etc. 13 the Board. It was further averred in the letter that in case decisions of the previous Board were to be revisited merely on the ground of reconstitution of the Board, it would open a Pandora box; hence, the Ministry was requested to indicate illegality in the decisions of the Board, if any. The letter once again ended with a request that “approval of the Federal Government to the decision of the Board taken vide item No.10 of its 263rd meeting held on 23.07.2007 may please be conveyed to this office for implementation of arrangements with DHA”. 16. The Ministry of Minorities Affairs vide letter dated 24.01.2008 informed the ETPB that the matter was examined in the Ministry and the orders of the Ministry already conveyed to the ETPB vide letter dated 03.12.2007 were reiterated. It was further ordered that “keeping in view the huge investment and expertise of the new ETP Board, the matter be placed before the new ETP Board under the Chairmanship of the new Chairman, ETPB and then referred to the Federal Government for consideration along with recommendations”. Thereafter, vide notification dated 07.12.2008, Asif Akhtar Hashmi was appointed as Chairman, ETPB on honorary basis “with immediate effect and until further orders”. 17. After appointment of the new Chairman, DHA vide letter dated 18.02.2009 addressed to the Chairman, ETPB on the subject “acquisition of Evacuee Trust Property Boards’ Land” intimated that 33% exemption ration besides, 100 x commercial plots were agreed to by DHA but progress on acquisition of land was held up due to non- acceptance of handing over of clear possession of land by ETPB. It was SMC 9/2011 etc. 14 stated that acquisition of land comprised two aspects namely, handing over of clear possession of the land, and registration of mutation of the land in favour of the party acquiring the land. 18. It was further expressed that “during the meeting held on 23.09.2008, it was indicated by Chairman ETPB that possession of land to be obtained by DHA which was not agreed to, as it involved taking over of possession after payment of huge amount, besides inviting series of court cases. Hence, further discussion on the subject remained inconclusive. Moreover, delay in the development work has cost DHA huge amount of idling/escalation charges”. In addition, it was requested that “either land be transferred with clear possession to DHA against 33% exemption or 25% exemption without possession may please be agreed to”. 19. The board was once again reconstituted vide notification dated 10.04.2009 and the following persons were notified as non- official members:- (b) Non-Official Members (1) Mr. Shahid sheikh Lahore (2) Mr. Tayyab Rizvi Lahore (3) Mian Muneer Ahmad Lahore (4) Dr. S. M. Yaqoob Lahore (5) Mr. Javed Akbar Butt Lahore (6) Malik Sher Ali Bucha Multan (7) Mr. Muhammad Aqeel Bhutta Multan (8) Mr. Naveed Amir Jeeva Multan (9) Rai Saleem-ur-Rehman Nankana (10) Mr. Bishop Daniyal Sahiwal (11) Mr. Ezra B. Shujaat Sheikhupura (12) Sardar Sham Singh Sindh (13) Mr. Parkash, Advocate Sindh SMC 9/2011 etc. 15 (14) Mr. Manzoor Hussain Bhutto Sindh (15) Mr. Muhammad Nawaz Tishna NWFP (16) Mr. Fazal Durrani Quetta 20. An important development in the matter took pace when on 16.04.2009, 272nd meeting of the ETP Board was held and the Board approved the following additional Agenda as Item No. 8:- MATTER RELATING TO ACQUISITION OF EVACUEE TRUST LAND SITUATED IN MAUZAS LIDHAR, MOTA SINGH WALA AND DERA CHAHAL ETC. TEHSIL CANTT LAHORE BY THE DEFENCE HOUSING AUTHORITY, LAHORE. Discussion/decision Action by The DHA’s proposal was apprised to the Board that delay in the development work had cost DHA huge amount of idling/escalation charges, as such DHA’s revised offer was restricted to their usual policy of 25% exemption of residential plots only. However with the hectic negotiations of the Chairman, ETP Board already held with the DHA authorities, they agreed to further negotiate on the provision of some commercial plots. The Board unanimously approved the revised offer of DHA for exemption of 25% residential plots with taking over the possession of the land to be the responsibility of the DHA. The Board authorized the Chairman to hold negotiations with the DHA to obtain at least some of the commercial plots in addition to the residential plots agreed to above. Secretary (P & L)/DS (L) 21. It is significant for our purposes to note that there was a visible difference in the offer approved by the ETP Board namely, 25% exemption of residential plots, instead of the 33% earlier offered by the DHA. The Decision of the Board was conveyed to the Ministry of Minorities Affairs by the ETPB through letter dated 25.04.2009. SMC 9/2011 etc. 16 22. The Ministry of Minorities Affairs, vide letter dated 28.04.2009 informed the Chairman, ETPB that the Federal Government has accorded concurrence to the decision of the ETP Board taken vide item No.8, in its 272nd meeting held on 16.04.2009, subject to observing all legal and codal requirements. Thereafter, ETPB vide letter dated 29.04.2009 intimated the DHA about the concurrence of the Federal Government to the decision of the Board dated 16.06.2009. The said letter is reproduced hereinbelow:- “EVACUEE TRUST PROPERTY BOARD GOVERNMENT OF PAKISTAN “No.P(3)DSP/530/ETPB/07/LHR/3266 Dated 29/4/09 To Col. (Retd) Mr. Muhammad Ashraf, Director Acquisition, Defence Housing Authority, Y-Block Commercial Area Ph.III Lahore Cantt. Subject:- ACQUISITION OF EVACUEE TRUST PROPERTY BOARD’S LAND Pleas refer to your letter No.421/10/ETPB/Acqn dated 18.02.2009, on the above subject. 2. The matter was placed before the Evacuee Trust Property Board in its 272nd Meeting held on 16.04.2009. the Board and subsequently the Federal Government in the Ministry of Minorities have given concurrence to the proposal put forward by the Defence Housing Authority, Lahore vide above referred letter and agreed to accept 25% exemption of the residential plots as the taking-over the possession of the land will be the responsibility of the DHA. 3. Besides, DHA’s final proposal in Para-3 of the above referred letter is silent about the provision of commercial plots to ETPB on payment as for DHA members. The Board/Federal Government have authorized Chairman, ETPB negotiate the issue with DHA pertaining to the provision of commercial plots. 4. In view of the above, it is requested that DHA may expedite their process for acquisition of land SMC 9/2011 etc. 17 and coordinate with ETPB to hold negotiations regarding provision of commercial plots at an early date. (Salim Masih) Secretary (L & P)” 23. On the basis of the above mentioned concurrence, an agreement was concluded between ETPB and DHA on 08.05.2009 regarding land measuring 575 kanals and 13 marlas of Mauza Lidhar, comprising the following Khasra numbers:- Khasra No. Land Khasra No. Land Khasra No. Land 3065 80-00 3895 05-10 4403 08-00 3145 06-16 3933 05-10 4406 08-00 3146 07-08 3934 02-02 4407 07-16 3149 07-08 4250 04-13 4408 09-08 3687 09-11 4251 07-13 4409 08-00 3688 07-07 4252 08-00 4410 03-08 3689 07-07 4253 05-10 4411 08-00 3710 08-00 4254 08-02 4412 06-13 3711 08-00 4255 05-12 4413 03-04 3712 08-00 4276 08-00 4414 08-00 3713 04-12 4278 08-00 4415 03-02 3714 06-14 4279 03-12 4417 08-00 3715 08-00 4283 08-00 4418 08-00 3716 08-00 4284 08-00 4420 08-00 3717 08-00 4285 08-00 4421 08-00 3745 08-00 4287 08-00 4423 08-00 3746 08-00 4288 08-00 4425 08-00 3747 08-00 4289 09-06 4426 08-00 3748 08-16 4227 03-18 4428 02-16 3749 10-18 4329 06-00 4430 08-00 3750 08-00 4341 08-02 4431 08-00 3751 08-00 4342 10-04 4437 08-00 3752 08-00 4355 05-06 4438 08-00 3860 08-00 4356 04-01 4439 07-06 3861 08-00 4362 08-00 4443 07-07 3862 08-00 4370 08-00 4520 04-13 3894 05-04 4371 08-00 - - 24. Moreover, a conveyance deed was executed by ETPB in favour of DHA on 30.05.2009 regarding land measuring 544 kanals and 06 marlas to the following effect:- SMC 9/2011 etc. 18 “NOW THEREFORE, THIS CONVEYANCE WITNESSES AS UNDER” 1. The Vendor has sold the said piece of land measuring 17 Kanals 18 Marlas vide Parcha Khatooni No.747/866 of Gurdawara Deh and land measuring 526 Kanals 08 Marlas vide Parcha Khatooni No.748/867 of Samahad Bhai Mann Singh of the year 1992 vide Halqa Patwari Parcha Khatooni Rapt No. 3090 dated 15 May 2009, total qittat 75 measuring 544 Kanals 06 Malras situated at Hadbast Mouza Lidhar Tehsil Cantt District Lahore, in consideration of Rs.653160000/- (Rupees Sixty Five Crore Thirty One Lac Sixty Thousand Only), which has been paid by the Vendee to the Vendor toward last and final consideration amount of the said land, receipt whereof is hereby acknowledged, and nothing will be paid before sub- registrar Aziz Bhatti Town, Lahore, at the time of registration of this sale deed. The value of land given in the conveyance deed is not the value paid to the land owner but given for the purpose of registration as the land is purchased on 25% exemption in the shape of 1 Kanal/10 Marla residential plots. 2. The Vendor hereby assures the Vendee of their legally valid title with powers to alienate and sell the said piece of land to the Vendee to consideration mentioned above. The Vendor also assures and hereby undertakes to indemnify and keep indemnifying the Vendee to its entire satisfaction, and any defect in the title against the claim of any third party.” 25. Yet another agreement was executed on 09.06.2009 between ETPB and DHA regarding further 353 kanals and 07 marlas of land situated in Mauza Mota Singh Wala and 203 kanlas and 13 marlas in Mauza Dera Chahal, Lahore Cantt. A conveyance deed in respect to the land mentioned above was executed on 10.07.2009 by the ETPB in SMC 9/2011 etc. 19 favor of DHA. It was in this manner that 3 agreements were executed between the parties (ETPB and DHA) and the possession was delivered to the DHA. 26. It is to be noted that as per report of the Director, FIA, the ETPB land measuring 1240 kanals had been occupied by the DHA instead of 843 kanlas and 15 marlas mutated in favour of DHA by the ETPB. Moreover, the report concluded that “without considering the earlier recommendations of the Board, i.e. 33% exempted developed plots as per offer of DHA dated 20.07.2007 and without determining the terms and conditions, the haphazard approval granted by the Ministry of Minorities Affairs of 25% exempted residential plots/files instead of 33% also shows personal vested interests of DHA Lahore, ETPB and concerned Ministry especially payment of huge amount of Rs.657.77 million approximately to unauthorized persons and thereby caused loss to ETPB”. 27. It was also noted in the said report that, though refunded to ETPB after one and half month, the registration fee amounting to Rs.39 million was paid by ETPB instead of DHA Lahore, being the purchaser, and that “this fact also creates doubts of personal vested interests of ETP Board and DHA Lahore”. The report assesses the total loss caused by the DHA at Rs.1934.77 million. 28. On behalf of DHA, Lahore there is no denial of the transaction, however, an explanation has been offered that as per agreement DHA would acquire possession of the land at its own expense and cost, where said portion of the land was not in possession of ETPB and against the deal of 151.25 acres of land it could only get SMC 9/2011 etc. 20 the title of land measuring 843K-15M by different instrument, deeds, etc. According to DHA, the consideration of the said land was in the shape of exemption of plot files. 29. As far as balance of 288K-18M is concerned, both the DHA and ETPB after deliberation agreed as under:- a. Any land belonging to Gurdwara shall not be purchased and consequently land measuring 203K-13M of Dera Bebe Naniki Gurdwara was returned back to ETPB by DHA in May 2010. It is pertinent to mention that DHA had made a payment of Rs.18.800 Million to purchase possession of said land. ETPB has assured DHA to return this amount and the matter is being finalized. b. ETPB shall transfer 85K-5M of land situated in Mauza Lidhar (31K-07M) and Mauza Mota Sindh Wala (53K-5M) at the earliest. It has further been explained that in pursuance of above arrangements ETPB was allocated following files in Phase-VI of DHA in consideration of the land acquired/transferred:- a. 140x 1 Kanal plot files b. 31x 10 Marla plot files c. 61x Marla plot files d. 10x 4 Marla Commercial plot files It may be noted that in the report submitted by DHA, neither any agreement with ETPB has been brought on record to accept the liability of the payments of the development charges nor there is any acceptable document to substantiate that Rs.18.800 million has been spent by DHA for taking over the possession of the property. Except that ETPB paid Rs.657.77 million approximately to Nazir Hussain (late), Amer Saleh Abbasi, Shah Jehan, Kamran Baig and Imran Ali SMC 9/2011 etc. 21 Bhatti, without any plausible justification. Despite efforts, no justification was offered by the Secretary DHA, Lahore in this behalf. 30. From the material available on record one can, prima facie, conclude that without considering the earlier recommendations of the Board i.e. exemption of 33% of plots as per offer of DHA dated 20.07.2007, and without determining the terms & conditions by the Federal Government through Ministry of Minorities Affairs, agreed for accepting 25% exempted residential plots/files instead of 33%. Essentially, for such reasons colossal loss has been suffered by ETPB. 31. A comparative analysis of the loss incurred to the ETPB for entering into the deal is reproduced hereinbelow as per report of FIA dated 24.07.2013: Sr.No. Head/Description Loss caused to the ETPB Plot Nos. Approx per plot price (Rs.) Total Loss (Rs) 1. Reeducation from 33% exemption developed to 25% exemption plot files only 108 9 million 972 millions 2. Expenditures being claimed by DHA from ETPB for vacation of Dear Chahal Land - - 18 millions 3. Developmental charges be claimed by DHA against exemption allotted plot files to ETPB @ 25 % - - 287 million 4. Compensation paid by DHA to unauthorized persons instead of ETPB 59 9 millions 126.77+ 531=657.77 Million Total 1934.77 millions SMC 9/2011 etc. 22 Thus, the deal suffered from corruption and corrupt practices and was in violation of rules and regulations. 32. Learned counsel for DHA Mr. Asif Hafeez, however, has attempted to persuade us that the deal between DHA and ETPB is transparent as huge amount has to be spent by DHA for getting possession of the land from occupants and it so hampered on account of delay in concluding the deal on the part of ETPB, therefore, ETPB in its 272nd meeting held on 16.04.2009 accepted revised offer of DHA for exemption of 25% residential plot instead of 33% which was duly approved by the Ministry, as such, no illegality or irregularity has been committed by DHA. 33. Learned counsel for DHA, attempted to justify the delay, as it is evident from his arguments noted hereinabove, but without producing any document or material to substantiate its plea on both counts i.e. delay by ETP Board and spending of huge amount by DHA for taking over possession from occupants of the land under question. 34. It has been noticed that from time to time the Federal Government has constituted the Board. Whereas, under sub-section (5) of section 3 of the Act, 1975 three years tenure of the Members has been prescribed and before the expiry of the same, a Member would not be changed unless he earlier resigns from his office under sub-section (6) or is removed under sub-section (7) of section 3 ibid. The only inference is that the purpose of fixation of the tenure is to ensure consistency in the policies of the ETP Board for the purpose of achieving the objects for which the Act, 1975 has been SMC 9/2011 etc. 23 promulgated. Contrary to it, as far as Chairman of the Board is concerned, he is required to hold the office during the pleasure of the Federal Government. 35. In the instant case, we have noticed that during 263rd meeting of ETP Board held on 23.07.2007 a decision was taken to accept option No.2 offered by DHA, namely, ETPB land be handed over to DHA for development and in exchange the developed plots as per laid down procedure, would be given to ETPB. It was also decided that DHA would handover 33% developed plots to ETPB, besides 10% of the commercial plots to be offered to ETPB on the rates as for members of the DHA and this offer was also accepted by DHA on 20.07.2007, but before its final approval, the ETP Board was reconstituted on 14.11.2007. Names of the newly appointed members have also been mentioned hereinabove. As per the requirement of law, these non-official members had to perform their functions for a period of three years i.e. upto 13.11.2010. In the meanwhile, former Chairman ETPB, Mr. Asif Akhtar Hashmi was appointed on 7.12.2008, before expiry of the tenures of the members appointed on 14.11.2007 and the Board was again re-constituted on 10.04.2009. The issue of getting developed residential and commercial plots, decision in respect whereof had already taken place in 263rd meeting dated 23.07.2007, was again placed before the Board for discussion and decision. Surprisingly, instead of accepting the earlier better terms and conditions, fresh proposal was introduced after taking over of office by the newly appointed Chairman and DHA had revised its offer. Inasmuch as, the Federal Government without negotiation or determining viable terms and conditions gave approval on 16.04.2009. SMC 9/2011 etc. 24 36. It would be appropriate to mention that from very beginning the ETPB had been insisting that DHA should commit in writing, inter alia, that taking over of the possession of the Evacuee Trust land situated in Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal from its lessees will be sole responsibility of DHA and expenditures so incurred shall not be claimed from ETPB. Reference in this behalf may be made to the meeting of ETP Board dated 22.04.2008, relevant contents wherefrom are reproduced hereinbelow:- “(vii) Deputy Secretary (Property), ETP Board, Lahore will prepare a draft letter to be sent to be sent to the DHA authorities indicating the points on which their confirmation is required particularly about the following:- (a) Taking over of possession of Evacuee Trust land situated in mauzas Lidhar, Mota Singwala and Dera Chahal from its lessess will be sole responsibility of DHa and expenditure so incurred shall not be claimed from ETPB. (b) Phase and sector, where residential and commercial plots will be allotted by DHA to ETPB (in lieu of Evacuee Trust land situated in after-mentioned mauzas). (c) All the plots to be allotted will be at one place in a compact block/form. In case it is not possible then what arrangement will be made by DHa. (d) Charges, if any, required to be paid by ETPB in respect of residential plots to be allotted. (e) Total cost to be charged in respect of each commercial plot to be allotted.” 37. In continuation of above letter, on 7.06.2008 the earlier stand taken by ETPB was reiterated; however, after appointment of former Chairman, Mr. Asif Akhtar Hashmi, on 18.02.2009 DHA intimated that 33% exemption ratio besides, 100 x commercial plots were agreed to by it but progress on acquisition of the land was held SMC 9/2011 etc. 25 up due to non-acceptance of handing over of clear possession of land by ETPB. It was further emphasized in this very letter that “either land be transferred with clear possession to DHA against 33% exemption or 25% exemption without possession may pleased be agreed to”. Although, as it has been explained earlier, before appointment of the former Chairman, Mr. Asif Akhtar Hashmi, the DHA has agreed to grant 33% exemption of plots instead of 25% with 100 x commercial plots on the rates available for the members of DHA, but in such a situation when we asked the learned counsel for DHA to substantiate with documents the amount which has been spent by the DHA for taking over the possession, he could not do so. Therefore, it is held that in the 272nd meeting dated 16.04.2009 the decision was changed by the ETP Board intentionally, on account of which a huge loss has been caused as it has been analyzed in the FIA reports, referred to hereinabove. Such decision also adversely reflects the mala fide in the reconstitution of the Board on 10.04.2009 before expiry of three years’ tenure of the members, who were appointed on 14.11.2009; therefore, for such reasons the Board should have not approved acceptance of formula of 25% exemption as it was against the interest of charitable institutions. 38. There is no denial of the fact that ETPB had powers to dispose of the properties but it must be in accordance with the law namely section 4(2) of the Act, 1975 as it has been held in the case of Pervaiz Oliver v. St. Gabrial School (PLD 1999 SC 26), relevant para therefrom is reproduced hereinbelow:- “It is a known fact that the above portion of the property is extremely valuable. ………… It is SMC 9/2011 etc. 26 anybody's guess as to what may have transpired in an underhand manner between the concerned individuals, particularly, Said Muhammad and the Evacuee Trust functionaries. Some of the staff has already been identified in this order. The Assistant Administrators, holding office from time to time in the Quetta region and the Administrator, who passed the orders dated 6-3-1996 and 31-12-1996, would now come to be identified and located. All of these shall be subjected to departmental proceedings, as reflected below. Pausing here, we consider it our bounden duty to observe that many of those in the administration, politicians and bureaucrats alike, virtually consider public property as their own to be' appropriated or allocated at their whims or fancies. Nothing is further removed from legal realities. No public property, big or small, tangible or intangible. can be disposed of except in accordance with law. Those who transgress. Expose themselves to the severest of penalties under law, the cardinal principle being. the higher the functionary, the higher the responsibility and, for that reason. the, stricter the punishment.” Reference may also be made to the case of Action regarding joint venture agreement between CDA and Multi-Professional Cooperative Housing Society (PLD 2011 SC 619), relevant para therefrom is reproduced hereinbelow:- “28. … … It is to be seen whether the CDA Board could have, in all fairness, agreed to terms and conditions, which were totally different from those mentioned in the advertisement and render the transaction bereft of the essential attributes of transparency and fairplay. The Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licences, SMC 9/2011 etc. 27 contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory.” 39. Now turning towards another deal entered upon by ETPB in 2009 by investing Rs.986.00 million in the project of “Elysium Ranches DHA, Islamabad and M/s HLC”, it is to be noted that in pursuance whereof following proposals for the investment was made:- “Proposal for EVACUEE Properties Investment Elysium Holding Pakistan Limited has given us the mandate for the procurement of land and sale of Project File (Allotment Certificates) for the above mentioned project (copies of JV agreement between DHA Islamabad and Elysium Holding Pakistan Limited and MOU between Highland Living Concept & Elysium Holding Pakistan Limited is attached for reference.) We would like EVACUEE to join us as an institutional investor of Project Files (Allotment Certificates), it may be mentioned that a number of other prominent institutional investors have already joined hands to profit from this lacerative investment at this stage of the project. The mode of EVACUEE investment will be as follows:- SMC 9/2011 etc. 28  Once each tranches of 32 kanals are procured 8 kanals of the project file (Allotment Certificate) will be PKR 600,000/- i.e. 600,000 x32=PKR 19,200,000/-  Government Levies per kanal i.e. CT+Mutation Charges will be 7.2% of Government Declared Price Rs.120,000/- i.e. 120,000 X 7.2%=8640 X 32=PKR 276,480/-  Out of Pocket Expenses will be PKR 10,000 X 32= PKR 320,000  Total investment for each project file (Allotment Certificate) will be PKR 19,796,480/-  Launch or reserved price with Buy Back guarantee by the sponsors of project will be PKR 30,000,000/- per project file / property with a total net profit of PKR 10,203,520/- which amounts to 34%, higher than any other investment opportunity in the market with negligible risk due to Buy Back Guarantee from sponsors. This ROI can be increased manifold if the files are sold and the amount reinvented The above price is based on an institutional buying of at least 50 Project Files (Allotment Certificates) / Properties.  Processing period of conversion of land into project files after al legal due diligence will be 7 working days. Furthermore issuance of project files (Allotment Certificates) will be 6 Working days from the date of mutation.” 40. The ETP Board in its 272nd meeting held on 16.04.2009 considered the said proposal as additional agenda item 5 and decided as under:- PROPOSAL FROM HIGHLAND LIVING CONCEPT FOR INVESTMENT/JOINT VENTURE IN ELYSIUM RANCHES DHA, ISLAMABAD Discussion/Decision Action by The Board unanimously approved the proposal of Highland Living Concept for investment/joint venture with ETP Board in Elysium Ranches DHA, Islamabad subject to the condition that DHA, Islamabad will give guarantee for the 34% of CAA SMC 9/2011 etc. 29 profit on the investment made by the ETP Board. 41. It is important to note that DHA Islamabad/Rawalpindi submitted a report before the Court on 27.04.2013 in which it was stated that “DHA Islamabad/Rawalpindi has not sold any property to ETPB through Mr. Asif Hashmi, nor Mr. Asif Hashmi has approached DHA Islamabad/Rawalpindi for any deal”. Further, DHA Islamabad/Rawalpindi vide another report filed before the Court on 24.05.2013 submitted that Elysium Holdings Pakistan Ltd. (EHPL), previously, Elysium Pakistan Ltd. is a public limited company formed for acquiring by purchase or otherwise land and to develop the same in plots and sell or establish housing estates, construct houses, buildings etc. and to provide amenities and utility services to the schemes. The names of the directors of EHPL, at the time of signing of the agreement with DHA Islamabad/Rawalpindi are also provided in the report, which are as under:- (a) At the time of signing of the Agreement: (1) Waseem Aslam (Director/CEO) (2) Ms. Ambreen Naz (3) Muhammad Usman Yousaf (b) Present: (1) Muhammad Hammad Arshad (Director/CEO) (2) Muhammad Murad Arshad (3) Chaudhary Ahmed Aziz 42. With regard to the investment of ETPB in the project of Elysium Ranches DHA, Islamabad, it is further to be noted that on 10.07.2008 M/s Elysium Holding Pakistan Ltd. (EHPL) signed joint venture agreement with DHA for purchase of land in Zone-IV, SMC 9/2011 etc. 30 Islamabad, for development of Project and marketing/selling of the same. It seems that before implementation of the agreement another idea of investment was introduced by M/s Highland Living Concept (HLC) Lahore, which was approved in the ETP Board’s meeting dated 16.04.2009 as well as by the Investment Advisory Committee of ETPB. In the meanwhile, respondent Mr. Asif Akhtar Hashmi had been appointed as Chairman, ETPB on 07.12.2008. In continuation of this development/project, on 08.7.2009 ETPB signed tri-partite agreement with M/s EHP and M/s HLC, according to which ETPB was to be provided with 50 project files/allotment certificates (each of 8-kanals plot-value of each plot mentioned in the proposal was Rs.19.72 million) of DHA as security, which were to be purchased by EHP after 30 months @ Rs.30.00 million each. Accordingly, from July to October, 2009 ETPB transferred an amount of Rs.986.00 million in the bank account of M/s HLC, out of which an amount of Rs.608.00 million was transferred to M/s EHP. 43. It was also stated in the above mentioned report that EHPL had approached DHA Islamabad representing to have rights in the lands situated in different mauzas of Islamabad and DHA agreed to the said proposal, consequent to which an agreement was executed between EHPL and DHA Islamabad on 10.07.2008 whereby EHP was obliged to transfer land measuring approx 30,000 kanals. EHP however could not fulfill its commitment to provide “initial land” within the specified time period. It was reiterated that ETPB or Mr. Asif Hashmi, ex-Chairman ETPB has neither approached DHA for any investment or sale/verification of any allotment certificates nor any funds from any such sale have been received by DHA Islamabad. SMC 9/2011 etc. 31 44. It is also pertinent to note in this regard that Finance Division (Budget Wing), Government of Pakistan vide Office Memorandum dated 02.07.2003 captioned “Deposit of Working Balances and Investment of Surplus Funds Belonging to Public Sector Enterprises and Local/Autonomous Bodies under Federal Government” issued consolidated instructions wherein it was mentioned that “before making any investment under this policy, it would be necessary for public sector entities to set up in-house professional treasury management functions. Specifically, they would need to have an investment Committee (IC) with defined investment approval authority. Transactions above the approval authority of the IC will be subject to approval of the Board of Directors or an equivalent forum. The IC should be assisted by an Investment Management Unit employing qualified staff with at least 3-5 years of experience of managing investment in debt/equity instruments. However, it will be necessary for public sector enterprises to use the service of professional fund mangers approved by SCEP”. 45. It must be highlighted that no permission was obtained for investment in DHA Islamabad under section 4(2)(c) and (m) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 which provides that the function of the board shall be “to buy out of surplus income if any, or by, taking loan from any statutory corporation, with the approval of the Federal Government any other property which may be considered to be beneficial for promoting the objects of this Act or any scheme”; and “to invest money, with the prior approval of the Federal Government, for any other social welfare or charitable SMC 9/2011 etc. 32 purpose”. Therefore, the law was violated by making payments to Highland Living Concepts. 46. It may not be out of context to note here that one Sharjeel Shah Muhammad, CEO represented to HLC whereas Hammad Arshad, CEO represented to EHP. However, it is reported by FIA that according to record maintained by Securities and Exchange Commission of Pakistan (SECP), M/s Kamran Kiani, Waseem Aslam and Aftab Zahoor were founding Directors of M/s EHP, whereas, according to information revealed to FIA by DHA, Waseem Aslam, Ambreen Naz and Muhammad Usman Yousaf were the Directors at the time of joint venture agreement dated 10.07.2008. Subsequent thereto, it was further revealed by SECP that M/s Kamran Kiani and Aftab Zahoor resigned on 13.06.2007 and 29.01.2008, respectively, before signing of the joint venture agreement noted hereinbefore. As far as Ambreen Naz is concerned, she also resigned from her position on 05.09.2008. Presently, Hamad Arshad is CEO of the Company because Waseem Aslam, who was holding the charge prior to him, had resigned on 04.01.2012. 47. Perusal of record/report filed by FIA reveals that for making this investment no approval of the Federal Government under section 4(2)(c) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 was available on record, as such, FIA had to register a case because due to non-availability of relevant files the FIA could not conduct inquiry as per direction of this Court issued vide order dated 7.5.2013; therefore, against Faizan Shams, former Investment Management Officer of ETPB, a case was registered vide SMC 9/2011 etc. 33 FIR No.596 dated 9.05.2013 under section 409 PPC. As far as DHA, Islamabad is concerned, it has also not denied entering into agreement dated 10.07.2008 with EHP, in pursuance whereof EHP was under obligation to transfer land measuring approximately 30,000 kanals in favour of DHA, Islamabad and to plain, develop, market and sell the proposed mixed used project on the said land, etc. However, ETPB through its Chairman Asif Akhtar Hashmi has never approached DHA, Islamabad for investment or sale, etc. It is to be noted that Zone-IV of Islamabad is located within the domain of CDA and according to its record, in this Zone no project with name of ‘Elysium Ranches, DHA, Islamabad’ has ever been introduced by joint venture of DHA and EHP, therefore, the conclusion is that without verifying and examining the existence of ‘Elysium Ranches DHA, Islamabad’, ETPB made the investment and allowing the benefit of this investment to another party i.e. M/s HLC, as a tri-partite agreement was executed. Interestingly, M/s HLC received Rs.986.00 million from ETPB, out of which, statedly, it transferred Rs.608.00 million and balance of Rs.378.00 million is still lying with it. Reference is also necessary at this stage to the stand taken by Hamad Arshad, CEO EHP before this Court 14.06.2013, who stated that without prejudice to his constitutional and legal rights, he is depositing the amount of Rs.986.00 million towards full refund of the investment made by the ETPB. although directions were made on 07.06.2013 to both of them i.e. Sharjeel Shah Muhammad, CEO HLC and Hamad Arshad CEO of EHP. He also prayed that as per tripartite agreement, ETPB made investment on the basis of 50 files, which were provided to ETPB, SMC 9/2011 etc. 34 therefore, it would be just, fair and equitable that files be transferred back to him as he had already made the payment. 48. Khwaja M. Farooq, Sr. ASC appearing on behalf Sharjeel Shah Muhammad, CEO Highland Living Concepts submitted that a Memorandum of Understanding (MOU) was executed between EHPL and HLC on 07.11.2008 whereby HLC confirmed to purchase a minimum of 5000 kanals land at its sole cost and expense located in Zone-IV of Islamabad for the purpose of proposed project named “DHAI’s Elysium Ranches Project” on behalf of the EHPL and that all such lands shall be mutated by the HLC in favor of DHA. It was asserted that HLC acting in the capacity of a property dealer/service had received its commission of 2% while the entire amount was then transferred to Elysium. 49. In view of the material collected during hearing of the petition through FIA, reference of which has been made hereiabove, arguments so advanced by the learned counsel on behalf of Sharjeel Shah Muhammad, CEO of HLC is not acceptable because he has received Rs.986.00 million from ETPB out of which Rs.608.00 million was transferred in the account of EHP being maintained by its CEO Hamad Arshad and balance of Rs.3.76 million is lying with HLC. However, as per our directions dated 07.06.2013 both of them were required to deposit this amount but he (Sharjeel Shah Muhammad) has failed to comply with the directions as a result whereof Hamad Arshad had also borne his financial burden. 50. Needless to say that ETPB’s Chairman and Members of the Board in pursuance of the decision, which was taken as an additional Agenda No.5 in 272nd meeting held on 16.04.2009 made investment of SMC 9/2011 etc. 35 Rs.986.00 million but without settling the terms and conditions and realizing that there is absolutely no existence of ‘Elysium Ranches DHA, Islamabad’. The recovery of principle amount has already been made under the order of this Court both Sharjeel Shah Muhammad, CEO HLC and Hamad Arshad CEO EHP were also bound to pay mark up on Rs.986.00 million from the date of its payment and passing the order of this Court as they had benefitted from this amount without extending any profit to ETPB and in the same manner, Chairman ETPB and Members as well Secretary of Ministry of Minorities Affairs, who endorsed such deal which was in fact non existent is liable to be dealt with according to law. 51. Thus, we are of the considered opinion that transaction of ETPB for making investment of Rs.986.00 million was contrary to the interest of ETPB and against the instructions of the Government as well as section 4(2) of the Act, 1975, in view of the law laid down in Pervaiz Oliver’s case (ibid), reference of which has already been made hereinabove. 52. In view of the above discussion, instant petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan is allowed with the following declarations: - DHA Lahore: (1) Matter relating to acquisition of Evacuee Trust land situated in Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal Tehsil Cantt. Lahore by the Defence Housing Authority Lahore, vide decision dated 16.04.2009 of ETPB taken in its 272nd meeting approving the revised offer of DHA for exemption of 25% residential plots is SMC 9/2011 etc. 36 unlawful, being contrary to section 4(2) of the Evacuee Trust Properties (Management & Disposal) Act, 1975, as the earlier decision taken on 23.07.2007 by ETP Board in its 263rd meeting was in accordance with the law as DHA in its letter has already agreed on 20.07.2007 that ETPB land would be acquired by DHA at 33% exemption of residential plots (measuring 1-Kanal each) as a result whereof DHA had to provide 642 residential plots on acquiring 1946- Kanals of ETPB land, in addition to DHA’s offer of 100 x commercial plots on payment as for DHA members i.e. 16% of residential plots instead of 10%. (2) Prima facie, subject to determination by the investigation agencies, ETPB had to suffer accumulative loss on account of deal under review amounting to Rs.1934.77 million, analyses of which has been noted hereinabove based on report of FIA. (3) As the decision of the Board with regard to deal of ETPB and subsequent approval given by the Government vide letter No.P(3)/DSP/530/ETPB/07/LHR/3266 dated 29.04.2009 is void, and is of no legal consequences. Therefore, option is being given to DHA to accept the ETP Board’s decision taken in 263rd meeting dated 23.07.2007 and handover the developed residential and commercial plots, details of which have been given hereinabove, to the ETPB. Acceptance of this offer must be communicated to ETPB within 30 days after receipt hereof, failing which DHA shall SMC 9/2011 etc. 37 be bound to refund the land owned by ETPB situated in Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal etc. (4) It has also come on record that DHA has acquired more land than agreed upon, therefore, Senior Member Board of Revenue, Government of Punjab is directed to make arrangement for the demarcation of the properties owned by ETPB referred to hereinabove and ensure the restoration of the excess land; and on non acceptance of option noted above, total land so occupied/acquired shall be delivered back to ETPB by DHA by reversing the mutation entries and also cancelling the sale deeds, executed between the parities referred to in the judgment. (5) DHA, shall not be entitled to recover any compensation, if it has paid to obtain the possession from the lessee or on the development of land, as no evidence has been brought on record. However, to substantiate the same, if so advised, DHA has to resort to the Court of law to prove its claim by adducing evidence as it has been held in the matter of Action regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (PLD 2011 SC 619). DHA Islamabad (6) The decision of 272nd meeting held on 16.04.2009 as a special agenda is contrary to section 4(2) of the Act, 1975, in view of the principle of law discussed hereinabove. SMC 9/2011 etc. 38 (7) The Chairman of ETPB and Members of the Board handed over an amount of Rs.986.00 million vide tri-partite agreement dated 08.07.2009 to HLC and EHP. This amount has been recovered in pursuance of order of this Court dated 07.06.2013 and has been deposited in the account of Registrar of the Court, therefore, subject to Supreme Court Rules, 1980, the Registrar shall transfer this amount in the account of ETPB forthwith. (8) HCL and EPL have entered into a transaction in respect of a joint venture, which absolutely had no existence as despite of receiving the amount noted above the Ranches were not handed over as no land was acquired, however, HLC and EHP got benefit of the amount of Rs.986.00 million owned by ETPB unlawfully, therefore, they are under legal obligation to compensate the ETPB by paying profit/mark-up on this amount, subject to determination by the Court of law. (9) As far as 50 files of Islamabad Ranches, if have been handed over to the ETPB, same shall be returned to the persons/agency from whom these files were received. (10) We have noticed that in the transactions entered into by ETPB with DHA Lahore and Islamabad, numerous illegalities/irregularities and violations of financial instructions, have been committed along with violation of laws; therefore, in the public interest the Secretary, Ministry of Minorities Affairs is directed to arrange forensic audit of the ETPB for the last five years and on the receipt SMC 9/2011 etc. 39 of the report actions, both civil and criminal, should be taken against the delinquents, in accordance with law. (11) It was informed that at present position of Chairman, Evacuee Trust Properties Board is lying vacant, therefore, the Federal Government is directed to take necessary measures for the appointment of Chairman, in terms of section 3(3) of the Act, 1975 as early as could be possible in the interest of the institution. (12) In respect of both the transactions i.e. DHA, Lahore land acquiring of Mauza Lidhar, Mauza Mota Singh Wala and Mauza Dera Chahal etc. as well as DHA, Islamabad, call for civil and criminal proceedings against the former Chairman, Mr. Asif Akhtar Hashmi and all others, who were directly or indirectly responsible for the same. The inquiry already initiated by FIA shall be expedited to be concluded as early as could be possible and compliance report shall be sent to the Registrar for our perusal in Chambers for appropriate orders if need be. 53. Petitions stand disposed of in the above terms accordingly. Chief Justice Judge Judge Announced on 02.10.2013 at Islamabad Chief Justice Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Anwar Zaheer Jamali Suo Moto Case No.9 of 2012 (Regarding irregularities and illegalities in PIA) And Constitution Petition Nos. 109-110 of 2012 Zafar Iqbal Jhagra Marvi Memon …Petitioners Versus Federation of Pakistan etc. ….Respondents Petitioners: Mr. Zafar Iqbal Jhagra & (In person) Ms. Marvi Memon For the Federation: Mr. Zafar Mehmood Mughal, DAG Mr. M. S. Khattak, AOR For the PIA: Raja Muhammad Bashir, Sr. ASC Mr. Mehr Khan Malik, AOR Mr. Haroon Abbasi, Sr. Law Officer Mr. Asif Rauf, Manager Legal Mr. Waqar A.Siddique,G.M. Accounting Mr. Tahir Niaz, G.M. Marketing Mr. Aamir Ali, Chief Engineer Mr. Rashid Ahmad, G.M. (P/R) For CAA: Mr. Afnan Karim Kundi, ASC Mr. Mehmood A. Sheikh, AOR Mr. Obaid-ur-Rehman Abbasi, Sr. Law Officer Date of hearing: 14.12.2012 SMC 9/2012 2 O R D E R We have heard the petitioners in both the constitution petitions and the learned counsel for PIA, and have also examined the record made available to us. The issues of losses and shake down in the PIA were examined with the assistance of GM Marketing, GM Accounting, GM Legal and Chief Engineer. We were apprised that PIA Fleet consists of 38 aircrafts, out of which 28 are fully operational within or outside the country whereas 10 aircrafts are undergoing overhauling, repairs, etc. 2. We have also been apprised of the current financial position of the Corporation. Office has downloaded a report titled “Unconsolidated Financial Statement”. We confronted the officers of PIA with the contents of the said report. The learned counsel for the PIA handed over a booklet containing the same material, which indicates that it is meant only for the shareholders. The said report is made part of the proceedings. A perusal of the report suggests that during the year 2012, PIA has sustained losses after taxation to the tune of Rs.22.43 billion comparing to the losses for the year 2011 of Rs.19.29 billion, meaning thereby that for each year the losses are increasing and also accumulating on year to year basis. It is also of concern to note that according to G.M. Human Resources, at present the number of the employees, both regular and on contract basis in PIA, exceeds 18000. Essentially their salaries etc. have to be paid out of the income, not profit of business, which the Corporation is undertaking on monthly or annual basis. So the ratio of employees to each aircraft approximately comes to 450 even without taking into account work which is SMC 9/2012 3 outsourced to contractors. G.M. Finance/Accounts, however, stated that this could not be the reason of losses as according to him for this purpose only 17/18% of the Revenue is spent. He further stated that the main reason for not making the profit is the increase of the fuel price from time to time. It has also been informed by the Chief Engineer that cost of flying in terms of consumption of fuel, etc. has also increased because of aging of the aircrafts, however, now PIA is planning to purchase or hire 8 aircraft, which are likely to join the fleet in the months of February/March, 2013. 3. It is surprising to note that PIA administration had never planned to induct new aircraft otherwise out of 28 functional aircrafts, being 26 years old, they could have replaced the same, either by purchasing new aircraft or by getting the same on lease as it is done by other renowned airlines. We are of the view, prima facie, that on account of such mismanagement a profit-earning organization, being the only official airline, is making loss year to year. 4. We inquired from the General Manager, Marketing as to how the income is generated, but he could not answer satisfactorily, however, we informed him that one of the sources of income is ticketing within and outside the country. On this, he stated that GSAs for the foreign countries and within Pakistan are appointed in a transparent manner. On our query, he could not furnish the list of such agents appointed outside the country except pointing out that in the month of June, 2012, a GSA had been appointed in Norway. We inquired from him as to whether appointment of the said agent was SMC 9/2012 4 made in a transparent manner, to which he responded that proper procedure was adopted, but he had no details of the same. 5. We have painfully noted that seven senior officers had flown from Karachi to Islamabad to attend the court proceedings but no one amongst them was fully aware of the affairs of the Corporation and whenever questions were put to them, they stated that they had to get figures and they would inform the court in that behalf on the next date of hearing. It clearly indicates mismanagement in the organization otherwise efficient staff members having been posted against lucrative packages should have ensured that an organization which is making losses should be turned into profit-earning organization. 6. Raja Muhammad Bashir, learned counsel for PIA stated that on 22/24 October, 2012 new management headed by Lt. General (R) Asif Yaseen Malik has taken charge, and is planning to make reforms but is not responsible for the massive financial indiscipline, bad-governance, illegalities and irregularities committed in the past. This submission is not tenable because only such reforms process would work, which takes measures to put the house of PIA in order, including taking of such action against those who may be responsible for the wrongs committed in the past, and turning a profit-earning organization into a loss making enterprise, which is suffering huge losses. The reform process must also provide a system of checks and balances for the proper running of the affairs of the organization. However, the learned counsel stated that some time be given to the new management to enable it to introduce its reforms. SMC 9/2012 5 7. Mr. Iqbal Zafar Jhagra and Ms. Marvi Memon petitioners have stated that PIA management is talking about long term measures, whereas they should immediately take some short term measures for the purpose of providing facilities to the passengers, as invariably the flights are delayed and passengers have to wait for hours at times, at airports; sometimes they are made to sit inside the craft without ventilation and air-conditioning etc. and whenever the crew is contacted, they simply show their helplessness. Ms. Marvi Memon stated that today she had to sit and wait for more than two hours at Karachi Airport and there was no one to explain as to why the flight was late. According to her, sometimes, the PIA crew do offer explanations but many they do not bother to explain the reason of delay. She stated that such irregularities are required to be taken notice of by this Court as these directly impinge on fundamental rights like those mentioned in Article 14 of the Constitution. She stated that at least direction be issued to the Managements of PIA as well as the Civil Aviation Authority that they should take steps for ensuring that flights are operated in time. When we inquired from Raja Muhammad Bashir, Sr. ASC, as to whether anyone of the aforesaid seven officers, who had travelled from Karachi to attend the court proceedings was in a position to implement the order of this Court, he stated that he cannot say that anyone of them would be able to do the needful. This answer on his behalf is sufficient to explain the mismanagement prevailing in PIA. 8. Be that as it may, we adjourn this case for a period of two weeks with directions to the Chairman PIA as well as DG, CAA to ensure that pending decision of the case no flight is delayed and if SMC 9/2012 6 there are unavoidable circumstances, they must inform the passengers, well in time. On the next date of hearing the Chairman PIA and DG CAA will put up a comprehensive plan which they intend to initiate for the purpose of improving the condition of PIA, airports, etc. In the meanwhile, all the officers including General Managers, Marketing and Accounts shall file complete documents in respect of appointments of GSAs outside the country and the local agents within the country and the manner in which the tenders are given and the procedure, adopted for the same. Similarly, GM Human Resources shall also place on record complete record of the employees who were appointed by following the procedure in a transparent manner, which has been laid down for making recruitment and those who were appointed without following the procedure by using the phrase “contract employees” etc. and they should also ensure that in future no such appointment shall take place. Chief Justice Judge Judge Islamabad 14th December, 2012 Nisar/*