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JAN MUHAMMAD versus MST. SAKINA BIBI

X0 XIX, R 5 - Constitution of Pakistan, Article 185 (3) - Appeal to Appeal, - Approval of New Appeal to the Supreme Court - Scope - Whether a new point / request by the Appellant can be raised before the Supreme Court. ? Which was neither aggravating at any stage of the proceeding, nor as a basis for the memorandum of appeal and for which leave was not granted - after which the appellant had no right to appear before the Supreme Court. Pick up a brand new application and look for it. Judgment on the basis of this - nor can such a request be allowed to be raised and accordingly can be decided according to the excuse case or right of full justice. In such a case, the leave of the Supreme Court was compulsory but for the purpose of giving leave to raise a new point, depending on the facts and circumstances of each case - it was at the discretion of the Supreme Court at the hearing of the appeal that I was given six different points (s) to consider and consider a particular point of law, including the question of inherent jurisdiction, the pure question of law. Even if no action has been taken before the Supreme Court in any of these proceedings - this principle can be applied very well to the point of limitation where such a request was not dependent on any factual determination. However, matters that require a realistic basis and decision. For the purpose of resolving a legal issue, pure questions of law cannot be called upon and cannot be allowed to appear before the Supreme Court for the first time, [P163] B.

PLD 2017 Supreme Court 158

Present: Mian Saqib Nisar, C.J. and Maqbool Baqar, J

JAN MUHAMMAD and others—Appellants

versus

Mst. SAKINA BIBI and others—Respondents

Civil Appeals Nos. 833 to 835 of 2006 and Civil Review Petition No. 117 of 2006 in Civil Petition No.2535 of 2001, decided on 14th February, 2017.

(Against the judgment'dated 4-7-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in R.S.As. Nos. 123, 102 and 122 of 1971 - On review of this Court’s Order dated 18-5-2006 passed in C.P. No.2535 of 2001).

(a) Punjab Pre-emption Act (IX of 1991)—

—S. 5—Right of pre-emption—Scope—Cultivation rights could be sold and were, therefore, pre-emptible. [p. 161] A

(b) Supreme Court Rules, 1980 —

—0. XIX, R. 5—Constitution of Pakistan, Art. 185(3)—Leave to appeal, grant of—New plea raised before the Supreme Court—Scope— Whether a new point/plea could be raised by the appellant before the Supreme Court which was neither agitated at any stage of the proceedings nor set out as a ground in the memo of appeal and for which leave was not granted—Held, appellant did not have a right to raise an absolutely new plea before the Supreme Court and seek a decision on the basis thereof—Nor could such plea be allowed to be raised and the case decided accordingly as a matter of course or right on the pretext of doing complete justice—Leave of the Supreme Court in such context was mandatory but the considerations for the purposes of granting leave to raise a new point depended upon the facts and circumstances of each case—Supreme Court had the discretion to grant leave at the time of hearing an appeal in which leave had been granted on a different point(s) and to consider such point of law, including for instance the question of inherent jurisdiction, being a pure question of law; even if not earlier taken up in any proceedings including those before the Supreme Court—Such principle could very well apply to the point of limitation too where such plea was not dependent upon any factual determination, however, those cases which required a factual foundation and adjudication for the purposes of settling a legal issue could not be said to be pure questions of law and the same could not be allowed to be raised before the Supreme Court for the first time, [p. 163] B

Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895; Mst. Shamim Akhtar v. Syed Alam Hussain and others 1975 SCMR 16; Dr. Zulfiqar Haider v. Riaz Mahmud PLD 1992 SC 238; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Caltex Oil (Pakistan) Ltd. v. Collector, Central Excise and Sales Tax and others 2006 SCMR 1519 and The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 ref,

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, and M.S. Khattak, Advocate-on-Record for Appellants (in C.As.833 to 835/2006).

Nemo for Appellants (in C.R.P. 117 of 2006).

Ex parte: for Respondents (in C.A. No.833 of 2006).

Nemo for Respondent No.l (in C.A. No.834 of 2006).

Nemo for Respondents Nos.33, 34, 36, 43 (in C.A. No.835 of

2006).

Ex parte (For other Respondents (in C.As 834 and 835 of 2006).

Not represented (in C.R.P. No.117 of 2006).

Date of hearing: 3rd January, 2017.

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