Category: Legal Awareness Program

Reported case in law journal

Lexway Law Firm successfully represented Brands Unlimited (Pvt.) Limited before the Customs Appellate Tribunal at Karachi in Customs Appeal No. K-130 of 2022, reported in SBLR 2023 Tribunal 225.

The appeal challenged Order-in-Revision No. 39 of 2021 passed by the Director General of Customs Valuation Karachi against Valuation Ruling No. 1374 of 2019 passed by the Director Valuation Custom House, Karachi. Through the latter ruling, the Director Valuation arbitrarily categorized Lakme Cosmetic products sold by Brands Unlimited in Pakistan and placed them in the category of high-end products. As a result, the Customs Authorities imposed customs duty on Lakme Cosmetic products at the rates applicable to high-end brands. This required Brands Unlimited to deposit security/bank guarantee for their imported goods amounting to PKR 11,060,995/-.

Lexway Law Firm’s representation of Brands Unlimited was led by our Partner, Mohammad Ramish Farhat. He effectively pleaded the case before the Customs Appellate Tribunal. The Tribunal allowed the appeal by setting aside the impugned Valuation Ruling and the impugned Order-in-Revision to the extent of Brands Unlimited. The Tribunal also directed the Respondents to forthwith return the bank guarantee to Brands Unlimited.

This is a significant victory for Brands Unlimited and Lexway Law Firm.

SBLR-2023-Tribunal-225Download

Lexway’s representation of families of missing persons on behalf of the Human Rights Commission of Pakistan, in Courts of Pakistan.

Mohammad Faisal, a 2nd year student of Shipowner’s College, North Nazimabad, Karachi, is missing since 9th January 2012. At the time of his disappearance his age was about 19 years. His father filed a Constitution Petition in the High Court of Sindh for the recovery of his son. Under the direction of High Court a number of JITs were formed but the agencies did not make serious efforts to recover him.


Surprisingly, through Order dated 8-9-2020, a Division Bench of the High Court dismissed the petition by observing that counsel for the petitioner, instead of filing Constitution Petition, should adopt proper course for recovery of the missing boy. Without any evidence, the High Court also observed that it was not a case of enforced disappearance and dismissed the petition.


The HRCP through Mr. Farhat Ullah, Advocate, who is a member of HRCP and Senior Partner at Lexway Law Firm approached Mr. Rasheed A. Razvi, Senior Advocate, and former President of Supreme Court Bar Association, who challenged High Court’s Order in the Supreme Court, and through Order dated 30-12-2021 the Supreme Court set-aside the High Court’s Order and remanded the case back to the High Court for the recovery of Mohammad Faisal. During the hearing the Supreme Court also observed that it is the duty of the state to ensure safety of its citizen and protection of their fundamental rights, and cases of enforced disappearance should not be summarily dismissed.


After the remand of the case to High Court Mr. Farhat Ullah, will pursue the petition.

Inheritance of Foreign Assets in Pakistan

Heirs of the deceased can inherit his/her assets which are in a foreign state. There are very few cases which have appeared before the courts in Pakistan regarding inheritance of assets of the deceased in a foreign state. The concern which most people have is regarding the jurisdiction of Pakistani courts in a foreign territory.

The Law governing inheritance of properties of the deceased is The Succession Act of 1925. Section 5 of the Act states that: Law regulating succession to deceased person’s immoveable and moveable property, respectively. — (1) Succession to the immoveable property in Pakistan of a person deceased shall be regulated by the law of Pakistan, wherever such person may have had his domicile at the time of his death. (2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.

Therefore, the deceased who had his domicile in Pakistan their heirs can claim the deceased assets which are in foreign states. The word “domicile” has not been defined in the Succession Act. But according to Halsbury’s Laws of England (4th ed) Volume 8, Para 421 “domicile” has been defined as: “A person is domiciled in that country in which he either has or is deemed by law to have his permanent home” and according to Black’s Law Dictionary, “domicile” means The place at which a person has been physically present and that the person regards as home; as person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even, though currently residing elsewhere. A person has a settled connection with his or her domicile for legal purposes, either because that place is home or because the law has so designated that place”.

Pakistani Courts in P L D 2015 Balochistan 132: Hifeeza & others versus General Public and in 1986 M L D 897 In Re: Saleem Lodhia  have interpreted the law regarding inheritance of assets in a foreign territory and allowed legal heirs of the deceased to claim his moveable assets which were in a foreign state.

However, the Succession Act of 1925 does not mention whether the Pakistani Courts have jurisdiction to grant letter of administration with regards to immoveable property in a foreign state of the deceased who has domicile in Pakistan. The courts of Pakistan can only take cognizance in relation to the immovable property situated in Pakistan subject to the limitations prescribed in the Code of Civil Procedure 1908.

Nonetheless, Pakistani Courts in the case of PLD 2019 Sindh 130: Letter of Administration of deceased Tahir Ahmed Khan allowed legal heirs of the deceased to inherit his immoveable properties in the United Kingdom and United Arab Emirates in the light of statutory provisions of the United Kingdom (the Pakistan Act, 1990) as well as SRO 208(1)/2007 dated 06.03.2007 (notifying arrangement for reciprocity, recognition and enforcement of judicial decisions with the United Arab Emirates); and the UAE Civil Procedure Code, Federal Law No. (11) of 1992 which states that proceedings in the nature of “succession” could be initiated in any one of the said jurisdictions where the properties were situated and orders of such proceedings could be enforceable in the other foreign jurisdictions.

Therefore, immoveable properties of the deceased in foreign states can also be claimed by their legal heirs if those states have a bilateral arrangement of enforceability of Judgments with Pakistan.

Christian Divorce Laws in Pakistan

Divorce in the Christian faith is governed by the Divorce Act of 1869. Section 7 of this Act, which allowed divorce on the grounds of irretrievable breakdown of marriage was repealed through Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981) by General Zia ul Haq when he came to power. After the repeal of Section 7, divorce under the aforesaid Act could only be given under Section 10 in which divorce could be taken on the grounds of (a) change in religion (b) second marriage (c) rape (d) sodomy and (e) bestiality (f) adultery with bigamy, (g) incestuous adultery, (h) adultery coupled with cruelty or (i) adultery coupled with desertion. This made it very difficult for the Christian community in Pakistan to divorce their spouse without the proof of adultery. This led to many Christians over the years, carry out fake conversions, in order to divorce their spouse.

In this regards a petition was filed P L D 2017 Lahore 610 (AMEEN MASIH Versus FEDERATION OF PAKISTAN and others) where the Petitioner wanted to divorce his wife since his marriage had broken down irretrievably. However, he was not able to do so under the aforesaid Act and did not want to falsely accuse his wife of adultery. The courts through Judicial Review in this case restored Section 7 of the Divorce Act 1869 by taking into consideration the Matrimonial Causes Act, 1973 (UK) and also allowed the additional grounds of divorce as mentioned in the Matrimonial Causes Act of 1973.

In the year 2019, a draft bill titled Christian Marriage and Divorce Act 2019 was proposed to make changes in the Divorce Act 1869 and Christian Marriage Act 1872 in order to provide grounds other than adultery for divorce to Christians. The Act has not been passed yet and the Bill still needs to be approved by the Parliament.

Therefore, the case of Ameen Masih still holds ground and is a landmark judgment which is referred in cases to obtain Divorce other than on the grounds of adultery by the Christian community.

Enforcement of Foreign Arbitral Awards in Pakistan

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 allows foreign arbitration awards to be enforced in countries that have signed and ratified the Convention. There were 163 countries who were party to the New York Convention out of which 24 countries are signatories to the Convention.

Pakistan has signed and ratified this convention. The United Nations Convention has been incorporated into Pakistani law by the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011. As per this Act, Foreign arbitral awards are recognized and enforced in the same manner as a judgment or order of a court in Pakistan and the court enforcing the award will not go behind the evidence or act as an appellate court.  Under the act, a legal proceeding is required to be initiated before the concerned High Court in Pakistan to enforce a foreign arbitration award. Therefore, any Foreign Arbitral Awards obtained in the countries who are signatories to the Convention can be enforced as a foreign judgment in the courts of Pakistan.

However, if a country is not a signatory to the New York Convention it cannot procure the benefit of the Convention unless there is some bilateral recognition between the countries or the Arbitration was held under the provisions of the UNCITRAL Model Law.

Nonetheless, a foreign arbitral award can also be enforced by filing a suit in the country where the award was obtained and thereafter the judgment obtained from the courts of that country can be enforced as a foreign judgment in the courts at Pakistan.

Domestic Violence Laws In Pakistan

Domestic violence has been a matter of great concern in Pakistan. Due to the Patriarchal social system in Pakistan, women are the ones who mainly fall victim to domestic violence abuses. Since the 1970s the criminal justice system in many states began to treat domestic violence as a serious crime and not as a private family matter.

In Pakistan, a Domestic Violence Protection bill was proposed in 2009 which was passed in the National Assembly but subsequently failed to be passed by the Senate, within the prescribed period of time. The bill faced much criticism by religious and political parties who criticized the bill to be aiding in increasing divorce rates, being against the principles of Islam and an attempt to promote Western cultures. After the Eighteenth Amendment, the matter pertaining to the bill became a provincial issue.

Sindh was the first province to pass legislation with regards to Domestic Violence. The Domestic Violence (Prevention and Protection) Act, 2013 was promulgated to ensure protection to victims of Domestic Violence. The Act defines domestic violence as, “Domestic Violence includes but is not limited to, all acts of gender based and other physical or psychological abuse committed by a respondent against women, children or other vulnerable persons, with whom the respondent is or has been in a domestic relationship”. There is a long list of offences which come under domestic violence in the aforesaid Act and most of the punishments of these offences are governed by the Pakistan Penal Code, 1860. However, the punishments for some offences are set out under the Act which are emotional, psychological and verbal abuse, stalking, sexual abuse, tress pass and economic abuse. The punishments vary for each offence as set out under the Act.

Subsequently, legislations were passed by Balochistan: The Balochistan Domestic Violence (Prevention and Protection) Act, 2014 and by Punjab: The Punjab Protection of Women against Violence act 2016. While the legislations passed by Sindh and Balochistan provides protection to victims of domestic violence including women, children, vulnerable person or people in domestic relationship, the legislation passed by Punjab only provides protection to women who are victims to domestic violence.

Nonetheless, the province of Khyber Pakhtunkhwa has still not passed any laws regarding Domestic Violence. Even though the Domestic Violence against Women (Prevention and Protection) Bill-2019 is present in the assembly but it is facing resistance from religious and political parties.

Despite the fact that Domestic Violence has been given its due recognition much later by the Provincial Governments in Pakistan these legislations will protect the rights of victims who are subject to domestic violence and will curb the domestic abuses prevailing in our society.

Enforcement Of Environmental Laws Through Public Interest Litigation

Dr. Syed Raza Ali Gardezi, General Secretary of Citizen for Environment, has filed a Criminal Complaint through Lexway Law Firm, before The Sindh Environmental Protection Tribunal, against the Ex-Director General of Sindh Environmental Protection Agency (SEPA) Mr. BaqaullahUnner, the present Director of SEPA as well as other officers of SEPA and the Builder of Shaz Residency Mr. Muhammad Sami for illegally granting NOC for the Construction of Shaz Residency,a commercial-cum-residential multistory building on a 2 (two) Acre Plot No. A, Sector 15-A, Scheme No. 33, Karachi. SEPA has granted the NOC without inviting public hearing / objection and in contravention of The Sindh Environmental Protection Act, 2014.  

On 31-01-2020 a Full Bench of The Sindh Environmental Protection Tribunal has admitted the complaint and issued notices for 11-02-2020 to the accused persons to face the criminal trial.

The Correct Way of Giving Talaq

Talaq, is a form of divorce under Muslim personal law, and is given by (or on behalf of) the husband to the wife and the effect of talaq is that it annuls the nikkah i.e. marriage.

Rules

  • The talaq given by a sane, married adult will be valid.
  • The talaq given during sleep will be invalid.
  • The talaq given during the state of intoxication will be valid.
  • The wife can, if given the authority under the nikkahnama, the marriage agreement, can pronounce the talaq on behalf of the husband.
  • The talaq given in the state of anger will be valid; the reasoning behind this is that no one would ordinarily give talaq in a state of happiness.

Legal Requirements

While traditionally the talaq could be given orally, it is now a requirement under the Muslim Family Laws Ordinance, 1961, and the judgment of the Supreme Court in Farah Naz v. Family Court, Sahiwal (PLD 2006 SC 457) that the talaq must be given in writing, and a copy of the same should be forwarded to the concerned Union Council.