2021 S C M R 529
[Supreme Court of Pakistan]
Present: Qazi Faez Isa and Maqbool Baqar, JJ
GUL NAWAZ and others---Petitioners
Versus
RASHID AHMED and others---Respondents
Civil Petition No. 1975 of 2019, decided on 2nd
February, 2021.
(Against
the judgment dated 25.02.2019 of the Peshawar High Court, Bannu Bench passed in
C.R. No. 104-B of 2015)
Contract Act (IX of 1872)---
----S. 23---Specific Relief Act (I of 1877), S.
12---Constitution of Pakistan, Art. 5 & Preamble---Suit for specific
performance---Agreement to sell immoveable property---Proof---Decision issued
by the 'Taliban' (a fundamentalist political and religious faction) relied upon
by a party to prove existence of an agreement to sell---Held, that said
decision was 'forbidden', 'unlawful' and opposed to 'public policy' in terms of
S. 23 of Contract Act, 1872---Such a decision could neither be made the basis
of a suit nor relied upon as it had no legal effect.
In
the present case the purported decision issued by the Taliban (a fundamentalist
political and religious faction) had no legal authority. The Taliban
infiltrated into Pakistan and had illegally occupied and assumed control over a
part of the territory of the country. Pakistan was a sovereign country and the
applicable law of Pakistan applied over every inch of its territory.
The
physical possession of any part of the territory of Pakistan taken over by the
Taliban contravened the Constitution and any decision given by the Taliban
would be unconstitutional, unlawful and of no legal effect. Subverting the
Constitution and subjugating the people did not confer legitimacy on an
aggressor nor rendered an aggressor's decisions constitutionally legitimate.
Petitioner's
attempt to alternatively categorise the purported 'decision' as an agreement
(to sell) was also not permissible because it undermined the sovereignty of
Pakistan. The purported 'decision' / 'agreement', could neither be made the
basis of a suit nor relied upon. The purported agreement was 'forbidden',
'unlawful' and opposed to 'public policy' in terms of section 23 of Contract
Act, 1872, therefore, it was of no legal effect.
Salahuddin
Malik, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for
Petitioners.
Nemo
for Respondents.
Date
of hearing: 2nd February, 2021.
ORDER
Qazi Faez Isa, J. A suit for specific performance was filed by the petitioners who
alleged that they had entered into an agreement to sell dated 30 April 2009
with the respondents for the sale of certain lands. The petitioners were
required to lead evidence in support of their claim which they failed to do
despite being granted a number of opportunities; resultantly their side was
closed and the learned Judge of the Trial Court dismissed their suit. The
petitioners challenged the decision by filing an appeal, which was dismissed
and so too the revision filed by them before the High Court. Therefore, it is
against three concurrent judgments that the instant petition has been filed.
2. The
learned counsel says that the petitioners were not given sufficient opportunity
to lead evidence before closing their side and dismissing their suit. The
learned counsel has referred to the order sheets of the Trial Court, which have
been filed through C.M.A. No. 1473 of 2020.
3. The
Trial Court's order dated 3 October 2012 refers to an application of the
petitioners whereby they sought the Court's permission to prove the 'Iqrar
Nama, [agreement] through secondary evidence' because its original was stated
to be with the defendants (respondents herein). We asked the learned counsel to
refer to the secondary evidence sought to be produced, that is the copy of the
said Iqrar Nama, however, the learned counsel states that the same was not an
Iqrar Nama but a decision dated 30 April 2009.
4. The
petitioners had relied on an Iqrar Nama (agreement) but later stated that the
document was instead a decision. Leaving aside the question whether they could
change their stance so fundamentally, we have examined the referred to document
which is a 'decision' issued by the "Emarat-e-Islami Taliban, Waziristan
wa Afghanistan" ('Taliban'). The Taliban had no legal authority to decide
cases. The Taliban infiltrated into Pakistan and by mid-2005 had illegally
occupied and assumed control over a part of the territory of the Islamic
Republic of Pakistan, including parts of Waziristan. Pakistan is a sovereign
country and the applicable law of Pakistan applies over every inch of its
territory. Every square inch of the territory of Pakistan is precious and must
be kept free and safe.
5. The
physical possession of any part of the territory of Pakistan taken over by the
Taliban contravened the Constitution of the Islamic Republic of Pakistan
('Constitution') and any decision given by the Taliban would be
unconstitutional, unlawful and of no legal effect. Subverting the Constitution
and subjugating the people does not confer legitimacy on an aggressor nor
renders an aggressor's decisions constitutionally legitimate. The learned
counsel's attempt to alternatively categorise the purported 'decision' as an
agreement is also not permissible because it undermines the sovereignty of
Pakistan. The purported agreement is 'forbidden', 'unlawful' and opposed to
'public policy' in terms of section 23 of Contract Act, 1872, therefore, it is
of no legal effect.
6. The
learned Judge of the Trial Court had provided a number of opportunities to the
petitioners to lead evidence but they had repeatedly failed to do so and failed
to establish the subsistence of an agreement between themselves and the
respondents. We have also considered the submission that if the petitioners
were permitted to produce the 'decision'/'agreement', they would have
succeeded. However, as stated above, the purported 'decision'/'agreement',
could neither be made the basis of a suit nor relied upon. Therefore, leave to
appeal is declined and consequently this petition is dismissed.
MWA/G-5/SC Petition
dismissed.