IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Munib Akhtar
Mrs. Justice Ayesha A. Malik
Mr. Justice Shahid Waheed

CIVIL PETITION NO.3644 OF 2020

[Against order dated 27.10.2020 passed by the Lahore High Court, Rawalpindi Bench,
Rawalpindi in WP No.3764 of 2019]

Raja Tanveer Safdar ...Petitioner(s)

Versus
Mrs. Tehmina Yasmeen and others ...Respondent(s)

For the Petitioner(s) : Agha Muhammad Ali, ASC

Syed Rifaqat Hussain Shah, AOR

Respondent No.1 : Tehmina Yasmeen (In person)

For Respondents No.2-4 : Mr. Sanaullah Zahid,

Additional Advocate General Punjab with
Muhammad Shahid Rana, Director (S.W.)
Rawalpindi

Date of Hearing : 24.04.2024

JUDGMENT

Ayesha A. Malik, J.- This Civil Petition impugns Order dated

27.10.2020 (Impugned Order) of the Lahore High Court, Rawalpindi
Bench, Rawalpindi (High Court), which dismissed the writ petition filed
by the Petitioner by upholding Order dated 18.11.2019 passed by the
Governor Punjab as well as Order dated 04.09.2018 passed by the
Ombudsperson (Mohtasib), Punjab (Ombudsperson) appointed under
Section 7 of the Protection against Harassment of Women at the Workplace
Act, 2010 (2010 Act).

2. The basic facts in this case are that Respondent No.1 is a Senior
Special Education Teacher at the Special Education Centre, Taxila,
District Rawalpindi, whereas the Petitioner was the District Officer, Social
Welfare and Bait-ul-Maal, Chakwal. The Petitioner wrote Letter dated
03.06.2016 addressed to the District Officer (Coordination), Chakwal
(Letter) wherein he filed a complaint against Respondent No.1, where he
alleged she, being the Headmistress of the Government Institute for Blind,
Chakwal, had sexually abused one Khuram Shehzad (blind teacher on
daily wages) in school. On the basis of the said Letter, an inquiry was
CP.3644 of 2020 2

initiated against Respondent No.1, who was exonerated from this

complaint on 21.08.2017. In the meantime, on 24.06.2016, Respondent
No.1 filed a suit for recovery of damages under Section 9 of the Defamation
Ordinance, 2002 (2002 Ordinance) on the grounds that the Petitioner
defamed and damaged her reputation on the basis of the Letter. The suit
was decreed in favour of Respondent No.1 vide judgment dated
10.04.2019, where she was entitled to Rs.1,000,000/- as damages.
Meanwhile, Respondent No.1 also filed a complaint against the Petitioner
before the Secretary, Social Welfare Department, Punjab on 14.03.2017
under the Punjab Employees Efficiency, Discipline and Accountability Act,
2006 (PEEDA). On 22.12.2017, the departmental proceedings under
PEEDA against the Petitioner found him guilty on account of misconduct
as he had levelled false and fabricated allegations against Respondent No.1
in the Letter, therefore, major penalty of forfeiture of past service for a
period of two years was imposed upon him. On 22.03.2017, Respondent
No.1 filed a complaint under the 2010 Act on the grounds of sexual
harassment before the Ombudsperson alleging therein that the Petitioner
came to her office unnecessarily on one pretext or the other, being the focal
person for disabled persons. The matter was ultimately decided on
04.09.2018 whereby the Petitioner was found guilty of harassment and
major penalty of compulsory retirement from service was imposed upon
him. The Petitioner challenged this Order before the Governor Punjab
wherein his representation was dismissed vide Order dated 18.11.2019 by
upholding the Order of the Ombudsperson.

3. On 19.12.2019, the Petitioner challenged both these Orders (i.e. the

Order of the Ombudsperson as well as the Governor) before the High Court
in its constitutional jurisdiction raising several grounds essentially
claiming that the allegations levelled against him were incorrect and that
Respondent No.1 was unable to establish that he had caused any
harassment to her. The writ petition was dismissed vide the Impugned
Order thereby upholding the Orders of the Ombudsperson and the
Governor maintaining his compulsory retirement from service and, at the
same time, maintaining the penalty of forfeiture of past service for a period
of two years issued on 22.12.2017.

4. The Petitioner’s basic grounds before this Court are that this is a
classic case of double jeopardy as the Petitioner on the same set of
allegations was proceeded departmentally under PEEDA and was awarded
a penalty of forfeiture of past service for a period of two years. While, at
CP.3644 of 2020 3

the same time, under the 2010 Act, he has been compulsorily retired from
service, hence, he claims that these Orders are illegal and without
jurisdiction as they violate the principle of double jeopardy under Article
13(a) of the Constitution.1 Counsel also argued that Respondent No.1 had
simultaneously filed a suit for defamation on the same set of facts and that
the suit was decreed in her favour on the same cause of action. So, the
thrust of his arguments was that the orders under PEEDA, the 2010 Act
and the 2002 Ordinance are hit by the principle of double jeopardy. He
further argued that no case of harassment was made out and that it was
an exaggerated claim by Respondent No.1, which she was unable to prove
through her evidence.

5. We have heard the parties and examined the available record. The
issue of double jeopardy has been argued vociferously by the counsel for
the Petitioner claiming therein that no person can be convicted for the
same offence twice nor be liable to be tried for the same offence on the
same set of facts as it falls within the mischief of double jeopardy. This
argument requires some attention to clarify the concept of double
jeopardy, a term often misunderstood.

6. Protection against double punishment is provided in Article 13(a) of

the Constitution which specifically prescribes that no person shall be
prosecuted or punished for the same offence more than once. This Court
in the Muhammad Ashraf case has extensively elaborated the principle of
double jeopardy to be that a person shall not be exposed twice to hazards
of punishment and conviction for one and the same offence.2 The rule is
based on the Latin maxim ‘nemo bis punitur pro eodem delicto,’ which
means nobody is to be punished twice for the same crime.3 The Fifth
Amendment to the US Constitution states that ‘no person shall be …
subject for the same offense to be twice put in jeopardy of life or limb’.
Article 20(2) of the Indian Constitution is also pari materia with Article
13(a) of our Constitution. The protection against double jeopardy is also
part of due process of law.4 The principle is also recognized in Article 14 of
the International Covenant on Civil and Political Rights (ICCPR) and
Article 4 of Protocol No.7 to the European Convention on Human Rights

1
Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) is reproduced below:
13. Protection against double punishment and self incrimination:
No person -
(a) shall be prosecuted or punished for the same offence more than once;
2
Muhammad Ashraf v. the State (1995 SCMR 626) (Muhammad Ashraf).
3
JON R. STONE, THE ROUTLEDGE DICTIONARY OF LATIN QUOTATIONS (Taylor and Francis) (2005), 68.
4
Margaret Jones, What Constitutes Double Jeopardy?, 38 Journal of Criminal Law and Criminology 4 (1947), 379-390
<https://www.jstor.org/stable/1138015>.
CP.3644 of 2020 4

(ECHR). Even Article 86 of the Geneva Convention (III) on the Prisoners of

War, 1949 imposes prohibition against double jeopardy. Hence, this
principle is recognized both under the national and international law.

7. The protection given under Article 13(a) of the Constitution is

against prosecution and punishment, which means the trial and its
proceedings followed by a conviction. The Muhammad Ashraf case clarified
that if the first prosecution results in an acquittal, so far as Article 13(a)
of the Constitution is concerned, the second prosecution is not
prohibited.5 The concept of double jeopardy essentially means that a
person cannot be tried multiple times for the same offence on which there
is a conviction based on the same set of facts as they should not be put in
peril twice.6 It is based on the rule of conclusiveness and finality which
requires that once a court has taken cognizance of an offence, tried a
person and convicted them, then for the same offence that person cannot
be tried again.7 So, the basic question is that in the case of double
jeopardy, the second trial should be on the same set of facts of the first
trial which resulted in a conviction for the same offence, which would
require the same evidence before the court. Basically, this means that the
case has to be the same as the one that has already resulted in a conviction
but if the proceedings are different in substance and law then it will not
be a case of double jeopardy.8 While relying on Halsbury’s Laws of
England,9 this Court in the Muhammad Ashraf case has ruled as:

[T]he test is whether the former offence and the offence now charged
have the same ingredients in the sense that the facts constituting the
one are sufficient to justify a conviction of the other and not that the
facts relied on by the Crown are the same in the two trials.10

8. Now, we need to apply the above test to this case. The Petitioner was
sued under the 2002 Ordinance which primarily covers any wrongful act
or false statement, orally or in writing, that may harm or damage the
reputation of a person as a defamatory action.11 Once the defamation is
proved, Section 9 of the said Ordinance provides a remedy to the victim
that may include an apology and/or compensatory damages by the
defendant as prescribed in the said provision. In this case, a decree in the
suit for defamation was rendered on 10.04.2019 in favour of Respondent
No.1 as the harm or damage on account of defamatory action was

5
Muhammad Ashraf, supra note 2.
6
Sohail Ahmad v. Government of Pakistan (2022 SCMR 1387).
7
Id.
8
Muhammad Tufail v. Assistant Commissioner/Collector (1989 SCMR 316) (Muhammad Tufail).
9
LORD HAILSHAM, 9 HALSBURY’S LAWS OF ENGLAND (2nd ed. 1931), 152-153, Para [212].
10
Muhammad Ashraf, supra note 2.
11
Section 3 of the 2002 Ordinance defines the word ‘defamation’.
CP.3644 of 2020 5

established. Under Section 8 of the 2010 Act, a complainant can file a

complaint before the Ombudsperson, who will have to determine whether
harassment at the workplace is made out under the law, and if so then
minor or major penalty can be imposed against the accused in terms of
Section 4 of the 2010 Act. Harassment is defined under Section 2(h) of the
2010 Act, and it needs to be established through evidence. In this case,
the harassment was proved against the Petitioner in terms of the said Act.
Lastly, PEEDA prescribes for proceedings against the employees in
government and corporation service in relation to their efficiency,
discipline and accountability. Section 3 of PEEDA provides grounds for
proceedings and the penalty that may be imposed against the employee if
they are found guilty of inefficiency, misconduct, corruption, engaged in
subversive activities, etc. Major penalty of forfeiture of past service for two
years under Section 4 of PEEDA was imposed against the Petitioner on the
ground of misconduct by the competent authority.

9. As per the aforementioned orders, there are three different decisions

under three separate laws against the Petitioner. Each of these laws are
special laws which operate within their given jurisdiction and can result
in penal consequences if the requirements of the law are fulfilled. The
cause of action accrues to the party only when the ingredients of
defamation under Section 3 of the 2002 Ordinance are established. Once
these essential components of defamation are proved, through the
evidence, then the aggrieved party is entitled to a remedy. In terms of the
2010 Act, harassment means gender-based harassment and
discrimination, which can be sexual in nature.12 Any action that causes
interference with work performance or creating an intimidating, hostile or
offensive work environment falls within the definition of harassment under
Section 2(h) of the 2010 Act. The said Act operates for a very specific
purpose which is to determine whether there has been any harassment at
the workplace by an employer against an employee. Lastly, as far as
PEEDA is concerned, it is for misconduct by levelling false and fabricated
allegations against Respondent No.1, which is a separate and distinct
cause of action against the Petitioner. Hence, a conviction under any of
these laws will not prevent or bar a conviction under the other two laws
which operate within their own domain for a specific purpose.

12
Nadia Naz v. the President of Islamic Republic of Pakistan (PLD 2023 SC 588).
CP.3644 of 2020 6

10. We also find that the comparison of the decree of defamation and
orders under the 2010 Act, causing harassment to Respondent No.1, is
totally misconstrued. Harassment under the 2010 Act goes to the basic
and most fundamental of rights, that being the right to dignity, where a
citizen must be able to live and work with respect and value.13 The
preamble of the 2010 Act begins by recognizing the constitutional
command of the inviolability of human dignity as envisioned in Article 14
of the Constitution. Dignity is, thus, an inherent right well-accepted in the
international legal order,14 which ensures that everyone who works has
the right to just and favourable remuneration ensuring an existence
worthy of human dignity, which is supplemented by social protection.
Respectability, acceptability, inclusivity, safety and equitability are the
prerequisites for a safe and dignified workspace. This is a crucial objective
of the 2010 Act being to uphold and protect the right of dignity of
employees at the workplace by ensuring fair treatment, non-
discrimination, mutuality of respect, and socio-economic justice. These
statutory objectives are also in conformity with the Principles of Policy set
out under Articles 37 and 38 of the Constitution, which promotes social
justice and the social and economic well-being of the people. Hence, the
argument that the defamation suit and its decree will oust the jurisdiction
of the 2010 Act is misconceived and without basis.

11. This case can be best illustrated as follows: Respondent No.1

initiated a claim of sexual harassment at the workplace by the Petitioner
based on instances and evidence of harassment, which was considered by
the Ombudsperson, who concluded that he caused harassment to
Respondent No.1. In the suit for defamation, the court determined that the
contents of the Petitioner’s Letter fall within the definition of defamation
as prescribed by Section 3 of the 2002 Ordinance as the evidence
established defaming of Respondent No.1. So, the court awarded her
damages. Finally, so far as action under PEEDA is concerned, the inquiry
was conducted on the basis of the Letter, which he had specifically written
in his official capacity and the said inquiry discovered that the same was
false and incorrect, hence, punishment for his misconduct was awarded
in the form of forfeiture of past service for a period of two years. Even
though the parties are the same, the cause of action is separate in each
case before different forums with distinct penal consequences emanating

13
14. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
14
Preamble and Article 10 of the ICCPR, Preamble of the International Covenant on Economic, Social and Cultural Rights (ICESCR),
Preamble of the Convention on the Elimination of All Forms of Discrimination Against Women, Preamble of the Protocol No.13 to
the ECHR and Article 23 of the Universal Declaration of Human Rights (UDHR).
CP.3644 of 2020 7

out of its respective statutory laws. In view of the aforesaid, we find that
the argument of double jeopardy is misplaced and without any basis.

12. There is another important issue in the instant case. We note with
reference to this case that Respondent No.1 filed her complaint before the
Ombudsperson which was then challenged by the Petitioner before the
Governor Punjab. Both these forums are forums of fact where parties can
lead their evidence for a factual determination. Therefore, the Order of the
Governor will be the final order on the factual side, which cannot be then
challenged before the High Court in constitutional jurisdiction in the form
and substance of a second appeal on the facts of the case. The High Court
cannot interfere in its constitutional jurisdiction on findings of fact
recorded by the competent court, tribunal or authority unless the findings
of fact are so perverse and not based on the evidence which would result
in an error of law and thus, justified interference.15 Therefore, for all
intents and purposes, the factual controversy comes to an end after the
Order of the Governor, and if, there is any jurisdictional defect or error and
procedural improprieties of the fact-finding forum only then the High
Court can interfere. In various matters such as service,16 family,17 tax,18
and customs,19 this Court has consistently restricted the High Court’s
powers exercised in the constitutional jurisdiction in terms of determining
the factual controversy while simultaneously enhancing the domain of the
fact-finding forums.

13. In this case, we have examined the writ petition filed by the
Petitioner wherein the grounds raised are factual in nature and similar to
the grounds raised before this Court, which are also factual in nature. The
question urged by the Petitioner before this Court and High Court is
whether a case of sexual harassment was made out, which, in our opinion,
is based on appreciation of the evidence. So, the factual findings of both
fora below cannot be challenged before the High Court. This Court has
also held that the closure of litigation is a fundamental principle for fair
trial and due process in terms of Article 10A of the Constitution by creating
an effective and efficient legal order, and the courts should not
unnecessarily make room for further relitigating issues that may lead to
misuse of the law and travesty of justice.20

15
Uzma Naveed Chaudhary v. Federation of Pakistan (PLD 2022 SC 783).
16
Fida Hussain Javed v. Director Food, Punjab (2004 SCMR 62).
17
M. Hammad Hassan v. Mst. Isma Bukhari (2023 SCMR 1434) and Qurat-ul-Ain v. Station House Officer (2024 SCMR 486).
18
Commissioner of Inland Revenue v. Sargodha Spinning Mills (Pvt.) Ltd. (2022 SCMR 1082).
19
Assistant Collector, Central Excise and Sales Tax Division, Mardan v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514).
20
M. Hammad Hassan, supra note 17.
CP.3644 of 2020 8

14. In light of the above, we hold that the findings rendered by the High
Court in the Impugned Order do not suffer from any flaw or error, hence,
this Civil Petition is dismissed. Leave is refused.

JUDGE

JUDGE

JUDGE
Islamabad
24.04.2024
‘Approved for Reporting’
Azmat | Kehar Khan Hyder/-