Power of Attorney in Pakistan

POA in Pakistan

Power of Attorney (abbreviated to POA) in Pakistan are very common documents but are substantially powerful documents also. In this article, we will guide you on what a Power of Attorney in Pakistan is, the different types, how to cancel them and how to take action against fraudulent use of them.

We will also guide Overseas Pakistanis on how to prepare their documents whilst they’re abroad, and things to consider before designating a Power of Attorney in Pakistan. If you are unsure about anything, you can always reach out to us for further information and advice.

What is a POA?

Power of Attorney in Pakistan (known in Urdu as “Mukhtar nama”) is when an individual or a litigant (someone going through court proceedings) gives authority to an individual (other than the litigant) to represent the litigant in the court of law. This can be done for several reasons, mainly when a litigant is abroad (and is unable to go themselves) or doesn’t have the time to go themselves.

It is not only used in court, but it can also be used for all legal issues, including Tax issues and Property related matters (i.e. buying a property in Pakistan, selling property in Pakistan, renting a property in Pakistan, etc.). In Pakistan, there are 3 types of Power of Attorneys; General Power of Attorney, Special Power of Attorney and Legal Power of Attorney.

The Legal Definition of Power of Attorney

The Legalities around Power of Attorney are documented in
the Power of Attorney Act 1882. Section 2 of this act states that:-

“The donee [Executant] of a power-of-attorney may, if they think fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.”

Power of Attorney Act 1882. Section 2

This, therefore, entitles the representative nominated in the Power of Attorney to act as if they were the Executant (unless they state on the document otherwise). The Representative can negotiate, execute transactions, receive and release funds, withdraw cases, submit cases (and appeals) and appoint lawyers (through a legal Power of Attorney) on behalf of the executant.

What is a Special Power of Attorney

A Special Power of Attorney (Known in Urdu as Mukhtaar-nama khaas) is a document where one (or several) people can appoint a representative to carry out certain and specific actions (which should be specifically mentioned on the Special Power of Attorney Document).

Several people may assign one person as their Special Power of Attorney, and it is widely seen practiced in Pakistan that many relatives (who perhaps maybe abroad) may assign one person as their Special Power of Attorney.

What is a General Power of Attorney

 A General Power of
Attorney (Known as a Mukhtaar-nama aam) is given to an individual to represent
the Litigant in its entirety. The Representative can hire lawyers, file
appeals, buy and sell assets and property and can overall represent the
litigant in all general cases.

The Executant / Principle who gives the General Power of
Attorney can specify whether the General Power of Attorney is Revocable or
Non-Revocable. All of these terms and conditions must be mentioned on the Power
of Attorney.

Cancellation of Power of Attorney

A Revocation-Deed may be submitted, at any time, to the
relevant registrar to withdraw the original Power of Attorney. A newspaper
publication is required, and it is noted that the reason for withdrawing the
original Power of Attorney must be provided, as it may be later relied upon
later (Reference 2017 CNC P48 Isb).

It is also noted that only after the original Power of
Attorney is either canceled or withdrawn, could another Power of Attorney be
utilized. What is important to remember that, in the case of a Special Power of
Attorney, that once the task is done, the Power of attorney automatically seizes.
In the event of death (of either the Representative or the Executant) the Power
of Attorney would also be deemed as expired.

Preparing a Power of Attorney from Abroad

If a person is looking to prepare a Power of Attorney from Abroad, they must ensure that the Power of Attorney meets the criteria of the country it’s coming from, as well as Pakistan’s Legal Criteria (As it was observed in 2009 MLR Civil 241).

Remember, when preparing a Power of Attorney, it is always
important to seek assistance from your legal counsel to ensure your Power of
Attorney is valid for the specific legal action you are looking to ensue. We
can also be contacted if you require assistance in this matter.

Power of Attorney for Property related Matters

It is noted that in 2016 CLC 1338 that the property that is being sold must be mentioned on the Power of Attorney. 2016 CLC P887 States that the representative cannot give (either by rent, sell or gift) the property to his blood-relatives or close relatives. PLJ 2016 Lhr 881 States also that, without a Power of Attorney, the representative cannot sell the property on the Executant (in this case, landlords) behalf.

Relevant Case Law and Citations for Power of Attorney in
Pakistan

“The beneficiary of the transaction must ensure that the Power of Attorney is legitimate.”

2006 YLR 951

“Power of Attorney must be registered and recognized by the city it is being used in.”

2005 YLR 2623

“When a Representative comes on behalf of the Executant, it would be the same as the Executant came themselves.”

2003 Civil 407

“2 witnesses are required for a Power of Attorney”

1998 PLD 367

How to Register a Power of Attorney in Pakistan

Power of Attorney is a very important Document, and its registration process is incredibly scrutinized. An invalid Power of Attorney can be canceled and, in some cases, may not even be recognized. Contrary to popular belief, a simple stamp from a Notary alone would not be sufficient.

A Power of attorney document must be registered by the relevant Registrar and Notary (As observed in 2017 YLR P.138). The stamp paper would be issued by the Executant (on their name) and if the executants are abroad, then the nearest Pakistani Consulate would also attest the document.

Legal Power of Attorney

A legal Power of Attorney (Known as a Vakalat-nama) is the
document submitted to the court (or relevant department) to inform them that
your lawyer will represent your case legally. A Legal Power of Attorney is
required for each specific case, in each specific court.

A Legal Power of attorney allows a lawyer to represent you in your legal matters, but cannot represent you personally in certain cases (for example, in instances of giving evidence). An Overseas Pakistani may also give a Legal Power of Attorney to a lawyer or law firm in Pakistan, but it requires an attestation from their local Pakistani Embassy or Consulate.

What should be mentioned in your Power of Attorney

When drafting your Power of Attorney, it is always important
to mention as many criteria as possible, to avoid any complications in the Future.
If your Power of Attorney is relevant to certain properties, mention them
specifically.

If you wish to limit the amount of responsibility or ability
of your representative (for example you do not want them to handle financial
transactions on your behalf), you can add clauses to your Power of Attorney to
limit their capabilities to do so.

Fraud in Power of Attorney matters

We have seen cases in Pakistan where the Representative goes against the will of the Executant, which would be considered fraud as the representative should act as the Executant wills. In this instance, the Executant can file a case against the representative under Criminal Breach of Trust, which is covered under Section 406 and 409 of the Pakistan Penal Code.

In cases where the document is fake or the documents are
forged (i.e. if the witnesses and people don’t exist, or if the signatures and
thumb impressions are not authentic) then criminal action would be taken
against the perpetrators and the lawyers involved.

Fees for Power of Attorney in Pakistan

The fees for the Power of Attorney in Pakistan vary greatly. The fees would vary depending on where it is to be used and in which institutions it is required. It has been noted that any Power of Attorney document with a Stamp Paper Value of less than Rs.1,000 would not be recognized (as it also observed in 2017 YLR P.138). Relevant fees and duties must be paid and acknowledged.

When preparing a Power of Attorney, it is always important
to seek assistance from your legal counsel to ensure your Power of Attorney is
valid for the specific legal action you are looking to ensue. We can also be
contacted if you require assistance in this matter.

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