What does Sub Judice Means

The word Sub means under while Judice means Judiciary. The term Sub Judice is commonly used in the legal world. It means a matter under the proceeding of the court of law.

According to the experts and legal ethics it is considered highly non professional to discuss any issue which is pending before the court of law. The reason is that it can impact the proceedings of the court of law and ultimately that can be wrong for one of the parties in the suit. It is against the principles of justice to open up any matter in public which is under proceeding in the court of law.

Fariduddin Versus CDA

PLJ 2013 Islamabad 112

Present: Shaukat Aziz Siddiqui, J.

FARID-UD-DIN--Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD, etc.--Respondents

W.P. No. 561 of 2013, decided on 18.2.2013.

Constitution of Pakistan, 1973--

----Art. 199--Capital Development Authority Ordinance, S. 49--Islamabad Land Disposal Regulations 2005--Regul. 4 & 5--Constitutional petition--Eligibility for allotment of plot on deputation basis--Claim on basis of anomaly be treated as an employee of CDA as had remained on deputation in CDA for over a period of one year--Question of--Whether deputationist would be equated with regular employee of CDA--Fundamental rights--Validity--Authority might rent, exchange or otherwise dispose of any land vested in it--Unbridled power conferred on authority was regulated through Regulations of 2005--Petitioners had merely served CDA on deputation for few years and they might avail right of allotment of any plot under 10% quota reserved for federal govt. servants and they had no right to claim their entitlement on anomaly that they being deputationist be considered as employee of CDA--Whereby deputationists for same time had been considered to be having equal statutes of regular employees CDA is a door of corruption as a number of Govt. officers will find it lacrative to service on deputation in CDA for allotment of residential plots as employes of CDA instead of waiting in long queue of Govt. Officers and it seemed to be an effort of Govt. employees to obtain residential plots in an irregular and illegal manner and they were not only discourage the regular employees of CDA but gains illegal and unconstitutional advantage over other colleagues who did not find any opportunity to obtain deputation in CDA--Petitioners being govt. employees might apply for residential plot on regular quota as provided for govt. employees, they were not entitled to take shortcut which was not backed by Constitution--Petition were dismissed.            [Pp. 115 & 116] A, B, C & D

Mr. Sher Afzal Khan, Advocate for Petitioner.

Date of hearing: 18.2.2013.

Order

Through this single order Writ Petition No. 607 & 561 of 2013 are being disposed of together involving common question of law and facts.

Petitioners invoked the constitutional jurisdiction of this Court by way of filing instant petitions with the following prayer:

"That for the reasons afore-cited, it is humbly prayed that upon acceptance of this writ petition, the petitioners may graciously be declared entitled to the allotment of plots as per balloting and respondents may graciously be directed to issue offer and allotment letters in favour of the petitioners. Any other relief deemed fit in the circumstances and not specifically prayed for may also graciously be awarded.

AND presented the facts as under:--

WRIT PETITION NO. 561/2013

Petitioner was posted on deputation in CDA as Director Land and Rehabilitation on 11th Nov. 2011 and served in CDA on deputation until 27th Nov. 2012 where after posted as Deputy Project Director (MRP), Directorate General of Immigration and Passport which position is held by him till date.

WRIT PETITION NO. 607/2013

Petitioner No. 1 served in CDA on deputation basis as Director Project Said Pur Model Village from Jan. 13th 2007 to March 30, 2009, Petitioner No. 2 served in CDA on deputation basis as Deputy Director from Jan. 1st 2005 to 31st October 2009, Petitioner No. 3 is currently working as Deputy Director One Window in CDA on deputation basis from October 2010 till date, Petitioner No. 4 served in CDA on deputation basis as Deputy Director Parliament House from Jan. 31st July 2005 to April 5, 2010, Petitioner No. 5 served in CDA on deputation basis as Deputy Director one Window from 08.08.2009 to August 29th, 2012, Petitioner No. 6 served in CDA on deputation basis as Deputy Director Land Rehabilitation from Sept. 2005 to March, 2010 whereas Petitioner No. 7 served in CDA on deputation basis as Audit Officer from 23rd Dec. to 31st August 2009.

3. It is the case of the petitioners that, Respondent No. 2, CDA Board through its Secretary, vide decision dated 21.12.2006 interalia held that all the deputationist on the strength of CDA on 28.11.2005 are eligible for allotment of plot if they otherwise meet the required criteria specified by the CDA Board and all the deputationistsjoining thereafter i.e 28.11.2005 will automatically become eligible as and when they meet the other parameters. It was also approved that, Cut-off date fordeputationists is specified as 28.11.2005 and on completion of one year service in CDA on this date or thereafter. Therefore, a right having accrued to them a number of CDA officers including deputationists filed writ petitions before Hon'ble High Court which were decided in their favour were also upheld by the Hon'ble Supreme Court of Pakistan and all the petitioners in Writ Petition No. 3041/2011 were allotted plots by the respondents.

4.  Learned counsel for petitioners argued that petitioners had become eligible for allotment of plots after serving for a mandatory one year term in the CDA and in view of availability of plots in the their category, they had legitimate expectations of being dealt with in accordance with law and the principle of stare-decisis as held in earlier judgments of the superior Courts. Learned counsel for petitioners contended that petitioners duly applied for allotment of plots on the basis of their eligibility and balloting was also held in this regard and some plots were earmarked for petitioners but they have been ignored for the purpose of issuance of offer letters on the pretext that with expiration of their term of deputation, they could not be held entitled for issuance of allotment letters. Learned counsel further contended that till Jan. 9th 2013, respondents issued a total 113 offer letters which also include 22 such officers who joined CDA much after the petitioners and this aspect alone shows mala fide and unfairness on the part of respondent authority.

I have heard the learned counsel for the petitioner and perused the record.

5.  The petitioners have pressed their claim mainly on the basis of the anomaly that the petitioner's should also be treated as an employee of CDA as they have also remained on deputation in CDA for over a period of one year. In order to establish their claim, the petitioners have annexed the judgment of Hon'ble Lahore High Court dated 21-01-2004, the judgment of Apex Court of Pakistan dated 28.11.2005 and the judgment rendered by this Court on 09-03-2011. Perusal of the judgments of the Hon'ble Lahore High Court and august Supreme Court of Pakistan dated 28-11-2005 reveals that there was no issue in those cases that whether a deputationistshould be equated with the regular employee of CDA. There is nothing in these judgments that a deputationist enjoys equal status of a regular employee of CDA. Resultantly these decisions rendered by the Hon'ble Lahore High Court and the august Supreme Court of Pakistan do not extend any help to the petitioners.

6.  After considering all the relevant law on the subject in juxtaposition to the fundamental rights as enshrined in the Constitution of Islamic Republic of Pakistan, I hold that provisions contained in Section 49 of CDA Ordinance and Regulations 4 & 5 of Islamabad Land Disposal Regulations 2005 provides that the authority constituted under the supra Ordinance may rent, exchange or otherwise dispose of any land vested in it. This unbridled power conferred on the authority is regulated through the Regulation Nos. 4 & 5 of the supra Regulations of 2005.

7.  In Regulation No. 5, it is provided that all residential plots in developed schemes shall be allotted with the manner that 75% of the plots will be allotted through open balloting at prevailing market price, 10% plots Will be allotted to the Federal Government Servants including employees of Federal Autonomous/Semi-Autonomous bodies, 5% plots to-be allotted to the Defence Service personals including civilians paid out of Defence estimates, 5% of plot to be allotted to the deprived groups and 5% are to be allotted to the CDA employees. The petitioners have merely served the CDA on deputation for few years and they may avail their right of allotment of any plot under 10% quota reserved for the Federal Government Servants and they have no right to claim their entitlement on the anomaly that they being thedeputationist be also considered as employee of CDA. Sub-clause (2) of Regulation No. 5 further provides that authority may reserve any land for the residence of Government Employees including employees of CDA, Autonomous and Semi-Autonomous bodies and for the affectees of Islamabad.

8.  The scanning of available record reflects that the CDA had reserved 20% of the plots in the schemes to be developed for the Government Servants and the petitioners being the Government Servants may avail the allotment of the residential plots in their capacity of Government Servant from the remaining quota of 80%. The petitioners have not shown any valid justification in the petition that why they have not availed the right of allotment of residential plot in the scheme reserved for Government Officers or that whether they have already obtained the allotment of some plot as regular Government employees. As per Section 37 of the supra Ordinance, the authority may appoint such officer, servant or consultant as it may consider necessary for performance of its functions and it is evident that the petitioners are neither appointed by the authority nor they have been absorbed in CDA and they joined the Federal Service in some other cadre. The decision of the CDA Board dated 21-12-2006 whereby the deputationists for some time have been considered to be having the equal status of regular employees of CDA is a door of corruption as a number of Government Officers will find it lucrative to serve on deputation in CDA for the allotment of residential plots as the employees of CDA instead of waiting in long queue of Government Officers and it seems to be an effort of some of the Government employees to obtain the residential plots in an irregular and illegal manner and they not only discourage the regular employees of CDA but also gains the illegal and unconstitutional advantage over their other colleagues who do not find any opportunity to obtain deputation in CDA. With these observations that petitioners being Government Employees may apply for the residential plot in their capacity of Government Servants on regular quota as provided for other Government servants, they are not entitled to take the shortcut which is not backed by the constitution and therefore, both the writ petitions are hereby dismissed in limine. No order as to costs.

(R.A.)  Petitions dismissed

Labour laws

- Constitutional Provisions
Article 9 gives right to life to everyone in Pakistan.
Article 17 gives right to form association and union. It has to be exercised within the provisions of laws.
No one can be forced to work under the provisions of Pakistan Penal Code.

- Industrial and Commercial Employment Ordinance, 1968
It provides the conditions for employment. This law doesn't apply if employees are less than 20. Commercial establishment is defined under section 2.b of this ordinance. Standing orders under section 2.g are defined. There are various other definitions under section 2. The classification of workmen include permanent, probationer, badli, etc. Salient features of this law include terms and conditions to b given in writing at the time of appointment or promotion. Leaves, wages, incentive schemes, group insurance, holidays, etc. All have to be on the notice board of establishment. Similarly shifts cannot be discontinued without one month notice and no permanent employee can be terminated on the closure of shift. There is a provision of payment of bonus in this law. Employer can stop work in certain events such as fire, accidents, power failure, etc. More than 50% work can't be closed unless things are beyond control. In other circumstanstances permission from labour court is mandatory.

- Shops and Establishments Ordinance, 1968
It is applicable in whole of Pakistan. It includes business establishments and social sector establishments. Public amusements are not covered under it. The section 6 define weekly holidays to be at least one. Section 7 has bar of opening and closing hours can't be more than 40 per week or 9 per day unless there is overtime. Section 11 include the terms and conditions of wages to be paid to employees. Annual leaves are fixed under section 14. Casual and sick leaves under section 15. Festival holidays are at least 10 to be notified in the beginning of calendar year by employer as per section 16.

- Minimum Wages Ordinance, 1961
Boards are established under section 3 of this ordinance. Govt may refer such wages under section 4. Under section 7 they can be reviewed after 3 years.

- Minimum Wages for unskilled workers Ordinance, 1969
Applies to commercial and non commercial establishments with more than 50 workers. Unskilled workers are paid under this law.

- Workmans Compensation Act, 1923
It gives compensation to injured employees in the line of duty. The employer will not be liable in cases of violations by employees.

- Factories Act, 1934 is one of the important laws which give definitions to various labour law enactments in Pakistan.

- EOBI Act, 1976 applies on establishments with more than 5 employees. Registered employees don't go out of the ambit of this law if their employees become less. Founders are not employees under this law. 6% to be paid by employer while 1% by the employee at the end of month till the 15th of next month. Women are entitled for benefits at the age of 55 under this law...there is contribution of 15 years required but a person working in mining industry can contribute only for 10 years.

THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012 (Act IV of 2013)

C O N T E N T S

Section                                Heading

        1.           Short title, extent and commencement.

        2.           Limitation on scope.

        3.           Definitions.

        4.           Suit for partition of immovable property.

        5.           Appearance of defendants and consequence of non-appearance.

        6.           Written statement.

        7.           Mesne profits pending adjudication.

        8.           Question of title or share.

        9.           Appointment of referee for partition.

       10.          Internal auction.

       11.          Open auction.

       12.          Mesne profits.

       13.          Private settlement.

       14.          Time limit for disposal of the suit.

       15.          Application of Act V of 1908.

       16.          Instructions of High Court.

       17.          Repeal.

[1]THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012

(Act IV of 2013)

[5 January 2013]

An Act to amend and reform the law relating to

partition of immovable property.

Preamble.– Whereas it is expedient to amend and reform the law relating to expeditious partition of immovable property and to provide for ancillary matters;

      It is enacted as follows:-

1.   Short title, extent and commencement.– (1) This Act may be cited as the Punjab Partition of Immovable Property Act 2012.

      (2)  It shall extend to whole of the Punjab.

      (3)  It shall come into force at once.

2.   Limitation on scope.– Nothing contained in this Act shall be deemed to affect any law providing for the partition of agricultural land or land subservient to agriculture.

3.   Definitions.– (1) In this Act–

       (a)  “Code” means the Code of Civil Procedure, 1908 (V of 1908);

       (b)  “Court” means the Court of original civil jurisdiction competent to entertain and decide suits for partition of immovable property;

       (c)  “immovable property” means an immovable property, other than agricultural land or land subservient to agriculture, jointly owned by two or more persons;

       (d)  “internal auction” means the auction of the immovable property amongst the co-owners of the property in which at least two co-owners are eligible to participate; and

       (e)  “mesne profits” means the approximate rental benefit which the co-owner in possession of the immovable property gains to the exclusion of any other co-owner during the pendency of the suit under the Act.

      (2)  An expression used in the Act but not defined shall mean the same as in the Code.

4.   Suit for partition of immovable property.– An owner of immovable property may file a suit for partition of the property, giving details of the property, citing all other co-owners as defendants and attaching all the relevant documents in his reach or possession.

5.   Appearance of defendants and consequence of non-appearance.– (1) The Court shall issue notice to the defendants for appearance on a date, not later than ten days, through the process serving agency and registered post or courier service and, where possible, also through electronic and telecommunication means.

      (2)  Copies of the plaint and the documents annexed with the plaint shall be attached with the notice under subsection (1) served through the process serving agency and sent by registered post or courier.

      (3)  If a defendant fails to appear and the Court is satisfied that the notice has not been served on the defendant or the defendant is willfully avoiding the service of the notice, the Court may direct service of the notice by–

             (i)   affixing a copy of the notice at some conspicuous part of the residence of the defendant; or

             (ii)   publication in the press, electronic media or any other mode.

      (4)  If the defendant fails to appear on the date fixed and the Court is satisfied that the notice had been duly served, it may proceed ex-parte against such defendant.

      (5)  If an ex-parte order is passed against a defendant, he may, within fifteen days from the date of knowledge, apply to the Court for setting aside the ex-parte order and shall submit along with the application the written statement and attach with such written statement copies of all the relevant documents in his reach or possession.

      (6)  If the defendant submits the written statement and shows sufficient cause for his non appearance, the Court may set aside the ex-parte order on such terms as it may deem fit.

6.   Written statement.– (1) Subject to section 5, a defendant in a suit for partition of immovable property shall file the written statement within thirty days of his first appearance in the Court and shall attach with the written statement copies of all the relevant documents in his reach or possession.

      (2)  If a defendant fails to file the written statement within the period mentioned in subsection (1), the Court shall strike off his defence and in that event he shall not be entitled to lead any evidence.

7.   Mesne profits pending adjudication.– (1) On the first date of hearing or as soon as thereafter, the Court may, pending adjudication of the suit, direct the co-owner, in possession of the immovable property, to deposit, either on monthly or quarterly basis, such interim mesne profits in the Court as it may determine on account of share of a co-owner not in possession of the property.

      (2)  If an order under subsection (1) is passed, the co-owner in possession of the property shall deposit the amount on or before the date fixed by the Court and, in the absence of any such order, on or before 15^th of the month or the first month of the quarter for which the amount is due.

      (3)  If the co-owner fails to deposit the amount under this section within the time specified under subsection (2), the Court shall–

             (a)  in case he is plaintiff, dismiss his suit; and

             (b)  in case he is defendant, strike off his defence and in that event, he shall not be entitled to lead any evidence.

8.   Question of title or share.– (1) When there is a dispute as to the title or share in the immovable property, the Court shall decide such question before proceeding further in the suit under this Act.

      (2)  The determination of a question of title or share of the immovable property by the Court under subsection (1) shall be deemed to be a decree in terms of the Code.

9.   Appointment of referee for partition.– (1) If all the co-owners agree in writing on partition of the immovable property through appointment of a referee, the Court shall appoint a referee for partition of the property within such specified or extended time as the Court deems appropriate.

      (2)  Subject to the restrictions imposed under any law governing town planning, the referee shall decide whether the immovable property is partible and if so, the referee shall propose partition of the immovable property.

      (3)  Notwithstanding anything in subsection (1) but subject to subsection (2), the Court may, on an application of one or more co-owners who desires his or their shares in the immovable property partitioned, appoint a referee who shall determine whether such share or shares is partible and if so, he shall propose partition of the property to that extent.

      (4)  The referee may, with the written consent of two or more co-owners of the immovable property, combine the shares of such co-owners in the proposal of partition.

      (5)  The Court shall affirm the proposal of the referee for partition of the immovable property through decree unless the Court is satisfied that the proposal is in contravention of any law.

      (6)  The Court may fix the fee of the referee to be paid by the co-owners according to their respective shares in the immovable property.

10.    Internal auction.– (1) If on the date fixed by the Court for the purpose, the co-owners fail to submit written agreement about the partition of the immovable property through appointment of a referee or the referee is of opinion that the property is not partible or the Court finds that the proposal of the referee is in contravention of any law, the Court shall determine the reserve price of the immovable property and direct sale of the property through internal auction on the next date of hearing.

         (2)  The Court shall require the co-owners to be present in person or through their authorized agents on the date of internal auction.

         (3)  The internal auction shall be conducted in the Court and the Court shall maintain record of internal auction which shall form part of the suit.

         (4)  Any two or more co-owners of the immovable property may submit their written offers or counter written offers until one of them makes the highest written offer.

         (5)  The Court shall declare the highest bidder as auction purchaser in internal auction and direct the auction purchaser to deposit the auction price within fifteen days of the auction but the auction purchaser may deduct from the auction price to be deposited such amount as equals his share in the immovable property.

         (6)  If the auction purchaser deposits the auction price under subsection (5) within the prescribed time, the Court shall confirm the sale, put the auction purchaser in possession of the property and distribute the auction price amongst the other co-owners according to their respective shares.

         (7)  If the auction purchaser fails to deposit the auction price under subsection (5) within the prescribed time, the Court shall fix another date for internal auction but such auction purchaser shall not participate in the subsequent internal auctions.

         (8)  The second or subsequent internal auction shall be held, as far as possible, in accordance with the procedure contained in this section for the first internal auction.

11.    Open auction.– (1) If the co-owners refuse to participate in the internal auction or only one co-owner shows his willingness to participate in such auction or the internal auction under section 10 has failed, the Court shall fix the reserve price of the immovable property and direct open auction of the property.

         (2)  A co-owner of the immovable property may participate in the open auction of the property.

         (3)  The Court shall appoint a court auctioneer for conducting the open auction and fix fee of the court auctioneer to be paid by the co-owners in proportion to their respective shares in the immovable property.

         (4)  The court auctioneer shall submit in the Court an auction plan in the form of a public notice which shall include detailed specifications of the immovable property, the time, date and place of open auction, and the amount of bid security for participating in the open auction, and the Court may approve the auction plan with or without modification and direct its publication in such manner as it deems appropriate.

         (5)  The court auctioneer shall conduct open auction under the auction plan approved and published by the Court and direct the highest bidder to deposit–

                (a)  earnest money equal to twenty per cent of the bid price immediately on the close of bidding; and

                (b)  the remaining amount of the bid price in the court within seven days.

         (6)  The court auctioneer shall maintain the record of the auction proceedings and return the bid security to unsuccessful bidders but shall adjust the bid security of the highest bidder in the bid price.

         (7)  The court auctioneer may, in an appropriate case, accept deposit under clause (a) of subsection (5) in the form of cash, crossed cheque, demand draft or banker’s cheque against a receipt.

         (8)  The court auctioneer shall, immediately after conclusion the auction, deposit in the Court the auction price collected by him along with the auction report.

         (9)  If the highest bidder deposits the auction price under subsection (5), the Court shall confirm the sale, put the highest bidder in possession of the property and distribute the auction price amongst the co-owners according to their respective shares.

         (10)   If the highest bidder fails to deposit the auction price under subsection (5), the amount deposited by him shall stand forfeited and the immovable property shall be put to open auction again, as far as possible, in accordance with the procedure contained in this section.

12.    Mesne profits.– (1) Subject to sections 10 and 13, the Court may, at the time of final settlement, award mesne profits to a co-owner not in possession of the joint immovable property by deducting the same from the share of the co-owner in possession of the property or by directing the co-owner in possession of the property to pay the same to the co-owner not in possession of the property.

         (2)  The Court shall, while awarding mesne profits under subsection (1), take into account the interim mesne profits deposited under section 7.

13.    Private settlement.–(1) All the co-owners of the immovable property may, at any stage of the proceedings before the date of open auction of the property, submit a private settlement in the Court.

         (2)  If the co-owners submit the private settlement under subsection (1), the Court shall pronounce judgment and decree in terms of the private settlement and cancel the order of open auction if already passed.

14.    Time limit for disposal of the suit.– (1) The Court shall finally dispose of the suit under this Act within six months from the date of the institution of the suit, failing which, the Court shall submit the case to the District Judge, with cogent reasons, seeking extension of time for disposal of the suit.

         (2)  The District Judge may, subject to such conditions as he deems appropriate to impose, grant extension in time to dispose of the suit taking into consideration the facts and circumstances of the case.

15.    Application of Act V of 1908.– Subject to this Act, the provisions of the Code shall apply to any proceedings under this Act.

16.    Instructions of High Court.– The Lahore High Court may issue instructions necessary for purposes of the Act.

17.    Repeal.– (1) The Partition Act, 1893 (IV of 1893) is hereby repealed.

         (2)  Notwithstanding the repeal of the Partition Act, 1893 (IV of 1893) and without prejudice to any previous proceedings in a suit, the suit for partition of immovable property pending in any court under the repealed Act shall be proceeded with and decided by the Court in accordance with the provisions of this Act.

---

[1]This Act was passed by the Punjab Assembly on 27 December 2012; assented to by the Governor of the Punjab on 3 January 2013; and, was published in the Punjab Gazette (Extraordinary), dated 5 January 2013, pages 1961-65.

The easiest way to get talaq in Pakistan

The easiest way to get talaq in Pakistan is by mutual consent of spouses. When a husband verbally gives talaq to his wife, he should send a notice of talaq to arbitration council as well. When the wife is living in an area where there is no arbitration council then the notice is given to the union council. Upon receiving this notice the arbitration council will invite the parties for reconciliation after a period of 30 days from the date of notice.

The chairman of arbitration council will preside over the process of reconciliation between the parties. The reconciliation proceedings will happen twice. Once after 30 days and the second time after 60 days. The talaq will become effective on the 90th day and a certificate of the same will be issued to the parties. Before the expiry of 90 days the parties have right to reconcile.

A wife can directly go to arbitration council herself and give notice of talaq. Proceedings of talaq can initiate that way also. If the wife has delegated right of talaq in column 18 of nikah nama then she can get talaq this way easily in 90 days. Otherwise the husband is required to appear in the council himself and give talaq to the wife. If the husband refuses to give talaq to the wife and she doesn't have right in the column 18 of nikah nama then talaq will not happen from the arbitration council. The wife will be required to file a suit for dissolution of marriage on the grounds of khula in the family court in that scenario.

A beauty of family laws in Pakistan is that they allow the jurisdiction to be on the convenience of wife. Wherever the wife moves, she creates jurisdiction for filing suits and getting talaq in the similar manner. Another aspect is that even if a husband pronounces talaq 100 times it is considered as a single talaq under the Pakistani law. The process will be followed that way as if one talaq is given to the wife.

Why wealth tax and gain tax ended?

Since 1980, the wealth statements of the generals, journalist and the people in close connection with these two started bulging in month if not in days. As the war on Russia proceeded, many of these found it very hard to get in terms with sleazy income tax department. Paying wealth tax at the 2.5 percent was an abhorring thought and that too on the market price. Capital gain tax on property was already abolished. All these two kind of taxes entailed many other frivolities. The source of income for buying the assets was a silly question which was often needed to be sorted out. Our then atomic mafia was not lagging behind in the loud groans and cries against wealth tax. In nineties, the land mafia which also included the sitting and retired generals started feeling the girth of wealth tax. They ranked together with other stake holders. When Musharaf subverted the constitution and overthrew the then balding Sharifs, he took no time to spring into action. He stacked wealth tax with capital gain tax on property and flamed them with abrogation. The master blaster was Mr Malik Riaz, whose piety is even avowed by many a respectable. Our country, called Pakistan lost not only billions of rupees as due taxes but the poor and helpless people were exposed to new power goons known as brokers and developers. In 2001 a new Income Tax Ordinance was enacted and the Income Tax Ordinance, 1979 was abolished. The whole tax structure was rehabbed through curbing the various powers of the department. Huge grants were received from all over the world. The salaries were doubled. It was all done under the banner of cleansing corruption, making system transparent and enhancing the tax revenue by minimizing the direct interaction between tax payers and the department. The heaps of illegal money were manufactured and this process is still going on and on. The housing projects were launched, shamlat bulldozed, revenue officers were made more than servants, as the army officers who were interested in business ventures along with their lineage. This truth can hurt the pride of many but, will remain a glaring fact. This government or Musharaf or Malik Riaz are not only to blamed for looting and the laundering ill gotten money. Sharif brothers can be deemed more criminals in amassing massive wealth with impunity, using their respective governments. They exempted the foreign currency accounts from any probe, and that too of local accounts. That meant that whatever illegal money you got, convert it in FC and deposit it with any foreign currency account. It is legal money and no questions will be asked. The money laundering is still such an easy phenomenon in Pakistan. The foreign remittances were made also immune to any inquiry. It was propagated that this is to facilitate the hard working Pakistanis living abroad. In fact no ordinary Pakistani used the banking channel; firstly it was very expensive as compared to hundi, secondly they were unaware of its efficacy. Thirdly in the normal course, very meager amounts were remitted to support their families on monthly basis. Taxing the poor and sparing the rich needs no Einstein formula to deduce the implications. One can tax poor to make them more beggars and, just pat rich to pile more wealth to already existing heaps. Quoting Javed Choudry’s article “they are all naked in the hamam of Malik Riaz”, do they deserve this, all politicians! Although it is of no use to point out these points to the government who is corrupt and inept, many a hints will be for the young one to understand the present scenario. What a wishful thinking! I reckon.

Doctrine of Stare Decisis and Ratio decidendi

One of the most challenging and daunting concept in the law of precedent or stare decisis is discerning the ratio decidendi. The law of precedent is not difficult to comprehend as it comprises of law; based on the decisions of the courts dilated on the point of law. It is one of the accepted sources of law besides legislation anywhere in the world. Under any constitution including that of Pakistan, the major duty (besides many other numerous engagements) of the courts is to interpret the law. The interpretation of law always settles a question of law based on original legislation, unless the law is contrary to the constitution of the country and is struck down by the courts. The facts of any case are the focal point of any proceedings. The facts itself bespeak whether the question in dispute contains question of fact or question of law. The court’s jurisdiction is also changed in accordance with two situations. The young lawyers often do not understand the importance of the facts. I did not even, at the younger age till I was guided “master the facts by reading it again and again and; which law you will have to apply will automatically come into your mind”. The facts lead to the facts and the law. The question of fact has very limited jurisdiction and will exhaust before High Court, while the question of law can go up to the honourable Supreme Court of Pakistan. This is for the reason that a question of law decided by the High Court and if no appeal is filed against the order to the SC, will become a law. This is also true in case of Tribunals, if they dilate on question of law and no appeal, for any reason is filed in HC. Coming to discerning the ratio, it now looks simple. Any question of law culminating in settling a dispute about a law, by any court of law against which no appeal has been filed or could be filed; it becomes the rule of law as enunciated by the courts. This is also the case when all the appeals are exhausted including SC. The ratio decidendi is the rule of law enunciated by courts. Generally easiest examples are given under the law of contract, in UK. There were numerous cases brought to the courts of UK in which the questions of law arose. As contract is a private law and can entail endless litigation, the UK courts were able to settle many rules which are still followed. The legislatures felt no need to enact new laws in the wake of these decisions: although they could do it under the constitution. The invitation to treat under the law of contract is one of the examples how the ratio can be established by the courts in UK. The contract comprise of five constituents, the offer is the first one. What is an offer was laid down by the courts as against the invitation to offer. Anything displayed in a shop or advertised is not an offer but an invitation to give an offer called invitation to treat. The ruling in case of Dr Mubashir Hassan in the contempt of court case has attained the finality, meaning that the ratio decided is a rule or law now. The government can bring the new contempt of court law in its own right and also change the constitution to fit its nefarious designs. But they will be unable to do so with the retrospective effect!! The law has to be engulfed with mirch and masala, which is the best way to understand it

Concept of Standard of Proof in Law

Many a things at the basic level, when understood make life very easy. The concept of standard of proof is one of them. The different set of proof is required in civil and criminal cases. In Pakistan the law profession is the easiest to qualify but hardest to practice. In countries like UK and America, it is very hard to qualify but easier to practice. But easy to practice, is qualified with the rigorous diligence and continuous professional updates. The hardship an advocate faces in the start of his profession is many folds, in Pakistan. There is no fixed salary, no stipend or reward. There is no coaching at all. I will revert to the ills the young lawyers face on some other occasion but here I will try to elaborate some basic concepts related to practical and academic side of the law practice. In civil cases, we have to prove that the preponderance of evidence is in our favor. On the other hand, in criminal cases the standard of proof is beyond any doubt. Now a day, instead of preponderance of evidence, the balance of probabilities is more often used in civil cases especially in the cases of immigration. The balance of probability is easier to understand than the jaw breaking preponderance. The immigration officer will have to decide every case, for example a visit to UK, on the balance of probabilities. The probability of a person returning back home because of his age, roots, financial position etc when outweigh of the probability to stay in UK, the officer will give the visa. The balance was tilted towards a person returning home. If there are no home ties, no demanding relations and no financial independence, the balance of probability is on the side of not returning back from UK. In the criminal cases, the standard of proof is not on balance but beyond any doubt. This is understandable as one cannot hang a person on the balance of probabilities. The murder with all its propensities will have to be proved so that a person could be punished with the maximum. The doubt in criminal cases is endeavored to be projected just to weaken the standard of proof. The required standard of “beyond any doubt” is to be fulfilled for any punishment under the criminal law. There is hardly any substitute of hard work but the seniors should flex out of their complexes and guide the juniors and, appreciate their talents which are in plenty

Read dissolution of Muslim marriages Act,1939

An Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effectof therenunciation ofIslam by a married woman on her marriage tie.

Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage; it is hereby enacted asfollows:

1. Short titleand extent.

(1) This Actmaybe called theDissolution of Muslim MarriagesAct, 1939.

(2) It extends to all the provinces and the Capital of theFederation.

2. Grounds for decree for dissolution of marriage.

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i) thatthe whereaboutsof thehusband have not been known for a period offour years;

(ii) that thehusband has neglected or has filed to providefor her maintenance for a period oftwo years;

(ii-A) that the husband has taken an additional wifein contravention of the provisionsof theMuslim FamilyLaws Ordinance, 1961;

(iii) thatthe husband hasbeen sentenced to imprisonment for a period of seven yearsor upwards;

(iv) thatthe husband hasfailed to perform, without reasonable cause, his marital obligationsfor a period ofthreeyears;

(v) thatthe husband wasimpotent at thetime of themarriage and continues to be so;

(vi) that thehusband has been insane for a period oftwo years or is suffering from leprosy or a virulentvenereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated themarriage before attaining the ageof eighteen years:

Provided that themarriage has not been consumated;

(viii)that thehusband treatsher with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associateswith women ofevil repute ofleads an infamouslife, or

(c) attemptsto force her to lead an immoral life, or

(d) disposesofher propertyor preventsher exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitablyin accordance with the injunctions ofthe Quran, (ix) on any other ground which isrecognized as valid for the dissolution of marriages under Muslim Law,

Provided that:

(a) no decree passed on ground (i) shall take effect for a period ofsix monthsfrom the date ofsuch decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside thesaid decree; and

(b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring thehusband to satisfythe Court within a period ofoneyear from the date ofsuch order that hehas ceased to beimpotent, and ifthe husband so satisfied the Court within such period, no decree shall be passed on the said ground.

3. Noticeto beserved on heirs of thehusband when the husband’s whereaboutsare not known.

In a suit to which clause (i) of section 2 applies:

(a) the names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of thefiling ofthe plaintshall be stated in theplaint.

(b) noticeof the suitshall be served on such persons, and

(c) such persons shall have therightto be heard in the suit: Provided that paternal-uncle and brother ofthe husband, if any, shall be cited as party even ifhe or they are not heirs.

4. Effect of conversion to another faith. The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embracesher former faith.

5. Right to dower not be affected. Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution ofher marriage

6. (Repeal of section 5 of Act, XXVI of 1937) Rep. bythe Repealing and Amending Act, 1942 (XXV of1942), section 2 and First Sch.

Read Muslim Family Law Ordinance, 1961

An Ordinanceto give effect to certain recommendations ofthe commission on marriage and Family Laws. Whereas it isexpedientto give effect to certain recommendation of thecommission on Marriage and FamilyLaws. Now, therefore in pursuance of theproclamation of the seventh day of October 1958, and in exerciseof all powers enabling him in this behalf, thePresident is pleased to make and promulgate the following Ordinance:-

1. Short title, extent, application and commencement

(1) This Ordinance maybe called theMuslim Family Laws Ordinance, 1961.

(2) It extends to whole ofPakistan, and applies to all Muslim citizensof Pakistan, wherever theymay be.

(3) It shall come into force on such date asthe Federal Government may, by notification in the official Gazette, appointin this behalf.

2. Definition

(a) “Arbitration Council” meansa body consisting ofthe Chairman and a representative of each ofthe parties to a matter dealt with this Ordinance: Provided that where anyparty fails to nominate a representativewithin the prescribed time, thebody formed withoutsuch representative shall bethe Arbitration Council. (b) “Chairman” means the Chairman ofthe Union Council or aperson appointed by the Federal Government in theCantonment areas or by theProvincial Government in other areas or byan Officer authorised in that behalfbyanysuch Government to dischargethe functionsofchairman under Ordinance: Provided that wherethe Chairman ofthe Union Council is a non-Muslim, or hehimself wishes to make an application to the Arbitration Council, or is, owing to illness or anyother reason, unable to discharge the functions ofChairman, the Council shall electoneof its Muslim members as Chairman for thepurposes of this Ordinance. (c) “Prescribed” means prescribed byrules madeunder Sch. II. (d) “Union Council” means the Union Council or the Town or Union Committee constituted under the BasicDemocracies Order, 1959 and having jurisdiction in thematter asprescribed. (e) “Ward” means a ward within a Union or Town as defined in the aforesaid Order.

3. Ordinance to override other laws, etc.

(1) The provisions ofthisOrdinance shall haveeffect notwithstanding any law, custom or usage, and theregistration of Muslim marriagesshall take place only in accordance with these provisions.

(2) For the removal of doubt, it is hereby declared that theprovisions of theArbitration Act, 1940 (Xof 1940), the Code ofCivil Procedure 1908 (Act Vof 1908), and anyother law regulating the procedure ofCourtsshall notapplyto anyArbitration Council. 4. Succession. In the event ofdeath ofany son or daughter ofthe propositus beforethe opening of succession, the children of such son or daughter, ifany, living atthe time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, asthe case maybe, would havereceived ifalive. 5. Registration ofmarriage. (1) Everymarriage solemnized under Muslim Law shall be registered in accordancewith theprovisions of this Ordinance.

(2) For the purpose ofregistration of marriageunderthis Ordinance, the Union Council shall grantlicenses to oneor more persons, to becalled Nikah Registrars, butin no caseshall more than on Nikah Registrar belicensed for any one Ward.

(3) Everymarriage not solemnized by the Nikah Registrar shall, for thepurpose of registration under this Ordinancebe reported to him bythe person who has solemnized such marriage.

(4). Whoever contravenes the provisions ofsuch-section (3) shall be punishable with simple imprisonment for a term which may extent to threemonths, or with fine which may extend to one thousand rupees, or with both.

(5). Theform of nikahnama, the registers to be maintained by Nikah Registrars, the recordsto be preserved byUnion Councils, the manner in which marriage shall be registered and copies ofnikhanama shall be supplied to parties, and thefees to becharged thereof, shall be such asmaybe prescribed.

(6) Any person may, on paymentof theprescribed fee, ifany, inspectatthe office ofthe Union Council the record preserved under sub-section (5), or obtain a copyofanyentrytherein.

6. Polygamy. (1) No man, during the subsistenceof an existing marriage, shall exceptwith theprevious permission in writing ofthe Arbitration Council, contractanother marriage, nor shall any such marriage contracted withoutsuch permission be registered under this Ordinance.

(2) An application for permission under Sub-section (1) shall be submitted to theChairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consentof existing wife or wives has been obtained thereto.

(3) On receiptof the application under Sub-section (3), Chairman shall ask theapplicantand his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied thatthe proposed marriageis necessaryand just, grant, subject to such condition ifany, as may be deemed fit, the permission applied for.

(4) In deciding the application theArbitration Council shall record its reasons for the decision and anyparty may, in the prescribed manner, within the prescribed period, and on payment ofthe prescribed fee, preferan application for revision, to the Collector concerned and hisdecision shall be final and shall not be called in question in anyCourt.

(5) Any man who contracts another marriage withoutthe permission ofthe Arbitration Council shall,

(a) pay immediatelythe entire amount of thedower whether prompt or deferred, dueto theexisting wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with the simpleimprisonmentwhich mayextend to one year, or with fine which mayextend to fivethousand rupees, or with both.

7. Talaq. (1) Any man who wishes to divorcehiswife shall, as soon as may beafter the pronouncementof talaq in any form whatsoever, givethe chairman a notice in writing of his having doneso, and shall supplya copythereofto thewife.

(2) Whoever, contravenesthe provisionsofsub-section (1) shall be punishable with simple imprisonment for a term which may extend to oneyear, or with finewhich mayextend to fivethousand rupees, or with both.

(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effectiveuntil the expiration of ninety daysfrom day on which notice under sub-section (1) isdelivered to theChairman.

(4) Within thirty daysof thereceiptof notice under Sub-section (1), theChairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall takeall stepsnecessary to bring about such reconciliation.

(5) If thewife bepregnant atthe time talaq is pronounced, talaq shall notbe effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated bytalaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination isfor the third time so effective.

8. Dissolution of marriage otherwisethan bytalaq. Wherethe right to divorce has been dulydelegated to the wifeand shewishesto exercisethat right, or where any of theparties to a marriage wishes to dissolvesthe marriage otherwise than by talaq the provisionsof section 7 shall, mutatismutandis and so far as applicable, apply.

9. Maintenance. (1) If anyhusband failsto maintain hiswife adequately, or wherethere aremore wives than one, fails to maintain them equitably, the wife, or all or any ofthe wives, may in addition to seeking anyother legal remedyavailable applyto theChairman who shall constitute an Arbitration Council to determinethe matter, and the Arbitration Council mayissue a certificate specifying theamount which shall be paid as maintenance by the husband.

(2) A husband or wifemay, in theprescribed manner, within theprescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, to the Collector concerned and hisdecision shall be final and shall not becalled in question in anyCourt.

(3) Any amount payableunder Sub-section (1) or, (2) if, notpaid in theduetime, shall be recoverable as arrearsof land revenue. PUNJAB AMENDMENT In sub-section (2), the full-stop occurring at the end shall be replaced bya colon and thereafter thefollowing proviso shall be added, namely:

Provided that theCommissioner ofa Division may, on an application made in thisbehalf and for reasons to be recorded, transfer an application for revision ofthe certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in hisDivision. [Ord. II of 1975, Section 2].

10. Dower. Whereno detailsabout themode ofpayment ofdower are specified in the nikahnama or the marriagecontract, the entire amount of thedower shall be presumed to be payable on demand.

11. Power to make rules. (1) The Government may make rulesto carry into effect the purposes ofthisOrdinance.

(2) In making rules under this section, such Government, may providethata breach of any of therules shall bepunishablewith simple imprisonment which may extend to one month, or with finewhich mayextentto two hundred rupees, or with both.

(3) Rules madeunder this section shall bepublished in the official Gazetteand shall thereupon have effect asifenacted in this Ordinance.

12. Amendment of child marriage restraint act, 1929 (xixof 1929). Omitted by Ord. 27 of 1981.

13. Amendment of the dissolution of muslim marriagesact, 1939 (viii of1939). Omitted byOrd. 27 of1981.

Rights of women in Pakistan

Pakistani law system has blend of Islamic law as well as British Common law. Men and women have equal rights in both systems to a great extent. The beauty of Pakistani law system is that it has separate personal laws for people belonging to different religions. For example Christians have their own laws, Hindus have their own and muslims have their own. For example divorce

As far as Constitution of Islamic Republic of Pakistan, 1973 is concerned, it has given equal rights to women as well as special quota to women in some of its articles. The most important article of the constitution in this regard is Article 25. It has the following words "There shall be no discrimination on the basis of sex" mentioned in its clause 2. Similarly these works are mentioned in Article 26 of Constitution "Nothing in clause (1) shall prevent the State from making any special provision for women and children". Article 32 and 34 are reproduced as under.

32. Promotion of local Government institutions. The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women.

34. Full participation of women in national life. Steps shall be taken to ensure full participation of women in all spheres of national life.

Similarly there are many other articles in constitution giving various rights to woman that are making them in fact superior to men. Apart from constitution of Pakistan there are various enactments that empower women to have special rights in Pakistan. These rights can be exercised by invoking the powers of relevant courts.

For example one of the most important enactments in Pakistan is Dissolution of Muslim Marriages Act 1939. You can read the complete statute at my blog on this link http://salmankhangolra.blogspot.com/2012/06/read-dissolution-of-muslim-marriages.html

The most important section empowering women to claim khula in this act is section 2. A woman can get khula if her husband refuses to give her talaq on the grounds mentioned in the same section.

Another important enactment is Muslim Family Law Ordinance, 1961. You can read it on this link.. http://salmankhangolra.blogspot.com/2012/06/read-muslim-family-laws-ordinance-1961.html

Various sections of MFLA, 1961 have been challenged in Federal Shariat Court in recent decades. For example section 6 of this ordinance almost restricts a man to practice polygamy in its original spirit. On the other hand there is no compulsion on men of taking permission from first wife in Shariah law for marrying another woman. Similarly the nikah nama in Pakistan has an important column no. 18 that gives women right to take divorce from husband even if he is not willing to give. When women take that right, it is considered as an irrevocable delegated power of talaq given to wife from Husband. However practice is that we cut that column in order to make the talaq procedure difficult for women.

One of the most important rights of women in Shariah law is Haq Mehr.. A woman can demand any amount of haq mehr from her husband at the time of Nikah. In the times of Caliph Umar muslim men started marrying jew and christian women as they were unable to pay the mehr amounts of muslim women. On that Caliph was worried and he invited people of madina to Masjid-e-Nabwi in order to fix haq mehr of women so that muslim men easily get a chance to marry muslim women. A woman shouted "Who is Umar to determine the amount of haq mehr when God has given us discretion to determine it ourselves". On that haq mehr amount was never fixed and women can claim any amount even today..

In the nikah nama haq mehr can be mojal(paid) or ghair mojal(to be paid later). A girl can demand any amount of haq mehr. However in practice this amount is determined by the elders and paid by the father of groom in Pakistan. Another important right which women have in Pakistan is of maintenance. They can claim maintenance from the day of nikah till the last day of iddat after divorce. A man has to give it otherwise he can be sent to jail. Similarly a man is liable to maintain his children along with wife. If the children are in custody of women then they can claim the amount of maintenance for children also.

When it comes to child custody, a woman has eligibility to keep the male child under the age of 7 years and in case of female child she remains with mother till she turns an adult. A woman loses her right of child custody if she is of immoral character or if she marries another man. These principles are according to the shariah law and they are enforceable in Pakistan.

When it comes to inheritance law.. Islamic law of inheritance is enforced in Pakistan. The book that is considered authority in this regard is "Muhammadan Law" by Mullah (An Indian Writer). According to Islamic law of inheritance a woman has her share in the inheritance of father, son, husband and brother in some cases. For example if a man dies and he has no children, 1/6th of his property will be inherited by his mother and father, 1/4th of his property will be inherited by his wife and remaining will be distributed among his brothers and sisters by the ratio of 2:1. Similarly scenario changes in case of children..

Eligible family members of a Government Servant can have house alloted in their name

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez Civil Petition No.1498 of 2011 Against order dated 04.07.2011 of Islamabad High Court, Islamabad, passed in C.M.No.140 of 2011 in W.P.No.2248 of 2009. Muhammad Afsar Petitioner(s) VERSUS Malik Muhammad Farooq Respondent(s) For the Petitioner(s) : In person. For Respondent No.1 : Syed Arshad Hussain Shah, ASC For Respondents No.2-3 : Mr. Dil Muhammad Alizai, DAG Mr. M. S. Khattak, AOR Mr. Kamran Lashari, Secretary, M/o Housing & Works Mr. Asim Ayub, Estate Officer, Qaisar Mehmood, JEO Date of Hearing : 19.10.2011 ORDER Khilji Arif Hussain, J-. Through this petition, filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks leave to appeal against order dated 04.07.2011, passed by Islamabad High Court, Islamabad, vide which Civil Miscellaneous Application (C.M.No.140 of 2011 in Writ Petition No.2248 of 2009), filed by respondent No.1, under Section 12(2) of Civil Procedure Code, 1908, was allowed and the judgment dated 16.03.2011 in Writ Petition Nos. 2248 of 2009 was recalled. 2. Brief facts to decide the listed petition are that the petitioner alleged in his petition that he was allotted the House No. 609-D, Street No.24, Sector G-6/4, Islamabad (hereinafter referred to as “the house in question) vide allotment order dated 23.01.2008. The petitioner first filed suit in Civil Court, Islamabad, with the prayer that the house in question may not be allotted to any one else and in consequence thereof an order was passed in favour of the petitioner to the effect the house in question may not be allotted to any one else. The petitioner in his petition alleged that some unauthorized persons are living in the house in question, without lawful allotment in their favour, which is in violation of the law and as such sought directions to the official respondents to hand over the vacant possession of the house in question after dispossessing the illegal occupants. The learned High Court, vide judgment dated 16.03.2010 after calling parawise comments directed the respondents to arrange vacant possession of the house in question in favour of the petitioner within 10 days from the date of order, with the condition that the petitioner will place on record proof that he has handed over house bearing Quarter No.450-B, G-6/1-1 to the respondents.

3. The petitioner managed allotment order of the said house in favour of his brother and sought possession of the house in question. 4. The respondent No.1 on having information about the order passed by the High Court filed an application under Section 12(2)CPC alleging that his father was allotted the said house and on his retirement from Government service on 14.10.2007 the respondent No.1 who has all along been living with his father in the house in question, being eligible, applied for the allotment under Rule 15(2) of the Accommodation Allocation Rules, 2002 well before the retirement of his father, which entitles the eligible spouses and children of the Government servants to the allotment of government accommodation which had been allotted to and was in occupation of a retired government servant at the time of his retirement. The Ministry of Housing & Works, Islamabad, issued allotment order dated 12.02.2010, in favour of the respondent No.1 allotting the house in question, which was earlier allotted to the petitioner in supersession of all previous orders. 5. The High Court after hearing the parties accepted the application under section 12(2), CPC and restored Writ Petition No.2248 of 2009 to its original number directing the petitioner to amend the petition by joining the respondent No.1 as respondent No.3. and fixed the same alongwith C.P. No. 2622 of 2010. Hence, this petition for grant of leave to appeal. 6. We have called the Secretary, Housing & Works as well as the Estate Officer to apprise the Court not only about the proceedings pending in various Courts, but also to explain the criteria on the basis of which they have allotted government accommodations, in their possession, to eligible government employees. We have also called a report from the learned District Judge, Islamabad, qua the cases pending, pertaining to the Estate Office, in various Courts. 7. As regards the cases pending in various Courts against the Estate Office, we have noted that delay in conclusion of the same mostly caused owing to non serious attitude of the officials of Estate Office and accordingly we directed that a mechanism should be adopted by the Estate Office to pursue the matters before the Courts of law and some responsible officers/officials should be deputed to check the progress fortnightly in order to avoid any mala fide on the part of the officers/officials of the Estate Office to delay the matters so as to favour the persons of their choice. 8. We have surprised to note that all the allotments till date made by the Estate office are not on the basis of first come first get, as per the General Waiting List maintained by them under Rule 6 of the Accommodation Allocation Rules, 2002 but on the basis of some extraneous consideration orders were passed by the high-ups without assigning any reason in favour of the employees of their own choice. 9. The Courts are duty bound to uphold the constitutional mandate and to keep up the salutary principles of rule of law. In order to uphold such principles, it has been stated time and again by the superior Courts that all acts should be done by the public functionaries in a transparent manner after applying judicious mind and after fulfilling all requirements. The public functionaries are supposed to adhere to the principle of transparency in the performance of their duties and are not bound to carry out/implement any order which is not in accordance with law and they are only obliged to carry out the lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should put on record their dissenting notes. But unfortunately, the officers in the Estate Office not only implemented the illegal orders but apparently acted for their own personal benefits/gain. 10. As regards the petitioner he managed allotment in his favour, under the order of Federal Minister for Housing & Works who without assigning any reason by a non speaking order directed for the allotment of the house in question in favour of the petitioner. 11. Rule 29A of the Accommodation Allocation Rules, 2002 empowers the Federal Government to relax any rule governing allotment of accommodation to eligible Federal Government Servants in public interest for deserving and hardship cases and on compassionate grounds for reasons to be recorded in writing for such relaxation. 12. From a bare reading of Rule 29A of the Accommodation Allocation Rules, 2002, it appears that while exercising the powers under said rule, the Federal Government has to record justifiable reasons in writing for relaxation of the rules. Rule 6 of Rules 2002 mandate that the applications for the allotment of government accommodations when received from the applicants shall be acknowledged by the Estate Office by issuing Registration Cards and the Estate Office shall maintain a General Waiting List of the employees, who have applied for the allotment of government accommodations on the prescribed form and the employees who applied first are entitled for the allotment of government accommodations first as and when the same are made available. 13. The right accrued to an employee in General Waiting List maintained by the Estate Office under Rule 6 of the Accommodation Allocation Rules, 2002 cannot be taken away by the Federal Government on its own sweet will just because they have been empowered to relax the rules under Rule 29A of the Accommodation Allocation Rules, 2002. The denial of right of accommodation to employees under Rule 6 of the Accommodation Allocation Rules, 2002, is denial of fundamental right of life, which includes to have shelter/house as guaranteed under Article 9 of the Constitution. On reading rule 29A of the Accommodation Allocation Rules, 2002 alongwith Rule 6 of the Accommodation Allocation Rules, 2002, it appears that only in very exceptional circumstances the relaxation can be granted to accommodate a deserving government employee in public interest but for that too a justifiable reason has to be recorded by the concerned authority which is lacking in the present case. However, we would not like to dilate upon this matter, in detail, as the petition filed by the petitioner is still sub-judice before the Court of competent jurisdiction. 14. As regards respondent No.1, he sought allotment under Rule 15(2) of the Accommodation Allocation Rules, 2002, being in possession of the house in question, which was previously allotted to his father, who stood retired on 14.10.2007 from government service. Despite repeated queries made by us, the respondent No.1 has been failed to point out any rule under which an allotment order can be issued with retrospective effect and the officials/officers appeared on behalf of the Estate Office have frankly conceded that there is no such rule under which an allotment order can be given a retrospective effect. 15. We have called for a report from the Estate Office to know that how many applications are pending on General Waiting List under Rule 6 of the Accommodation Allocation Rules, 2002. From a perusal thereof, it appears that thousands of employees are waiting for allotment of government accommodations for the last many many years and some of the applications pertain to the years 1977-78, and the official respondents have failed to give any reason as to why they have not been allotted government accommodations as and when made available. The official respondents have admitted that till date no allotment has been made on merits, on the basis of General Waiting List maintained by them under Rule 6 of the Accommodation Allocation Rules, 2002. In the circumstance, while dismissing the instant petition, we direct the authorities concerned as under:-i. that in future all the allotments will be made strictly on merits on the basis of General Waiting List; and ii. Relaxation of rules under Rule 29A of the Accommodation Allocation Rules, 2002 will not be often exercised, except in the cases of hardship and that too by recording justifiable reasons for the same, after hearing the likely affected employees in the General Waiting List.