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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO.8 OF 2007
(Against
the
judgment
dated
12.4.2006 of the High Court of Sindh,
Karachi passed in I.T.A.No.55/1999)
Fancy Foundation
âĻAppellant(s)
VERSUS
Commissioner of Income Tax, Karachi
âĻRespondent(s)
For the appellant(s):
Mr. Iqbal Salman Pasha, ASC
For the respondent(s):
Mr. M. D. Shahzad Feroz, ASC
Date of hearing:
13.4.2017
âĻ
ORDER
MIAN SAQIB NISAR, CJ.- The facts of this appeal are that
the appellant, namely, Fancy Foundation, is a registered charitable
trust. It purchased property bearing Plot No.7/3, Survey Sheet SR-1,
Serai Quarters, I. I. Chundrigar Road, Karachi (the property) vide a
registered
sale
deed,
on
28.06.1963,
for
a
consideration
of
Rs.1,895,183/-. It finally sold the property for Rs.18,287,500/- in the
year 1995. The appellant filed its income tax return for the year 1996-
97, in which it claimed exemption from payment of income tax on the
surplus/differential between the purchase and sale prices of the
property in terms of Section 27(2)(a) of the Income Tax Ordinance, 1979
(the Ordinance). However, the department passed an assessment order to
the effect that the profit made upon the sale of the property was income
from business thus the appellant was liable to pay income tax
thereupon in light of Section 22 read with Section 2(11) of the
Civil Appeal No.8 of 2007
-: 2 :-
Ordinance. The appellantâs appeals before the Commissioner Income
Tax (Appeals) and the Income Tax Appellate Tribunal, and the income
tax reference before the learned High Court all failed. Leave was granted
on 03.01.2007 to consider whether âthe petitioner was not an adventure in the
nature of trade and was not liable to tax under the Income Tax laws as the surplus
amount/profit received by the petitioner Foundation from the transaction of sale was in
the nature of capital gain which is exempt from charge to tax.â
2.
Heard. We will first attend to the argument of the learned
counsel for the respondent that the reference before the learned High
Court was not maintainable as no question of law arose from the order
of the Tribunal. In the judgment reported as Naseer A. Sheikh and 4
others Vs. The Commissioner of Income-Tax (Investigation), Lahore
and others (1992 PTD 621) this Court held that the High Court had
erred in returning the reference to the Tribunal without answering the
questions referred to it because whether or not the sale of the second lot
of shares (resulting in a gain to the appellants) constituted an adventure in the
nature of trade, was a mixed question of law and fact whilst the High
Court had wrongly treated it as a pure question of fact.1 Thus we hold
that the question of whether the sale/purchase of property constitutes
âbusinessâ within the meaning of Section 2(11) of the Ordinance and its
effect on the taxpayer involves a factual determination of the
characteristics of the transaction in question and an interpretation of
the aforesaid provision of law, therefore, this is a mixed question of fact
and law and the reference before the learned High Court was
maintainable.
3.
Sections 22 and 27 of the Ordinance (relevant parts) read as
under:-
1 See also Oriental Investment Co., Ltd Vs. The Commissioner of Income-tax Bombay (AIR 1957 SC 852),
Juggilal Kamlapat, Kanpur Vs. Commissioner of Income Tax, U. P. (AIR 1970 SC 529) and Commissioner of
Income-tax, Bombay Vs. H. Holck Larsen (AIR 1986 SC 1695).
Civil Appeal No.8 of 2007
-: 3 :-
22.
Income from business or profession.â The
following incomes shall be chargeable under the head
"Income from business or profession", namely:-
(a)
profits and gains of any business or profession
carried on, or deemed to be carried on, by the
assessee at any time during the income year;
(b)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.; and
(c)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
ExplanationâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
27.
Capital gains.- (1) Any profits or gains arising from
the transfer of a capital asset shall be chargeable under the
head "Capital gains" and shall be deemed to be income of
the income year in which the transfer took place.
(2) For the purposes of sub-section (1) and section 28 and
29,â
(a) "capital asset" does not include-
(i)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ; and
(ii)
any immovable property; and
(b)
"transfer" includes the sale, disposition, exchange
or relinquishment of the asset, or the extinguishment of any
rights therein, but does not includeâ
â
4.
Section 15 of the Ordinance provides various heads of
income for tax purposes. The two relevant heads are âincome from
business or professionâ [Section 15(d)] and âcapital gainsâ [Section 15(e)].
According to Section 27 of the Ordinance, any profits or gains arising
from the transfer of a capital asset shall be chargeable under the head
âcapital gainsâ and shall be deemed to be income of the (income) year in
which the transfer took place. As per Section 27(2)(ii) of the Ordinance,
for the purposes of Section 27(1) thereof, capital asset does not include
any immovable property. It is the appellantâs case that the property they
sold was an immovable property and not a capital asset: therefore the
profit/gain from its transfer was not chargeable to income tax under the
Civil Appeal No.8 of 2007
-: 4 :-
head âcapital gainsâ. Whereas the departmentâs stance is that the
purchase and ultimate sale of the property was an âadventure in the nature
of the tradeâ in terms of Section 2(11) of the Ordinance thus the
profit/surplus made on the sale thereof was a profit and gain of a
business carried on by the appellant and was chargeable to income tax
under the head âincome from business or professionâ under Section
22(a) of the Ordinance. Hence the terms âadventureâ and âtradeâ need to
be defined. The ordinary dictionary meaning of âadventureâ is as
follows:-
Blackâs Law Dictionary (9th Ed.)
1. A commercial undertaking that has an element of risk; a
venture.
Chamberâs 21st Century Dictionary
1. an exciting and often dangerous experience. 2. The
excitement of risk and danger.
Oxford Advanced Learnerâs Dictionary (9th Ed.)
1. an unusual, exciting or dangerous experience, journey or
series of events.
P. Ramanatha Aiyarâs Concise Law Dictionary (4th Ed.)
A mercantile or speculative enterprise of hazard; a
venture;
âTradeâ has been defined as under:-
Blackâs Law Dictionary (9th Ed.)
1. The business of buying and selling or bartering goods or
services. (n) 2. A transaction or swap. 3. A business or
industry occupation; a craft or profession (vb)
Chamberâs 21st Century Dictionary
1. a. the act, an instance or the process of buying and
selling; 3. a. business and commerce, especially as opposed
to a profession or the owning of landed property;
Civil Appeal No.8 of 2007
-: 5 :-
Oxford Advanced Learnerâs Dictionary (9th Ed.)
1. the activity of buying and selling or of exchanging goods
or services between people or countries.
P. Ramanatha Aiyarâs Concise Law Dictionary (4th Ed.)
Trade in its primary meaning is the exchanging of goods
for goods or goods for money; in its secondary meaning it
is repeated activity in the nature of business carried on
with a profit motive, the activity being manual or
mercantile, as distinguished from the liberal arts or
learned professions or agriculture. State of Punjab v. Bajaj
Electricals Ltd., AIR 1968 SC 739, 741.
5.
Is the buying and selling of a single property an adventure
in the nature of trade, rendering it a business? From the above
definitions, âany adventure in the nature of tradeâ means an enterprise,
venture or activity involving the buying and selling of goods or services.
On a strict interpretation, the action of buying and selling property by
the appellant may conceivably be tantamount to business. But, as per
Section 2(11) of the Ordinance, âbusinessâ âincludes any, trade, commerce or
manufacture, or any adventure or concern in the nature of trade, commerce or
manufacture.â The use of the word âincludesâ in the definition means that
the definition is not exhaustive or all-encompassing, and it may well
cover things other than those mentioned therein. Therefore âbusinessâ
has to be given its widest possible amplitude by examining its ordinary
dictionary meaning, in the light whereof âadventure in the nature of tradeâ
needs to be understood. âBusinessâ has been defined as under:-
Blackâs Law Dictionary (9th Ed.)
1. A commercial enterprise carried on for profit; a
particular occupation or employment habitually engaged in
for livelihood or gain. 2. Commercial enterprises. 3.
Commercial transactions.
Civil Appeal No.8 of 2007
-: 6 :-
Chamberâs 21st Century Dictionary
1. the buying and selling of goods and services. Also called
commerce, trade. 3. A regular occupation, trade or
profession.
Oxford Advanced Learnerâs Dictionary (9th Ed.)
1. the activity of making, buying, selling or supplying goods
or services for money.
P. Ramanatha Aiyarâs Concise Law Dictionary (4th Ed.)
The word âbusinessâ is one of wide import and it means an
activity carried on continuously and systematically by a
person by the application of his labour or skill with a view
to earning an income. Barendera Prasad v. I.T. Officer,
AIR 1981 SC 1047, 1953. [Income-tax Act (43 of 1961), S.
(1)(i)(a)].
Major Law Lexicon (4th Ed.) 2010
An element of continuity and habit is essential to constitute
the exercise of a profession or business. [AIR 1919 All.
13(2)]
Business connotes some real, substantial and systematic or
organized course of activity or conduct with a set purpose.
[Narain Swadeshi Mills v. Commissioner of Excess Profits
Tax, AIR 1955 SC 176]
In its ordinary parlance, âbusinessâ entails regularity or continuity in an
activity with the intention of earning income. Consequently, generally
the adventure in the nature of trade must involve regular and
continuous activity. Before giving a conclusive finding on what does or
does not constitute an âadventure in the nature of tradeâ and is a âbusinessâ
within the contemplation of Section 2(11) of the Ordinance, it is
pertinent to advert to the case law on the matter.
6.
In Commissioner of Income-Tax (Central), Karachi Vs.
Messrs Habib Insurance Co. Ltd., Karachi (PLD 1969 Karachi 278),2
2 This judgment was upheld by this Court in Messrs Habib Insurance Co. Ltd. Vs. Commissioner of Income-Tax
(Central), Karachi (PLD 1985 SC 109).
Civil Appeal No.8 of 2007
-: 7 :-
the case was decided in favour of the department on the facts but the
learned Division Bench of the High Court of Sindh held that:-
âĻin order to constitute a business, there must be a
continuous exercise of activity for the purpose of gain. This
element of continuity is essential to constitute a business of
investment. The reason for this condition is that in modern
society people no longer hold their savings in gold or cash
but are encouraged to invest their savings in property and
securities, yet a man who invests his savings in buying a
property would not be said to be carrying on a business if
he lets out the property on rent, nor would a person who
has purchased shares out of his savings be said to carry on
business merely because he derives income from his
investments. If, however, he regularly buys and sells
property or shares, so as to make profit out of the
fluctuations in the prices of property or shares, then it
would be said that he was carrying on the business of
investment; there is thus a fundamental distinction between
the business of investment, and the purchase and sale of
investments by a person. As pointed out by Lord Wright, in
the definition quoted, even occasional speculation in
shares does not amount to carrying on a business;
therefore, a person, who buys property or shares and
retains them for a long period of time, would not be
considered to be carrying on the business of investment.
In Naseer A. Sheikhâs case (supra) this Court, while considering whether
a transaction of sale of shares by the assessee was an adventure in the
nature of trade, held as under:-
It is to be noticed that even if a receipt is of casual and
non-recurring in character, it shall be liable to tax, if it
arises out of business. The definition of the term `business',
as given in section 2(4) of the Act, has already been
noticed. The question as to whether or not that (sic) a
transaction is an adventure in the nature of trade has to be
determined, keeping in view the intention of the assessee, in
the light of the legal requirements of concept of the
business.
Civil Appeal No.8 of 2007
-: 8 :-
In the case of Commissioner of Income Tax Vs. Mahmood Ali (2008
PTD 82) the High Court of Sindh opined as under:-
The intention must be deduced from the facts and
circumstances of each case and whether a man makes a
business of speculation the same must be deduced from
the facts of each case. The mere change of investment
would not amount to adventure in nature of trade. It will
be beneficial to quote the law laid down in the case of
(1966) 62 ITR 578. In that case the company was a family
company which was formed for the purpose of dealing in
properties transferred to it and it had power to purchase
and sell properties. The company made profits on the sale
of land but it was held that the transaction of sale of plots
was one that prudent owner of land would engage in and
which was, therefore, no more than realization of a
capital investment or conversion of land into money and
not a venture in the nature of trade.
18. We may further observe that in determining the nature
of the transaction regard has to be made to the nature of
the property, length of its ownership and holding, actual
conduct of the assessee in respect of it all along and other
factors including absence of evidence of any trading
activity of the speculative venture. In another case the
Indian Supreme Court in the case reported as AIR 1959
SC 1252, while striking down the finding of the
department, pointed out that mere fact that the assessee
had realized that the property was valuable and would
increase in price was no reason to hold that it should be
treated as income and reliance was placed on a decision
of the House of Lords in which it was held that: "An
accretion of capital does not become income merely
because original capital was invested in the hope and
expectation that it would rise in value. If it so rises its
realization does not make it income."
Again the High Court of Sindh had the opportunity to dwell upon the
issue of what constitutes an adventure in the nature of trade in the
Civil Appeal No.8 of 2007
-: 9 :-
judgment reported as Major General (Retd.) M. Jalaluddin Vs. ACIT,
CIR-VI, Zone-C, Karachi (2011 PTD 1377) in which the Court held:-
6.
Before adverting to the issue in hand, it would
be pertinent if the law regarding adventure in the
nature of trade be first examined. It is a trite
proposition of law that facts of one case are to be
examined
on
the
basis
of
the
surrounding
circumstances of that case only. There may be
occasions where the facts of one case may be akin to
the facts of the other case but as no two sun rises are
same so are the cases of tax laws. The prime
consideration is the cases wherein the question of
adventure in the nature of trade is involved is to
examine and gather information from which it can be
deduced as to what the intention of the purchaser was
at the time of the purchase of the plot. If from the facts
gathered it becomes imperative that the said plot was
purchased with the intention of resale then the case
squarely falls under the ambit of adventure in the
nature of trade but if due to subsequent facts and
circumstances the assessee had to sale a plot for some
reasons to convert an un-remunerative asset into a
remunerative asset and obtains a gain, specially in the
case of sale of plot, the gain arising there-from is a
capital gain on which no tax is applicable subject to the
condition that the assessee is neither a dealer nor a
habitual purchaser and seller of the plots, though this
gain is not considered to be a yardstick so far as the
sale of plots are concerned. It has been held in some
decisions that under the given circumstances an
isolated transaction of sale of the plot was held to be an
adventure in the nature of trade and under different
circumstances a series of sale of plots can be held not
to be so. Therefore, no yardstick or parameter, as far
this aspect is concerned, could be laid down and each
case is to be judged on the basis of the facts pertaining
to that case only. It is also a trite proposition of law
that the onus of proving adventure in the nature of
trade lies squarely on the department.
Civil Appeal No.8 of 2007
-: 10 :-
In Pakistan Steel Mills Corporation (Pvt.) Ltd., Karachi Vs.
Commissioner Inland Revenue (Legal Division), Karachi and
another (2012 PTD 723) the High Court of Sindh observed that:-
â12.
In order to establish that a transaction whereby a
plot of land has been sold out for profit constitutes as
âadventure in the nature of tradeâ, we have to take
cognizance of the entire transaction keeping in view
intention of the assessee at the time of purchasing the said
land as well as future transaction whereby such land has
been sold out by the assessee with a intention to earn
profit. No hard and fast rule can be adopted in cases of
adventure in the nature of trade and each transaction has
to be examined on the basis of its own facts.â
7.
Coming to cases from the Indian jurisdiction, in the case of
Messrs Narain Swadeshi Weaving Mills Vs. The Commissioner of
Excess Profits Tax (AIR 1955 SC 176) the Supreme Court, while
interpreting the term âbusinessâ as defined in Section 2(5) of the Excess
Profits Tax Act, 1940 (which is identical to the definition of âbusinessâ in the Ordinance),
held that:-
â14.
âĻWhether a particular activity amounts to any
trade, commerce or manufacture or any adventure in the
nature of trade, commerce or manufacture is always a
difficult question to answer.
On the one hand it has been pointed out by the
Judicial Committee in the â âCommissioner of Income-tax,
Bengal v. Shaw Wallace & Co.â, AIR 1932 PC 138 (A), that
the words used in that definition are no doubt wide but
underlying each of them is the fundamental idea of the
continuous exercise of an activity. The word âbusinessâ
connotes some real, substantial and systematic or
organised course of activity or conduct with a set purpose.
On the other hand, a single and isolated transaction has
been held to be conceivably capable of falling within the
Civil Appeal No.8 of 2007
-: 11 :-
definition of business as being an adventure in the nature of
trade provided the transaction bears clear indicia of trade.
The question, therefore, whether a particular source of
income is business or not must be decided according to our
ordinary notions as to what a business is.
In the facts and circumstances of the case, the Indian Supreme Court
was of the opinion that the letting out of plant, machinery, etc., could
not be held to fall within the definition of âbusinessâ under Section 2(5)
ibid. In the judgment reported as G. Venkataswami Naidu & Co. Vs.
The Commissioner of Income Tax (AIR 1959 SC 359) the Indian
Supreme Court, in great detail, observed as under:-
16. As we have already observed it is impossible to evolve
any formula which can be applied in determining the
character of isolated transactions which come before the
Courts in tax proceedings. It would besides be inexpedient
to make any attempt to evolve such a rule or formula.
Generally speaking, it would not be difficult to decide
whether a given transaction is an adventure in the nature of
trade or not. It is the cases on the border line that cause
difficulty. If a person invests money in land intending to
hold it, enjoys its income for some time, and then sells it at
a profit, it would be a clear case of capital accretion and
not profit derived from an adventure in the nature of trade.
Cases of realisation of investments consisting of purchase
and resale, though profitable, are clearly outside the
domain of adventures in the nature of trade. In deciding the
character of such transactions several factors are treated
as relevant. Was the purchaser a trader and were the
purchase of the commodity and its resale allied to his usual
trade or business or incidental to it? Affirmative answers to
these questions may furnish relevant data for determining
the character of the transaction. What is the nature of the
commodity purchased and resold and in what quantity was
it purchased and resold? If the commodity purchased is
generally the subject-matter of trade, and if it is purchased
in very large quantities, it would tend to eliminate the
possibility of investment for personal use, possession or
enjoyment. Did the purchaser by any act subsequent to the
Civil Appeal No.8 of 2007
-: 12 :-
purchase improve the quality of the commodity purchased
and thereby made it more readily resaleable? What were
the incidents associated with the purchase and resale?
Were they similar to the operations usually associated with
trade or business? Are the transactions of purchase and
sale repeated? In regard to the purchase of the commodity
and its subsequent possession by the purchaser, does the
element of pride of possession come into the picture? A
person may purchase a piece of art, hold it for some time
and if a profitable offer is received may sell it. During the
time that the purchaser had its possession he may be able
to claim pride of possession and aesthetic satisfaction; and
if such a claim is upheld that would be a factor against the
contention that the transaction is in the nature of trade.
These and other considerations are set out and discussed in
judicial decisions which deal with the character of
transactions alleged to be in the nature of trade. In
considering these decisions it would be necessary to
remember that they do not purport to lay down any general
or universal test. The presence of all the relevant
circumstances mentioned in any of them may help the
Court to draw a similar inference; but it is not a matter of
merely counting the number of facts and circumstances pro
and con; what is important to consider is their distinctive
character. In each case, it is the total effect of all relevant
factors and circumstances that determines the character of
the transaction; and so, though we may attempt to derive
some assistance from decisions bearing on this point, we
cannot seek to deduce any rule from them and
mechanically apply it to the facts before us.
17. In this connection it would be relevant to refer to
another test which is sometimes applied in determining the
character of the transaction. Was the purchase made with
the intention to resell it at a profit? It is often said that a
transaction of purchase followed by resale can either be an
investment or an adventure in the nature of trade. There is
no middle course and no half-way house. This statement
may be broadly true; and so some judicial decisions apply
the test of the initial intention to resell in distinguishing
adventures in the nature of trade from transactions of
investment. Even in the application of this test distinction
will have to be made between initial intention to resell at a
profit which is present but not dominant or sole; in other
Civil Appeal No.8 of 2007
-: 13 :-
words, cases do often arise where the purchaser may be
willing and may intend to sell the property purchased at
profit, but he would also intend and be willing to hold and
enjoy it if a really high price is not offered. The intention to
resell may in such cases be coupled with the intention to
hold the property. Cases may, however, arise where the
purchase has been made solely and exclusively with the
intention to resell at a profit and the purchaser has no
intention of holding the property for himself or otherwise
enjoying or using it. The presence of such an intention is no
doubt a relevant factor and unless it is offset by the
presence of other factors it would raise a strong
presumption that the transaction is an adventure in the
nature of trade. Even so, the presumption is not conclusive;
and it is conceivable that, on considering all the facts and
circumstances in the case, the court may, despite the said
initial intention, be inclined to hold that the transaction
was not an adventure in the nature of trade. We thus come
back to the same position and that is that the decision
about the character of a transaction in the context cannot
be based solely on the application of any abstract rule,
principle or test and must in every case depend upon all the
relevant facts and circumstances.
In the case of Saroj Kumar Mazumdar Vs. Commissioner of Income-
tax, West Bengal (AIR 1959 SC 1252), the Indian Supreme Court,
while
determining
whether
the
transaction
in
question
had
characteristics which would allow one to conclude that it was a venture
in the nature of trade, held:-
Hence, the possibility or the probability that the site may
appreciate in value, would not necessarily lend itself to the
inference that the transaction was a venture in the nature of
trade, as distinguished from a capital investment. In all the
circumstances of this case, the total impression created on
our mind is that it has not been made out by the
Department that the dominant intention of the appellant
was to embark on a venture in the nature of trade, when he
entered into the agreement which resulted in the profits
sought to be taxed.
Civil Appeal No.8 of 2007
-: 14 :-
In The Commissioner of Income-tax, Punjab, Haryana, Jammu and
Kashmir and Himachal Pardesh Vs. Prabhu Dayal (dead) by his legal
representatives (AIR 1972 SC 386) the Supreme Court of India, while
dealing with the question whether the compensation received by the
assessee for the termination of the agreement was a capital receipt and
hence not taxable, held as follows:-
11.
Business as understood in the income-tax law
connotes some real, substantial and systematic or
organised course of activity or conduct with a set purpose â
see the decision of this Court in Narain Swadeshi Weaving
Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 =
(AIR 1955 SC 176). By this statement we do not mean to
say that under no circumstance a single transaction cannot
amount to a business transaction. But this is not one such.
Herein we are dealing with the stray activity of a non-
business man. Hence it is difficult to agree with the
Revenue in its contention that the agreement entered into
by the assessee with the Dalmia Dadri Cement company
should be considered as a business activity.
In the judgment reported as The Commissioner of Income-tax,
Nagpur Vs. M/s. Sutlej Cotton Mills Supply Agency Ltd. (AIR 1975
SC 2106) the Indian Supreme Court was faced with the question as to
whether the profit arising from the sale of shares was assessable as
business profit. The Court observed as under:-
13.
Where a purchase is made with the intention of
resale, it depends upon the conduct of the assessee and the
circumstances of the case whether the venture is on capital
account or in the nature of trade. A transaction is not
necessarily in the nature of trade because the purchase was
made with the intention of resaleâĻ
14.
A capital investment and resale do not lose their
capital nature merely because the resale was foreseen and
Civil Appeal No.8 of 2007
-: 15 :-
contemplated when the investment was made and the
possibility of enhanced values motivated the investment
(see Leeming v. Jones, (1930) 15 Tax Cas 333 and also the
decisions of this Court in Saroj Kumar Mazumdar v. C. l.
T. (1959) 37 ITR 242 (250-251) = (AIR 1959 SC 1252,
1258-1259) and Janki Ram Bhadur Ram v. C. I. T. (1965)
57 ITR 21 = (AIR 1965 SC 1898)).
15.
In I. R. C. v. Fraser, (1942) 24 Tax Cas 498 (502)
(Scot) Lord Norman said:
âThe individual who enters into a purchase of an
article or commodity may have in view the resale
of it at a profit and yet it may be that that is not
the only purpose for which he purchased the
article or the commodity, nor the only purpose to
which he might turn it if favourable opportunity
for sale does not occur. An amateur may purchase
a picture with a view to its resale at a profit, and
yet he may recognise at the time or afterwards
that the possession of the picture will give him
aesthetic enjoyment if he is unable ultimately, or
at his chosen time, to realise it at a profitâĻâ
16.
An accretion to capital does not become income
merely because the original capital was invested in the
hope and expectation that it would rise in value; if it does
so rise, its realisation does not make it income. Lord
Dunedin said in Leeming v. Jones, (1930) 15 Tax Cas 333
at p. 360:
"The fact that a man does not mean to hold an
investment may be an item of evidence tending to
show whether he is carrying on a trade or a
concern in the nature of trade in respect of his
investments, but per se it leads to no conclusion
whatever."
This Court laid down in Venkataswami Naidu & Co. v.
C.l.T.(1959) 35 ITR 594 (610; 622) = (AIR 1959 SC 359 at
p.367; 374) that the dominant or even sole intention to
resale is a relevant factor and raises a strong presumption,
but by itself is not conclusive proof, of an adventure in the
nature of trade.
Civil Appeal No.8 of 2007
-: 16 :-
17.
The intention to resell would, in conjunction with
the conduct of the assessee and other circumstances, point
to the business character of the transaction.
In the judgment reported as Commissioner of Income Tax Vs. A.
Muhammed Mohideen [(1989) 176 ITR 393] the High Court of Madras
held that the transaction whereby the assessee purchased a property
and sold the same after converting it into small housing plots did not
amount to an adventure in the nature of trade as no material was
presented by the department to indicate that the assessee ever intended
to indulge in any trading activity. In holding so, the Court relied upon
its own previous decision rendered in Commissioner of Income Tax,
Madras Vs. Kasturi Estates (P.) Ltd. [(1966) 62 ITR 578] in which it
held that:-
Can we then say that the sales of land in the accounting
year were transactions constituting an adventure in the
nature of trade? A great deal of stress has been laid for the
revenue on the objects mentioned in the preamble to and in
the body of the memorandum and articles. Undeniably, the
company has the power to deal or traffic in immovable
property, to purchase and sell it at a profit as a business.
But the objects by themselves are not determinative of the
character of the transaction, though the objects should be
kept in view. A sale of immovable property may possibly be
a trading or commercial transaction, but need not
necessarily be so. Here is a company possessed of vast
immovable property including lands in different parts of the
city and mofussil. It may well be described that the
company is a land-owner or at least its position may be
similar to it. There are no facts and circumstances present
in the case which may be inconsistent with that way of
looking at it, notwithstanding the objects shown in the
memorandum and articles. If a land-owner developed his
land, expended money on it, laid roads, converted the land
into house sites and with a view to get a better price for the
Civil Appeal No.8 of 2007
-: 17 :-
land, eventually sold the plots for a consideration yielding
a surplus, it could hardly be said that the transaction is
anything more than a realisation of a capital investment or
conversion of one form of asset into another. Obviously, the
surplus in such a case will not be trading or business profit
because the transaction is one of realisation of assets in
investment rather than one in the course of trade carried on
by the assessee or an adventure in the nature of trade. The
case of the assessee can stand on no different footing, as we
think, only because it is a company which has among its
objects power to trade or traffic in land. There is here no
evidence of a venture or adventure. The transaction
involved no risk or speculation; nor can it be truly said that
it is a âplunge in the waters of trade.â It is a transaction
which any prudent owner of land will engage in and which
is, therefore, no more than realisation of capital
investment, conversion of land into money, not a venture in
the nature of trade. Having regard to the nature of the
property, length of its ownership and holding, actual
conduct of the assessee in respect of it all along and all
other facts including absence of evidence of any trading
activity or speculative venture, we are of the view,
therefore, that the Tribunal was right in its conclusion that
the surplus from sale of the land did not result from any
trade or business in land carried on by the assessee or from
any transaction which may properly be described as an
adventure in the nature of trade.
8.
In light of the above discussion, we find that indeed there
can be no hard and fast rule as to whether a transaction constitutes an
âadventure in the nature of tradeâ amounting to âbusinessâ in terms of Section
2(11) supra; instead, such a determination is dependent upon the facts
and circumstances of each case. However, in order to make such a
determination, the following guiding principles may be employed:-
(a)
Generally, in order to constitute âbusinessâ, there
must be a continuous, regular or habitual activity for
the purpose of earning gain or profit;
Civil Appeal No.8 of 2007
-: 18 :-
(b)
However, this does not mean that a single transaction
cannot constitute an adventure in the nature of
trade, which must be examined on a case to case
basis;
(c)
A transaction is not necessarily in the nature of trade
because the purchase was made with the intention of
resale;
(d)
A capital investment and resale do not lose their
capital nature merely because the resale was foreseen
and contemplated when the investment was made
and the possibility of enhanced values motivated the
investment;
(e)
The intention to resell, by itself is not conclusive
proof, of an adventure in the nature of trade, rather
would have to be examined in conjunction with the
conduct
of
the
assessee
and
attendant
circumstances, to determine the business character
of the transaction; and
(f)
If it is alleged that an activity is in the nature of an
adventure, there must be positive material brought
on the record to prove that the assessee intended to
indulge in such an activity and, in the absence of
evidence, the sale of immovable property would give
rise only to capital accretion.
9.
The appellant is a charitable foundation which is clear from
its memorandum of association (MOA). While Clause 21 of the MOA
allows the appellant to âpurchase, take on lease, exchange, hire or otherwise
acquire any real and personal or immoveable and moveable property and any rights
and privileges whatsoever and to build, construct, alter and maintain buildings, house
or other constructions for the housing of the Foundation or its staff or as necessary or
convenient for any of the objects or purposes of the Foundation;â mere
permissibility of a transaction by itself does not automatically confer on
Civil Appeal No.8 of 2007
-: 19 :-
it the status of a business. It is settled law that the burden to prove that
an assesseeâs receipts fell within the scope of âincomeâ and were liable to
be taxed, lies on the department, and if the latter manages to establish
this, then the burden shifts onto the former to show that such receipts
were exempt from tax. In this regard reference may be made to the case
reported as The Commissioner of Income Tax Vs. M/s. Smith, Kline
& French of Pakistan Ltd. and others (1991 PTD 999).3 This is
particularly so in the cases where a single transaction of immovable
property is involved and it is not established on the record that a person
engages in continuous, regular and habitual activities for the purposes
of earning profit. Therefore, in the instant case, the burden was on the
department to prove that the surplus earned from the single transaction
of sale of the property fell within the scope of âincomeâ being a
profit/gain of the appellantâs business. As is evident from the
assessment order, the department wanted to draw an inference from
the fact that the appellant converted the property into a parking lot and
derived some rental income therefrom, that the appellant had intended,
at the time of purchase of the property, to indulge in an adventure in
the nature of trade to generate profit. The Commissioner Income Tax
(Appeals), the Tribunal and the learned High Court made bald
insinuations that the appellantâs conduct vis-Ã -vis the property and the
circumstances surrounding the Fancy family suggested that the
property was purchased with the sole intention to sell it at a later time
for profit and not to utilise it for charitable purposes. The department
failed to discharge its initial burden as there was no concrete material
presented by it which proved that the appellant purchased the property
3 See also the Indian cases reported as Parimisetti Seetharanamma Vs. Commissioner of Income-tax, Hyderabad
(AIR 1965 SC 1905) = [(1965) 57 ITR 532], S. A. Ramakrishnan Vs. Commissioner of Income-Tax Madras
[(1978)] 114 ITR 253 (Mad)] and Sumati Dayal Vs. Commissioner of Income-tax Bangalore (AIR 1995 SC
2109).
Civil Appeal No.8 of 2007
-: 20 :-
with the intention to indulge in a trading activity. Therefore the
question of the appellant proving that the transaction was not an
adventure in the nature of trade and hence a business, did not arise as
the burden never shifted onto the appellant. That the property had
increased in value when it was finally sold by the appellant and
therefore fetched a price higher than that for which it was purchased,
would not ipso facto mean that this act of selling was an âadventure in the
nature of tradeâ and constituted a âbusinessâ under Section 2(11) of the
Ordinance and was liable to tax under Section 22(a) thereof. Rather,
being a sale of an immoveable property and not a capital asset, the
profit/gain from its transfer was not chargeable to income tax under
Section 27(2)(a)(ii) of the Ordinance. Thus, the single and isolated
incident of buying and selling property by the appellant is not an
âadventure in the nature of tradeâ and would not constitute âbusinessâ in
terms of Section 2(11) supra, and the surplus earned therefrom was not
a profit/gain in terms of Section 22(a) ibid and was not liable to income
tax.
10.
In the light of the above, this appeal is allowed and the
impugned judgment is set aside.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
13th of April, 2017
Approved For Reporting
Mudassar/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL APPEAL NO. 900 OF 2020
(On
appeal
against
the
judgment
dated
23.10.2019 passed by the Peshawar High
Court, Peshawar in Writ Petition No. 618-
P/2019)
PESCO, Wapda House through its Chief Executive
âĻAppellant(s)
VERSUS
Ishfaq Khan and others
âĻRespondent(s)
For the Appellant(s):
Mr. Asad Jan, ASC
For Respondent(1-10):
Mr. Abdul Hafeez Amjad, ASC
Mr. Mehmood A. Sheikh, AOR
Date of Hearing:
01.02.2021
âĻ
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by
leave of the Court, the appellant has called in question the vires of
the impugned judgment dated 23.10.2019 passed by the Peshawar
High Court, Peshawar, whereby the Writ Petition filed by the
appellant was dismissed and the judgment dated 07.01.2019
passed by the Labour Appellate Tribunal, KPK, Peshawar was
upheld.
2.
Briefly stated the facts of the matter are that the
respondent Nos. 1-10 are working as regular Upper Technical
Subordinate (UTS) in the appellant department. They filed appeal
before the appellant PESCO for their promotion to the post of Junior
Engineers/Assistant Managers (BPS-17) against 5% quota reserved
for UTS graduate engineers. The said appeal was turned down vide
order dated 21.12.2015 on the ground of non-availability of the
vacancy with further clarification that the said quota is meant for
induction/direct recruitment and not promotion. This led to filing of a
Grievance Petition by the respondents before the Labour Court,
Peshawar. The learned Labour Court allowed the Grievance Petition
Civil Appeal No. 900/2020
-: 2 :-
vide judgment dated 09.04.2018 by holding that since there is 5%
quota for promotion according to the policy issued by the WAPDA
and since all other similar electric companies are following the policy
of WAPDA, the appellant PESCO is also bound to follow instructions
and policies of WAPDA. Being aggrieved, the appellant department
filed Labour Appeal before the Labour Appellate Tribunal, Peshawar,
which was dismissed vide judgment dated 07.01.2019. The
appellant challenged the judgment of the Labour Appellate Tribunal
before the Peshawar High Court by filing Writ Petition No. 618-
P/2019 but it also met the same fate vide impugned judgment dated
23.10.2019. Hence, this appeal by leave of the Court.
3.
Learned counsel for the appellant inter alia contended
that the learned High Court has failed to take into consideration that
though PESCO is a constituent company of parent department
WAPDA but being an autonomous body it has its own statutory rules
and as such it has been separated from WAPDA in this regard; that
while drawing analogy from the rules framed by the parent
department, the appellant cannot be asked to adopt its rules; that
this very aspect was totally ignored by the High Court and without
giving any definite finding regarding the maintainability of the
grievance petition before the Labour Court, the impugned judgment
resulted into grave miscarriage of justice; that the judgment passed
by the Labour Court directing the appellant to grant promotion to the
respondents in lieu of the 5% quota reserved for UTS graduate
engineers is without any legal justification, which aspect was
altogether ignored by the learned High Court while handing down
the impugned judgment.
4.
On the other hand, learned counsel for the respondents
has candidly defended the impugned judgment. The main stay of
the arguments advanced by the learned counsel was that 5% quota
was reserved for Upper Technical Subordinates for promotion to the
post of Assistant Manager/Junior Engineers (BPS-17) pursuant to
the letter issued by WAPDA dated 16.09.2005, which was declined
to the respondents by the appellant department, therefore, the
grievance petition was competent and in accordance with law.
5.
We have heard learned counsel for the parties and have
gone through the record. During the course of arguments, learned
Civil Appeal No. 900/2020
-: 3 :-
counsel for the respondents was specifically asked to show any
provision of law which empowers the Labour Court to strike down a
policy or notification or it can direct a statutory body to adopt the
rules/policies of another statutory body. Learned counsel failed to
substantiate any legal justification and candidly conceded that the
Labour Court has no jurisdiction to do so. It is now established
without any reservation that for striking down a policy, notification
or an executive order if it infringes the rights of an individual or
group of individuals or if it is found to be arbitrary, unreasonable or
violative of law or Constitution, the power exclusively rests with the
High Court under Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973, and a challenge could be thrown to such a policy,
notification or the executive order by way of filing a Constitutional
Petition. The Labour Court is not seized with such jurisdiction,
therefore, the jurisdiction exercised by it while directing the
appellant to constitute a committee to grant promotion to the
respondents against 5% quota while drawing analogy with other
similar electric companies is beyond its scope.
6.
There is yet another question i.e. whether the
respondents could have claimed promotion instead of induction
against 5% quota by way of filing grievance petition. For this it
would be in order to reproduce Section 37(1) of the KPK Industrial
Relations Act, 2010, which reads as under:-
â37(1) A worker may bring his grievance in respect of
any right guaranteed or secured to him by or under any
law or any award or settlement for the time being in
force to the notice of his employer in writing, either
himself or through his shop steward or collective
bargaining agent within three months of the day on
which the cause of such grievance arisesâ
7.
A close reading of the above-quoted provision of law
would show that the grievance petition would only be competent if
the grievance is with regard to a âright guaranteed under law,
settlement, or awardâ. We do not want to delve into the question
whether the respondents are âworkmenâ or not but even for the sake
of arguments, if it is admitted that the respondents are âworkmenâ
Civil Appeal No. 900/2020
-: 4 :-
within the purview of the aforesaid KPK Industrial Relations Act,
2010, even then the claim of the respondents for which they filed
grievance petition does not fall within the ambit of âright guaranteed
or secured to them by any lawâ. When we confronted learned
counsel for the respondents with this aspect of the matter, he
contended that the word âlawâ means policy of the organization.
However, we are not convinced with the contention of the learned
counsel. The word âlawâ in Section 37 of the Act means that it has to
be a legal right guaranteed by the statute.
8.
The respondents were basically seeking âpromotionâ to
the post of Junior Engineers/Assistant Manager (BPS-17). The
learned courts below have held that all the similar electric
companies like the appellant have adopted the WAPDA rules for
promotion of the similarly placed employees, therefore, the clog of
departmental promotion and fresh induction by the PESCO will
make their previous service tenure redundant/forfeited. Admittedly,
PESCO is a distinct entity, which has its own statutory rules. The
law does not permit that a statutory body, who has its own rules, be
compelled to adopt the rules of another separate entity. The Labour
Court only had the authority to interpret and deal with the
respondents under the policy of PESCO, which clearly says that the
5% quota is for induction/direct recruitment and not for promotion.
Learned counsel could not controvert that pursuant to the
clarification issued by the PEPCO dated 08.03.2010, the posts in
question in the appellant department were to be filled in by way of
induction and not promotion, which means that there would be fresh
appointment
and
not
the
continuation
of
the
earlier
job.
Departmental induction means that the employer takes competitive
examination from among the serving eligible candidates for the
higher post and the candidates who rank on top according to merit
are appointed afresh whereas the remaining continue to perform
their job on the previous posts. In these circumstances, we are of the
view that the learned Labour Court had no power to direct the
appellant company to adopt the rules of WAPDA or similar
constituent companies and has wrongly assumed jurisdiction. There
can be no doubt that if an order is void, without jurisdiction, ultra
vires and passed in disregard of the law, any superstructure raised
Civil Appeal No. 900/2020
-: 5 :-
over it would automatically fall to the ground and it cannot sustain
in the eyes of law.
9.
For what has been discussed above, we allow this
appeal and set aside the impugned judgment of the Peshawar High
Court, Peshawar dated 23.10.2019.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
1st of February, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, C.J.
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL APPEALS NOs. 902 AND 903 OF 2020
(Against the judgment dated 10.3.2020 of the Peshawar High
Court, Mingora Bench, (Dar-ul-Qaza), Swat passed in Writ
Petitions No.71-M/2019 & 108-M/2019)
1.
University
of
Malakand
through
Registrar & another Vs. Dr. Alam Zeb
etc.
In CA 902/2020
2.
Vice
Chancellor,
University
of
Malakand & another Vs. Dr. Imtiaz
Ahmad etc.
In CA 903/2020
For the Appellant(s):
Mr. Khaled Rehman, ASC
Mr. Muhammad Hamayun, Asst. Registrar
Legal
(In both cases)
For the Respondent(s):
Mr. Muhammad Asif Yousafzai, ASC
(For respondent No. 1 in CA 902/2020)
(For respondents 1-7 in CA 903/2020)
Mr. Muhammad Sharif Janjua, AOR
Date of Hearing:
03.02.2021
âĻ
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these appeals
by leave of the Court, the appellant has called in question the vires
of the impugned judgment dated 10.03.2020 passed by the
Peshawar High Court, Mingora Bench, whereby the Writ Petitions
filed by the respondents were allowed and the respondent No. 1 in
Civil Appeal No. 902/2020 and respondents No. 1-7 in Civil Appeal
No. 903/2020 were held entitled to payment of salary during the
period they remained abroad while availing leave for higher studies,
which was duly sanctioned by the competent authority.
2.
Briefly stated the facts of the matter, are that
respondent No. 1 in Civil Appeal No. 902/2020 and respondent Nos.
1-7 in Civil Appeal No. 903/2020 were initially appointed as
CIVIL APPEALS NO.902 AND 903 OF 2020
-: 2 :-
Lecturers on contract basis on different dates in the years 2001 to
2005. The contract of the respondents was extended from time to
time on the basis of their performance. Subsequently, their services
were regularized in the year 2007. They applied for study leave
abroad for the sake of higher studies (Ph.D program). Their
applications were duly processed and as a consequence, those were
allowed by the Vice Chancellor of the University and the
respondents were allowed study leave for different tenures without
payment of salary. They were also selected for overseas scholarship
for higher studies due to their academic qualifications. On return
after completion of their studies, they approached the appellant
authority with the request that their leave without pay may be
treated as leave with full pay. The request was considered by the
Syndicate in its meeting held on 27.05.2013 and was turned down.
The respondents then preferred review to the Syndicate, which was
placed before the Syndicate in its next meeting held on 25.12.2013.
The Syndicate constituted a Committee to look into the matter and
report. On receipt of the report, the review was once again placed
before the Syndicate in its meeting held on 28.06.2014 but it also
met the same fate. Ultimately the respondents filed appeals before
the Chancellor/Governor KPK but they were also dismissed vide
order dated 06.11.2018. This led to their filing of Writ Petitions
before the Peshawar High Court, which have been allowed vide
impugned judgment dated 10.03.2020. Hence, these appeals by
leave of the Court.
3.
Learned counsel for the appellants inter alia contended
that grant of leave is neither a vested right nor the respondents can
claim the same as such; that the learned High Court has
misinterpreted Rule 89 of the Service Rules of University of
Malakand, according to which study leave can be granted to an
employee who has put in at least three years service in the
University or its constituent units; that the word âemployeeâ means a
regular employee having three years service and not the contract
employee and all the respondents were contract employees at the
time when the study leave was granted to them; that the writ
petitions were hit by the doctrine of laches as leave without pay was
CIVIL APPEALS NO.902 AND 903 OF 2020
-: 3 :-
granted in the year 2007 whereas the writ petitions were filed in
2019 after a lapse of 12 years.
4.
On the other hand, learned counsel for the respondents
contended that although the respondents were initially appointed on
contract basis but subsequently their services were regularized and
their previous service was also directed to be considered for the
purpose of seniority; that according to Rule 89 of the Service Rules,
an employee who has three years of service on his credit can be
granted leave on full pay; that the word âemployeeâ according to the
Rules means a person who is being paid from the University funds.
He lastly contended that the impugned judgment passed by the
High Court is well reasoned and in accordance with the spirit of law
and the same may be maintained.
5.
We have heard learned counsel for the parties and have
perused the record of the case.
6.
Firstly, we will take the issue as to whether the writ
petitions were hit by laches or not because according to learned
counsel for the appellants leave without pay was granted to the
respondents in the year 2007 whereas the writ petitions were filed
in 2019 after a lapse of 12 years, therefore, the writ petitions were
hopelessly barred by limitation. However, we have noted that
although leave without pay was granted to the respondents in the
year 2007 but after their return they remained knocking the door of
the department to get the relief and ultimately in the year 2014 their
request was turned down by the competent authority. Thereafter,
they filed appeal before the Chancellor of the University i.e. Governor
KPK which was rejected on 06.11.2018. In this view of the matter, it
can safely be said that finally the cause of action accrued to the
respondents on 06.11.2018, therefore, the writ petitions filed on
24.01.2019 were within time.
7.
Now we will advert to the question whether the word
âemployeeâ mentioned in Rule 89 of the Service Rules covers a
contract employee or does it mean a regular employee. It would be in
order to reproduce the said Section, which reads as follows:-
â89. Study leave on full pay may be granted to an
employee who has put in at least three years service in
the University or its constituent units. It shall not be
granted to an employee within three years of the date
on which he/she has the option of retiring. Nor should it
CIVIL APPEALS NO.902 AND 903 OF 2020
-: 4 :-
be granted to an employee who is about to retire on
proportionate pension.â
8.
The learned High Court in paragraph 9 of the impugned
judgment has dealt with this issue. Relevant portion of the judgment
reads as under:-
â9.
We have considered the respective contentions of the
parties in the context of the Rules. In Rule 89, the word
âemployeeâ is mentioned who is eligible to study leave with
pay with the additional qualification that he must have three
years of service in the University, and no distinction has
been drawn in the said rule, as to whether the said
employee is a regular employee of the University or his
employment is on contract basis. Rule 4(h) of the Rules, the
âuniversity employeeâ has been defined to mean a person
who holds a post in the university service and who is paid
from the University funds whereas âregular appointmentâ has
also been defined in Rule 4(f). Thus, the occurring of word
âemployeeâ in Rule 89 appears to be intentional and not an
accidental slip or a draftsmanâs error. Viewing the aforesaid
rule through the prism of literal construction, which
envisages that a word used in the statute is to be given its
ordinary meaning and the Court has indeed no authority to
read a word into an Act of the parliament or omit the same
unless clear reason for it is to be found within the four
corners of the Act itself. âMaxwell on the Interpretation of
statutesâ (12th Edition) has explained this position as under:-
âIt is a corollary to the general rule of literal
construction that nothing is to be added to or
taken from a statute unless there are adequate
grounds to justify the inference that the
legislature intended something which it omitted
to express. Lord Mersey said: âIt is a strong
thing to read into an Act of Parliament words
which are not there, and in the absence of clear
necessity it is a wrong thing to doâ. âWe are not
entitled,â said Lord Loreburn L.C. âto read
words into an Act of Parliament unless clear
reason for it is to be found within the four
corners of the Act itself.â A case not provided
for in a statute is not to be dealt with merely
because there seems no good reason why it
should have been omitted, and the omission
appears
in
consequence
to
have
been
unintentional.
We see no reason to infer from the plain reading of
Rule 89 that the word employee occurring in the said rule
means a regular employee and the period of his employment
should be on regular side and not on a contract base
because the rules itself have defined both types of employees
differently in the definition clause.â
9.
A close reading of the above portion of the impugned
judgment leaves no room to believe that the word âemployeeâ
mentioned in Rule 89 means a regular employee. The learned High
CIVIL APPEALS NO.902 AND 903 OF 2020
-: 5 :-
Court has very elaborately dealt with this issue and we find no
reason to differ with the findings of the High Court.
10.
Now the question, which remains to be decided is
whether the respondents had the requisite service of three years in
terms of Section 89 ibid or not. Despite that the word âemployeeâ
used in Section 89 ibid means a regular employee, in the present
case it would not be of any benefit for the appellant department. The
record shows that although the respondents were appointed on
contract basis on different dates in the years 2001 to 2005 but their
services were regularized in the year 2007. It is clearly mentioned in
their regular appointment orders that their previous service shall be
considered for the purpose of seniority, therefore, it can be
concluded that the total length of service rendered by the
respondents at the time of availing the leave was more than three
years, which entitles them to study leave with full pay.
11.
The learned High Court in paragraph 10 of the
impugned judgment has also dealt with the issue, as to when the
respondents were allowed study leave then after availing the same
and after joining the duties, whether they are not estopped by their
conduct to claim the said study leave with full pay. The learned High
Court after relying on the judgments of this Court came to the
conclusion that as a rule of evidence estoppel can be invoked by a
party, however, the same cannot be accepted against the statutory
obligation of a person even though one party might not have
expressly claimed his right which was available to him under the
law. This Court in the case of Zarai Taraqiati Bank Limited Vs. Said
Rehman etc (2013 SCMR 642) has candidly held that âthere is no
estoppel against lawâ. The same view was expressed by Indian
Supreme Court in the cases of Union Territory, Chandigarh Admn
Vs. Managing Society, Goswami, GDSDC (AIR 1996 SC 1759) and
P.R. Deshpande Vs. Maruti Balaram Haibatti (AIR 1998 SC 2979) by
holding that principle of estoppel does not apply against statute and
it has no application when statutory rights and liabilities are
involved. As it is now well settled that no estoppel exists against
law, therefore, keeping in view the facts and circumstances of the
cases, we are compelled to observe that one wrong of the
respondents of not claiming their right earlier cannot be acted upon
CIVIL APPEALS NO.902 AND 903 OF 2020
-: 6 :-
as a precedent when it comes to give effect to the express words of a
statute. If a person has been bestowed some legal right by
law/statute and he omits to claim such legal right for a certain
period of time, it does not mean that he has waived his legal right
and subsequently he cannot claim such right. Inherent power and
doctrine of estoppel cannot be applied to defeat the provisions of
statute. When the statute clearly provided that study leave on full
pay may be granted to an employee who has put in at least three
years service, the appellant authority ought not to have refused the
respondents their right guaranteed under the statute.
12.
For what has been discussed above, we find that the
learned High Court has passed a well reasoned judgment to which
no exception can be taken. The appeals having no merit are
accordingly dismissed with no order as to costs.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
3rd of February, 2021
Approved For Reporting
Khurram
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)īŋŊŲīŋŊīŋŊâØąīŋŊاŲīŋŊاâ(
دīŋŊīŋŊ:
īŋŊâØŲīŋŊâīŋŊâīŋŊŲدâīŋŊâبīŋŊ
īŋŊâØīŋŊŲīŋŊâŲØąīŋŊâīŋŊâبīŋŊ
âīŋŊاīŋŊدŲīŋŊâīŋŊاŲŠŲ Ų¤/ŲĸŲ ŲĄŲŖ
âīŋŊâŲīŋŊØ˛)Ųĸ(ŲĄŲ¨ŲĨŲâīŋŊØĸØŲīŋŊâīŋŊīŋŊâŲīŋŊīŋŊ ŲĄŲŠŲ§ŲŖØ ØĄ
)âŲīŋŊŲââīŋŊīŋŊīŋŊâŲīŋŊاīŋŊØąŲīŋŊââØدīŋŊØĸâīŋŊاīŋŊØâīŋŊØąīŋŊدīŋŊØĸâīŋŊا Ų ŲŖÛŲ ŲĻÛ ŲĸŲ ŲĄŲŖ
âØąØ¯âīŋŊاīŋŊدâīŋŊīŋŊīŋŊŲīŋŊâīŋŊاīŋŊØąØ¯ŲĸŲ ŲĄŲ /ŲĸŲŖ(
ŲīŋŊâīŋŊīŋŊâīŋŊ )ÛīŋŊâīŋŊا(
Ų
īŋŊ
âīŋŊاīŋŊاâīŋŊŲÛīŋŊ )īŋŊâŲīŋŊ(
âīŋŊīŋŊÛīŋŊâīŋŊا: âبīŋŊâīŋŊīŋŊâŲ
īŋŊØīŋŊīŋŊââīŋŊŲâīŋŊâŲīŋŊاīŋŊ
âīŋŊâīŋŊØąØ§âŲØąīŋŊīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊŲâīŋŊâØ)īŋŊīŋŊâīŋŊ(
âīŋŊīŋŊīŋŊâŲīŋŊ: īŋŊâØīŋŊØąâīŋŊاâīŋŊاīŋŊâŲīŋŊاīŋŊâīŋŊŲâīŋŊīŋŊ
âŲØąīŋŊīŋŊīŋŊâīŋŊاīŋŊâŲīŋŊاīŋŊâīŋŊŲâīŋŊâØ)īŋŊīŋŊâīŋŊ(
īŋŊīŋŊâŲīŋŊØąīŋŊ: ŲŖŲ īŋŊīŋŊØ ŲĸŲ ŲĄŲĻØØĄâ
C.A. No. 904 of 2013
2
īŋŊ
īŋŊâØŲīŋŊâīŋŊâīŋŊŲد:Û
âīŋŊīŋŊâīŋŊīŋŊīŋŊâ: âīŋŊŲīŋŊâīŋŊâīŋŊâŲīŋŊâÛīŋŊŲâīŋŊاīŋŊاâīŋŊīŋŊâŲīŋŊاŲ ŲĻŲŠŲĄŲĄâīŋŊØąīŋŊâÛīŋŊâīŋŊīŋŊ
ŲĄŲ§ÛŲ ŲĄÛŲĸŲ Ų Ų§ŲâØąØ˛âīŋŊØąâØąŲاâŲâīŋŊīŋŊâīŋŊŲاīŋŊâīŋŊØ§ØąØ§âīŋŊâŲØąâīŋŊâŲ âīŋŊâīŋŊŲŖÛâīŋŊâŲīŋŊاâØŦØąØ¯âīŋŊŲØąâīŋŊīŋŊ
ŲĸÛ ŲīŋŊاâŲīŋŊīŋŊâÛīŋŊâīŋŊاâīŋŊØ§ØąØ§â/īŋŊâīŋŊīŋŊاīŋŊâŲīŋŊâŲīŋŊâØąØ§īŋŊâīŋŊŲīŋŊŲØąâŲīŋŊâīŋŊīŋŊâīŋŊâØąīŋŊاâīŋŊâ
īŋŊâØŗاâīŋŊâŲīŋŊâØąØ§Ø¯âīŋŊâÛØąīŋŊīŋŊīŋŊīŋŊīŋŊâÛدâŲīŋŊâīŋŊاâīŋŊâØąīŋŊâŲīŋŊīŋŊâÛŲâīŋŊâÛŲâīŋŊâØąīŋŊâīŋŊīŋŊØ˛ââīŋŊâØŗŲاâ
ØļاīŋŊا/īŋŊاīŋŊâīŋŊâØąīŋŊاŲīŋŊâīŋŊâīŋŊâØŦØąØ¯ââØâØąØ§īŋŊâīŋŊاīŋŊØąØ¯âŲâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâÚēīŋŊŲاâاīŋŊâŲ
īŋŊâŲīŋŊīŋŊâīŋŊâīŋŊâīŋŊââīŋŊâīŋŊīŋŊâīŋŊâīŋŊâØąŲاâīŋŊâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâŲīŋŊاâīŋŊاâīŋŊØąīŋŊâīŋŊâīŋŊŲ
Ex. (PW 3/2)
ÛīŋŊâīŋŊâīŋŊ
ŲŖÛ âīŋŊâīŋŊīŋŊâīŋŊīŋŊدīŋŊاīŋŊدīŋŊâīŋŊâØąīŋŊâØąØ§īŋŊاâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâŲŲÛŲâŲšØąīŋŊØąâīŋŊâīŋŊâīŋŊاīŋŊâ
âīŋŊâŲدâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊØąīŋŊâīŋŊâŲīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâŲ
īŋŊâŲ
īŋŊīŋŊâØąīŋŊâŲīŋŊâīŋŊâīŋŊâīŋŊâØŗŲاâØąŲا
ÛīŋŊ
Ų¤Û ŲÛīŋŊâīŋŊØąīŋŊâŲĸŲ§ÛŲ ŲĻÛŲĸŲ Ų Ų§âīŋŊīŋŊâīŋŊīŋŊŲâÛīŋŊâīŋŊدâīŋŊâīŋŊâŲīŋŊâŲīŋŊŲâīŋŊâīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊâīŋŊâīŋŊâŲīŋŊ
âīŋŊادâØąŲاâīŋŊâīŋŊاīŋŊâŲīŋŊدâباīŋŊŲ°âīŋŊâīŋŊادâīŋŊâدīŋŊâīŋŊīŋŊâīŋŊâØŗŲاâīŋŊâØąīŋŊâīŋŊØ˛īŋŊâīŋŊīŋŊâīŋŊâīŋŊاīŋŊâŲīŋŊادâīŋŊ
īŋŊدâīŋŊīŋŊâÛŲâīŋŊâīŋŊīŋŊŲاâØ˛Ø§īŋŊاâīŋŊâīŋŊâŲīŋŊâØĒīŋŊاīŋŊاâīŋŊâŲīŋŊدâباīŋŊâīŋŊâīŋŊâØąŲاâīŋŊŲ°ŲŲ°âīŋŊâīŋŊâīŋŊØąīŋŊâīŋŊâ
âīŋŊīŋŊâŲīŋŊâØąŲاâīŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊØąŲاâØąŲاâīŋŊâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâØŗدīŋŊاâŲīŋŊīŋŊâīŋŊīŋŊâÛīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâ
âÛØąīŋŊâŲīŋŊاīŋŊŲĸŲ¤ÛŲ Ų¤ÛŲĸŲ Ų Ų¨īŋŊŲاâīŋŊâīŋŊâŲīŋŊâīŋŊâīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊââīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâØąīŋŊâŲīŋŊīŋŊâØąīŋŊاâīŋŊâīŋŊ
دīŋŊاâīŋŊâīŋŊīŋŊاÚâīŋŊŲØąīŋŊīŋŊâØąŲاâīŋŊīŋŊâÛدīŋŊââØąīŋŊâīŋŊâīŋŊâŲīŋŊâŲīŋŊŲâīŋŊâīŋŊâīŋŊâØŦØąØ¯âīŋŊâŲīŋŊدâīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊŲ°
âØąīŋŊاâīŋŊīŋŊīŋŊâīŋŊâÛ
ŲĨÛ īŋŊدâīŋŊâīŋŊاīŋŊاâŲīŋŊاīŋŊŲŲ° īŋŊâÛīŋŊâīŋŊا/īŋŊŲīŋŊâīŋŊâīŋŊâīŋŊâØąØ¯īŋŊâŲīŋŊÚâīŋŊâīŋŊâīŋŊâīŋŊâŲīŋŊâ
īŋŊâīŋŊâīŋŊâīŋŊاâīŋŊâīŋŊاâŲīŋŊاīŋŊââīŋŊâīŋŊâīŋŊâīŋŊادâīŋŊâīŋŊīŋŊâīŋŊâīŋŊīŋŊâīŋŊââīŋŊØ§ØąØ§âīŋŊâÛدīŋŊâīŋŊâŲīŋŊ
īŋŊاâīŋŊīŋŊâīŋŊاâÚēīŋŊŲدâīŋŊØąØ°âīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊادâīŋŊاâŲīŋŊâīŋŊīŋŊīŋŊâīŋŊīŋŊâīŋŊâīŋŊâŲŖâīŋŊØąīŋŊâīŋŊâ
Ų ŲĨÛŲĄŲĸÛŲĸŲ Ų ŲŠÛīŋŊâØŦØąīŋŊâīŋŊââīŋŊâīŋŊâŲīŋŊâīŋŊâīŋŊâØŗاâīŋŊاīŋŊدâīŋŊاīŋŊâØąŲīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊâīŋŊâÛīŋŊØą
C.A. No. 904 of 2013
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ŲĸŲŖ/ŲĸŲ ŲĄŲ âīŋŊ
âīŋŊØąīŋŊŲĄŲ¤ÛŲ ŲĄÛŲĸŲ ŲĄŲ âīŋŊØąīŋŊâīŋŊâīŋŊīŋŊâīŋŊâŲ
īŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊâīŋŊâīŋŊâīŋŊادâīŋŊâ
Ų ŲŖÛŲ ŲĻÛŲĸŲ ŲĄŲ īŋŊâØąŲاâīŋŊīŋŊâīŋŊīŋŊâØąīŋŊâīŋŊâØ˛Ø§âīŋŊâØĒدâÚēīŋŊŲدâīŋŊīŋŊâīŋŊīŋŊâīŋŊاâīŋŊâīŋŊâīŋŊâاīŋŊدâØšīŋŊâŲīŋŊâ
īŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊاīŋŊīŋŊâØĒīŋŊâīŋŊâīŋŊâØĒدīŋŊâŲīŋŊدâīŋŊâدīŋŊâÛīŋŊâīŋŊاâīŋŊâīŋŊâÚēīŋŊīŋŊâīŋŊâīŋŊâØ
ÛīŋŊâīŋŊادâاīŋŊâŲīŋŊاâīŋŊâÛīŋŊ
âīŋŊīŋŊâīŋŊŲØĄ ÛīŋŊâÛīŋŊīŋŊâØąīŋŊâīŋŊâīŋŊīŋŊâØĒدīŋŊâØąŲاâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊīŋŊدâīŋŊ
ŲĻÛ âŲīŋŊīŋŊâÛīŋŊâīŋŊاâŲīŋŊŲ/âīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊâīŋŊدâØąŲØ˛âīŋŊâīŋŊâīŋŊīŋŊīŋŊâØŗاâīŋŊīŋŊâīŋŊدâīŋŊīŋŊدâīŋŊâīŋŊīŋŊ
âīŋŊدâŲīŋŊØ˛âØąīŋŊاŲĄŲĄŲĨâīŋŊâدŲīŋŊâīŋŊīŋŊاâīŋŊاīŋŊدâīŋŊīŋŊاâØąŲاŲīŋŊâØˇīŋŊâÛīŋŊīŋŊâīŋŊâīŋŊدâīŋŊâØĒīŋŊâīŋŊâīŋŊââīŋŊââīŋŊاīŋŊ
âīŋŊīŋŊâīŋŊīŋŊâØŽīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâØˇīŋŊīŋŊâīŋŊīŋŊاâīŋŊâīŋŊâŲاââīŋŊīŋŊâīŋŊدâīŋŊīŋŊدâīŋŊīŋŊâÛâīŋŊâīŋŊاŲâīŋŊâ
اâīŋŊâīŋŊŲâīŋŊīŋŊŲīŋŊâīŋŊâØąØ§īŋŊâīŋŊââīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊâØĒدīŋŊâØąŲاâØĒīŋŊâīŋŊŲīŋŊâŲâ âīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâ
īŋŊاīŋŊâŲīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊīŋŊīŋŊâīŋŊاâīŋŊâØąīŋŊâŲØąīŋŊâīŋŊâīŋŊاâīŋŊâŲ
īŋŊâŲīŋŊâīŋŊâÛâŲØąâīŋŊâØąīŋŊâīŋŊاŲâīŋŊâŲ
īŋŊŲīŋŊâīŋŊادâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊØâīŋŊâØ˛īŋŊâØąâīŋŊâÛīŋŊâŲīŋŊâØąØ§Ø¯âīŋŊâīŋŊدâŲīŋŊâŲīŋŊīŋŊâØąŲااīŋŊâīŋŊاīŋŊâīŋŊ
âŲīŋŊاīŋŊâÚēīŋŊŲدīŋŊâīŋŊâØ˛īŋŊâŲīŋŊاâØąØ§Ø¯âīŋŊØ°âŲØąīŋŊīŋŊâīŋŊاâīŋŊâīŋŊâØŗاâīŋŊâÛīŋŊâīŋŊīŋŊâīŋŊâīŋŊâØŗاâīŋŊâīŋŊīŋŊâØĒدīŋŊâŲŲ
īŋŊīŋŊâīŋŊâīŋŊīŋŊâÛŲâīŋŊâīŋŊīŋŊâØ¯ØąâīŋŊâŲīŋŊīŋŊâīŋŊØąâīŋŊīŋŊââīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاâīŋŊīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊâØąØ§īŋŊâīŋŊīŋŊâīŋŊâīŋŊâØ˛
âīŋŊīŋŊīŋŊâØąŲاâīŋŊâīŋŊâØĒدīŋŊâÛīŋŊâīŋŊīŋŊâīŋŊâÛīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâŲīŋŊīŋŊâīŋŊاīŋŊØąØ¯âīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊدīŋŊ
âīŋŊâīŋŊīŋŊâØīŋŊâīŋŊاŲدīŋŊØ§ØąīŋŊīŋŊâŲīŋŊØąâ /اÚīŋŊâŲīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊŲاâīŋŊØąØ°âīŋŊâŲØąīŋŊīŋŊâīŋŊ
īŋŊâØŦØąØ¯âŲīŋŊاâŲīŋŊīŋŊâīŋŊâīŋŊâŲīŋŊاīŋŊâīŋŊīŋŊâīŋŊâīŋŊâŲīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâŲĸŲ¤ÛŲ Ų¤ÛŲĸŲ Ų Ų¨âŲīŋŊادâīŋŊâ
īŋŊâīŋŊâīŋŊâīŋŊâīŋŊاīŋŊâīŋŊâīŋŊâīŋŊâØŦØąØ¯âīŋŊâīŋŊŲâīŋŊاâŲīŋŊدâīŋŊŲ°âŲīŋŊâīŋŊīŋŊâØąŲدīŋŊاâīŋŊâīŋŊâØŦØąØ¯âīŋŊâīŋŊīŋŊâīŋŊâ
īŋŊâاīŋŊâīŋŊīŋŊاâīŋŊâŲâīŋŊââīŋŊâŲØ˛īŋŊâŲīŋŊâīŋŊīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊاÚâīŋŊâīŋŊØ§ØąâīŋŊâīŋŊâīŋŊاīŋŊâØąŲاâŲīŋŊا
īŋŊâīŋŊâŲīŋŊâŲīŋŊīŋŊâīŋŊŲØąâØ˛Ø§âīŋŊâīŋŊâīŋŊâīŋŊدâīŋŊâÛīŋŊīŋŊâīŋŊâØŗŲاâīŋŊâØĒØąīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊââīŋŊاŲ
âīŋŊâØĄīŋŊīŋŊīŋŊīŋŊīŋŊâīŋŊīŋŊâīŋŊīŋŊاâīŋŊâīŋŊâīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊīŋŊ īŋŊâØąØ§Ø¯īŋŊØąØ§īŋŊâØŗاâīŋŊīŋŊâÛīŋŊâīŋŊاâÛŲâīŋŊØąØ°â /âīŋŊīŋŊīŋŊ"âīŋŊدŲĄŲŖâ
īŋŊâŲīŋŊīŋŊ" âØĒīŋŊâīŋŊâīŋŊØąīŋŊâīŋŊâīŋŊâīŋŊīŋŊīŋŊâīŋŊâīŋŊØąīŋŊâīŋŊâŲدīŋŊīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊâÚēīŋŊīŋŊÛ
Ų§Û âīŋŊâŲīŋŊâŲīŋŊŲâīŋŊīŋŊ/īŋŊīŋŊīŋŊâīŋŊâīŋŊâīŋŊاâØˇīŋŊâīŋŊâŲīŋŊØ˛âīŋŊâīŋŊâīŋŊīŋŊâīŋŊدâØąŲØ˛âīŋŊââŲīŋŊاīŋŊâ
âØŦØąØ¯âīŋŊâīŋŊīŋŊīŋŊâīŋŊâīŋŊ âīŋŊâاīŋŊâŲīŋŊاīŋŊâīŋŊīŋŊâīŋŊâīŋŊدâīŋŊīŋŊâīŋŊâīŋŊīŋŊدâīŋŊاâīŋŊâÚēīŋŊاâīŋŊâīŋŊâØŗاâØąŲا
âīŋŊīŋŊâŲاīŋŊâīŋŊŲâÛīŋŊâīŋŊâØŗīŋŊâŲ
īŋŊâÛīŋŊŲâīŋŊâīŋŊ)īŋŊâīŋŊīŋŊâŲīŋŊâīŋŊīŋŊīŋŊâīŋŊâŲīŋŊاīŋŊØĒīŋŊâ ÛīŋŊâīŋŊīŋŊŲīŋŊâ
ŲĸŲ Ų Ų§âīŋŊâīŋŊâŲĨŲ Ų¤ (īŋŊâīŋŊâīŋŊâاīŋŊâŲīŋŊاīŋŊâīŋŊâÚēīŋŊاâīŋŊâīŋŊâīŋŊīŋŊâÛīŋŊâØ§ØąīŋŊâīŋŊâŲاīŋŊاâīŋŊīŋŊīŋŊâīŋŊØąīŋŊâīŋŊدâ
C.A. No. 904 of 2013
4
īŋŊâŲ
īŋŊâÛīŋŊŲâīŋŊØąŲØąīŋŊاâ)ŲīŋŊâīŋŊīŋŊīŋŊâīŋŊâŲīŋŊاīŋŊâīŋŊâØĒīŋŊâīŋŊâÛīŋŊâīŋŊīŋŊâīŋŊīŋŊØąâīŋŊīŋŊÛØąīŋŊÛÛīŋŊ ŲīŋŊŲĸŲ ŲĄŲŖ
īŋŊīŋŊŲ¨ŲĻŲĻ (ÛīŋŊدâīŋŊاīŋŊâīŋŊâīŋŊ
īŋŊâØąŲاâīŋŊīŋŊدâīŋŊīŋŊâīŋŊØąīŋŊâØŗاâīŋŊâīŋŊâŲØąâīŋŊâīŋŊīŋŊâØĒدŲâīŋŊâŲØąØ§īŋŊدâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊ
âīŋŊīŋŊâīŋŊīŋŊâīŋŊīŋŊīŋŊâīŋŊâīŋŊاâīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊâīŋŊâÛīŋŊīŋŊâīŋŊīŋŊīŋŊâīŋŊâīŋŊâīŋŊاŲâīŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊīŋŊ
īŋŊâīŋŊīŋŊīŋŊاīŋŊâīŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊâØąØ§ŲØąīŋŊââīŋŊīŋŊâÛīŋŊâīŋŊīŋŊâīŋŊâīŋŊدâÛīŋŊīŋŊâīŋŊâīŋŊ âīŋŊâØŗاâīŋŊâīŋŊīŋŊâØąØ§ŲâØąīŋŊâīŋŊ
âīŋŊâÛīŋŊâīŋŊاâīŋŊīŋŊâÛÛدâīŋŊدâŲ
īŋŊاŲīŋŊŲīŋŊاīŋŊâīŋŊâظīŋŊاâŲīŋŊاâŲâ/īŋŊâīŋŊâØąŲاâīŋŊâīŋŊâŲ
īŋŊâŲīŋŊâŲīŋŊīŋŊاâ
âīŋŊâŲâīŋŊâīŋŊâدīŋŊâīŋŊâīŋŊâØŗاâاīŋŊâÛīŋŊâدīŋŊīŋŊâØĒدīŋŊâīŋŊīŋŊØ˛âØąŲاâŲīŋŊīŋŊâīŋŊâØĒīŋŊâīŋŊâīŋŊâØąŲاâīŋŊīŋŊâØąīŋŊŲدâīŋŊ
īŋŊاâīŋŊâŲīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊīŋŊâدīŋŊاīŋŊâÛØąīŋŊâØĒâīŋŊâīŋŊâīŋŊâŲØ§ØąŲدâīŋŊâ
īŋŊâīŋŊâīŋŊīŋŊâÛدīŋŊâīŋŊâØąīŋŊâīŋŊØ˛īŋŊâŲīŋŊīŋŊâīŋŊâīŋŊâØąŲاâŲدâŲšØąīŋŊØąâīŋŊâīŋŊâīŋŊاâīŋŊâŲīŋŊâ/īŋŊâīŋŊīŋŊâīŋŊâ
âīŋŊاīŋŊâŲīŋŊادâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâÛدâīŋŊâÛīŋŊâØŦØąØ¯âÛØąīŋŊīŋŊâīŋŊâŲīŋŊاīŋŊâŲīŋŊīŋŊ
âīŋŊīŋŊâŲīŋŊâīŋŊīŋŊââīŋŊاâīŋŊâīŋŊâŲīŋŊâاīŋŊâīŋŊâīŋŊīŋŊâØąŲاâīŋŊâīŋŊâīŋŊâŲšīŋŊâÛÚŲØąâīŋŊâÛØ§ØąâīŋŊâŲīŋŊاâŲâīŋŊا
ÛīŋŊâīŋŊīŋŊâŲ
īŋŊâīŋŊâīŋŊīŋŊا
Ų¨Û âīŋŊâīŋŊâŲīŋŊاâŲâŲīŋŊīŋŊâŲīŋŊŲاâīŋŊâīŋŊŲâīŋŊâīŋŊâÚēīŋŊاīŋŊâīŋŊâŲدââīŋŊâīŋŊâØĒدīŋŊâīŋŊâīŋŊâØĒīŋŊâīŋŊ
īŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâÚēīŋŊâدīŋŊâدīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâŲīŋŊاīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊīŋŊâīŋŊīŋŊâØ¯ØąâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊ
īŋŊīŋŊâØąīŋŊاâīŋŊââŲŲاâŲīŋŊâīŋŊدâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâدŲīŋŊâīŋŊâØĒīŋŊâīŋŊīŋŊīŋŊŲĄŲĄŲĨâØŦØąØ¯âīŋŊâīŋŊاīŋŊدâŲīŋŊīŋŊ
ÛīŋŊ
ŲŠÛ âīŋŊâīŋŊâØŗاâīŋŊīŋŊâīŋŊâدīŋŊīŋŊâÛīŋŊØ°âīŋŊŲâīŋŊâīŋŊīŋŊâŲâØĒīŋŊâīŋŊâīŋŊâاīŋŊâŲīŋŊاīŋŊâīŋŊâīŋŊâØŗاâīŋŊīŋŊاŲŲ
âŲاīŋŊâīŋŊīŋŊâīŋŊâīŋŊÛīŋŊŲâīŋŊâŲīŋŊ) âØīŋŊīŋŊØąâīŋŊâŲīŋŊīŋŊâŲīŋŊīŋŊ
PLJ 1983
âīŋŊâīŋŊâīŋŊâŲīŋŊاīŋŊŲ ŲĄ(âīŋŊ
âÛدīŋŊØ˛âŲīŋŊŲاâÛīŋŊâīŋŊŲâŲīŋŊâīŋŊâīŋŊâŲØąīŋŊâīŋŊīŋŊâīŋŊâīŋŊâīŋŊâŲīŋŊØ˛âīŋŊâŲīŋŊاâīŋŊâØŗاâīŋŊīŋŊâīŋŊīŋŊâīŋŊâŲīŋŊâØąŲا
ÛīŋŊâīŋŊâīŋŊīŋŊâØąŲاâīŋŊīŋŊâīŋŊâØąīŋŊâīŋŊ
ŲĄŲ Û âīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâŲīŋŊŲاâīŋŊâīŋŊâØąīŋŊâīŋŊاŲâīŋŊâاīŋŊâŲīŋŊاīŋŊâīŋŊâīŋŊīŋŊâīŋŊØąīŋŊâīŋŊâØĒīŋŊ
īŋŊīŋŊâŲīŋŊاīŋŊīŋŊâ âŲīŋŊīŋŊâīŋŊâīŋŊâīŋŊâØĒīŋŊاŲâīŋŊīŋŊâīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊâīŋŊâدīŋŊīŋŊâīŋŊâبīŋŊØąØ§âīŋŊâīŋŊâīŋŊ
âØŗاâØąŲاâīŋŊīŋŊâīŋŊīŋŊâØšīŋŊâŲīŋŊâØ˛Ø§âīŋŊâīŋŊâīŋŊâØĒدīŋŊâīŋŊâīŋŊâÚēīŋŊâÛīŋŊâīŋŊâīŋŊīŋŊâīŋŊâīŋŊâØąīŋŊâīŋŊâīŋŊاīŋŊâīŋŊâØŗا
C.A. No. 904 of 2013
5
īŋŊâØąīŋŊاâīŋŊâīŋŊīŋŊâīŋŊاâīŋŊâīŋŊâīŋŊīŋŊīŋŊâŲīŋŊاīŋŊââŲīŋŊاâīŋŊâīŋŊØ˛âīŋŊØ§ØąâīŋŊâīŋŊâØŗاâīŋŊīŋŊاâīŋŊâīŋŊīŋŊâīŋŊâŲ
ÛīŋŊâīŋŊâدīŋŊīŋŊ
âīŋŊâīŋŊâīŋŊâØĒīŋŊīŋŊŲâīŋŊīŋŊâīŋŊØąīŋŊâīŋŊīŋŊâīŋŊâÚēīŋŊīŋŊâīŋŊâŲīŋŊīŋŊâŲâŲīŋŊاâīŋŊاâŲīŋŊØ˛âīŋŊâīŋŊâīŋŊīŋŊâŲīŋŊاīŋŊ
īŋŊاīŋŊâīŋŊâØąŲاâīŋŊâØĒīŋŊâīŋŊâīŋŊâīŋŊâīŋŊīŋŊââīŋŊīŋŊâīŋŊâīŋŊīŋŊâīŋŊاīŋŊâīŋŊīŋŊâīŋŊīŋŊâØ¯ØąâīŋŊâØąīŋŊâŲīŋŊīŋŊâīŋŊâ
âīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâبīŋŊØąØ§âīŋŊâīŋŊâīŋŊīŋŊīŋŊâīŋŊâīŋŊīŋŊâÛØąīŋŊīŋŊâاīŋŊâÛâīŋŊâīŋŊâīŋŊØ˛īŋŊâŲīŋŊاâØļīŋŊâīŋŊīŋŊâīŋŊØąØ¯Ų
âŲīŋŊÚâīŋŊâīŋŊâīŋŊīŋŊâīŋŊâŲīŋŊâīŋŊâØĒīŋŊâīŋŊâīŋŊâīŋŊâīŋŊâīŋŊاīŋŊدâīŋŊīŋŊâīŋŊاīŋŊâīŋŊâīŋŊâīŋŊâØŽīŋŊâīŋŊâŲīŋŊÚâŲâīŋŊ
ÛīŋŊâīŋŊاâŲīŋŊ/ÛīŋŊâīŋŊīŋŊâīŋŊâŲīŋŊâīŋŊīŋŊ
ŲĄŲĄÛ âīŋŊīŋŊâīŋŊاīŋŊÛīŋŊâīŋŊīŋŊâīŋŊâÚžīŋŊâ
īŋŊ
īŋŊ
īŋŊØĸâŲ
īŋŊاØدŲŖŲ âØīŋŊīŋŊâŲĸŲ ŲĄŲĻØĄâØ )ØąīŋŊâīŋŊâīŋŊâīŋŊīŋŊا(
īīŋŊŲâīŋŊاī
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO. 908 OF 2012
(On appeal against the judgment dated 17.5.2012
passed by the Islamabad High Court, Islamabad in Writ
Petition No. 622/2007)
Pakistan Telecommunication Company Limited
âĻ Appellant
VERSUS
Employees Old Age Benefit Institution and another
âĻ Respondents
For the Appellant:
Mr. Hamid Khan, Sr. ASC
Mr. M.S. Khattak, AOR
For the Respondents:
Mr. Tariq Bilal, ASC
Date of Hearing:
01.03.2016
JUDGMENT
FAISAL ARAB, J.- Telegraph & Telephone Department was
originally a department of the Federal Government. Under Pakistan
Telecommunication Corporation Act, 1991 (Act XVIII of 1991) the
Telegraph & Telephone Department was transformed into a
Corporation and its affairs were entrusted to a board comprising of
a chairman and 11 other directors appointed by the Federal
Government. In the year 1996, for the purposes of reorganizing the
telecommunication
system
in
the
country,
the
Pakistan
Telecommunication (Re-organization) Act, 1996 (Act XVII of 1996)
was passed. It was intended to dissolve the Corporation and in its
place create five different entities in which the rights, properties
and liabilities of the Corporation were to vest. These five entities
Civil Appeal No. 908/2012
2
that were to form under the said Act are (i) Pakistan
Telecommunication Authority, (ii) Frequency Allocation Board,
(iii)
National
Telecommunication
Corporation,
(iv)
Pakistan
Telecommunication
Employees
Trust
and
(v)
Pakistan
Telecommunication Company Limited. Out of these five entities,
the entity mentioned last was to be incorporated as a company
limited by shares under the Companies Ordinance, 1984. The
remaining entities were to come into existence as four distinct
statutory bodies that were to perform various functions under the
administrative control of the Federal Government. Relevant for the
purposes of these proceedings is the status of âPakistan
Telecommunication Company Limitedâ a company limited by
shares which was incorporated with effect from 1.1.1996. This
limited company that was formed is the appellant in the present
proceedings.
Under
the
Pakistan
Telecommunication
(Re-
organization) Act, 1996, all employees of the defunct Corporation
were to be transferred to the five distinct entities out of which a
very large number was transferred to the appellant company. The
employees of the defunct Corporation, who were transferred to the
appellant company, their terms and conditions of service were
secured under Section 36 of the Pakistan Telecommunication (Re-
organization) Act, 1996.
2.
In the year 1998, respondent No. 1 called upon the
appellant company to pay contributions in terms of Sections 9 & 9-
B of the Employees Old-Age Benefits Act, 1976 from the date of its
incorporation. Such demand was resisted by the appellant
Civil Appeal No. 908/2012
3
company by taking the plea that Section 47(f) of the said Act
exempts all statutory bodies from the application of the said Act
and as the appellant company was created under the Pakistan
Telecommunication (Re-organization) Act, 1996, it enjoys the
status of statutory body and thus not liable to pay contributions.
This led to the issuance of show cause notice, which was then
followed by registration of the appellant company under the
Employees Old-Age Benefits Act, 1976. To challenge it registration
on the ground that the appellant Company being a statutory body
was not liable to make contributions, it first lodged a complaint
with the Institution under Sections 33 of the Employeesâ Old-Age
Benefits Act, 1976 and when its complaint was rejected it appealed
to the Board of the Institution as envisaged under Section 35 of the
said Act. Having availed both the statutory remedies provided
under Sections 33 and 35 the Employeesâ Old-Age Benefits Act,
1976 and failed, the appellant company was served with a demand
notice in March, 2007. Faced with coercive action in the wake of
the demand notice, the appellant company challenged the demand
notice in a Constitution Petition filed under Article 199 of the
Constitution of Pakistan. This petition was initially filed in the
Rawalpindi Bench of the Lahore High Court. However, after the
establishment of the Islamabad High Court, the same was
transferred to it for disposal. The Constitution Petition was
eventually dismissed vide impugned judgment dated 17.5.2012.
Aggrieved by such decision, leave to appeal was filed in this Court,
that was granted and Civil Petition No.1299 of 2012 was converted
into present appeal.
Civil Appeal No. 908/2012
4
3.
Learned counsel for the appellant Mr. Hamid Khan
argued that the appellant Company was the creation of a statute
as it was created under Pakistan Telecommunication (Re-
organization) Act, 1996 and thus being a statutory body, by virtue
of Section 47(f) nothing in the Employees Old-Age Benefits Act,
1976 applies to the persons who are in service of statutory bodies.
He, therefore, submitted that the demand raised by the respondent
No. 1 for realizing contributions under Employeesâ Old-Age
Benefits Act, 1976 was without jurisdiction. In the alternative, it
was also argued that as many employees of the Pakistan
Telecommunication Corporation were originally the employees of
Telegraph & Telephone Department, who at that time enjoyed the
status of civil servants and thereafter as employees of the statutory
body, their terms and conditions of service were protected under
Section 36 of the Pakistan Telecommunication (Re-organization)
Act, 1996, therefore, the appellant company was not liable to make
contributions under the provisions of Employeesâ Old-Age Benefits
Act, 1976 in so far as such employees are concerned.
4.
The only question that needs to be decided is whether
the appellant company can be described as a statutory body as
stated in Section 47(f) of Employeesâ Old-Age Benefits Act, 1976
and therefore not amenable to the provisions of the said Act.
5.
The appellant company was incorporated as a limited
company under the provisions of the Companies Ordinance, 1984.
Civil Appeal No. 908/2012
5
It
did
not
come
into
existence
under
the
Pakistan
Telecommunication (Re-organization) Act, 1996. This Act only
provided that a company limited by shares shall be incorporated
under the provisions of the Companies Ordinance, 1984, as is
evident from Section 34 of the Pakistan Telecommunication (Re-
organization) Act, 1996. This legal position is realized by the
appellant Company itself as in the memo of appeal, it is stated that
the appellant company remained a statutory body at-least till such
a time it was transformed from a state owned statutory body to a
public limited company and such transition took place upon
transfer of the management of the appellant company to a foreign
company i.e. Etisalat International Pakistan LLC in May, 2006 and
therefore uptill May, 2006 it is to be regarded as a statutory body.
6.
In our view only such entities can be described as
statutory bodies which come into existence by virtue of a Statute.
Where the legislature has not brought into existence an entity
through a special law but the same has been incorporated under
some existing statute then such entity cannot to be assigned the
status of a statutory body. If every entity that is formed under
some existing statute is to be described as âstatutory bodyâ then we
are afraid every limited company incorporated under the
Companies Ordinance, 1984, every partnership concern formed
under the Partnership Act, every association formed under the
Societies Act and every co-operative society formed under the
Cooperative Societies Act is also to be described as âstatutory bodyâ.
For an entity to be described as a âstatutory bodyâ, its birth itself
Civil Appeal No. 908/2012
6
should have been caused by a special statute. In other words, such
entity should come into existence by virtue of a statute itself and
not established under the provisions of an already existing statute.
Examples of some entities that are creatures of the Statues itself
are Karachi Port Trust, Pakistan International Airlines, and
WAPDA. Such entities only are to be regarded as statutory bodies.
How the appellant company, which came into existence under the
provisions of the Companies Ordinance, 1984, could be regarded
as an entity incorporated under Pakistan Telecommunication (Re-
organization) Act, 1996 when it was incorporated under the
Companies Ordinance, 1984. As the appellant company was
incorporated under an existing law, it cannot be regarded as a
âstatutory bodyâ. None of the employees of the appellant company
also, from the date of its incorporation, can be regarded as
employees of a statutory body so as to enjoy the benefit of the
provisions of Section 47(f) of Employeesâ Old-Age Benefits Act,
1976. The management of the appellant company may have been
transferred to a foreign company i.e. Etisalat International
Pakistan LLC in May, 2006 but that cannot be made the starting
point to reckon its transition from a statutory body to a non-
statutory body. The deciding factor would be when the appellant
company, as a separate and distinct entity limited by shares, was
incorporated under the provisions of the Companies Ordinance,
1984. It matters not that at the time of its incorporation its shares
were solely held by the Federal Government.
Civil Appeal No. 908/2012
7
7.
In view of the above discussion, the appellant company
cannot be regarded as a statutory body and thus has become liable
to pay contributions under the provisions of Employeesâ Old-Age
Benefits Act, 1976 from the date of its in-corporation. This appeal
is therefore dismissed.
JUDGE
JUDGE
JUDGE
Islamabad, the
Announced on _______________ by Honâble Mr. Justice Faisal Arab
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL APPEAL NOs. 909 TO 912 OF 2020 &
CRIMINAL ORIGINAL PETITION NO. 87 OF 2020
(On appeal against judgment dated 31.01.2020 passed by the
High Court of Balochistan, Quetta, in CP No. 246/2008 &
334/2019)
Khalilullah Kakar
(In CAs 909 & 911 of 2020)
Irfan Ali
(In CA 910 of 2020 & Cr.O.P.
87 of 2020)
Abdul Haleem and another
(In CA 912 of 2020)
âĻ Appellants/Petitioner
VERSUS
Provincial Police Officer, Balochistan etc
(In all cases)
âĻ Respondents
For the Appellants:
Mr. Muhammad Shoaib Shaheen, ASC
(In CAs 909 & 910 of 2020)
In person
(In CA 911 of 2020 & Cr.O.P. 87 of 2020)
Sh. Riazul Haque, ASC
Syed Rifaqat Hussain Shah, AOR
(In CA 912 of 2020)
For the Respondents:
Syed Iftikhar Hussain Gillani, Sr. ASC
(For respondent Nos. 2, 3, 5 to 10, 20 in CA 909 of
2020, respondent Nos. 2, 3, 5, 8, 12 in CA 910 of
2020 and respondent Nos. 2, 3, 5 to 10, 12 in CA
911 of 2020)
Mr. Adnan Basharat, ASC
(For remaining repondents in CAs 909 to 912/2020)
For Govt of Balochistan: Mr. Ayaz Khan Swati, Addl. A.G
Date of Hearing:
24.03.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this
consolidated judgment, we intend to decide the above titled cases,
as the issue involved in these cases is common and they have
arisen out of the same judgment.
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
2
2.
Civil Appeal Nos. 909/910/911/912/2020: Through
these appeals by leave of the Court under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be
referred as âthe Constitutionâ), the appellants have called in question
the judgment dated 31.01.2020 passed by the High Court of
Balochistan, Quetta, whereby the Constitutional Petitions filed by
the respondents were allowed and the Provincial Police Officer,
Balochistan, was directed to issue a joint seniority list of Deputy
Superintendents of Police (hereinafter to be referred as âDSPsâ) of all
cadres/branches.
3.
Succinctly stated the facts of the matter are that as per
practice at some point of time there was a joint seniority list of DSPs
belonging to different cadres/branches of the Balochistan Police
Force. However, subsequently the seniority lists upto the rank of
DSPs qua some of the branches was separated keeping in view the
nature of work. The respondents being DSPs of legal/prosecution
branch challenged the issuance of separate seniority lists by filing
Constitutional Petition No. 246/2008 before the High Court of
Balochistan, Quetta. The said Constitutional Petition was finally
accepted vide judgment dated 23.04.2009. Consequently, a joint
seniority list of DSPs was issued on 16.08.2009. The police officers
of the rank of DSPs of different cadres challenged the judgment of
the High Court dated 23.04.2009 by filing an application under
Section 12(2) CPC, which was accepted vide judgment dated
20.06.2017. Resultantly, the earlier order dated 23.04.2009 was
recalled and the petition was directed to be amended by impleading
the DSPs of other branches as respondents. This order was assailed
before this Court through Civil Petition No. 5196/2017 and this
Court maintained the same vide order dated 11.06.2018. The
appellant department although issued joint seniority list on
11.12.2017 but ultimately issued two separate notifications on
06.03.2019 determining the seniority of 26 DSPs belonging to
legal/prosecution branch in one notification whereas through the
other notification, the seniority of 170 DSPs of other branches was
determined separately. The DSPs of the legal/prosecution branch
filed objections qua the separate seniority lists but without awaiting
its fate filed Constitutional Petition No. 334/2019 before the High
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
3
Court of Balochistan, Quetta. Both the above-said Constitutional
Petitions were allowed vide impugned judgment and the department
was directed to issue joint seniority lists of DSPs of all branches.
Hence, these appeals with leave of the Court.
4.
Learned counsel for the appellants along with appellant
in person in Civil Appeal No. 911/2020 inter alia contended that in
all the Provinces of Pakistan including Islamabad Capital Territory,
the seniority of prosecution/legal branch is being maintained
separately as the qualification and training for this branch of Police
is entirely different than that of the other branches, which are called
general cadre; that the law also does not permit making of a joint
seniority list; that as the respondents were civil servants, the
learned High Court while adjudicating the constitutional petitions
has wrongly assumed jurisdiction, which is contrary to the spirit of
the Constitution of Islamic Republic of Pakistan; that the learned
High Court has travelled beyond its jurisdiction and authority to
declare the separate seniority lists as illegal without considering the
legal and factual aspects of the case. They lastly prayed that the
impugned judgment being against the law, may be set aside.
5.
On the other hand, learned counsel for the respondents
have defended the impugned judgment on the ground that the police
force has already been declared one indivisible body possessing
various limbs performing the assigned functions and each of these
limbs of the establishment are in-fact integral part of police force and
as such under no rule of construction they can be considered as
separate or different cadres, therefore, there is no irregularity in the
impugned judgment. It has been further argued that the seniority list
with specified assignment of job is classified only to the rank of
DSPs whereas on further promotion the same is merged into and the
seniority list irrespective of the classification of branch becomes
irrelevant.
6.
We have heard learned counsel for the parties and have
perused the record as well as the relevant law.
7.
The questions involved in these appeals are two fold i.e.
(i) whether in the given facts and circumstances of this case the
constitutional petitions were maintainable before the learned High
Court in view of the specific bar contained in Article 212(2) of the
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
4
Constitution of Islamic Republic of Pakistan, 1973, and (ii) whether
there should be a joint seniority list of DSPs of all cadres/branches
and the same is sustainable due to the requirement of classification,
manner of selection, training procedure and identification through
the same uniform and rank.
8.
As far as the first question which could hit the very
roots of this case is the assumption of jurisdiction by the learned
High Court of Balochistan under Article 199 of the Constitution in the
presence of specific bar provided under Article 212(2) of the
Constitution is concerned, there is no denial to this fact that the
respondents being employees of Balochistan Police Force are civil
servants and the matter pertaining to issuance of joint seniority lists
specifically relates to their terms and conditions of service, which
particularly rests within the jurisdiction of Balochistan Service
Tribunal. The learned High Court mainly assumed jurisdiction on the
ground that at the time of passing of the impugned judgment, the
Balochistan Service Tribunal was not functional. The Service
Tribunal was not non-functional for an indefinite period. It has been
brought to our notice that the earlier Chairman of the Balochistan
Service Tribunal remained performing his duties with effect from
06.12.2016 to 05.12.2019 and thereafter the incumbent Chairman
was appointed on 05.05.2020 whereas Constitutional Petition Nos.
334/2019 was filed on 01.04.2019 when the Tribunal was
operational. Similarly, Constitutional Petition No. 246/2008 was
initially filed on 11.05.2008 and after the judgment of this Court
dated 06.11.2018 the amended petition was filed on 24.09.2019.
On these dates also, the Tribunal was functional. Therefore, it can
be safely said that the very institution of the Constitutional petitions
was against the Constitutional mandate. It is an established
principle of law that the courts assume their jurisdiction through
particular law conferring a particular jurisdiction. Article 212(2) of
the Constitution specifically places an embargo on all other courts
except Service Tribunal to grant an injunction, make any order or
âentertainâ any proceedings in respect of any matter relating to the
terms and conditions of service even if they are mala fide, ultra vires
or coram non judice. It would be in order to reproduce the said
Article 212(2) of the Constitution, which reads as under:-
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
5
(2) Notwithstanding anything hereinbefore contained where
any Administrative Court or Tribunal is established under
clause (1), no other court shall grant an injunction, make any
order or entertain any proceedings in respect of any matter to
which the jurisdiction of such Administrative Court or
Tribunal extends and all proceedings in respect of any such
matter which may be pending before such other court
immediately before the establishment of the Administrative
Court or Tribunal; other than an appeal pending before the
Supreme Court, shall abate on such establishment:
Provided that the provisions of this clause shall not apply to
an Administrative Court or Tribunal established under an Act
of a Provincial Assembly unless, at the request of that
Assembly made in the form of a resolution, Majlis-e-Shoora
(Parliament) by law extends the provisions to such a Court or
Tribunal.â
9.
The word âentertainâ used in Article 212(2) of the
Constitution is of significance importance. This means that any
petition or proceeding relating to the terms and conditions of service
even should not be entertained by the High Court in its constitutional
jurisdiction under Article 199 of the Constitution. In view of the facts
and circumstances of this case, entertaining and then proceeding
with the constitutional petitions amounts to defeating the express
Constitutional mandate under which Tribunal is vested with
jurisdiction to deal with the matters of civil servants. This Court in
the case of Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR
456) has held as under:-
â149. Article 212 of the Constitution ousts the jurisdiction
of High Courts and civil Courts in respect of the matters
pertaining to terms and conditions of civil servants. In
other words, the provisions of Article 212 do not confer a
concurrent jurisdiction to civil Courts, High Courts and
Tribunals. The ouster contemplated under the said Article
is a Constitutional command, and, therefore, of necessity
restricts the jurisdiction of civil courts and High Courts on
the subject, which squarely falls within the exclusive
domain of Tribunals.â
10.
In Asadullah Rashid Vs. Muhammad Muneer (1998
SCMR 2129), this Court held as under:-
âConstitutional petition under Art. 199 of the Constitution
is not maintainable by a civil servant in relation to any
matter connected with the terms and conditions of service
in respect whereof the Service Tribunal has jurisdiction, in
view of Art. 212 of the Constitution of Pakistan. Orders,
even if mala fide, ultra vires or coram non judice, fell
within the ambit of Service Tribunal and jurisdiction of
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
6
Civil Courts including High Court is ipso facto ousted as
result of barring provision of Art. 212 of the Constitution.â
11.
The same was the view of this Court in National
Assembly Secretariat Vs. Manzoor Ahmed (2015 SCMR 253). The
writ jurisdiction is extraordinary in its scope, it has to be exercised
sparingly. The jurisdiction conferred on the High Courts under Article
199 of the Constitution is an extraordinary relief and the same has
to be exercised in aid of justice and not to interfere in jurisdictions of
other statutory forums. When the law has provided an adequate
remedy, constitutional jurisdiction under Article 199 of the
Constitution cannot be exercised as the same has to be exercised in
exceptional circumstances, which could justify invoking the said
jurisdiction. It has time and again been said by this Court that
tendency to bypass remedy provided under relevant statue by
resorting to constitutional jurisdiction is to be discouraged so that
legislative intent is not defeated. The same is meant to be exercised
in extraordinary circumstances and not in run of the mill cases. Even
otherwise, we have noted that the respondents had not approached
the learned High Court after exhausting the remedy of filing
departmental appeal. Therefore, we are compelled to observe that
the very constitutional petitions were not maintainable before the
learned High Court.
12.
The second question before us is whether there should
be a joint seniority list of DSPs of all cadres or it has to be separated
from each other depending upon the nature of work. It is a matter of
common practice, which is prevalent in all four Provinces and
Islamabad Capital Territory that seniority lists of DSPs of
legal/prosecution branch is being prepared separately as compared
to DSPs of other branches. Section 2(b) of the Baluchistan Deputy
Superintendents of Police Service Rules, 1978, speaks about
different branches of the Police. It says, ââbranchâ means a branch
of the Department organized as a separate and self-contained unit
such as General Branch, Prosecution Branch, Tele communication
Branch, Special Branch, Motor Transport Branch, Finger Print
Branch and Anti Corruption Branch.â So, the very enactment, which
deals with only the DSPs of Balochistan, itself admits about the
different branches. The aforesaid DSP Rules, 1978, Balochistan
Civil Appeal Nos. 909 to 912 of 2020 &
Criminal Original Petition No. 87 of 2020
7
Police Act, 2011 and the Police Rules, 1934, are silent on the point
as to whether there should be separate or joint seniority lists of
DSPs but the language used therein about the different branches of
the police force and the fact that the mode of recruitment, nature of
job, duties and training of legal/prosecution branch of the
Balochistan Police is different than the other branches of the police,
leaves no room to believe that the act of issuing separate seniority
lists is well reasoned, in line with the practice followed in other
Provinces including Islamabad Capital Territory and Gilgit Baltistan
and in accordance with the intent of the law. So far as the law laid
down by this Court in Gul Hassan Jatoi (2016 SCMR 1254) is
concerned, the issuance of separate seniority lists upto the rank of
DSPs does not in any manner bifurcate the compactness of the Police
force when it is established that beyond the rank of DSPs, the
seniority list is again merged into one unit and as such supplement
the words of this Court âone indivisible bodyâ.
13.
For what has been discussed above, these appeals are
allowed and the impugned judgment is set aside.
14.
Criminal Original Petition No: 87/2020: Since, the
main appeals have been allowed, this Criminal Original Petition for
initiating contempt proceedings against the respondents has become
infructuous and is disposed of accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad
Announced on 21.05.2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja,
Mr. Justice Sarmad Jalal Osmany
Civil Appeal No. 90 of 2011
(Against the judgment dated 18.5.2010 passed by the
Lahore High Court in WP.4729 of 2010)
Ghazala Tehsin Zohra.
âĻ
Appellant(s)
Versus
Mehr Ghulam Dastagir Khan and another.
âĻ
Respondent(s)
For the appellant(s):
Mr. Saif ul Maluk, ASC with
appellant and her daughter (Hania Fatima)
For the Respondent-1:
Sardar Muhammad Aslam, ASC
Respondent-2:
Proforma respondent.
Date of hearing:
02.02.2015
Judgment
Jawwad S. Khawaja, J.- The appellant in this case is Mst. Ghazala Tehsin Zohra.
Undeniably she was married to the respondent Mehr Ghulam Dastagir Khan on 9.8.1997.
On 21.03.2000 a daughter Hania Fatima was born from this wedlock and on 9.2.2001 a son
Hasan Mujtaba was also born. The respondent took a second wife. Thereafter, a suit for
maintenance was filed by the appellant for herself and for their two children. When notice
of the suit was served on the respondent, he made out a written talaq nama (Ex. D/3) on
26.06.2001. On 6.7.2001, the respondent filed a declaratory suit denying his paternity of the
two children mentioned above. Para five of the plaint which sets out the main thrust of the
suit is in the following terms:-
These averments were denied by the appellant in her written statement.
Civil Appeal No.90 of 2011
2
2.
Thereafter, 6 issues based on the pleadings were duly framed by the trial Court; the
first two being relevant for the present matter are in the following terms:-
â1. Whether there was born no son or daughter out of marriage between
the parties and Mst. Hania Fatima and Hassan Mujtaba have no
relation whatsoever with the plaintiff and record if any, showing that
the said children are son and daughter of plaintiff is forged, fictitious,
result of fraud and inoperative upon rights of plaintiff? OPP
2.
Whether plaintiff is estopped through his words and conduct to file
his suit, OPDâ
3.
The respondent-plaintiff appeared as his own sole witness as PW-1. An important
element of his testimony is that although he leveled various allegations against the
appellant and also imputed unchastity to her by naming some other person as the father of
the two children, he admitted in his cross examination that he had conjugal access to the
appellant in his marital relationship until the dissolution of his marriage with the appellant.
The other significant aspect of the respondentâs testimony is that he did not deny his
paternity of the two children at or immediately after their birth. The relevance of this fact is
considered below.
4.
The trial went on for some time and when it was to conclude after the evidence of
both sides had been recorded, the respondent filed an application on 27.10.2007 i.e. six
years after filing of the suit. In the application, he prayed that a DNA test be conducted to
establish his denial of paternity. The application was dismissed by the trial Court on
20.03.2008. A revision petition filed by the respondent was, however, allowed on 9.2.2010
by the learned Additional District Judge. The revisional judgment was affirmed when writ
petition No.4729/10 filed by the appellant was dismissed. The revisional judgment and the
judgment of the High Court, both proceed on erroneous bases and are liable to be set aside
for the reasons considered below.
5.
There are quite a few aspects of this case which have very far reaching
consequences and, therefore, need to be dealt with in depth so that the law can be clearly
enunciated in the light of Article 189 of the Constitution. However, before discussing these
material aspects, it is important to set out briefly the relevant facts, to provide context for
the discussion which follows.
Civil Appeal No.90 of 2011
3
6.
The suit filed by the respondent sought a declaration to the effect that the two
children Hania Fatima and Hassan Mujtaba were not the natural/biological children of the
respondent/plaintiff, and that any official record in this regard was bogus and had been
fraudulently prepared. In addition to the contents of para 5 of the plaint reproduced above,
the plaint also stated that the respondent-plaintiff had extremely cordial relations with the
appellant and that the agricultural land which he had given to the appellant at the time of
their marriage had been retransferred to him by the appellant vide mutation No. 459 dated
26.3.2001. As per plaint, it is only after 26.3.2001 that the parents of the appellants became
aware of the mutation and they forcibly took her away from the matrimonial home
although the appellant statedly was not willing to go with her parents. It is also averred in
the plaint that the appellant-defendant had applied to the Tehsildar for the cancellation of
mutation No. 459 but the respondent obtained a temporary injunction against such
cancellation.
7.
Another important feature of this case is the talaq nama (Ex.D/3) which was made in
circumstances which have relevance and are considered later in this opinion. In the talaq
nama also it has been narrated that it is only after the above referred mutation that the
parents of the appellant took her away from the respondentâs home. Serious allegations
against the character and chastity of the appellant were also made in the talaq nama which
find mention in the respondentâs plaint. The parties examined themselves as their own sole
witnesses.
8.
The chronology of relevant events such as the date of marriage (9.8.1997), date of
birth of Hania Fatima (21.3.2000), date of birth of Hassan Mujtaba (9.2.2001) and the talaq
nama (26.6.2001) are part of the record and are undisputed. Furthermore, from the talaq
nama (Ex.D/3) it is clear that even according to the respondent-plaintiff the appellant was
residing in the matrimonial home and it is only after mutation No.459 (26.3.2001) and
before the talaq nama dated 26.6.2001 that the appellant was taken away from there by her
parents. These facts and relevant dates make it clear that the two children Hania Fatima
and Hassan Mujtaba were not only conceived but were also born during the subsistence of
the marriage between the appellant and the respondent.
9.
We were informed by learned counsel that there are judgments from Courts across
the border dealing with and interpreting Section 112 of the Evidence Act, which provision
Civil Appeal No.90 of 2011
4
was the precursor to Article 128 of the Qanun-e-Shahadat Order. There are, however,
material differences between the wording of Section 112 and Article 128 which obviously
were not before the Courts considering Section 112 ibid. Judgments, therefore, which
interpret section 112 are not helpful in the present case. Thus, as far as this Court is
concerned, the matter before us is one of first impression requiring interpretation of Article
128 of the Qanun-e-Shahadat Order. Article 128 of the Qanun-e-Shahadat Order, to the
extent relevant, is reproduced as under:-
âBirth during marriage conclusive proof of legitimacy.---(1) The fact that any
person was born during the continuance of a valid marriage between his mother and
any man and not earlier than the expiration of six lunar months from the date of
marriage, or within two years after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate child of that man, unless:-
(a)
the husband had refused, or refuses, to own the child;â
10.
We are cognizant of the ramifications and serious consequences which will follow if
the impugned judgment remains a part of our case law as precedent. We, first of all, take
up for comment the provisions of Article 128 ibid. The Article is couched in language which
is protective of societal cohesion and the values of the community. This appears to be the
rationale for stipulating affirmatively that a child who is born within two years after the
dissolution of the marriage between his parents (the mother remaining un-married) shall
constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists
nor the framers of the Qanun-e-Shahadat Order could have been oblivious of the scientific
fact that the normal period of gestation of the human foetus is around nine months. That
they then extended the presumption of legitimacy to two years, in spite of this knowledge,
directly points towards the legislative intent as well as the societal imperative of avoiding
controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of
Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is
the inspiration behind the Qanun-e-Shahadat Order (though not incorporated fully) and
was referred to by learned counsel for the appellant also adheres to the same rationale and
is driven by the same societal imperative. In this regard, it is also worth taking time to
reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will
be called out by their motherâs name. It shows that the Divine Being has, in His infinite
Civil Appeal No.90 of 2011
5
wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall
be laid bare the secrets about paternity shall not be delved into or divulged.
11.
We may, at this point, add that the Qanun-e-Shahadat Order (âQSOâ) stipulates that
when one fact is declared âto be conclusive proof of another [fact], the Court shall on proof of one
fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving
itâ (emphasis supplied). This provision of the QSO [Article 2(9)] has to be reconciled with
clause 1(a) ibid. It now remains to be seen as to how clause (a) of Article 128(1) of the QSO is
to be interpreted. Can an attempt be made to interpret Article 128 and Article 2(9) of the
QSO harmoniously so as to save the entire Article 128 to the extent relevant for the present
case. The stipulation in Article 128 is that the birth of a child within the period stipulated in
Article 128 is conclusive proof that he is a legitimate child. Once the relevant facts as to
commencement and dissolution of marriage and the date of birth of a child within the
period envisioned in Article 128 are proved, and the date of birth is within the period
specified in Article 128(1), then the Court cannot allow evidence to be given for disproving
the legitimacy of a child born within the period aforesaid. How then is the husbandâs
refusal to own the child to be dealt with? The answer follows.
12.
It is a matter of concern that on such a vital issue we have not received much
assistance at the bar as to how Article 128 ibid is to be interpreted. Redundancy is not
lightly to be imputed to the legislature. For the purpose of harmonious construction of the
said statutory provision, we may have resort to section 2 of the West Pakistan Muslim
Personal Law (Shariat) Application Act, 1962 (Act V of 1962) which stipulates that
ânotwithstanding any custom or usage, in all questions regarding âĻ legitimacy or bastardy âĻ the
rule of decision, subject to the provisions of any enactment for the time being in force shall be the
Muslim Personal Law (Shariat) in cases where the parties are Muslimsâ. Since both parties before
us are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort
must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what
may appear to be conflicting provisions of Article 128 of the QSO. For this purpose, it is
necessary to ascertain the rules of Muslim Personal Law when a person denies that he is the
natural/biological father of children born within the period stipulated in Article 128 ibid.
The Muslim Personal Law (Shariat) is clear and well settled on the subject. Firstly, it
provides that legitimacy/paternity must be denied by the father immediately after birth of
Civil Appeal No.90 of 2011
6
the child as per Imam Abu Hanifa and within the post natal period (maximum of 40 days)
after birth of the child as per Imam Muhammad and Imam Yousaf. There can be no lawful
denial of paternity after this stipulated period. The Hedaya, Fatawa-e-Alamgiri and other
texts are all agreed on this principle of Shariat. In the present case the daughter Hania
Fatima was born on 21.3.2000 while the son Hassan Mujtaba was born on 9.2.2001. The very
first denial of paternity appearing from the record is in the talaq nama (Ex.D3) which was
made on 26.6.2001. Clearly, therefore, while applying the principles of Muslim Personal
Law (Shariat) as mandated by the Act V of 1962, the respondent-plaintiff cannot be allowed
to deny the legitimacy/paternity of the two children. This is also consistent with Article
2(9) of the QSO which, when read in the context of the present case, does not allow the
Court to allow any evidence to be adduced to disprove legitimacy. The wisdom of this rule
of Muslim Personal Law cannot be gainsaid, considering in particular the patriarchal and at
times miogynistic societal proclivities where women frequently donot receive the benefit of
laws and on the contrary face humiliation and degrading treatment. It is for the honour and
dignity of women and innocent children as also the value placed on the institution of the
family, that women and blameless children have been granted legal protection and a
defence against scurrilous stigmatization.
13.
The rationale of the law set out in Article 128 of the QSO read with Section 2 of Act
V of 1962 is quite clear. Both statutes ensure (in specified circumstances) an unquestioned
and unchallengeable legitimacy on the child born within the aforementioned period
notwithstanding the existence or possibility of a fact through scientific evidence. The
framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in
knowledge. The conclusiveness of proof in respect of legitimacy of a child was properly
thought out and quite deliberate. There is a much greater societal objective which is served
by adhering to the said rules of evidence than any purpose confined to the interests of
litigating individuals. There are many legal provisions in the statute book and rules of
equity or public policy in our jurisprudence where the interests of individuals are
subordinated to the larger public interest. In our opinion the law does not give a free
license to individuals and particularly unscrupulous fathers, to make unlawful assertions
and thus to cause harm to children as well as their mothers.
Civil Appeal No.90 of 2011
7
14.
The other question arising in this case which is of significance is that the two
children Hania Fatima and Muhammad Hassan Mujtaba have not been impleaded as
parties in the suit filed by the respondent-plaintiff. This, in our opinion, is a fatal flaw in the
respondentâs case and is by itself sufficient for the purpose of dismissing the suit because
the appellant cannot act for or be compelled to act for or on behalf of the two minors.
Fourteen years have passed since the institution of the suit. We find it quite extraordinary
that the two children who are to suffer approbrium and vilification without their fault, for
the rest of their lives should stand condemned without being given an opportunity of
defending themselves through a proper and fair trial. Even their right to plead the Qanun-
e-Shahadat Order and the Muslim Personal Law (Shariat) has been denied to them. We are
also dismayed at the apparent lack of competent assistance at the Bar because the above
discussed aspects of the case were not urged before us or apparently before the Courts
below. It is most likely for this reason that grave prejudice has been caused to the appellant
and her two children. An even more formidable reason for setting aside the impugned
judgments is that no DNA test to determine paternity can possibly be conducted without
the participation and involvement of the children whose legitimacy is being denied. A
mother (such as the appellant) is wholly irrelevant for the purpose of a paternity test.
Unfortunately this aspect of the case has been overlooked in the impugned judgments.
15.
For completeness we may note the submissions of learned counsel for the
respondent. He referred to the case titled Muhammad Shahid Sahil Vs. The State (PLD 2010
FSC 215) in support of his contention that a DNA test had been considered the best
scientific evidence. The said case, however, is distinguishable firstly on the ground that it
was a criminal case involving the rape of a woman and the question of paternity of a child
alleged to be that of the rapist was in question when it was held by the Shariat Court that
the rapist could be compelled to submit to a DNA test. That is not a relevant precedent in
the circumstances of the present case for the reasons discussed above because there was no
occasion for the Shariat Court to consider Article 2(9) or 128 of QSO or Section 2 of Act V of
1962 read with the established rules of Muslim Personal Law (Shariat) for the purpose of
examining the question of legitimacy of a child born during the subsistence of a lawful
marriage.
Civil Appeal No.90 of 2011
8
16.
In view of the foregoing discussion, we allow this appeal with costs. As a
consequence, the revisional judgment and the judgment of the High Court in Writ Petition
No.4729/10 impugned before us are set aside and the suit of the respondent is dismissed.
This judgment shall not preclude the appellant (or the two minors) from invoking any
remedy available to them against the respondent, under law. It also appears to us from the
record prima facie, that the respondent-plaintiff may have committed offences under
Chapter XI PPC such as giving false evidence, while testifying as PW1. In the event the trial
Court may proceed against him in accordance with law.
Judge
Judge
Islamabad
2nd February, 2015
A. Rehman
APPROVED FOR REPORTING.
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-311PRFAVIE īŋŊ
âĸLIRT īŋŊ
1..2.A.KI4G TV.A.f-,7
(Appellate Jurisdiction)
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Appeal .Ne,92'6 of 2020
[Against the judgment dated 29.07.2020, passed by the Peshawar High Court,
Peshawar in Writ Petition No.2527-P of 2020]
The Chairman Board of Governors, Medical
Teaching institute (MTI) Lady Reading Hospital,
(LRH), Peshawar and others.
Versus
Syed. Roidar Shah, Clinical Technician (Pharmacy),
Medical 'leaching Institute (11/ITI), Lady Reading
Hospital (LRH), Peshawar and others.
...Appellant (s)
...Respondent(s)
For the Appellant (s) īŋŊ
Mr. Waseem-ud-Din Khattak, ASC
Mr. M.S.Khattak, AOR
For Respondents No.1-7 īŋŊ
IViian Shafaqat Jan, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondent No.9 īŋŊ Imran īŋŊ
Hamid, īŋŊ
Additional
Secretary, Health Department, KP
Hafeez ur Rehman Shah, S.O.
Health Department, KP
Shehbaz Khan, Superintendent,
Health Department, KP
Date of Hearing īŋŊ
03.02.2021
ORDER
Guire".:e Ahmed, CJ,â The appellants have challenged
the judgment dated 29.07,2020, passed by the learned Division
Bench of the Peshawar High Court, Peshawar (the High. Court} by
which the order of termination of deputation of the private
respondents (the respondents) was set aside and the appellants
were directed to continue the employment of the respondents on
,C.A po.9.75 01.7920 īŋŊ
2
deputation and their arrival reports be accepted. Leave to appeal
was granted vide order dated 23.10.2020, relevant portion thereof
is as follows: -
"The learned counsel for the petitioners contends
that the respondents were not the employees of
the petitioners rather they were on secondment to
the petitioners. Adds that the petitioners having
terminated their secondment and relieved them to
report for duties to their parent department, such
order could not have been interfered with by the
learned High Court in exercise of its writ
jurisdiction, in that, the petitioners are not
interested to retain them as their employees and
they cannot be forced upon the petitioners.
2.
At the outset, learned counsel for the appellants has
contended that all the respondents working in the Medical
Teachings Institutions (MTI) were employed on deputation as per
the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms
Act, 2015 (the Act of 2015), as amended from time to time, and
the Board of Governors of the MTI was competent to terminate the
deputation and to relieve the deputationists for reporting to their
parent department. He has further contended that the very fact
that the respondents were deputationists is not mentioned in the
impugned judgment and thus, the High Court made a serious
mistake in law by allowing the writ petition filed by the
respondents, allowing them to continue on deputation in MTI.
3.
Learned counsel for the respondents admitted the fact
that the respondents were working on deputation in MTI and also
read Regulation 16(3A) of the Act of 2015 to contend that it was
cA.bio,925 11 2.1129_
only the Board, which was competent to terminate the deputation
of the respondents; whereas, in the order of relieving though it is
mentioned that the Board of Governors of MTI has passed the
order terminating the deputation and relieving the respondents
with direction to report to their parent department, but contends
that the very order of the Board of Governors is not attached. We
have asked the learned counsel for the respondents to show us as
to where in the writ petition the respondents have asserted this
very point, as is raised by the learned counsel for the respondents
before us, he admitted that such point has not been raised by the
respondents in the writ petition.
4. īŋŊ To appreciate the arguments of the learned counsel for
the parties, it is imperative to consider the provisions of
Subsections (3A) and (3B) of Section 16 of the Act of 2015; which
are as follows:
"16(3A) Civil servants, who do not opt for
absorption in the Medical Teaching Institution,
so notified, shall be dealt with in such a manner
as provided in section 11A of the Khyber
Pakhtunkhwa Civil Servants Act 1973; for their
future posting, which includes deputation to the
Medical Teaching Institution subject to a request
being made by the Board:
Provided that a civil servant working in a
Medical Teaching Institution, shall at all times,
be deemed to be on deputation. All deductions
made from the pay of such civil servants shall be
deposited by the borrowing authority.
(3B) A civil servant at the request of the Board
may be sent on deputation to a Medical
<7.4.No.92.5of 2020
Teaching Institution by the Government. For
civil servants on deputation to the Medical
Teaching Intuition, pension contribution shall be
made by the Medical Teaching Institution. The
deputation of a civil servant to a Medical
Teaching Institution may be terminated by the
Board at any time without assigning any reason
thereof and such civil servants services shall
revert to the Government immediately upon
such termination being notified by the Board."
The reading of the above provisions show that all civil
servants employed in MTI are deemed to be on deputation and the
Board of Governors is competent to terminate the deputation
period and relieve the employees from MT' and it is not required to
give any reason for doing so.
The submission of the learned counsel for the
respondents that Board of Governors' order has not been filed by
the appellants is of not much significance for the reasons; firstly,
the respondents have not taken up this issue before the High
Court in the very writ petition and secondly, the very letter of
terminating the deputation period and relieving the respondents
specifically mentioned that it is issued on the directions of the
Board of Governors.
6. īŋŊ The very mentioning that the letter has been issued on
the direction of the Board of Governors, apparently, is sufficient for
meeting the requirements of the compliance of law noted above,
unless the respondents could have shown otherwise, which they
have not done so.
C.A.JVO. 92.i o12020
- 5 -
7. īŋŊ It is established law that a deputationist has no right
to continue in an employment as a deputationist and the employer,
where the deputationist is employed, is competent to terminate the
deputation and relieve the deputationist from its employment for
reporting to his parent department. Reference in this regard is
made to the case of Dr. Shafi-ur-Rehman .Afridi vs. C. D.A. ,
Islamabad through Chairman and others (2010 SCMR 378),
wherein it was held as under: -
We may mention here that the deputationist âĸ
by no stretch of imagination and in absence of any
specific provision of law can ask to serve the total
period of deputation and he can be repatriated
being a deputationist by the Competent Authority in
the interest of exigency of service as and when so
desired and such order of the competent authority
cannot be questioned. ..."
Further reference is made to the cases of S. Masood Abbas
Rizvi vs. Federation of Pakistan through. Secretary Establishment
and others (2014 SCMR 799) and Senate Secretariat through
Ch.airman and another vs. Miss Faiga Abdul Hayee (2014 SCMR
522).
L. īŋŊ We may note that the mistake has occurred in passing
the impugned judgment by the High Court, in that, the High Court
has altogether omitted to take into consideration the very fact that
the respondents were deputationists and their deputation in terms
of the law, as noted above, was always liable to be terminated by
the Board of Governors without assigning any reason. No right of
the respondents at all is violated and thus, the very writ petition
c'.4.No.925 p_f_20?0 īŋŊ
- 6 -
filed by the respondents before the High Court was on its face not
maintainable.
9. īŋŊ In view of the above, the impugned judgment is not
sustainable in law. The same is, therefore, set aside and the appeal
is allowed.
ck
(7'
Bench-I.
IslaniEhBa
03_02.2021
APPROVED FOR REPORTING
Rabbani./
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
CIVIL APPEAL NO.931 OF 2020
[Against the judgment dated 8.9.2015, passed by the Khyber
Pakhtunkhwa Service Tribunal, Peshawar, in Appeal No.1681
of 2011]
Wali Jan.
âĻAppellant
Versus
Government
of
Khyber
Pakhtunkhwa
through Secretary Agriculture, Livestock
Cooperative Department, Peshawar and
others.
âĻRespondents
For the Appellant
: Mr. Amjad Ali (Mardan), ASC
(via video link from Peshawar)
Haji Muhammad Zahir,
AOR (absent)
Respondents
: Mr. Zahid Yousaf Qureshi,
Addl. A.G., KPK
Date of Hearing
: 01.02.2021
O R D E R
GULZAR AHMED, CJ.- The service appeal filed by the
appellant in the Khyber Pakhtunkhwa Service Tribunal, Peshawar
(the Tribunal) was dismissed by the impugned judgment dated
08.09.2015. The operative part of which is as follows:
â7.
From
perusal
of
the
record
it
transpired that at the time of consideration
for promotion anti-corruption proceedings
for two different cases No.191 of 2001 and
29 of 2002 were pending adjudication in the
Court of Special Judge Anti-corruption
CA.931 of 2020
- 2 -
which were decided on 14.10.2003 and
26.02.2004 respectively and appellant was
acquitted on the benefit of doubt. The
deferment of the appellant on the relevant
time was thus in accordance with the
provision as contained in the promotion
policy of the Provincial Government. Moreso,
the appellant failed to agitate his deferment
in
time
but
took
up
the
matter
on
12.05.2011 after abnormal delay of almost 9
years. It is also ironical to observe that
assessment of suitability and fitness for the
higher post is a pre-requisite for promotion,
it
entails
assumption
of
higher
responsibilities and actualization of charge
in the higher post which is not possible
under the existing law/rules on promotion.
The prayer of the appellant for promotion to
the higher post after a long time of his
retirement carries no weight and cannot be
entertained. The cases cited by the appellant
were
also
not
identical,
hence
no
discrimination
against
him.
For
these
reasons the appeal being devoid of any
merits is dismissed. âĻâ
2.
The learned counsel for the appellant contends that
the last acquittal of the appellant took place on 15.04.2011, which
the Tribunal did not take into consideration.
3.
We have asked the learned counsel for the appellant to
show from the Memo of Appeal filed before the Tribunal about the
appellantâs acquittal on 15.04.2011, the learned counsel was
unable to show that any such acquittal was relied upon by the
appellant in the service appeal filed before the Tribunal.
CA.931 of 2020
- 3 -
4.
We have also asked the learned counsel to show from
the very departmental appeal as to whether the acquittal on
15.04.2011 was mentioned in it. No such mention was found even
in the departmental appeal filed by the appellant.
5.
It is settled law that a party has no right to raise an
absolutely new plea before this Court and seek a decision on it, nor
could such plea be allowed to be raised as a matter of course or right on
the pretext of doing complete justice. Besides, this Court in its appellate
jurisdiction will not generally determine a question of fact that has not
been pleaded or raised by the party in the lower forum. Reliance in this
regard may be made to the case of Sarhad development Authority
N.W.F.P. (Now KPK) v. Nawab Ali Khan (2020 SCMR 265).
6.
The Tribunal has already dealt with the matter and no
illegality has been pointed out in the impugned judgment. The
same is, therefore, maintained. The appeal is dismissed.
CHIEF JUSTICE
JUDGE
Bench-I
Islamabad
01.02.2021
NOT APPROVED FOR REPORTING
Mahtab/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL APPEAL NOs. 936 & 937 OF 2020
(On appeal against the judgment dated 07.04.2020 passed by
the High Court of Sindh, Karachi in Constitutional Petition Nos.
D-5850 & D-5851 of 2018)
M/s Sui Southern Gas Company Ltd
(In both cases)
âĻ Appellant
VERSUS
Zeeshan Usmani etc
(In CA 936/2020)
Saima Athar etc
(In CA 937/2020)
âĻ Respondents
For the Appellant:
Mr. Asim Iqbal, ASC
(In both cases)
For Respondent (1):
Malik Naeem Iqbal, ASC (Islamabad)
Mrs. Abida Parveen Channar, AOR (through
video link from Karachi)
Date of Hearing:
18.02.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these
appeals under Article 185 of the Constitution of Islamic Republic of
Pakistan, 1973, the appellant has called in question the legality of
the impugned consolidated judgment dated 07.04.2020 passed by
the High Court of Sindh, Karachi, whereby the Constitutional
Petitions filed by the respondents were disposed of and the
appellant department was directed to regularize them in service.
2.
Briefly stated the facts of the matter are that
respondents No. 1 in both the appeals were appointed in the
appellant Sui Southern Gas Company Ltd on contract basis vide
order dated 14.11.2012. They remained working on contract until
31.12.2017 but were not regularized and their contract stood
terminated on the said date i.e. 31.12.2017. It appears from the
record that the appellant had framed a policy i.e. Uniform
Recruitment and Promotion Policy for regularizing the services of
contract employees on the basis of certain criteria. Against the said
policy, some of the colleagues of the respondents approached the
Civil Appeal Nos. 936 & 937 of 2020
2
High Court of Sindh for their regularization by filing Constitutional
Petition Nos. D-3759 & S-4422 of 2017 which were allowed and the
appellant department was directed to regularize them in service.
This judgment was upheld by this Court vide order dated
12.03.2018 passed in Civil Petition Nos. 67-K & 68-K of 2018. To get
the same relief, the respondents also filed Constitutional Petitions
No. D-5850 & D-5851 of 2018, which have been disposed of vide
impugned judgment and the appellant has been directed to
regularize the respondents without any discrimination. Hence, these
appeals by leave of the Court.
3.
Learned counsel for the appellant inter alia contended
that the appellant Sui Southern Gas Company Limited has no
statutory rules of service and the relationship between the company
and the respondents is governed by the principle of âmaster and
servantâ; that contractual employment does not confer any vested
right in favour of a servant to seek regularization in service; that the
contract of the respondents had ended on 31.12.2017 and after
eight months of the termination of contract, they have filed
Constitutional Petitions, which were not maintainable.
4.
On the other hand, learned counsel for the respondents
No. 1 in both the appeals has contended that some of the colleagues
of the respondents, who were similarly placed, have been
regularized in service but the same relief has been denied to the
respondents, which amounts discrimination in law, therefore, the
learned High Court has rightly ordered their regularization. In
support of his contention, learned counsel relied on the case of
Hameed Akhtar Niazi Vs. Secretary Establishment Division (1996
SCMR 1185).
5.
We have heard learned counsel for the parties and have
perused the case record.
6.
Admittedly, the respondents were contract employees
and their relationship was governed by the principle of âmaster and
servantâ. This Court in a number of cases has held that contract
employees have no vested right to claim regularization. This Court in
the case of Government of KPK, Workers Welfare Board Vs. Raheel
Ali Gohar (2020 SCMR 2068) has categorically held that contractual
employees, who are governed by the principle of âmaster and
Civil Appeal Nos. 936 & 937 of 2020
3
servantâ do not have the right to approach the High Court in its
Constitutional jurisdiction to seek redressal of their grievances
relating to regularization. The only question which needs to be seen
in the present case is whether the respondents deserve the same
treatment, which was meted out to their colleagues. We have been
apprised that the contract of the ex-colleagues of the respondents
was terminated somewhere in June, 2017, against which they
approached the High Court. Upon notice issued by the High Court,
the department issued letter of termination, which was suspended
by the High Court through an interim order and ultimately, the said
writ petitions were allowed by the High Court. This clearly shows
that at the time of allowing of the writ petitions, the said contractual
employees/colleagues of the respondents were in service. However,
admittedly in the present case the contract of the respondents was
terminated on 31.12.2017 and they filed the impugned writ petitions
on 11.08.2018 after eight months of their termination. The
regularization of the respondents is not part of the terms and
conditions of service because for that purpose statutory rules are
required and admittedly there are no statutory rules of the
appellant. We are of the view that the learned High Court could not
have ordered regularization of the respondents without reinstating
them in service, which was clearly not possible keeping in view the
fact that at the time of filing of the writ petitions, there was no
relationship between the appellant and the respondents because
they were no longer in service. In the case of the colleagues of the
respondents, there was continuity in service but the same is lacking
in the instant case. This Court in Naureen Naz Butt Vs. Pakistan
International Airlines (2020 SCMR 1625) while relying on earlier
judgments of this Court has held as under:-
âThus, the establish law is that a contract employee,
whose period of contract employment expires by afflux
of time, carry no vested right to remain in employment
of the employer and the Courts cannot force the
employer to reinstate or extend the contract of the
employee.â
7.
So far as reliance placed by learned counsel for the
respondent on Hameed Akhtar Niazi supra case is concerned, we
have noted that the ratio in Hameed Akhtar Niazi's case was that
Civil Appeal Nos. 936 & 937 of 2020
4
where a Tribunal or Court decides a point of law relating to terms
and conditions of service of civil servants which governs not only
those who litigated but also those who have not resorted to any
legal proceedings, then irrespective of this they too become entitled
to the same benefit. Hameed Akhtar Niazi's case therefore extends
benefit to civil servants who were not party to the litigation and the
entitlement of benefit granted to the litigating civil servants is so
common that it is also extendable to those who have not litigated,
therefore, they too can legitimately claim the same irrespective of
the fact that they were not party to the litigation. However, in the
present case, the situation is altogether different. In the present
case, the respondents went to the High Court eight months after
termination of their contract, therefore, they were no longer in
service, which could have entitled them to claim the same relief as
meted out to their colleagues.
8.
For what has been discussed above, we allow these
appeals and set aside the impugned judgment of the High Court of
Sindh, Karachi dated 07.04.2020.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
18th of February, 2021
Not Approved For Reporting
Khurram
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w
I
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
\Mr. Justice Umar Ala Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
4-
CIVIL APPEAL NO.937 OF 2018
(Against the judgment dated 05.072018
of the Lahore High Court, Lahore passed
in Writ Petition No.222873/2018)
Rana Muhammad AsifTauseef
Appellant(s)
Versus
Election Commission of Pakistan through its Chairman, Islamabad and
others
Respondent(s)
For the Appellant(s):
Sardar M. Latif Khan Khosa, Sr. ASC
Sardar M. Shahbaz Khosa, ASC
For the Respondent(s):
Ex-parte
For the ECP:
Mr. Muhammad Arshad, D.G. (Law)
Date of Hearing: 1811.2020
JUDGMENT
Sayved Mazahar All Akbar Na pvi, 3.- This appeal with leave of the
Court under Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973 is directed against the judgment passed by the learned
Division Bench of the Lahore High Court, Lahore dated 05.07.2018 in Writ
Petition No.222873/2018.
2. The brief facts leading to filing of the instant appeal are that
the appellant being ticket holder of a political party opted to contest the
general elections to be held in the year 2018 from constituency NA- 105
Faisalabad-V. The appellant filed three nomination papers to establish his
claim as a candidate on 08.06.2018. The objections were filed by
Civil Appeal No.937/2018
-: 2
respondent No.5 calling in question the eligibility of the appellant as a
candidate before the Returning Officer in each nomination paper. The main
objection raised against the appellant was that he was not eligible to contest
the elections as he does not qualify the requirements of the law being hit by
Articles 62/63 of the Constitution. He is further disqualified on the basis
that a decree has already been passed by the learned Special Judge, Banking
Court-11, Faisalabad against the spouse of the appellant dated 13,06.2018. It
was lastly objected that the name of the appellant is duly mentioned in the
report of Credit Information Bureau (CIB) and that he has also obtained
loan from the financial institution against Rana Fabrics (Pvt.) Ltd., an
establishment to whom the appellant represents as a Director. The
objections raised by respondent No.5 were duly replied by the appellant
before the Returning Officer. The Returning Officer, after taking into
consideration arguments advanced by both sides, repelled the objections
raised while accepting the nomination papers of the appellant without any
reservation. Being aggrieved, respondent No.5 filed election appeal bearing
No.190-Al2018 before the learned Election Tribunal which was dismissed
vide order dated 25.06.2018.
3.
A constitutional petition was filed by respondent No.5 calling
in question the order of the Returning Officer dated 19.06.2018 as well as
the learned Election Tribunal dated 25.06.2018. The said petition was
adjudicated by the learned Division Bench especially constituted to deal
with election matters. The learned Bench, after hearing both the sides,
accepted the constitutional petition vide impugned judgment dated
05.07.2018, consequently it reversed the findings of both the courts below,
resultantly, the nomination papers filed by the appellant were ordered to be
rejected, he was further declared to be in-eligible to contest elections on the
grounds mentioned above, Hence this appeal with leave of the Court.
4.
At the very outset, learned counsel for the appellant has
submitted that the learned High Court has not properly appreciated the law
on the subject while rejecting the nomination papers of the appellant; that
the appellant was legally bound to file nomination papers supported by an
A
Civil Appeal No.937/2018
-:3
affidavit disclosing any liability till 30062017; that the learned High Court
made basis for rejection of the nomination papers a decree which was
passed subsequent to the cut-off date on 04.12.2017; that the judgment of
the learned High Court was in defiance of the spirit of Section 60(2)(d) of
the Election Act, 2017; that the total shareholding of the spouse of the
appellant was nominal which do not comes within the ambit of major
shareholding which can be instrumental for declaring anybody a defaulter.
5.
On the other hand, the proceedings before this Court against
respondent No.5 are carried out ex-parte because he had already been
proceeded under Order XVI Rule 6 of the Supreme Court Rules, 1980 by
the office vide order dated 0508.2019. Mr. Muhammad Arshad, Director
General (Law) has appeared on behalf of the Election Commission of
Pakistan but he has not controverted any arguments advanced by the
learned counsel for the appellant.
6.
We have heard the learned counsel for the appellant and gone
through the record.
7.
The nomination papers filed by the appellant with respect to
candidature of NA-1 05 Faisalabad-V were objected by respondent No.5 on
two grounds: (I) that a decree has been passed by the Banking Court against
the spouse of the appellant; and (ii) that his name do figure in the report of
CIa The objections raised by respondent No.5 were discarded by the
Returning Officer as well as the learned Election Tribunal. However,
during the adjudication of constitutional petition, the learned Division
Bench of the Lahore High Court reversed the findings given by both the
fora below and as such a direction was given to declare the appellant in-
eligible to contest the elections and the nomination papers filed by the
appellant were ordered to be rejected. A further direction was issued to the
Returning Officer to delete the name of the appellant from the list of
eligible candidates vide order dated 05.07.2018.
8.
Leave to appeal was granted by this Court vide order dated
10.07.2018 mainly on the ground that the learned High Court has
Civil Appeal No.93712018
-:4
overlooked Section 60(2)(d) of the Act and the same has been interpreted in
contravention of spirit of the aforesaid provision of law. It was further
observed by this Court that the decree issued by the court which was made
basis for declaration qua rejection of the nomination papers filed by the
appellant was passed against the spouse of the appellant on 04.12.2017
after the cut-off date as envisaged in Section 60(2)(d) of the Act. To
appreciate the arguments, it seems advantageous to reproduce the provision
of Section 60(2)(d) of the Act which reads as below:-
"60.
Nomination for election.â (I) ...............
(2) Every nomination shall be made by a separate
nomination paper on For A signed both by the
proposer and the seconder and shall, on solemn
affirmation made and signed by the candidate, be
accompanied by:-
(a)
(b)
(c)
(d)
a statement of his assets and liabilities and of
his spouse and dependent children as on the preceding
thirtieth day of June on Form B.
(3)
Plain reading of the above said provision demonstrates without any
ambiguity that the assets, liabilities of the appellant, his spouse and
dependent children were to be disclosed on the preceding thirtieth day of
June as required in Form B duly issued by the ECP i.e. 30.06.2017. There is
no denial to this fact that according to election schedule announced by the
ECP, general election was to be held in 2018 while the appellant was
supposed to furnish the details of personal assets and liabilities and
dependents including spouse till 30° June, 2017 as per the demand of law
duly mentioned in Section 60(2)(d) of the Act. The learned High Court
while pressing into Section 62(9)(c) of the Act declared the appellant in-
eligible to contest elections while directing the Returning Officer to delete
the name from the list of the candidates. Perusal of the aforesaid provision
clearly reveals that the said provision revolves around the Returning Officer
Civil Appeal No.937/2018
-: 5
and its authority to proceed with the matter of his own or on the objection
raised by any of the objector before it. The said provision further authorizes
the Returning Officer a discretionary power to conduct preliminary inquiry
while exercising the authority of the office to ascertain the facts and
circumstances to arrive at a just conclusion in order to satisfy the spirit of
Section 62(9)(c) of the Act.
9. Academically speaking the learned High Court while
exercising constitutional jurisdiction under Article 199 of the Constitution,
inter alia, provides a relief in the form of a declaration, prohibitory order,
mandatory order or an order in the nature of quo-warranto, subject to one
commonality in the exercise ofjurisdiction that it is discretionary in nature.
Therefore, it is incumbent duty of the court to deliberate in a manner with
extra care and caution eliminating any element of unfairness/injustice.
Undeniably the constitutional jurisdiction is wide in its scope and ordinarily
it is not subject to any judicial constraints. This aspect further burden its
exercise because of the reason that it is subject to extra-ordinary
circumstances, it has to be exercised in so classified manner while creating
a balance in its exercise so that no one should suffer because of the exercise
of discretionary power. The contention of the learned counsel that no one
should suffer because of an act of court is directly related to the dictum of
administration of justice. In a democratic State, political activity is a
common feature, however, there are certain limitations which might vary
from one State to another. In our homeland the right to form an association
or a union is a constitutional right which has been made part of
fundamental rights under Article 17 of the Constitution of the Islamic
Republic of Pakistan, 1973. It is advantageous to reproduce the said Article
which reads as follows:
"17. (1) Every Citizen shall have the right to
form associations or unions, subject to any reasonable
restrictions imposed by law in the interest of
sovereignty or integrity of Pakistan, public order or
morality.
(2)
Every citizen, not being in the service of
Pakistan, shall have the right to form or be a member
UviI Appeal No.937120 IS
fl
of a political party, subject to any reasonable
restrictions imposed by law in the interest of the
sovereignty or integrity of Pakistan and such law shall
provide that where the Federal Government declares
that any political party has been formed or is
operating in a manner prejudicial to the sovereignty or
integrity of Pakistan, the Federal Government shall,
within fifteen days of such declaration, refer the
matter to the Supreme Court whose decision on such
reference shall be final.
(3)
Plain reading of the aforesaid provision of Article 17 clearly envisages that
it ensures freedom of association or union but subject to certain reasonable
restrictions imposed by the law. The aforesaid restrictions are further
classified to the extent of interest, sovereignty or integrity of Pakistan,
public order or morality. Superior courts of this country while interpreting
Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973
have broadened its scope and same has been brought to its logical
conclusion. The ordinary meaning of language of Article 17 becomes
meaningless if an activist who becomes part of association or union is not
let to further participate in political activities within the limits prescribed by
the law which ultimately relates to election process. The interpretation of
Article 17 while elaborating its scope the same has been broadened while
associating with it the election process so that the participant becomes
useful entity to be recognized while strengthening the process of
Parliamentary system. This Court in Miss Benazir Bhutto Vs. Federation of
Pakistan and others (PLD 1988 SC 416), Mrs. Benazir Bhutto and another
Vs. Federation of Pakistan and another (PLD 1989 SC 66), Muhammad
Nawaz Sharif Vs. President of Pakistan (PLD 1993 SC 473) and Workers'
Party Pakistan Vs. Federation of Pakistan (PLD 2012 SC 681) has held that
participation in elections is a constitutional right. According to Article
17(2) every citizen, who is not in service of Pakistan, has a right to form a
political party or he can become member of any party. Every party is made
up of several individual persons. If one individual is not allowed to contest
elections imposing upon him certain restrictions, then the question of
Civil Appeal No.93712018
-: 7
forming a political party does not arise, because these are the individuals
who collectively form a party.
10. There is no second cavil to this proposition that according to
the Constitution the general elections are held after the expiry of a term
which ordinarily comprises of five years. The learned Division Bench of
the High Court while adjudicating the matter mis-interpreted Section
62(9)(c) and as such a declaration was issued. In ordinary jurisdiction the
scheme of law is loaded with so many remedies to redress the grievance but
in such like situation in which the litigant has to wait for the expiry of the
term of elections, that too, if the credentials are fully satisfied and make the
appellant eligible to contest election, that sounds inapt regarding exercise of
extra-ordinary jurisdiction to deprive someone of his constitutional right. It
is an established law that every Judge must wear all the laws of the country
on the sleeve of his robes. Reference is placed on Muhammad Sarwar Vs.
The State (PLD 1969 SC 278) and Muhammad Aamir Khan Vs.
Government of Khyber Pakhtunkhwi (2019 SCMR 1021). This Court in
Muhammad Sanvar's case has observed as follows:-
"It appears that the learned Judges were not properly
advised, but it falls to be said that there is a
well-known adage that a Judge must wear all the
laws of the country on the sleeve of his robe."
11 Now the question which erupts in the mind of this Court is
whether, in the given facts and circumstances, the appellant is victimized
due to an act of court, has any relevance. In order to meet the aforesaid
contention, this Court is clear to hold that no doubt the impugned order has
deprived the appellant to participate in political activities for a specific
period but to establish this aspect, there should be some material placed on
the record to establish that the act of the court was based upon some
specific consideration which is missing in this case. Hence it can safely be
said that the judgment passed by the learned High Court was merely due to
an omission of a provision of law. However, the responsibility of the Court
to be vigilant while exercising the authority either in original jurisdiction or
constitutional jurisdiction cannot be absolved. In this regard, reliance can
-
1 "T
-
Uvil Appeal No.937/2018
be placed on the judgment reported as Rod ger Vs. The Comptoir
d'Escompte de Paris [(1871)3 PC 465] in which the Court has observed as
follows:-
"One of the first and highest duties of all Courts is to
take care that the act of the Courts does not cause
injury to any of the suitors and when the expression
'the act of the Court', is used, it does not mean
merely the act of the Primary Court, or of any
intermediate Court of Appeal, but the act of the Court
as a whole from the lowest Court which entertains
jurisdiction over the matter up to the highest Court
which finally disposes of the case."
As a consequence, when it is established that the appellant has finally
succeeded in making out a case in his favour it clearly reflected that he was
not a sufferer of the act of the court, rather finally his grievance was
redressed and as such he can claim that he is not a victim of law, rather a
beneficiary of the process of law.
12. For what has been discussed above, we are constrained to
hold that the judgment of the learned High Court is based upon
misconception of law and the same could not prevail in the eyes of law.
Resultantly, we allow this appeal, set aside the impugned judgment passed
by the Lahore High Court, Lahore dated 0507.2018 and restore that of the
learned Election Tribunal dated 25.06.20 18 and the Returning Officer dated
19.06.2018 accepting the nomination papers submitted by the appellant.
Islamabad, the
18th of November, 2020
Approved for reporting
Waqas Naseer
| {
"id": "C.A.937_2018.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE MAQBOOL BAQAR
Civil Appeal Nos. 939/2004, 144-K-145-K of 2009,
HRC Nos.20691-S of 2013 & 48247-S of 2013
(On appeal from the judgment dated 29.10.2002 & 04.10.2006,
respectively passed by High Court of Sindh, Karachi & High Court
of Sindh, Hyderabad Circuit passed in HCA No.114/1993, Const.
P.D-219 & 337 of 2004)
Dilawar Hussain, etc.
(In CA 939/2004)
DDO (Revenue), etc.
(In CA 144-K/2009)
DDO (Revenue), etc.
(In CA 145-K/2009)
Applications by Dilawar Hussain Rajabali
(In HRC 20691-S/2013
& HRC 48247-S/2013)
âĻ Appellants
VERSUS
The Province of Sindh & others
(In CA 939/2004)
Shahabuddin Shah
(In CA 144-K/2009)
Balocho
(In CA 145-K/2009)
âĻ Respondent(s)
For the Appellant(s):
Syed Shahenshah Hussain, ASC
(In CA 939/04)
Mr. Adnan Karim, Addl. AG Sindh
Mr. Khair Muhammad, AC Sanghar
(In CA 144-K&145-K/09)
For the Respondent(s):
Mr. Ghulam Mohiuddin Qureshi, ASC
Mr. Mazhar Ali B.Chohan, AOR.
(In CA 144-K & 145-K/09)
Mr. Adnan Karim, Addl.AG Sindh
Mr. Abdul Ghaffar Sheikh, AC Korangi
Muhammad Ibrahim Junejo, Mukhtiarkar
(In CA 939/04)
Date of Hearing:
14.01.2016
* * * * * * * * * *
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 2 :-
JUDGMENT
MIAN SAQIB NISAR, J.- These appeals, by leave of the
Court, are being disposed of together as the same legal points are
involved therein.
Civil Appeal No.939 of 2004:
2.
The facts in relation to the instant appeal are that the land
owned by the appellants was acquired under the Land Acquisition Act,
1894 (the Act) through notifications under Section 4 thereof dated
2.2.1960 and 5.3.1960 respectively. The Land Acquisition Collector
(LAC) announced the award on 17.12.1960 which was assailed by the
respondents through a reference. The Referee Court enhanced the
compensation vide judgment dated 27.8.1970. Being dissatisfied with
the increase in compensation, the appellants approached the learned
High Court in appeal and further enhancement was accorded to them
through judgment dated 26.9.1977; and on their appeal before this
Court compensation was yet further increased vide judgment dated
18.2.1987. The appellants then filed an execution petition for recovery
of their dues (enhanced compensation) before the learned High Court (which was
the executing court) and also for the first time sought additional
compensation under Section 28-A of the Act, which reads as under:-
â28-A. Additional Compensation.â In addition to the
compensation fixed on the basis of market value as
prevailing on the date of notification under Section 4,
an additional amount of fifteen percent per annum of
the compensation so fixed shall be paid from the date
of the notification under Section 4 to the date of
payment of the compensation.â
The Executing Court vide order dated 31.5.1993 while interpreting the
provisions of Section 28-A held that it (section) would not apply to past
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 3 :-
and closed transactions. In this context the relevant portion of the order
reads as:-
âIt is, therefore, clear that Section 28-A in the Act,
introduced through the amendment of 1984 is
applicable to pending proceedings so long as it does
not inter-act on past and closed transactions. Still,
what may, in the present context, be such
transaction? It would seems to be just and fair and in
line with the spirit of the amendatory law as regards
awards, rendered prior to the amendment but pending
examination at subsequent levels, to say that to the
extent
a
land-owner
had
already
received
compensation antecedent to the amendment, even
though under protest, the question of permitting
solatium on the amount or amounts already so paid,
before the amendment, be treated as a transaction
past and no additional payment may accrue following
upon the amendment on such disbursement of
compensation, duly paid and received. However,
where compensation is enhanced and enhanced
compensation is not received or paid and, during the
time intervening, the amendatory law has appeared
on the statutes book any subsequent payment
including that already due before the amendment but
not paid would carry a further solatium at the rate of
15% per annum from the date of notification upto the
date of actual payment of compensation.â
Aggrieved of the above, the appellants filed an appeal before the High
Court and the learned Division Bench of the Court held:-
ââĻâĻâĻâĻâĻâĻâĻâĻâĻWe are inclined to agree with
Mr. Sharif that the question of amount of
compensation payable from the date of Notification
under
Section
4
till
the
entire
amount
of
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 4 :-
compensation is determined is a single transaction
and additional compensation under Section 28-A
would have to be calculated by bifurcating the unpaid
amount from that which has already been received by
the land owner.
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻBy incorporating Section 28-A,
the legislature apparently intended to compensate
such
land
owners
by
providing
additional
compensation and at the same time deter acquiring
from delaying payment. However, it cannot be
assumed that it permitted a owner to take a premium
on the basis of the entire amount of compensation
inclusive to amounts already pocketed by him. It may
also be noticed that the legislature has not used the
expression âfinal paymentsâ and in a given case
there could be several dates of payments of different
amounts falling short of the payments to be made
upon final determination.
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻFor the foregoing reasons, we
dismiss the Appeal directing the parties that the
Appellants were entitled to receive the additional
compensation under Section 28-A for the unpaid
amount of the compensation from the date of
notification under Section 4 of the Act till the final
payment of the compensation is made to the
Appellants. There will be no orders as to costs.â
Leave in this case was granted vide order dated 28.7.2004 primarily to
consider whether:-
ââĻâĻâĻâĻâĻâĻâĻâĻâĻâĻthe petitioners would be
entitled, in view of the above said provision of law,
to claim benefit of additional compensation under
the ibid Act on the entire amount of compensation
from the date of notification issued under Section 4
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 5 :-
of the Land Acquisition Act till final payment of
compensation is made to the petitioners or only on
the amount of compensation which was not paid
upto the time of promulgation of Ordinance
No.XXIII of 1984?â.
3.
Learned counsel for the appellants has argued that the
language of Section 28-A leaves no room for doubt that the additional
compensation is payable from the date of notification under Section 4 of
the Act till the date of the payment of compensation. He states that to
interpret the section in a manner whereby the compensation shall only
be payable on the unpaid amount is not a valid construction of the said
section; this is tantamount to reading into the provision which cannot
be done as the provision is clear and the rule of literal interpretation of
statutes should be resorted to rather than looking into the intent of the
legislature. He states that the person whose land is acquired is ipso jure
entitled to compensation as per the provisions of Section 34 of the Act
with regard to interest and thus the additional amount of compensation
under Section 28-A is also available to him as a matter of right. He
relies on the Construction of Statutes (1940) by Crawford, Government
of Sindh and 2 others Vs. Syed Shakir Ali Jafri and 6 others (1996
SCMR 1361), Province of Sindh through Collector of District Dadu
and others Vs. Ramzan and others (PLD 2004 SC 512), and Land
Acquisition Officer and Assistant Commissioner, Hyderabad Vs. Gul
Muhammad through Legal Heirs (PLD 2005 SC 311).
4.
Learned Additional Advocate General, Sindh has submitted
that the provisions of Section 28-A do not have any retrospective effect.
As the award was announced on 17.12.1960 and the appellant had
already received a substantial amount of compensation before the
enforcement of the said section, therefore, he could not ask for a
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 6 :-
premium over the amount so received. He submitted that Section 28-A
was challenged before the learned Federal Shariat Court and was
declared repugnant to the injunctions of Islam vide judgment reported
as In re: The Land Acquisition Act (I of 1894) (PLD 1992 FSC 398)
and pursuant thereto the law was repealed by virtue of the Land
Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010)1 (the
ârepealing Actâ).
5.
Heard. Before considering the plea(s) raised by the learned
counsel for the appellants, we deem it proper to dilate upon the
submission of the learned Additional Advocate General about the
declaration of Section 28-A as against the injunctions of Islam, its
repeal and effect thereof. The provisions of the Act came under scrutiny
before the Federal Shariat Court, in its suo moto jurisdiction, to
consider whether those were in accordance with the injunctions of
Islam and the Court vide judgment dated 27.3.1984 made some
declarations and recommendations with regard to bringing the said law
in conformity with Islamic principles and one of the recommendations
stated:-
âIn addition to the compensation fixed on the basis
of market value as prevailing on the date of
notification under section 4, an amount of 15% per
annum shall be paid as additional compensation to
the person found entitled to compensation from the
date of notification under section 4 to the date of
payment of compensation.â
It is pursuant to the above that Section 28-A was inserted in the Act
vide Land Acquisition (Sind Amendment) Ordinance XXIII of 1984
notified in the Gazette of Sindh on 30.9.1984. However, the aforesaid
1 PLD Unreported Statutes, 2010 Sindh Statutes page 97.
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 7 :-
judgment of the Federal Shariat Court was assailed before the Shariat
Appellate Bench of this Court and the judgment was set aside.
Thereafter, the Federal Shariat Court took up the matter for
reconsideration and vide its judgment dated 30.4.1992 specifically
declared Section 28-A as violative of Islamic injunctions. The relevant
portion of the said judgment reads as under:-
â34. In this respect, it is also noticeable that the
Government of Balochistan as well as the
Government of Sindh by Act XIII of 1985 amended
on 9-10-1985 and Sindh Ordinance XXIII of 1984 as
amended on 30-9-1984 respectively, the Land
Acquisition Act, 1894, in pursuance of the decision
dated 27-3-1984 of this Court, a new section 28-A
was
added
which
provided
for
additional
compensation in the following words:--
â28-A. Additional compensation.---In addition to the
compensation fixed on the basis of market
value as prevailing on the date of
notification under section 4, an additional
amount of fifteen per cent per annum of the
compensation so fixed shall be paid from the
date of the notification under section 4 to the
date of payment of the compensation.â
We are afraid, the above provision in the
Balochistan Act XIII of 1985, and Sindh Ordinance
XXIII of 1984 is not sustainable in the light of the
Injunctions of Islam as laid down in the Holy Qurâan
and Sunnah of the Holy Prophet (p.b.u.h.) as
discussed in the judgment on Riba, referred to
above. Even otherwise, in view of the setting aside of
this Courtâs judgment dated 27-3-1984 by the
Shariâat Appellate Bench of the Supreme Court the
earlier judgment of this Court does not hold the field
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 8 :-
and the view having not been adopted by us in our
present judgment, Sindh Ordinance XXIII of 1984
and Balochistan Act XIII of 1985 call for their
repeal, which also stand nullified by the judgment of
the Supreme Court, referred to above.â
Pursuant to the above, Section 28-A was repealed by the repealing Act,
mentioned above, which reads as under:-
â4. Omission of Section 28-A of Act No.I of 1894.---
In the said Act, section 28-A shall be omitted and
shall be deemed to have been so omitted as if it
had never been enacted.â
(Emphasis supplied)
It is evident that repeal of Section 28-A ibid is a departure from the
normal words employed to repeal the provisions of law. Why is this so?
Perhaps because the amendment was not brought about by the
Provincial Assembly on its own, but rather on the recommendation of
the Federal Shariat Court, which judgment as mentioned above was set
aside by the Shariat Appellate Bench of this Court and thereafter the
Federal Shariat Court itself declared that amendment a nullity. Besides,
there is the use of âdeemingâ terminology whereby a legal fiction is
created and secondly there is a retrospectivity given to the repeal of said
section in that it is to be treated as it had never been enacted i.e. we are
required to go back to a point of time viz 1984 and imagine that Section
28-A had never been brought into effect. As opposed to this unique
repeal of said section we must consider the effects of Article 264 of the
Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution)
which is couched in identical terms as Section 6 of the General Clauses
Act, 1897. Article 264 of the Constitution is reproduced herein below:-
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 9 :-
â264. Effect of repeal of laws.â Where a law is
repealed, or is deemed to have been repealed, by,
under, or by virtue of the Constitution, the repeal
shall not, except as otherwise provided in the
constitution,-
(a) revive anything not in force or existing at the
time at which the repeal takes effect;
(b) affect the previous operation of the law or
anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed against
the law; or
(e) affect any investigation legal proceeding or
remedy in respect of any such right, privilege,
obligation,
liability,
penalty,
forfeiture
or
punishment;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may
be imposed, as if the law had not been repealed.â
In the normal course of our jurisprudence when a provision of law is
repealed protection is accorded to the previous operation of the repealed
enactment and to those rights which may have accrued under the
enactment so repealed. However, in these unique circumstances the
question arises whether the appellants will be entitled to any
compensation under the repealed Section 28-A given that the said
section was repealed in terms of the repealing Act with effect from
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 10 :-
29.10.2009 on which date the appellants were still in the process of
agitating their rights/claims under Section 28-A and therefore they
cannot even claim the benefit of a past and closed transaction. In this
regard we may rely on the case cited as Mehreen Zaibun Nisa Vs. Land
Commissioner, Multan and others (PLD 1975 SC 397), wherein this
Court (at page 433) interpreted a deeming clause as under:-
âWhen a statute contemplates that a state of affairs
should be deemed to have existed, it clearly
proceeds on the assumption that in fact it did not
exist at the relevant time but by a legal fiction we
are to assume as if it did exist. The classic statement
as to the effect of a deeming clause is to be found in
the observations of Lord Asquith in East End
Dwelling Company Ltd v. Finsbury Borough
Council (1) namely:
âWhere the statute says that you must
imagine the state of affairs, it does not say
that having done so you must cause or
permit your imagination to boggle when it
comes to the inevitable corollaries of that
state of affairs.â
In the remarkable 17 member judgment of this Court reported as
Federation of Pakistan through Secretary Ministry of Law, Justice
and Parliamentary Affairs, Islamabad Vs. Dr. Mubashir Hassan and
others (PLD 2012 SC 106) the following question was formulated (at
page 126):-
âIssue No (iv) Whether the effect of repeal of an
Ordinance or law in terms of Article 264 of the
Constitution and section 6 of the General Clauses
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 11 :-
Act is the same as that of an Ordinance or law being
declared non est and null and void.â
The earlier judgment of this Court reported as Jannat-ul-Haq and 2
others Vs. Abbas Khan and 8 others (2001 SCMR 1073) was quoted
with approval wherein, inter alia, it was held (at page 1081):-
ââĻâĻâĻâĻâĻâĻâĻâĻSimilarly operation of a law
declared to be repugnant to the Injunctions of
Qurâan and Sunnah or anything done or suffered
thereunder before a specified date or continuation of
suits pending on the specified date also does not
amount to the repeal of lawâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâ
The judgment of the Peshawar High Court reported as Muhammad
Iqbal and 17 others Vs. Ghaunsullah Khan and 17 others (2002 CLC
1533) was also reproduced with approval, wherein it was held (at page
1537):-
â7.
A perusal of the abovequoted provisions of
the Constitution and the General Clauses Act would
reveal that the expression âceased to have effectâ
cannot be held synonymous with repeal as is
envisioned by Article 264 of the Constitution and
section 6 of the General Clauses Act. In the former
eventuality even pending cases cannot be dealt
with in accordance with the law which has
been so held repugnant to the Injunctions of
Islam and ceases to have effect after the date
mentioned in the decision while in the latter
eventuality a proceeding pending in a Court or
any
such
right,
privilege,
obligation
or
liability, acquired, accrued or incurred under
any enactment so repealed are fully protected
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 12 :-
unless a different intention appears from
repealing enactment.â
(Emphasis supplied)
In the present circumstances, the Federal Shariat Court found the
provisions of the Section 28-A to be repugnant to the Injunctions of
Islam. The preamble of the repealing Act states that the Federal Shariat
Court has directed that certain amendments be made to the Act in its
application to the Province of Sindh. The plain words of section 4 of the
repealing Act indicate the intention of the legislature that this Section
28-A is non est and therefore as per the ratio of the Dr. Mubashir
Hassan case (supra) the appellants cannot be granted the benefit of
Section 28-A as claimed in the instant appeal. It is settled law that
appeal is a continuation of the original lis and therefore there is no past
and closed transaction which may have afforded them protection in the
event of the Section 28-A being declared to have ânever been enactedâ.
But as this point has not been taken into consideration by the forums
below, and this too is not a point on which leave was granted, therefore,
we do not intend to refuse this appeal on the above score alone.
6.
As the case has been argued at length before us we are
minded to give our opinion as to the scope of Section 28-A had it been
applicable to the appellants. The object of Section 28-A has been
explained in the judgment reported as Syed Saadi Jafri Zainabi Vs.
Land Acquisition Collector and Assistant Commissioner (PLD 1992
SC 472) in the following terms:-
â7.
A perusal of section 28-A will show that it is
mandatory in nature and provides for additional
compensation from the date of publication of
notification under section 4 to the date of payment
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 13 :-
of compensation. The main purpose of making this
provision is to discourage the tendency to delay the
payment of compensation in time and to ensure that
the party whose property has been acquired, is duly
compensated without unnecessary loss of time. It is
the duty of the Collector that on making an award
under section 11 he should tender payment of the
compensation awarded by him to person entitled to
it according to the award unless he is prevented by
any reason provided in section 31. In case the party
is not available or does not consent to receive, the
Collector shall deposit the amount of compensation
in the Court to which a reference under section 18
would be submitted. Therefore, after the award has
been made there should be no delay in making
payment or depositing the compensation in the
Court.â
7.
Now, attending to the arguments of the learned counsel for
the appellants that by applying the rule of literal interpretation due
effect to Section 28-A be given and the appellants be allowed additional
compensation on the enhanced amount assessed by the Courts
(Referee/Appellate Courts), suffice it to say that the plain wording of said
section does not stipulate that the additional compensation is to be
paid even in cases where the enhancement has been made by the
Courts. Obviously in such a situation where a section cannot be given
its due effect while reading its plain word(s); the cardinal principle of
interpretation is to be resorted to which has two intertwined aspects:
one, the wording of the statute itself; and second, the purpose of the
enactment. Thus the question before us is whether the object and
purpose of the amendment (insertion of Section 28-A ibid) in the Act and the
intention of the legislature in respect of the amendment should be given
precedence or whether the provision should be given effect through a
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 14 :-
literal construction. Where the language of the section is ambiguous, is
the Court barred from examining it in order to discover its true purpose
and intent (especially where the provision has been brought into the statute through an
amendment)? Construction of Statutes (1940) by Crawford, relied upon by
the learned counsel for the appellants in support of a literal
interpretation, actually encourages a discernment of the purpose of the
statute and the intention of the legislature; the relevant extract reads as
follows:-
âSince the purpose of construction is to ascertain
the legislative intent, this constitutes the major step
in the process of interpreting statutesâĻascertaining
the intention of the legislature forms the very heart
of the interpretative processâĻâĻâĻâĻâĻâĻâĻâĻâĻThe
first source from which the legislative intent is
to be sought is the words of the statute. Then
an examination should be made of the context,
and the subject matter and purpose of the
enactment.â
(Emphasis supplied)
In the case reported as Union of India Vs. Sankalchand Himatlal
Sheth and another (AIR 1977 SC 2328) (5 member bench) at paragraphs
11 and 55 it has been held as under:-
â11.
The normal rule of interpretation is that the
words used by the legislature are generally a safe
guide to its intentionâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻBut if
the words of an instrument are ambiguous in the
sense that they can reasonably bear more than one
meaning, that is to say, if the words are semantically
ambiguous, or if a provision, if read literally, is
patently incompatible with the other provisions of
that instrument, the court would be justified in
construing the words in a manner which will make
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 15 :-
the particular provision purposeful. That, in essence
is the rule of harmonious construction. In M.
Pentiah v. Veeramallappa, AIR 1961 SC 1107 at p.
1115 this Court observed:
"Where the language of a statute, in its
ordinary meaning and grammatical construction
leads to, a manifest contradiction of the apparent
purpose of the enactment, or to some inconvenience
or absurdity, hardship or injustice presumably not
intended, a construction may be put upon it which
modifies the meaning of the words, and even the
structure of the sentenceâĻâĻâĻâĻâĻâĻâĻâĻâĻâ
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻIn the view which I am
disposed to take, it is unnecessary to dwell upon
Lord Denning's edict in Seaford Court Estates Ltd.
v. Asher (1949) 2 All ER 155 at p. 164 that when a
defect appears in a statute, a Judge cannot simply
fold his hands and blame the draftsman, that he must
supplement the written word so as to give force and
life to the intention of the legislature and that he
should ask himself the question how, if the makers of
the Act had themselves come across the particular
ruck in the texture of it, they would have
straightened it out. I may only add, though even that
does not apply, that Lord Denning wound up by
saying, may be not by way of recanting, that âa
Judge must not alter the material of which the Act is
woven, but he can and should iron out the creases.â
ââĻâĻâĻâĻâĻâĻâĻâĻâĻâĻlanguage at best is an
imperfect medium of expression and a variety of
significations may often lie in a word of
expressionâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻIt was said by Mr.
Justice Holmes in felicitous language in Towne v.
Eisner (1917) 245 US 418 that âa word is not a
crystal, transparent and unchanged; it is the skin of
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 16 :-
a living thought and may vary greatly in colour and
content according to the circumstances and the time
in which it is used". The words used in a statute
cannot be read in isolation: their colour and content
are derived from their context and, therefore, every
word in a statute must be examined in its context.
And when I use word âcontextâ, I mean it in its
widest sense âas including not only other enacting
provisions of the same statute but its preamble, the
existing state of the law, other statutes in pari
materia and the mischief which-the statute was
intended to remedy". The context is of the greatest
importance in the interpretation of the words used in
a statute. "It is quite true" pointed out by Judge
Learned Hand in Helvering v. Gregory, 69 F 2d 809
"that as the articulation of a statute increases, the
room for interpretation must contract; but the
meaning of a sentence may be more than that of the
separate words, as a melody is more than the notes,
and no degree of particularity can ever obviate
recourse to the setting in which all appear, and
which all collectively create." Again, it must be
remembered that though the words used are the
primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing, be it a
statute, a contract, or anything else, it is one of the
surest indexes of a mature and developed
jurisprudence not to make a fortress out of the
dictionary, but to remember that a statute always
has some purpose or object to accomplish, whose
sympathetic and imaginative discovery, is the surest
guide to its meaning. The literal construction should
not obsess the Court, because it has only prima facie
preference, the real object of interpretation being to
find out the true intent of the law maker and that can
be done only by reading the statute as an organic
whole, with each part throwing light on the other
and bearing in mind the rule in Heydon's case
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 17 :-
(1854) 76 ER 637 which requires four things to be
"discerned and considered" in arriving at the real
meaning : (1) what was the law before the Act was
passed; (2) what was the mischief or defect for
which the law had not provided; (3) what remedy
Parliament has appointed; and (4) the reason of the
remedy. There is also another rule of interpretation
which is equally well settled and which seems to
follow as a necessary corollary, namely, where the
words, according to their literal meaning â
âproduce an inconsistency, or an absurdity or
inconvenience so great as to convince the Court that
the intention could not have been to use them in
their ordinary significationâ, the Court would be
justified
in
"putting
on
them
some
other
signification, which, though less proper, is one
which the Court thinks the words will bear.â Vide
River War Comrs v. Adamson, (1877) 2 AC 743.â
More recently, âThe Judge in a Democracyâ by Aharon Barak2 sets out
the merits of purposive construction which ought to consider the
context of the statute as well as principles, values, and the
fundamental views of society rather than a literal or textual
interpretation of a statute.
An analysis of the cases of Syed Shakir Ali Jafri (supra),
Ramzan (supra) and Gul Muhammad (supra) does not support any
enunciation of law wherefrom it can be said that some bar or fetter has
been placed upon the court in interpreting the said provision by seeking
out its object and purpose whilst also taking into account its literal
meaning.
8.
In fact, a purposive approach in interpretation has been
approved and employed to achieve the intent of the legislature while
2 2006 Edition, Chapter 5.
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 18 :-
interpreting certain provisions of the Constitution in the cases reported
as Messrs Gadoon Textile Mills and 814 others Vs. WAPDA and
others (1997 SCMR 641), Rana Aamer Raza Ashfaq and another Vs.
Dr. Minhaj Ahmad Khan and another (2012 SCMR 6), Province of
Sindh through Chief Secretary and others Vs. MQM through Deputy
Convener and others (PLD 2014 SC 531) and Dr. Raja Aamer Zaman
Vs. Omar Ayub Khan and others (2015 SCMR 1303). In Gadoon
Textile Mills (supra) it has been stated:
âTo interpret is to understand. For a purposive
construction of the statutory and constitutional
provisions, the courts now freely make use of their
parliamentary history, policy statements of the
movers of the Bills and the concerned ministers in
particular. That is interpreting the constitutional
provisions in light of the well-known circumstances
that produced them. Even in England, the historic
rule that the court must not look at the
parliamentary history of legislation as an aid to the
interpretation of a statute has been recently relaxed
in Pepper (Inspector of Taxes) v Hart (1993) 1 ALL
ER 42).â
In Reference No.01 of 2012 (PLD 2013 SC 279) this Court opined:-
â34.
The function of the Court, while interpreting
the statute, is to discover the true legislative intent.
Having ascertained the intention, the Court must
strive to interpret the statute as to promote/advance
the object and purpose of the enactment. For this
purpose, where necessary, the Court may even
depart from the rules that plain words should be
interpreted
according
to
their
plain
meaningâĻâĻâĻâĻâĻâĻâĻâĻâĻâ
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 19 :-
It is also a fundamental rule of interpretation that while interpreting an
amended provision, the object and purpose of the amendment must
necessarily be looked into, as has been done by this Court in the case
reported as Federation of Pakistan through Ministry of Finance and
others Vs. M/s Noori Trading Corporation (Private) Limited and 14
others (1992 SCMR 710). In this context Crawford propounds as
follows:-
ââĻâĻâĻâĻâĻâĻâĻâĻâĻ..in construing the amended
statute, the court should consider the change sought
to be affected by the legislature. The amendatory act
should be construed in relation to the condition
created by the amended act as well as the objects
and purposes of the act itself as therein defined. In
short, regard must be had for the law as it was
before being amended, and the amendatory act
should be construed to repress the evils under the
old law and to advance the remedy provided by the
amendment.â
The âcardinal rule of construction of statutesâ (which as we observe below
encompasses the purposive rule of interpretation) was explicitly referred to by this
Court in the judgment reported as Mumtaz Hussain Vs. Dr. Nasir
Khan and others (2010 SCMR 1254) wherein it was held as under:-
ââĻâĻâĻâĻâĻâĻâĻâĻâĻâĻwhile interpreting an Act,
the intent of the Legislature is of supreme
importance. The cardinal rule of the construction of
Acts of Parliament is that the words of the Act
should be construed according to the intention
expressed in the Acts themselves. The word âintentâ
essentially include two concepts â that of purpose
and that of meaning. In many cases, the Court will
endeavour to ascertain the legislative purpose but,
only as a step in the process of discovering the
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 20 :-
legislative intent. And it is perhaps possible that the
legislative intent and legislative purpose may
coincide. Moreover, so far as legislation is
concerned, the law maker may have several
purposes in mind when they enact a given law. The
fact which can be taken into account in ascertaining
the intention of the Legislature is the history of the
Act, the reason which led to the passing of the Act,
the mischief which had to be cured, as well as the
cure proposed and also other provisions of the
Statute.â
(Note: We may, however, find that the same Honâble
Judge in a subsequent part of his opinion seems to have
departed from the above view)
Reference may be made with good effect to the case cited as Oliver
Ashworth (Holdings) Ltd. Vs. Ballard (Kent) Ltd ([1999] 2 All ER
791) wherein it has been stated by Law, LJ:
âBy way of introduction to the issue of statutory
construction I should say that in my judgment it is
nowadays misleadingâand perhaps it always wasâ
to seek to draw a rigid distinction between literal
and purposive approaches to the interpretation of
Acts of Parliament. The difference between
purposive and literal construction is in truth one of
degree only. On received doctrine we spend our
professional lives construing legislation purposively,
inasmuch as we are enjoined at every turn to
ascertain the intention of Parliament. The real
distinction lies in the balance to be struck, in the
particular case, between the literal meaning of the
words on the one hand and the context and purpose
of the measure in which they appear on the other.
Frequently there will be no opposition between the
two, and then no difficulty arises. Where there is a
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 21 :-
potential clash, the conventional English approach
has been to give at least very great and often
decisive weight to the literal meaning of the enacting
words. This is a tradition which I think is weakening,
in face of the more purposive approach enjoined for
the interpretation of legislative measures of the
European Union and in light of the House of Lords'
decision in Pepper v. Hart [1993] A.C. 593. I will
not here go into the details or merits of this shift of
emphasis; save broadly to recognise its virtue and
its vice. Its virtue is that the legislator's true purpose
may be more accurately ascertained. Its vice is that
the certainty and accessibility of the law may be
reduced or compromised. The common law, which
regulates the interpretation of legislation, has to
balance these considerations.â
The cardinal principle of construction entails two features: (i) meaning,
and (ii) object and purpose. âMeaningâ refers to what the precise words
of the statute [or its particular provision(s)] denote whereas âobject and
purposeâ refers to the reason, rationale, objective, aim, underlying
principle, or raison d'ÃĒtre of the statute. Thus, such interpretive
approach necessarily combines both the literal and purposive approach
in discerning the legislative intent. That is to say, the intention of the
legislature is discovered, determined and understood by bearing in
mind the meaning of the words used in the statute, while taking into
consideration the purpose and object of the statute and also the
mischief which the statute sought to curb.3
9.
Clearly, the intent of the legislature carries significant weight
for purposes of construing Section 28-A. In the light of the object and
purpose of the said section mentioned above (Syed Saadi Jafri Zainabiâs case),
3 See AIR 2007 SC 1563 and AIR 2001 SC 724
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 22 :-
and also the history as to how and why this amendment was brought
about, it is not a provision simpliciter which can be said to provide
compensation to the persons whose land has been acquired as
compulsory charges or interest which are provided under other sections
of the Act (see Section 34 of the Act); rather this enactment prescribes an
inducement to compel the acquiring agency to make prompt payment of
the amount of compensation assessed. In other words, this provision
does not provide an additional premium for the benefit of the land
owner. Obviously as an âinducingâ provision it has to be given a narrow
effect; it is to be limited to the extent of the amount which has not so
far been paid to the land owners (i.e. only payable on the outstanding amount). In
the above context, various scenarios may arise, for instance, where the
amount of compensation has been assessed by the LAC but payment is
not made within reasonable time on that assessment; the land owner
shall be entitled to compensation at the rate provided under Section 28-
A from the date of issuance of the notification under Section 4 till the
final payment is made. On the other hand, where partial payment is
made promptly and some amount is left outstanding; in such
eventuality, compensation would only co-relate to the amount unpaid.
However, as mentioned earlier this amount shall not ipso jure be given
to the land owner from the date of notification till the date of payment of
the balance amount on the entire amount including the portion which
has been received by him. Therefore we do not find any merit in this
appeal which is accordingly dismissed.
Civil Appeal Nos.144-K- & 145-K of 2009
10.
The facts of these cases are that the land of the respondents
was acquired and the award was passed by the LAC on 5.12.1992.
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 23 :-
Being satisfied with the compensation so granted, they accepted the
same and did not challenge it. However, on 8.9.2004 a constitutional
petition was filed by the respondents before the learned High Court
seeking additional compensation as per the provisions of Section 28-A
ibid. This was allowed by the learned High Court through the impugned
judgment dated 4.10.2006. Aggrieved by the said judgment, the
appellants approached this Court and leave was granted vide order
dated 11.06.2009 to consider:-
âwhether respondentsâ constitutional petitions were
not hit by the principle of laches.â
11.
The learned Additional Advocate General argued that the
writ petition filed by the respondents was hit by laches, that it was a
past and closed transaction and that the claim of the respondents was
barred under the law and such bar could not be surmounted by
invoking the constitutional jurisdiction of the learned High Court. It is
submitted that the rule of estoppel, acquiescence and waiver come in
the way of the respondents as they had already accepted the amount of
compensation awarded by the LAC and failed to challenge the same till
14 years later.
12.
Answering the above, learned counsel for the respondents
states that there is no estoppel against law; that the respondents were
entitled to the additional compensation under the clear terms and
mandate of Section 28-A; that it was the duty of the appellants to pay
the compensation and thus, in order to seek enforcement of such a
duty, the respondents could validly invoke the constitutional
jurisdiction of the High Court in terms of Article 199 of the
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 24 :-
compensation had been awarded to an aggrieved person, the matters
were brought to this Court and either they were not pressed or in some
cases the Court declined relief to them. The respondents rely upon the
case reported as Niaz Muhammad and others Vs. Assistant
Commissioner/Collector, Quetta and others (2005 SCMR 394).
13.
Heard. While deciding Civil Appeal No.939 of 2004 above, we
have held that the land owner shall not be entitled to receive additional
compensation for the amount already received and that Section 28-A
ibid would only be attracted to those cases where some amount
remained unpaid/outstanding on account of delay by the acquiring
authority. In these matters (Civil Appeal Nos.144-K- & 145-K of 2009) the
respondents never claimed that some amount of the original
compensation was outstanding on the basis of which they became
entitled to receive the compensation in terms of Section 28-A. Besides,
the doctrine of past and closed transaction comes in their way which
(doctrine) has been adopted and applied in a catena of judgments
including
those
reported
as
Pakistan
International
Airlines
Corporation Vs. Aziz-Ur-Rehman Chaudhry and another (2016
SCMR 14), Waris Vs. Muhammad Sarwar (2014 SCMR 1025) and
Trustees of the Port of Karachi Vs. Organization of Karachi Port
Trust Workers and others (2013 SCMR 238) in refusing to re-open or
interfere with such transactions as they stood concluded.
14.
If the respondents thought they were entitled to the
additional amount of compensation as per Section 28-A they should
have moved the Collector to give them such compensation and this
could have been done within the time prescribed by law and if not so
prescribed, within a reasonable period of time. Likewise, the
respondents could also have invoked the plenary jurisdiction of the Civil
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 25 :-
Court for the recovery of that amount within the prescribed period of
limitation; the maximum period in this regard, if no other article of the
Limitation Act, 1908 was attracted, was six years from the date of the
award. Further, if they were not advised to file a civil suit they could
have directly invoked the constitutional jurisdiction of the High Court
within reasonable time if it was so permissible under the law. None of
this was done. In fact, the respondents kept silent and slept over their
rights for over fourteen years whereafter they decided to invoke the
constitutional jurisdiction of the learned High Court directly which is
discretionary in nature. We are not persuaded to hold that in these
circumstances the rule of past and closed transaction as mentioned
above is not attracted to the instant matters. The rule of laches (the point
on which leave was granted) is/was duly attracted to the matter in hand
because the petitioners (before the learned High Court) (respondents in CA
No.144-K and 145-K/2009) have been unable to explain as to what steps they
took to ascertain and agitate their right on the basis of the Section 28-A
ibid before the competent authority before the filing of the constitutional
petition. In the case of S. Sharif Ahmed Hashmi Vs. The Chairman,
Screening Committee, Lahore and another (1980 SCMR 711) a four
member bench of this Court refused to condone the delay of twelve
years in approaching the constitutional jurisdiction of the High Court
and held that the case was squarely hit by the doctrine of laches. In the
absence of any explanation as to why the rule of laches should not be
duly applied the discretionary relief of issuance of a writ as envisaged
by Article 199 of the Constitution should not have been granted,
especially when the claim of the respondents to enforce their right
under Section 28-A in the ordinary course before the LAC and the Court
of plenary jurisdiction was barred by limitation. With regard to the
Civil Appeal Nos.939/04, 144-K-145-K/09 etc.
-: 26 :-
submission on behalf of the respondent that as it was the legal duty of
the appellants to pay the amount under Section 28-A thus, for
enforcing such duty and the right of the respondent neither rule of
laches could be attracted nor the principles of estoppel could be
resorted to, it may be mentioned that the discretionary relief in the
nature of a writ cannot be granted to compel the appellants to perform
its duty in favour of persons who are so indolent in matters relating to
enforcement of their rights that they slept over the same for more than
fourteen years and whose remedy in normal course was time-barred, as
such, discretion is not exercisable in favour of those who slumber on
their rights.. In light of the above, these appeals are allowed and the
impugned judgments are set aside.
HRC Nos.20691-S of 2013 & 48247-S of 2013
15.
As the main appeals stand decided, these cases are
accordingly disposed of.
JUDGE
JUDGE
JUDGE
Announced in Open Court
on 21.3.2016 at Karachi
Approved For Reporting
Ghulam Raza/*
JUDGE
| {
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} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Anwar Zaheer Jamali, CJ.
Mr. Justice Amir Hani Muslim.
Mr. Justice Iqbal Hameedur Rahman.
Civil Appeal No. 946/2014.
(On appeal against the judgment dated 03.06.2014
passed by the Election Tribunal, Rawalpindi,
in E. P. No. 188/2013/RWP/05/2013)
Ch. Muhammad Ayaz.
Appellant(s).
Versus
Asif Mehmood, etc.
Respondent(s).
For the Appellant(s):
Syed Iftikhar Hussain Gillani, Sr. ASC.
For Respondent No. 1:
Dr. Babar Awan, ASC.
Syed Rifaqat Hussain Shah, AOR.
Date of Hearing:
07.12.2015.
JUDGMENT
Iqbal Hameedur Rahman, J: - This appeal is directed against the
judgment dated 03.06.2014 passed by the Election Tribunal, Rawalpindi
(hereinafter to be referred as âthe Tribunalâ), in E. P. No.
188/2013/RWP/05/2013, whereby the said petition has been dismissed by
holding that the appellant has failed to produce authentic and reliable
evidence in support of his petition.
2.
The relevant facts are that the appellant and respondents contested
election for the slot of Member Provincial Assembly (MPA) from the
constituency of PP-9 Rawalpindi-IX during the general elections held on
11.05.2013. The respondent No. 1, Asif Mehmood, was declared as a
Returned Candidate who had secured 29797 votes while the appellant was
the runner up candidate by securing 29524 votes, there being a difference of
273 votes. The appellant through his election petition averred that
respondent No. 1 had maneuvered his win through corrupt and illegal
C. A. No. 946/2014.
2
practices with the assistance of polling staff during the process of election
who had exhorted and instigated the voters to vote for Pakistan Tehreek-e-
Insaf (PTI) candidate i.e., respondent No. 1. It was further averred that the
polling staff performed their duties in a partial manner on the premises of
paradigm shift in the politics of the country. The appellant had stated in his
petition that a complaint had been moved by one Muhammad Asim Afzal
Kiani to the Returning Officer (RO) concerned against the Presiding
Officer (PO) of polling station No. 53, but the same was not adhered to. It
was also alleged that at polling station No. 78, from where the PO handed
over a statement of count in Form-XIV to appellantâs polling agent namely
Talia Kanwal, respondent No. 1 had secured 413 votes whereas Form-XIV
depicts that he got 295 votes which figure was tampered with after
comparing the results of the constituency of NA-54. The appellant in this
regard had immediately moved an application to the RO on the same day
alongwith Form-XIV as a fax copy and the appellant also moved an
application on the next day to the DRO, Rawalpindi, which was stated to
have been forwarded to the RO, but it was not decided till 15.05.2013. In
this regard the appellant asserted that he had obtained the copy of the order
dated 15.05.2013, but he found that the said application had already been
dismissed on 12.05.2013 instead of 15.05.2013. It was also alleged that
massive irregularities and illegalities had been committed during the
election process by the PO alongwith polling staff who extended undue
advantage to respondent No. 1, a PTI candidate. That the RO did not
count/check the rejected votes, many votes were cast in different polling
stations where either the voters had died or their votes had already been
casted especially indicating that such exercise was committed in Askari-14.
The appellant had further alleged that mal-practices had been committed in
polling stations No. 1, 2, 4 to 12, 22, 24, 32, 38, 48, 62 & 78 wherein
C. A. No. 946/2014.
3
results were handed over to the polling agent of the appellant on plain paper
instead of Form-XIV. It was also alleged that polling papers had not been
got signed by the POs. The appellant also alleged that respondent No. 1 was
also disqualified to contest the election having violated Articles 62 & 63 of
the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be
referred as âthe Constitutionâ) as he neither showed his assets nor disclosed
his spouse as serving lady. That respondent No. 1 was also a tax evader. In
the light of the above, the appellant had prayed that the election of
respondent No. 1 be declared void and he be declared as duly elected MPA
from PP-9 Rawalpindi-IX. The petition had duly been contested by
respondent No. 1 who filed written replies. Thereafter, on framing of issues
and recording of pro and contra evidence, the Tribunal dismissed the
election petition of the appellant vide impugned judgment by holding that
he has failed to produce any authentic and reliable evidence which could
entail acceptance of the petition. Being aggrieved, the appellant has now
filed the instant appeal.
3.
The learned counsel for the appellant at the very outset argued that
there is a very minor difference of 273 votes between the appellant and
respondent No. 1 and that had occurred on account of clear interpolation of
the result of polling station No. 78 wherein on the maneuvering of
respondent No. 1 the PO had made interpolation on the statement of count
by cutting the figure of 295 and awarding the respondent No. 1 with 413
votes, and if those are reversed the result would be in favour of the
appellant and the said error had not been rectified through any counter
signature by the PO as such the figure of 413 in favour of respondent No. 1
stands disputed, hence it could not have been taken into consideration. That
respondent No. 1 in this regard failed to produce the PO, Mrs. Shaista
Banu, in order to discharge his burden that the statement of count was
C. A. No. 946/2014.
4
correctly prepared whereas the appellant in support of his case produced
Sabir Ayaz (PW-1) and Mst. Shaban Jumshad (PW-10) and their evidence
had not been rebutted by respondent No. 1. He next vehemently argued that
it was an established fact that in seven polling stations counting was done
in the absence of the polling agent of the appellant and in this regard an
application had been moved for recount, but the same had not been done.
The main stress of the learned counsel for the appellant was that respondent
No. 1 stood disqualified under Sections 12 & 14 of the Representation of
the People Act, 1976 (hereinafter to be referred as âthe Actâ) and Articles
62 & 63 of the Constitution for concealment of his assets while filing
nomination papers as was required under an oath but he had failed to give
complete details of his property i.e., H. No. 39/10-B-III, Usman Street,
Abadi No. 2, Tench Bhata, Rawalpindi, and in this regard the Tribunal had
only held that the same being inherited property does not come within the
circumference of assets. While relying upon the case of Iqbal Zafar Jhagra
and others vs. Khalilur Rehman and 4 others (2000 SCMR 250), he
argued that respondent No. 1 while filing his nomination papers was
required to declare the same and by not declaring the said property he stood
disqualified under the above referred provisions of laws because his mother
had passed away on 07.03.2012 and he inherited H. No. 39/10-B-III,
Usman Street, Abadi No.2, Tench Bhata, Rawalpindi, but the said property
had not been declared by respondent No.1 and in this regard adverted our
attention to nomination papers wherein respondent No. 1 under solemn
affirmation had filed the said papers without declaring the said ancestral
property as his asset. It was also further argued that there is a verification
under oath that he has made a correct declaration, but by concealing the
said property the respondent No. 1 comes within the purview of Articles 62
& 63 of the Constitution, which the Tribunal has failed to appreciate as
C. A. No. 946/2014.
5
such the instant appeal deserves acceptance and impugned judgment be set
aside.
4.
On the other hand, learned counsel for respondent No. 1 submitted
that respondent No. 1 had filed written reply with certain preliminary
objections that the election petition of the appellant is liable to be dismissed
under Section 63 of the Act because the requirements of Section 55 of the
Act have not been fulfilled. The appellant did not verify the contents of the
petition alongwith schedule and annexures which was clear violation of
Section 55 of the Act. Even the affidavit was not filed with the titled
petition and the same fact was admitted by the appellant when he had filed
an application under Section 62 of the Act seeking amendment in the
election petition wherein para-2 he admitted that, âat the time of filing of
election petition by inadvertence, the petitioner has not signed the
verification, however the counsel for the petitioner has signed the
certificate underneath the verification. This act of the petitioner was a
human error as to overlook to do the needful.â It was further stated in the
application that non-signing of the verification is a mere irregularity. The
learned counsel further submitted that the said application had been filed
with a considerable delay as such an application for condonation of delay
was also filed. Even the petition had not been sworn on solemn affirmation.
While relying upon the cases of Zia-ur-Rehman vs. Syed Ahmed Hussain
and others (2014 SCMR 1015), Inayatullah vs. Syed Khursheed Ahmed
Shah and others (2014 SCMR 1477) and Muhammad Naseem Khan vs.
Returning Officer, PP-12 and others (2015 SCMR 1698), the learned
counsel submitted that from day one the petition of the appellant was non
est. The learned counsel secondly controverted the contention of the
appellant, that respondent No. 1 had failed to disclose in his list of assets
the inherited house, by asserting that the same was in the name of his
C. A. No. 946/2014.
6
mother who died on 07.03.2012 as such at the time of filing of nomination
papers the same had not been got transferred in his name and it is yet to be
seen whether the said house devolves on the respondent or otherwise. He
further submitted that the plea regarding the said property had not been
pleaded by the appellant in his election petition as such he cannot go
beyond his pleadings and in this regard he relied upon the case of
Muhammad Saeed Awan and another vs. District Returning Officer,
Attock and others (2006 SCMR 1495). While adverting to the allegation of
the appellant regarding interpolation in the statement of count of polling
station No. 78, the learned counsel for respondent No. 1 submitted that the
same was signed by the PO and in this regard the application of the
appellant was entrusted to the RO who justified the cutting on statement of
count and resultantly the said application was dismissed vide order dated
12.05.2013 which had attained finality. In rebuttal, the learned counsel for
the appellant adverted our attention to the affidavit of the appellant filed
before the Tribunal and submitted that the same was signed by the
appellant.
5.
We have heard the arguments of the learned counsel for the parties
and have perused the impugned judgment of the learned Tribunal as well as
the material placed on record.
6.
Before proceeding with the appeal in hand it would be appropriate
and proper to discuss the thrust of the arguments of the respondent's learned
counsel with regard to maintainability of the election petition on account of
non-compliance of the mandatory provisions contained in Section 55(3) of
the Act as well as Order VI Rule 15(2) CPC as to the verification of the
election petition alongwith schedule and annexures. He has adverted our
attention to the fact that upon filing of the election petition certain
preliminary objections had been raised by the respondents that the appellant
C. A. No. 946/2014.
7
while filing his election petition had not verified the contents of the petition
alongwith schedule and annexures which was clear violation of Section
55(3) of the Act and on taking of such objection, an application had been
filed by the appellant under Section 62(3) of the Act seeking amendment in
the election petition wherein in para-2 it has been admitted that at the time
of filing of election petition by inadvertence, the petitioner has not signed
the verification, however, the counsel for the petitioner has signed the
certificate underneath the verification. This act of the petitioner was a
human error as to overlook to do the needful. It has been further asserted
that the said application had been filed after considerable delay and as such
an application for condonation of delay had also been filed. In the light of
the above it would be appropriate to reproduce Section 55(3) of the Act
which reads as under:-
55. Contents of Petition:-
(1)âĻâĻâĻâĻâĻâĻâĻ.
(2)âĻâĻâĻâĻâĻâĻâĻ.
(3) Every election petition and every schedule or annex to that petition
shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 (Act V of 1908), for the verification
of pleadings.
Since the verification as per the above provisions is to be made according
to the provisions of Order VI Rule 15 CPC, the same is also reproduced for
ready reference:-
Order VI Rule 15. Verification of Pleadings (1) Save as otherwise
provided by any law for the time being in force, every pleading shall be
verified on oath or solemn affirmation at the foot by the party or by one
of the parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered
paragraphs of the pleadings, what he verifies of his own knowledge and
what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall
state the date on which and the place at which it was signed.
C. A. No. 946/2014.
8
From the perusal of the election petition it is apparent that the verification
at the time of its filing had not been made by the appellant and neither the
annexures alongwith schedule had been signed which had been sought to be
rectified through amended application subsequently submitted by the
appellant after a considerable delay and also after passing of the period of
limitation. It has been observed that the above quoted provisions
specifically state that verification is to be made at the time of filing of the
election petition and any default in this regard would be considered to be a
significant omission and fatal. Admittedly the appellant had sought
amendment in the election petition after the period of limitation as such the
petition, in the light of the above provisions, could not have been
considered and allowed and warranted dismissal being not maintainable on
this very score. Keeping in view the above provisions verification of the
election petition was a mandatory requirement and that too in accordance
with the provisions of Order VI Rule 15(2) of CPC specifying to numbered
paragraphs of the pleadings, what he verifies of his own knowledge and
what he verifies upon information received and believed to be true. It is an
admitted position that the appellant had initially not verified the election
petition filed by him which is apparent as he subsequently filed application
seeking amendment to do so and that also with an application for
condonation of delay. In the light of the above whether the election petition
was maintainable and the deficiency could have been allowed to be
rectified and that also after the passing of the period of limitation and in
circumstances non-compliance of the mandatory provisions of Section
55(3) of the Act is fatal to the maintainability of the election petition. We
are benefited here from the dictums laid down by this Court in chain of
judgments. In the case of Malik Umar Aslam Vs. Sumera Malik (PLD 2007
SC 362) it has been held that non-verification of pleadings on oath or
C. A. No. 946/2014.
9
solemn affirmation before the person authorized to administer oath, such
pleadings would be deemed not to be duly verified on oath, relevant part
whereof is reproduced as under:-
"5.
We have heard parties' counsel at length and have also taken
into consideration the material so made available on record. A perusal of
the scheme of the Act, 1976 relating to filing of Election Petition under
Chapter VII reveals that the lawgivers, to ensure expeditious decision of
election disputes, has authorized the Election Tribunal to regularize the
proceedings itself, instead of following the technicalities of C.P.C.
except application of some provisions specifically made applicable for
limited purposes. Under section 55(3) of the Act, 1976, it has been made
obligatory upon the person, who has challenged the Elections, to verify
the same in the manner prescribed for verification of plaint by C.P.C.
thus by reference, the provisions of Order VI, Rule 15, C.P.C. have been
made applicable. As per its provision, every pleading is required to be
verified on oath or solemn affirmation at the foot by the party or by one
of the parties to pleadings or by some other person to the satisfaction of
the Court acquainted with the facts of the case. It may not be out of
context to note that the verification of the pleadings on oath was
introduced by the Law Reforms Ordinance (XII of 1972) read with
section 6 of the Oath Act, 1873, by adding the words "on oath or solemn
affirmation" after the word verified in Rule 15(i) of Order VI, C.P.C. It
is also pertinent to note that after the said importance of the same
amendment in presence of verified pleadings on oath, the Court has
been empowered to proceed case ex parte against the opponents and
pass a decree, under Order IX, Rule 6(1), C.P.C. without calling for an
affidavit in ex parte proof. We believe that there is no point to address
ourselves on this question namely if verification on oath has not been
made before the person authorized to administer the oath, the same
would not be considered to be valid verification because for the purpose
of taking oath one has to bind down himself to speak the truth otherwise
he or she would be liable for the curse of Almighty Allah if the truth is
not spoken. Under section 6 of the Oath Act, 1873, the procedure has
been prescribed for taking the oath duly attested by an authorized
person. Admittedly in instant case, verification has not made on oath
before an authorized person, therefore, the appellant, on realizing the
major defect in the Election Petition, submitted an application seeking
amendment in the petition, to the extent of verifying it on oath,
accordingly."
In the case of Iqbal Zafar Jhagra Vs. Khalil-ur-Rehman (2000 SCMR 250)
it has been held as under:-
C. A. No. 946/2014.
10
"Subsection (3) of section 36 (ibid) clearly requires that every petition
and every Schedule or Annexures shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure for
verification of pleadings. The verification of pleadings has been
provided under Order VI, Rule 15, CPC which when read with section
29, CPC clearly shows that the pleadings are to be verified on oath and
the oath is to be administered by a person, who is duly authorized in
that behalf. It is an admitted position that the petition filed by Syed
Iftikhar Hussain Gilllani, though mentions that it is on oath, the oath
was neither verified nor attested by a person authorized to administer
oath and as such it could not be said that the requirement of section 36
of the Act, 1976 were complied with. We have considered the reasons
given by the learned Tribunal in holding that the petition filed by Syed
Iftikhar Hussain Gillani did not comply with the provisions of section
36 of the Act, 1976 and are of the view that these reasons do not suffer
from any legal infirmity."
Further in the case of Ch. Muhammad Ashraf Vs. Rana Tariq Javed and
others (2007 SCMR 34), this Court has held as under:-
"âĻâĻ.. The Election Tribunal, was thus, justified in holding that no
affidavit was annexed to the election petition which admittedly was not
verified in accordance with law. As such refusal of the Election Tribunal
to place reliance on the pronouncement of this Court in the case of
Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others
PLD 2004 SC 570 and relying on the pronouncement made by this
Court in the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil-
ur-Rehman and others 2000 SMCR 250 and Sardar Zada Zafar Abbas
and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 (supra)
that an election petition not having been filed in compliance with the
provisions of section 55(3) of the Act, not accompanied by an affidavit
would be liable to be dismissed under section 63 of the Act as the
requirement of both the sections were held by this Court as mandatory."
In the case of Sumaira Malik (supra), following observations have been
made:-
"âĻSo far as grant of amendment in the petition or verification clause is
concerned, it depends upon the nature of the amendment sought in the
pleadings, on a case to case basis. In the case in hand, the appellant
knowing well the mandatory provisions of section 55(3) of the Act,
1976, did not apply for amendment within the prescribed period of
limitation for filing Election Petition. Undoubtedly, if during period of
limitation for filing of petition such an amendment is sought, the Court
may consider the request according to the settled principle relating to
amendment in the pleadings but once limitation period has already
expired, then it is the duty of the Court to examine whether a right,
C. A. No. 946/2014.
11
which has been created on account of bar of limitation in favour of the
opposite side can be snatched by allowing amendment in pleadings,
enabling the plaintiff (petitioner) to put up a better/perfect case against
the defendant (respondent). In this behalf the consistent practice of the
Courts is that amendment in such matters, where limitation creates a
hurdle, is not to be allowed on condoning the delay, particularly where
no request has been made to enlarge the period of limitation. For the
above proposition we are fortified by the judgments in the cases of
Bhagwanji vs Alembic Chemical Works (AIR 1948 PC 100) and Saeed
Sehgal vs Khurshid Hassan (PLD 1964 SC 598)."
Further in a well reasoned judgment of Hina Manzoor Vs. Malik Ibrar
Ahmed and others (PLD 2015 SC 396) this Court has met with the said
proposition as under:-
"6.
It is, indeed true that in suitable cases and where the
amendment sought is necessary for the purposes of determining the real
issue, the bar of limitation may be overlooked, however, the
amendment, rather the making up of lacuna, sought to be allowed cannot
be considered to be an amendment necessary for the adjudication of the
controversy/allegation pertaining to rigging and corrupt practices in the
election process, as were involved in the present case. Furthermore,
since the petition suffered with the inherent defect of non-compliance of
section 55(3) of the ROPA, consequently resulting in its summary
dismissal as prescribed by section 63 of the ROPA, the petitioner cannot
be allowed to circumvent the purpose of law in the manner sought by
himâĻâĻ"
Further in the case of Zia ur Rehman Vs. Syed Ahmed Hussain and others
(2014 SCMR 1015) this Court has in categorical terms held as under:-
" In the instant case, the application for amendment dated 14th October,
2013 was apparently filed on 23rd October, 2013 well beyond the period
of limitation i.e. 45 days for filing of an election petition, as provided by
section 52 subsection (2) of the Representation of the People Act, 1976,
hence, could not have been allowed by the Election Tribunal through the
impugned judgment."
By taking benefit of the above guidelines, it has been examined that the
appellant while filing his election petition had not complied with the
mandatory requirements enunciated in Section 55(3) of the Act which are
mandatory in nature and the same cannot be controverted in the presence of
application submitted by the appellant under Section 62(3) of the Act
C. A. No. 946/2014.
12
seeking to rectify the said lacuna as the same had also been filed after the
period of limitation propounded in the Act could not have been allowed by
way of amendment to cure the defect of verification after the expiry of
period of limitation and according to the dictums mentioned above, it has
been consistent view of this Court that such defect in the election petition
could never have been allowed in the presence of the provisions enunciated
in Section 55(3) of the Act, therefore, in the light of the above provisions,
the election petition of the appellant merited dismissal under Section 63 of
the Act. The appellant was bound according to the mandatory provisions
mentioned above to verify his election petition and the same could not be
cured after expiry of the limitation period. Admittedly his election petition
had been filed not fulfilling the requirements of the said provisions as
regard to the verification of the petition which merited outright rejection of
the same by the Election Tribunal and when the same stands admitted by
the appellant by seeking amendment to do so which according to him has
been inadvertently left out on account of human error.
7.
In view of the above discussion, the instant appeal merits dismissal,
the same is therefore, dismissed.
Chief Justice.
Judge.
Judge.
ISLAMABAD.
07.12.2015.
(Farrukh)
Not Approved for Reporting.
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL APPEAL NOs. 957 & 958 OF 2014
(On appeal against judgment dated 19.06.2013 passed
by the Peshawar High Court, Peshawar in Writ Petition
No. 2927/2009)
Secretary Local Government, Election
Rural Development, KPK etc
(In both cases)
âĻ Appellants
VERSUS
Muhammad Tariq Khan
(In CA 957/2014)
Muhammad Tahir Abbas etc
(In CA 958/2014)
âĻ Respondents
For the Appellants:
Barrister Qasim Wadood, Addl. A.G.
(In both cases)
For the Respondent:
Mr. Muhammad Akram Sheikh, Sr. ASC
(In CA 957/2014)
Syed Iqbal Hussain Shah Gillani, ASC
(For respondent No.1 in CA 958/2014)
Mr. Sabah ud Din Khattak, ASC
(For respondent No. 2 in CA 958/2014)
Date of Hearing:
25.05.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated
judgment, we intend to decide the above-titled civil appeals filed under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973,
as they have nexus inter-se and a common question of law has been
raised in these appeals.
2.
The facts of Civil Appeal No. 957/2014 are that the
respondent was appointed as Assistant Director Civil (BPS-17) in the
Provincial Urban Development Board on contract basis vide order
dated 16.02.1995. However, on 30.05.1998 he along with several
other employees was terminated from service by the department. Being
aggrieved by his termination, the respondent filed Writ Petition No.
973/1998 before the Peshawar High Court. Some other employees also
Civil Appeal Nos. 957 & 958/2014
2
challenged the said termination before the Peshawar High Court by
filing other writ petitions. During the proceedings before the High Court
vide an interim order, the respondent and others were allowed to
continue in service till the final disposal of the writ petitions.
Ultimately, vide consolidated judgment dated 30.09.1999, the writ
petitions filed by the respondent and others were adjudicated and
decided wherein the department was directed to consider them for
appointment on available vacancies, while evaluating their case on
merits upon the basis of âlast cum first goâ. The respondent challenged
the said order before this Court by filing Civil Petition No. 116-P/2000
but the same was dismissed as barred by time vide order dated
13.10.2000. He also filed Civil Review Petition No. 279/2000 before
this Court, however, it also met the same fate vide order dated
01.11.2001. Thereafter, the respondent again filed Writ Petition No.
225/2009 but the same was dismissed as withdrawn on 09.06.2009.
The respondent filed yet another Writ Petition No. 2927/2009 before
the Peshawar High Court, which was disposed off with certain
observations vide order dated 04.02.2010. Being aggrieved by this
judgment, the Government of KPK challenged it before the High Court
by filing review petition but the same stood dismissed vide order dated
15.06.2010. This order in review was challenged before this Court in
Civil Petition No. 660-P/2010 and this Court vide order dated
07.11.2012 remanded the matter back to the High Court with certain
observations to decide Writ Petition No. 2927/2009 afresh. During the
proceedings before the learned High Court after remand, the impugned
judgment dated 19.06.2013 has been passed with a direction to the
appellant department to re-adjust the respondent with all benefits
accrued to him except the wages of the intervening period. As far as
facts of Civil Appeal No. 958/2014 are concerned, the respondent No.
1 Muhammad Tahir Abbas was appointed as Assistant Director Civil
(BPS-17) in the Provincial Urban Development Board on contract basis
vide order dated 18.10.1993. However, on 30.05.1998 he along with
several other employees was terminated from service by the
department. Being aggrieved by his termination, the respondent filed
Writ Petition No. 978/1998 before the Peshawar High Court. Some
other employees also challenged the said termination before the
Peshawar High Court by filing various writ petitions. However, the
respondent did not press his petition before the High Court provided he
Civil Appeal Nos. 957 & 958/2014
3
was given pay and other allowances upto 31.05.1998 i.e. the expiry of
the project and the same was disposed of accordingly vide
consolidated order dated 30.09.1999. So far as the other employees
are concerned, the learned High Court vide the judgment dated
30.09.1999 directed the department to consider the aggrieved
employees for appointment on available vacancies on merit. It appears
from the record that the respondent did not challenge this order of the
High Court before this Court and it ultimately attained finality.
However, the record shows that subsequently, he filed another Writ
Petition No. 102/2002 against his termination and when he was
declined the relief sought for from the High Court, he challenged the
same before this Court by filing Civil Petition No. 1241/2002, which
was disposed of on 16.03.2005 by observing that the respondent being
junior most, his service was rightly terminated and he was advised to
approach the Government for consideration for fresh recruitment being
a previous employee of the Board. The respondent then approached
the department but when he saw that nothing favourable to him is
likely to happen, he filed another Writ Petition No. 322/2009 wherein
vide order dated 06.10.2011, the department was once again asked
by the High Court to consider the case of the respondent on
humanitarian
grounds
but
the
department
vide
order
dated
05.01.2012 refused to adjust the petitioner, which led to filing of yet
another Writ Petition No. 1180/2012, which has been disposed of vide
impugned order dated 19.06.2013 whereby the appellants are directed
to adjust the respondent with all consequential benefits except wages.
Hence, the instant appeals by leave of this Court.
3.
Learned Additional Advocate General, KPK, while opening
address inter alia contended that the respondents were project
employees; that it is clearly mentioned in their appointment letters that
appointment is contractual/temporary in nature and would be liable to
be terminated subject to one monthâs notice; that the project was never
regularized or taken on the budget and the same was completed; that
the matter of termination of the respondents had already been decided
by this Court in the earlier round of litigation and the same has
attained finality; that the respondents cannot be given any leverage on
the basis of earlier order of this Court dated 13.10.2000 passed in
Civil Petition Nos. 1752/1999 etc because only those persons who
Civil Appeal Nos. 957 & 958/2014
4
were party to that order were appointed by the department; that the
Project Management Unit as also Provincial Urban Development Board,
NWFP, do not exist being dissolved and instead new development
companies like Mardan Development Authority and Peshawar
Development Authority etc have been created; that the learned High
Court has
wrongly interpreted
and applied
the principle of
discrimination in the impugned judgments; that the respondents could
not be adjusted against the posts of Assistant Directors as no post is
available in the department; that the impugned judgment suffers from
legal and factual infirmities and requires interference by this Court.
4.
On the other hand, learned counsel for the respondent in
Civil Appeal No. 957/2014, inter alia, contended that if one category of
the employees is given relief, the other category falling under the same
parameter cannot be denied the relief; that the respondent was never
non-suited by this Court and his rights are in continuity; that keeping
in view the performance of the respondent, he was subsequently
promoted to BS-18, which shows that he is a competent employee; that
after the afore-referred judgment of this Court dated 13.10.2000, the
terminated Assistant Directors including the respondent were included
in the seniority list of Assistant Directors and the name of the
respondent was placed at serial number 92, which impliedly means
that the department had recognized all the Assistant Directors to be
regular employees of Provincial Urban Development Board; that if the
similarly placed employees have been re-appointed by the department,
the respondent also deserves the same treatment to be meted out and
this fact has already been mentioned in paragraph 6 of the impugned
judgment; that the respondent was appointed as BS-18 officer in the
Municipal Services Delivery Program but after the impugned judgment,
resignation was taken from him and he was reinstated as Assistant
Director in BPS-17.
5.
Learned counsel for the respondent No. 1 in Civil Appeal
No. 958/2014 while adopting the arguments of learned counsel for the
respondent in the connected Civil Appeal No. 957/2014, inter alia,
contended that pursuant to judgment of this Court dated 16.03.2005
passed in Civil Petition No. 1241/2002, the respondent was
considered to be employee of the Board and not a project employee,
therefore, the order of the termination had no force.
Civil Appeal Nos. 957 & 958/2014
5
6.
We have heard learned counsel for the parties and have
perused the available record.
7.
The issues involved in these appeals are three fold: (i)
whether the project/temporary employees have the right to be retained
in service after expiry of the project; (ii) whether on the matter of re-
appointment, the respondents have been discriminated against; and
(iii) whether the subsequent writ petitions filed by the respondents
were maintainable and not contrary to the principle of res judicata?
8.
Admittedly, the respondents were contract employees and
were hired by the Project Management Unit for the project of slum
upgrading, site and service etc, which subsequently came to an end
and the respondents were terminated from service. This Court in a
number of cases has held that contract/project employees have no
vested right to claim regularization. The direction for regularization,
absorption or permanent continuance cannot be issued unless the
employee claiming regularization had been appointed in pursuance of
a regular recruitment in accordance with relevant rules and against the
sanctioned vacant posts, which admittedly is not the case here.
Respondents were appointed on temporary basis pursuant to the
Provincial Urban Development Board Service Rules, 1988. There was
no provision in the said Rules for absorption of a project employee. The
said Provincial Urban Development Board was dissolved and probably
a new department City Development and Municipal Development was
created, which has its own different Rules. The respondents have no
vested right to claim regularization against regular posts, being
contractual employees of the project, the tenure of which has already
been expired, thus they being project employees and hired for the said
project period are not entitled to be regularized. When the project is
completed and closed, the employees have to go along with its closure.
Temporary/project employees, who are appointed specifically till the
completion of a certain project cannot be regularized as they have
neither any vested right to hold such post beyond prescribed period nor
the Government owes any obligation to maintain continuity in their
service for an unlimited period. We have perused the appointment
orders of the respondents and found that regularization / re-
adjustment was not part of terms and conditions of their service. In
Civil Appeal Nos. 957 & 958/2014
6
paragraph No. 4 of the appointment letter of respondent Muhammad
Tariq Khan dated 16.02.1995, it has been specifically mentioned that
his employment was purely temporary and could be terminated at one
monthâs notice. Similarly, the appointment letter of respondent
Muhammad Tahir Abbas dated 18.10.1995 clearly stipulates that his
services were on contract basis and would be liable to termination at
any time without any notice. Both the respondents had accepted the
contingent terms of service and cannot blow hot and cold in the same
breath to claim regularization subsequently.
9.
Now the question which remains to be looked at is
whether the respondents have been discriminated against or not. In
the earlier round of litigation, after the consolidated judgment of the
Peshawar High Court dated 13.09.1999 whereby the department was
directed to consider the terminated Assistant Directors for appointment
on available vacancies on merit and on the basis of âlast cum first goâ,
the respondent Muhammad Tariq Khan had approached this Court by
filing Civil Petition No. 116-P/2000, which was dismissed solely on the
ground of being barred by time vide order dated 13.10.2000. He had
also filed Civil Review Petition No. 279/2000 but the same was also
dismissed vide order dated 01.11.2001. So far as the respondent
Muhammad Tahir Abbas is concerned, he had not pressed his writ
petition bearing No. 978/1998 before the High Court provided he was
given pay and other allowances upto 31.05.1998. This prayer was
accepted by the learned High Court and the writ petition was disposed
of as not pressed. The order of the learned High Court dated
30.09.1999 specifically finds mention of this fact. It appears from the
record that the respondent Muhammad Tahir Abbas did not challenge
this order before this Court and subsequently filed another writ petition
against his termination order and when he did not get any relief from
the High Court, he challenged the said order before this Court by filing
Civil Petition No. 1241/2002, which was disposed of on 16.03.2005 by
observing that the respondent being junior most, his service was
rightly terminated. He was advised to approach the Government for
consideration of fresh recruitment being a previous employee of the
Board. The respondent then approached the department but when he
could not get any relief, he filed yet another Writ Petition No.
322/2009. When the petition of respondent Muhammad Tariq Khan
Civil Appeal Nos. 957 & 958/2014
7
was dismissed as being barred by time before this Court vide order
dated 13.10.2000 and respondent Muhammad Tahir Abbas had not
pressed his writ petition before the High Court, the matter had attained
finality. Knocking the doors of High Court and this Court again and
again amounts to mockery of law. The other employees, who had also
filed writ petitions and whose writ petitions were decided on
13.09.1999 vide consolidated judgment by the Peshawar High Court
had filed Civil Petition Nos. 1752, 1753/1999 etc before this Court,
which were disposed of vide order dated 13.10.2000 and the
department was directed to reconsider the facts of the cases of the
petitioners therein in juxtaposition with the cases of 29 other Assistant
Directors, who were retained in service although they were junior to
them. It appears from the record that pursuant to this judgment of this
Court, a seniority list of 93 Assistant Directors was prepared and some
of them were adjusted. Learned counsel for the respondents put much
stress on the point that pursuant to the judgment of this Court dated
13.10.2000 passed in Civil Petition Nos. 1752, 1753/1999, the
respondents ought to have been adjusted but they were discriminated
against. However, we do not tend to agree with learned counsel for the
respondents because the afore-referred judgment of this Court was
restricted only to the Assistant Directors, who were party/petitioners in
the said case. This Court in the judgment dated 27.08.2012 passed in
Civil Petition No. 346-P/2003 while dealing with the cases of similarly
placed Assistant Directors has specifically taken note of this fact and
has held that âthis Court (vide order dated 13.10.2000) had not
ordered the re-instatement of the petitioners before it but directed that
their cases be considered viz-a-viz some other Assistant Directors. The
relief granted by the Supreme Court was restricted to the petitioners
before it.â So far as certain appointments/regularization of Assistant
Directors, which have been mentioned by the learned High Court in the
impugned judgments are concerned, neither their letters of termination
nor appointment letters are available on record so that we could know
as to what were their terms and conditions of service. Even otherwise,
the learned High Court itself has mentioned that not all terminated
Assistant Directors have been re-appointed/adjusted/regularized.
Although some of them have been adjusted but still there are persons,
who have not been adjusted again, therefore, the question of
discrimination does not arise. So far as the argument of learned
Civil Appeal Nos. 957 & 958/2014
8
counsel for the respondent Muhammad Tariq Khan that he was
appointed as BS-18 officer in the Municipal Services Delivery Program
but after the impugned judgment, resignation was taken from him and
he was reinstated as Assistant Director in BPS-17 is concerned,
despite our asking, learned counsel could not place on record any
document to support his argument, therefore, we are unable to
consider the same.
10.
Now we come to the third question i.e. whether the writ
petitions filed by the respondents in the instant round of litigation are
hit by the principle of res judicata? There is an old latin maxim âres
judicata pro veritate accipiturâ. According to this maxim, a suit/dispute
in which the matter directly or substantially in the issue has been
directly/substantially in issue in a former suit/proceeding between the
same parties or between parties under whom they or any of them
claim has been decided by a competent court shall not be tried again in
the same matter in any other courts. In simple words, a decision once
rendered by a competent court on a matter in issue between the parties
after a full inquiry should not be permitted to be agitated again by the
same court or some other court between the same parties in the same
matter. The rule of estoppel by res judicata is a rule of evidence, which
prevents any party to a suit/proceeding which has been adjudicated
upon by the competent court from disputing or questioning the decision
on merit in subsequent litigation. It is based on the concept of public
policy and private justice which apply to all the judicial proceedings.
According to this, public policy involves that the general interest of the
litigation must come to an end or that the litigation must have its
finality. Similarly, private justice requires that an individual should be
protected from vexatious multiplication of suits and prosecutions at the
instance of an opponent whose superior power and resources may
enable him to abuse the process of court. A decision by a competent
court, which is final, should be binding and the same questions are
sought to be controverted in the subsequent litigation for which this
maxim applies. The only point in issue on which the respondents filed
the subsequent writ petitions was their termination from service. As
discussed in the preceding paragraph, the issue was already put to
rest and once it attained finality, the second/continued litigation by
filing number of writ petitions was not warranted under the law. It
Civil Appeal Nos. 957 & 958/2014
9
would be of considerable advantage to refer to a judgment of this Court
reported as Khurshid Soap and Chemical Industries (Pvt) Ltd Vs.
Federation of Pakistan (PLD 2020 SC 641) wherein it was held as
under:-
â9. The principle of res judicata is a principle of peace. Once
a controversy with regard to a right in property or a right to
office is adjudicated upon and attains finality through a
judicial pronouncement of a competent Court of law, it no more
remains open to challenge in any subsequent judicial
proceedings between the same parties on the same subject
matter. This principle is intended not to afford a litigant more
than one opportunity for resolution of a judicial dispute and
thus eliminates the chances of repetitious and successive
litigation against a party on the same issue. The maxim that
there should be an end to litigation is germane to such matters.
10. Any relief which a litigant seeks in a judicial proceeding
with regard to any power or a right or an obligation connected
with some property or an office which power or right or
obligation is not dependent upon the legitimacy of a legislative
enactment and stands or falls on its own strength then in such
cases when the decision rendered by a court of competent
jurisdiction attains finality, there is no difficulty in applying the
principle of res judicata to such a decision. However, it would
be difficult to apply such a principle in matters where a power
or a right or an obligation solely depend upon the very
legitimacy of the enactment that has come under challenge in a
Court of law on the touchstone of the Constitution. In such a
situation the existence of such power or right or obligation
would solely depend on the final adjudication as to the legal
validity of the enactment itself. This could be understood from
a situation where a controversy as regards constitutional
validity of an enactment has come under challenge before two
High Courts, one declaring the enactment ultra vires the
Constitution and the other intra vires. If the principle of res
judicata is applied to the decision of the High Court that
declared the law ultra vires as the same was not challenged
any
further
by
the
Government
then
two
conflicting
declarations would stand side by side on the legitimacy of a
legislative enactment, one party treating the law valid and the
other invalid. This would lead to treating an Act of the
parliament valid for some and invalid for others though both
the set of persons are similarly placed. If the decision rendered
by the High Court that declared the law intra vires the
Constitution is only challenged before the Supreme Court and
after examining the merits of the case the enactment is
declared by this Court to be intra vires the Constitution, then in
such peculiar situation when this Court finally validates the
legislative enactment then the same has to be applied
uniformly to every person falling within its ambit. Such final
judicial determination on the legitimacy of a legislative
enactment has to be treated as a judgment in rem regardless of
the fact that the judgment of the High Court that invalidated
the very same enactment was not challenged before this Court.
Such a situation warrants departure from the doctrine of res
judicata. Omission of a public functionary to file appeal cannot
put fetters on the universal application of a legislative
enactment declared by this Court to be constitutionally valid as
it would amount to repealing the statute for some and treating
Civil Appeal Nos. 957 & 958/2014
10
it valid for others. Hence conflicting decisions on the vires of a
legislative enactment of two High Courts, decision of one
remains unchallenged in the hierarchy as no appeal was
preferred and the other is challenged before this Court, then
the verdict of the High Court that went unchallenged, which is
in conflict with the final decision of this Court has to be treated
as outmoded and no longer executable. The Supreme Court of
the United States of America took note of a similar situation in
the case of United States v. Stone and Downer Co. [274 U.S.
225 (1927)] and held that if some of the persons are released
from the application of a provision of legislative enactment on
the principle of res judicata, it will lead to inequalities and
discrimination causing injustice and confusion. It was held that
in such a situation the plea of res judicata cannot be
sustained.â
(Underlined to lay emphasis)
11.
In view of the above said discussion on various aspects of
the case and the law laid down by this Court, we are of the considered
view that the relief sought by the respondents does not commensurate
or is covered by any legal premises / provision of law on the subject
and the same is claimed on its own strength without any backing of
law. We are, therefore, constrained to hold that the Constitutional
Petitions filed by the respondents before the Peshawar High Court,
which have been decided through the impugned judgments, were
primarily not maintainable being hit by the principle of res judicata.
12.
For what has been discussed above, these appeals are
allowed and the impugned judgments are set aside.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad
Announced on 01.07.2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Mian Saqib Nisar
Mr. Justice Iqbal Hameedur Rahman
Mr. Justice Tariq Parvez
CIVIL APPEAL NO. 95/2005
(Against the judgment dated 5.12.2003
passed by High Court of Sindh, Karachi
passed in Cons.P. No.1443/1996)
M/s Pakistan International Airlines Corporation
Appellant(s)
Versus
The Board of Trustees, EOBI etc.
Respondent(s)
For the Appellant(s):
Mr. Anwar Mansoor Khan, Sr. ASC.
Mr. Mehr Khan Malik, AOR.
For the Respondent(s):
Mr. Tariq Bilal, ASC.
Mr. Babar Bilal, ASC.
Mr. M. S. Khattak, AOR.
Noor Ahmed, Dy. Director, Law, EOBI
On Courtâs Notice:
Mr. Abdul Rasheed Awan, D.A.G.
Date of Hearing:
20.01.2016.
ORDER
MIAN SAQIB NISAR, J:- This appeal, by leave of the Court,
entails the facts, in that, the appellant had challenged the order dated
24.11.1995 passed by the Adjudicating Authority of the Employeesâ Old
Age Benefits Institutions (EOBI), whereby the kitchen and engineering
departments of the appellant were declared to be establishments within
the purview of the Employeesâ Old-Age Benefits Act, 1976 (the Act), before
the Board of Trustees of EOBI/respondent No.1 which dismissed the
appeal vide order dated 10.6.1996. Both these orders were assailed by
the appellant by filing a constitutional petition before the learned High
Court of Sindh, which (petition) was dismissed vide the impugned
judgment, hence the appellant approached this Court. Leave in this case
Civil Appeal No. 95/2005
2
was granted vide order dated 3.2.2005, the relevant part wherefrom is
reproduced as under:-
â(i)
Whether clause (c) & (f) and proviso of section 47 of
Employees Old Age Benefits Act XIV of 1976 read
with section 33 of the said Act have been correctly
and rightly interpreted by the High Court?
(ii)
Whether the definition of âManufactureâ and
âManufacturing Processâ given in the various
dictionaries in the absence of definition under the
Factories Act could be made basis of the judgment
against the petitioner?
(iii)
Whether the provision of Act XIV, 1976 and Factories
Act, 1934 and the P.I.A.C. Act, 1956 have been
erroneously interpreted/considered in the impugned
judgment? and
(iv)
Whether the petitioner-Corporation being statutory
corporation under Government of Pakistan through
Ministry of Defence, would be governed by any other
law than P.I.A.C. Act, 1956 and Rules & Regulations
made thereunder?â
Adding to the facts, it may be mentioned that the Assistant Director
(Inspection), EOBI moved a complaint under Section 33 of the Act before
the Adjudicating Authority, EOBI that the kitchen and the engineering
departments of the appellant require compulsory registration with EOBI
and are liable to pay contributions under the Act, which the appellant
has not so done and this is a lapse on its part, thus a direction to that
effect be given. The Adjudicating Officer, after seeking a reply from the
appellant, passed the order dated 24.10.1995 wherein considering that
both the kitchen and the engineering departments have been registered
by the appellant under the Factories Act, 1934 (Factories Act) and also by
Civil Appeal No. 95/2005
3
interpreting various relevant provisions of the Act has come to the
conclusion that the departments are âestablishmentsâ within the purview
of the law and they require compulsory registration. It may be mentioned
that with regard to the interpretation of the relevant provisions the
working/functioning of both the departments have been taken into
consideration. In appeal before respondent No.1, the order dated
24.10.1995 has been upheld but on examination of the order dated
10.6.1996 passed by it, we find that such upholding has been done
without giving any separate or additional reasons.
2.
Learned counsel for the appellant has argued that clauses (c)
and (f) of Section 47 read with Section 33 of the Act have not been
correctly and rightly interpreted by the learned High Court; the
departments, such as the kitchen and engineering departments, of the
appellant cannot be segregated into separate entities to be termed as
âestablishmentsâ for the purposes of invoking the provisions of the Act;
Section 3 of the Act contemplates the concept of an âestablishmentâ
which is an organization as a whole and not of its different
departments/components; the term âestablishmentâ as defined in
Section 2(e) of the Act is not applicable to the various departments of an
establishment as a whole; the fact that the two departments were
registered under the Factories Act, cannot be taken as a ground for
registering those departments for the purposes of the Act on account of
Section 2(e)(iii) (of the Act); the kitchen and engineering departments do not
engage in manufacturing process.
3.
On the other hand learned counsel for the respondent has
argued that the factum of registration of the kitchen and engineering
departments under the Factories Act is sufficient per se to render them
to be liable to registration under the Act and therefore the question of
Civil Appeal No. 95/2005
4
whether or not they are âfactoriesâ by virtue of their respective functions
does not remain. Further, he made reference to Section 4(2)(e) of the
Pakistan International Airlines Corporation Act, 1956 (PIAC Act) and the
relevant portion of the impugned judgment, to argue that since the
appellant repairs equipment of other airlines, the exemption under
Section 47 of the Act does not apply. He further stated that the appellant
being a corporation registered under the Companies Ordinance, 1984
(Ordinance) was no longer immune from the applicability of the Act. To
support his arguments, learned counsel for the respondent relied upon
Province of N.W.F.P. through Secretary, Local Government and
Rural Development, Peshawar v. Pakistan Telecommunication
Corporation through Chairman and others (PLD 2005 SC 670), Don
Basco High School v. Assistant Director, E.O.B.I. and others (PLD
1989 SC 128) and Lahore Race Club through Secretary v. Deputy
Director, Employeesâ Old-Age Benefits Institution, Lahore and 2
others (1998 SCMR 1571). The learned Deputy Attorney General has
submitted that the order of respondent No.1 is sketchy and that there
was no proper adjudication of the matter neither by the Adjudicating
Authority nor the respondent No.1, making this a case fit for remand.
4.
Heard. The key questions involved in this matter are:- first,
whether the kitchen and engineering departments of the appellant are
âestablishmentsâ within the meaning assigned in the Act; and secondly,
whether the Act is not applicable to the appellant by virtue of Section 47
of the Act. In order to appreciate the above, the relevant provisions (parts)
of the law are reproduced as below:-
âEmployeesâ Old-Age Benefits Act, 1976
2.
Definitions. â In this Act, unless the context otherwise
requires,â
Civil Appeal No. 95/2005
5
(e) "establishment" means-
(iii)
a factory as defined in the Factories Act,
1934 (XXV of 1934);
47.
Act Not to Apply to Certain Persons.â Nothing in this
Act shall apply toâ
(f)
person in the service of statutory bodies other than
those employed in or in connection with the affairs of a
factory as defined in section 2 (j) of the Factories Act,
1934 (XXV of 1934), or a mine as defined in the Mines
Act, 1923 (IV of 1923):
Provided that workshop maintained exclusively
for the purposes of repair or maintenance of equipment
or vehicles used in such statutory bodies shall not be
treated as factories for the purposes of this clause;
Factories Act, 1934
2.
Definitions.â In this Act, unless there is anything
repugnant in the subject or contextâ
(g)
âmanufacturing processâ means any processâ
(i)
for making, altering, repairing, ornamenting,
finishing or packing, or otherwise treating any article
or substance with a view to its use, sale, transport,
delivery or disposal, or
(j)
âfactoryâ means any premises, including the precincts
thereof, wherein ten or more workers are working, or were
working on any day of the preceding twelve months, and in any
part of which a manufacturing process is being carried on or
is ordinarily carried on with or without the aid of power but
does not include a mine, subject to the operation of the Mines
Act, 1923 (IV of 1923);â
5.
Now coming to the first question as to whether the kitchen
and engineering departments of the appellant are âestablishmentsâ
Civil Appeal No. 95/2005
6
within the meaning assigned in the Act, Section 1(4) of the Act provides
for the Act to be applicable to every establishment, Section 3 states that
there is to be compulsory insurance of all employees in an establishment,
and Section 11 deals with registration of establishments, which
(registration) was directed by all the fora below in the instant matter, thus
an elucidation of the meaning of âestablishmentâ is necessary. However
before proceeding we find it pertinent to deal with the argument of the
learned counsel for the appellant that the various departments of an
organisation cannot be âestablishmentsâ rather it has to be the
organisation as a whole; suffice it to say that there may very well be
organisations comprising of a vast array of sub-organisations wherein
each sub-organisation carries out an activity that may be wholly or
substantially different from that of another sub-organisation, rendering
only one or some of the sub-organisations as âestablishment(s)â under
the Act and not the others. To hold that an âestablishmentâ as provided
for under the Act only contemplates organisations as a whole/composite
and not its individual departments/sub-organisations would mean to
deprive the employees of insurance benefits who would otherwise be
entitled as the sub-organisation they work for may fall within the
definition of âestablishmentâ under the Act. Hence, we are of the opinion
that the kitchen and engineering departments of the appellant are not
precluded from falling within the definition of âestablishmentâ as
provided for under the Act.
The definition of âestablishmentâ has been provided in Section 2(e),
the relevant sub-clause of which is (iii), that is, a âfactory as defined in the
Factories Act, 1934â. âFactoryâ has been defined in Section 2(j) of the
Factories Act (reproduced above), wherein the determinative factor for our
purposes is that of âmanufacturing processâ, which in turn has been
Civil Appeal No. 95/2005
7
assigned a meaning in Section 2(g) of the Factories Act, the germane sub-
clause of which is (i). The question boils down to whether such
âmanufacturing processâ is being carried out in the kitchen and/or
engineering departments of the appellant. With regard to the kitchen
department, flight kitchen production or flight catering consists of mass-
scale food production, where food is prepared, cooked and arranged for
final service for countless number of passengers and flight crew on
numerous local and international fights round the clock every day. This
makes it lose its semblance to a regular kitchen, and renders it more
akin to a food manufacturing plant, where finished dishes are made from
the raw material (fresh food items, etc.) and finally packed and loaded onto
flight catering carts for use on-board the appellantâs air carriers, thereby
bringing such process within the âprocess for makingâĻpackingâĻany article or
substance with a view to its useâĻâ making it a âmanufacturing processâ and
consequently rendering the kitchen department a âfactoryâ in terms of
the Factories Act. Accordingly, such department would necessarily
constitute an âestablishmentâ for the purposes of the Act. Suffice it to say
that there is no provision in the Act which provides that objects ancillary
to the main object of an organisation such as the appellant would not be
subject to the application of the Act, and the argument of the learned
counsel for the appellant in this regard is unconvincing. Further with
regard to his submission that the food is being prepared for the
appellantâs own use, we do not find this to be a reason within the
relevant law to make the Act inapplicable to the kitchen department, and
in any case, the services being provided by the said department are very
much a part and parcel of the appellantâs object to provide air-transport
to passengers. With respect to the engineering department, even if it is
accepted that no manufacturing whatsoever is taking place within such
Civil Appeal No. 95/2005
8
department as submitted by the learned counsel for the appellant, but
repairing and servicing of airplanes, which is admittedly being carried
out, would certainly bring it within the definition of âfactoryâ since a
âmanufacturing processâ is taking place, which encompasses ârepairingâ
of the airplanes âwith a view to its useâ as per Sections 2(g)(i) and 2(j) of the
Factories Act. Consequently, the engineering department is also an
âestablishmentâ under the Act.
6.
Adverting to the second question, we find it important to
state at this juncture that this appeal was previously decided vide
judgment dated 19.4.2011 on the primary ground that Section 47 was
only meant for âpersonsâ employed to be excused from making
payments/contributions as required by the Act, and not the appellant as
an employer. Subsequently the review petition filed by the appellant was
allowed and the appeal restored to its original number for re-hearing vide
order dated 4.3.2015 on the main ground that Section 47 was a part of
the original Act at which time employees were under no obligation to
make any payments/contributions to the EOBI Fund, suffice it to say
that we find this to be the correct position and thus the appellant as an
employer is entitled to take the benefit of the provisions of Section 47.
For ease of reference, Section 47(f) may be divided into three
parts:- (i) persons in the service of statutory bodies; (ii) other than those
employed in or in connection with the affairs of a factory as defined in
Section 2(j) of the Factories Act; and (iii) the proviso, that workshops
maintained exclusively for the purposes of repair or maintenance of
equipment or vehicles used in such statutory bodies shall not be treated
as factories for the purposes of Section 47(f). It is an undisputed fact,
that the appellant is a statutory body, having been established by
statute, i.e. the Pakistan International Airlines Corporation Act, 1956,
Civil Appeal No. 95/2005
9
and its employees consequently in the service of a statutory body. It may
be pertinent to mention here that we find force in the argument of the
learned counsel for the appellant that the mere factum of registration of
the kitchen and engineering departments under the Factories Act (which is
undisputed) will not be sufficient to satisfy the second part of Section 47 for
the reason that the phrase âregistered underâ was taken out of Section 47(f)
of the Act and replaced with âas defined inâ by virtue of an amendment
(Employeesâ Old-Age Benefits (Amendment) Ordinance, 1983). Be that as it may, as
opined above in paragraph 5, the kitchen and engineering departments
are nevertheless âfactoriesâ within the meaning provided in Section 2(j) of
the Factories Act, hence the Act would be applicable to the employees of
the appellant working in the said departments. The attempt of the
learned counsel for the appellant to bring at least the engineering
department within the purview of the proviso to Section 47(f) by stating
that such department repairs airplanes of the appellant only is inapt, as
it has come on the record (in the form of an affidavit vide CMA No.385/2016) that
repair and maintenance services are also being provided to airplanes of
airlines other than that of the appellant, which in any case is a public
domain fact in our opinion; and that the appellant also repairs and
services the aircrafts and equipment of the Pakistan Navy and Air Force
was admitted by the appellant in the proceedings before the Adjudicating
Authority, EOBI, therefore, bringing the appellant out of the ambit of the
proviso to Section 47(f), consequently rendering the provisions of the Act
applicable to the persons working in the engineering department of the
appellant.
7.
Finally, there is nothing on the record such as a Form A or
Form 29 issued by the Securities & Exchange Commission of Pakistan to
suggest that the appellant has been conclusively converted into a limited
Civil Appeal No. 95/2005
10
company under the Ordinance to enable us to decisively hold that the
Act would apply to the appellant on this account.
8.
In light of the foregoing, we find that no case for interference
with the impugned judgment has been made out; therefore, this appeal is
dismissed with no order as to costs.
Judge
Judge
Judge
Announced in open Court
on 09.02.2016 at Islamabad
Not Approved For Reporting
Ghulam Raza/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE MUNIB AKHTAR
Civil Appeal No.960 of 2017.
(Against the judgment dated 19.5.2017 passed by
the Lahore High Court Rawalpindi Bench in CR No.
75 of 2010)
Saddaruddin (since decd) thr. LRs.
Appellant(s)
Versus
Sultan Khan (since decd) thr. LRs etc.
Respondent(s)
For the Appellant(s)
: Syed Qalb-e-Hassan, Sr. ASC.
In CMA No.2817/20
Mr. Tanveer Iqbal, ASC
For the Respondents,1-5 : Ex parte.
Date of Hearing
: 13.01.2021
ORDER
Sajjad Ali Shah, J.- This direct appeal is filed against
the judgment of the Lahore High Court Rawalpindi Bench whereby
the said Court while exercising revisional jurisdiction by reversing
the judgment of the appellate Court restored the dismissal decree
passed by the trial Court.
2.
Briefly the appellant on 18.5.2004 filed a suit against
the respondent seeking declaration regarding his ownership in
respect of a house, subject matter of the lis. It was claimed by the
appellant that in the year 1971, through an oral agreement he has
purchased the subject property from the respondent for a sum of
Rs.7500/- and the respondent after having received the sale price
CA 960/2017
2
handed over the original title documents of the subject property. In
order to justify filing of suit for specific performance after almost 33
years the appellant pleaded that the cause of action accrued a week
before filing of suit when the respondent refused to execute the sale
deed in favour of the appellant. On the other hand, respondent
emphatically denied the claim of the appellant and asserted that he
was inducted as a tenant in the year 1971 and was handed over
the title documents recently for getting electricity connection and
now the appellant has turned dishonest and has laid a false claim
of sale against the subject property. Issues accordingly were framed
and the trial Court, after allowing the parties to adduce evidence,
dismissed the suit. The appellant filed an appeal which was allowed
giving rise to the respondent to approach the High Court by filing a
civil review petition which, after hearing, was allowed through the
impugned judgment.
3.
Learned counsel for the appellant contends that the
High Court erred in setting aside a well reasoned judgment of the
appellate Court which has discussed in detail the effect of non-
production of witnesses of sale on account of their death and
production of one witness of arbitration before whom the parties
took their dispute when the respondent refused to execute the sale
deed. The Court had further considered the effect of prolonged
possession coupled with title documents, installation of electricity
meter and additional construction which had fortified the
appellantâs claim of ownership. The High Court therefore, was not
justified to reverse the well reasoned judgment of the appellate
Court.
CA 960/2017
3
4.
However, we have found that the appellant has neither
detailed the material contents of the sale agreement in the plaint
nor the fact that the said oral agreement was witnessed by any one
or the witnesses of the oral sale had died. Even the plaint does not
describe the event of jirga which the plaintiff has disclosed in his
evidence. We have further found the evidence adduced on behalf of
the appellant to be against the pleadings as in the plaint appellant
in order to justify filing of suit for specific performance after almost
33 years of alleged oral sale agreement has asserted that just a
week before filing of suit, the cause of action has accrued whereas
PW-3 Muhammad Sharif alleged witness of the arbitration whose
evidence was recorded on 19.11.2005, asserted that the arbitration
took place in his shop in March last year i.e. March, 2004 whereas
the suit was filed by the appellant on 19.5.2004 by asserting that
the cause of action has arisen a week before filing of suit i.e. May
2004. Beside, we have noticed that the claim of the appellant
suffers from major legal flaws; firstly, that the appellant tried to
establish the oral sale agreement through his evidence by asserting
two witnesses of sale and further that on refusal to execute sale
deed a Jirga took place and a witness to affirm the Jirga was
produced. However, we do not find any of such pleas in the plaint
and consequently the evidence though neither here nor there but
still cannot be considered on the basis of principle laid down by
this Court that the parties are required to lead evidence in
consonance with their pleadings and that no evidence can be laid
or looked into in support of a plea which has not been taken in the
pleadings. A party, therefore, is required to plead facts necessary to
CA 960/2017
4
seek relief claimed and to prove it through evidence of an
unimpeachable character. Reference can readily be made to the
case of Sardar Muhammad Naseem Khan versus Returning Officer,
PP-12 and others (2015 SCMR 1698) and Binyameen and others
versus Chaudhry Hakim and another (1996 SCMR 336). The second
legal flaw is that in cases where the sale is pleaded through oral
agreement then the terms and conditions which were orally agreed
are to be stated in detail in the pleadings and are to be established
through evidence. In such like cases, the plaintiff beside detailing
subject matter of the sale, the consideration, detail of striking of
the bargain, name of the witnesses in whose presence the said oral
agreement to sale was arrived at between the parties and other
necessary detail for proving the sale agreement as if it would have
been executed in writing. Reference can readily be made to the case
of Sheikh Akhtar Aziz versus Mst. Shabnam Begum and others
(2019 SCMR 524) and Muihammad Nawaz through LRs versus Haji
Muhammad Baran Khan through LRs (2013 SCMR 1300). Lastly as
to the claim of the appellant regarding his prolonged possession
coupled with title documents, suffice it to observe that mere
prolonged possession even coupled with title document by itself
does not establish the claim of ownership unless the sale is
established and in this case the claim of the appellant was met
with the plea of tenancy and since neither the sale is established
nor the status of the appellant as tenant, therefore, we would not
like to further dilate upon the status of the appellant vis-Ã -vis the
subject property.
CA 960/2017
5
5.
For the foregoing reasons, no case of interference is
made out. This appeal is consequently dismissed.
Judge
Judge
Judge
Islamabad
13.01.2021
A.Rehman
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MUHAMMAD NAWAZ ABBASI
CIVIL APPEAL NO. 970 OF 2003
(On appeal against the judgment dated 2.6.2003
passed by the Peshawar High Court, Peshawar
in Election Petition No. 29 of 2002)
Atique Rehman
âĻ
âĻ
Appellant
Versus
Haji Khan Afzal, etc
âĻ
âĻ
Respondents
For the Appellant:
Mr. Wasim Sajjad, Sr. ASC
Mr. Mehr Khan Malik, AOR
For the Respondents:
Mr. Abdul Aziz Kundi, AOR
Date of Hearing:
2.10.2006
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ: Instant appeal has
been filed against the judgment dated 2nd June 2003 passed by the Peshawar
High Court, Peshawar in Election Petition No. 29 of 2002.
Precisely stating facts of the case are that appellant submitted
nomination papers on 23rd August, 2002 to contest the Election of the Office
of MPA from PF 42, Hangu-I. The Returning Officer after having examined
his documents vide detailed order dated 2nd September 2002 concluded that he
was qualified to contest the election and thus in the contest, the appellant
secured more votes to that of his opponent and as such was declared
successful
candidate.
The
respondent
filed
an
Election
Petition
against the appellant, which was allowed by the election Tribunal constituted
CA 970/2003
2
under Representation of People Act, 1976 and presided over by a learned
Judge of the Peshawar High Court, vide judgment dated 2nd June 2003. The
appellant has thus filed the instant appeal under Section 67(3) of the ibid Act
[hereinafter referred to as the Act].
Learned counsel for appellant contended that no such ground in respect
of the age of appellant less than 25 years on the date of filing the nomination
papers, was taken in the election petition or at any subsequent stage by any of
the contesting candidate, rather the Presiding Officer of the Tribunal himself
having posed the question regarding the age of the appellant on the date of
filing of the nomination papers, held that he being less that 25 years of age
was not qualified to contest the election. Learned counsel submitted that it was
brought to the notice of Tribunal that much before the filing of nomination
papers, a civil suit was filed by the appellant for correction of his date of birth
which was subsequently decreed in his favour and according to the verdict
given by the Civil Court, he was above 25 years of age on the date of filing the
nomination papers and the decree having been not challenged, attained
finality, which was still holding field to be given effect for all intents and
purposes.
The learned counsel for the respondents, on the other hand, submitted
that the decree in question was passed on the basis of medical certificate
wherein the approximate age of the appellant was given which cannot be
considered as conclusive evidence of his age and further the same having been
obtained subsequent to the filing of nomination papers, may not be relevant to
determine the correct age of the appellant on the target date, therefore, the
High Court has rightly held that on the day of filing of the nomination papers,
the appellant was not qualified to contest the election.
CA 970/2003
3
After hearing the learned counsel for the parties at length and having
carefully perused the record with their assistance, we in the light of the
provisions of Section 99 of the Act, 1976 have found that a candidate
intending to contest election for the seat of member provincial Assembly must
fulfill the condition contained therein including attaining the age of 25 years
on the date of filing the nomination paper and should also be enrolled as voter
in the constituency from which he is contesting the Election.
The appellant having fulfilled the above essential conditions contested
the Election as a validly nominated candidate therefore, it would hardly make
any difference that decree was passed subsequent to 23rd August 2002 which
was the last date for filing the nomination papers. It is evident from the
contents of the decree that appellant has attained the age of 25 years much
before the target date and the same having been not assailed in the appropriate
proceedings was still holding the field, so much so the application under
Section 12 (2) CPC filed by the respondents for setting aside the decree was
also dismissed. The validity of the decree passed by the civil court neither
could be challenged before the Election Tribunal established under
Representation of People Act, 1976 nor the same could be ignored to be given
legal effect and thus we are of the considered opinion that so long the decree
of the Civil Court determining the age of appellant above 25 years on the date
of filing of nomination papers was intact, the objection that he was less than
25 years of age on the date of nomination papers could not be raised to
contend that he was suffering from disqualification to contest the election.
The contention regarding the other conditions relating to the eligibility of
appellant to contest the election is also without any substance. The appellant
was enrolled as voter in the constituency from which he was contesting the
CA 970/2003
4
election and he having been not found to have been suffering from any
disqualification to contest the election was declared a validly nominated
candidate. It may be noted that neither any appeal was filed against the
acceptance of nomination paper of the appellant nor the order passed in the
application under Section 12 (2) CPC challenging the decree was further
assailed and thus the Tribunal being not competent to sit over the judgment of
civil court would have no jurisdiction, to go beyond the decree and pass a
contrary order in respect of age of appellant.
In the light of forgoing reasons the appeal is allowed, impugned
judgment is set aside and Election Petition filed by the respondent is dismissed
with costs of Rs. 10,000/- (Rupees ten thousand only).
Chief Justice
Judge
Islamabad
02.10.2006
MS/*
Not Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
CIVIL APPEALS NO. 977 & 978 OF
2018 AND C.M.A. NO. 3658/2019
IN CIVIL APPEAL NO. 978/2018
(Against judgment dated 26.02.2018 passed by
the Islamabad High Court Islamabad in F.A.O.
No.42/2016)
M/o Information Technology
and Telecommunications, Islamabad
(in C.A. No.977/2018)
The Pakistan Telecommunications Authority,
Islamabad
(in C.A. No.978/2018 & C.M.A. 3658/2019
inC.A.978/2018)
âĻAppellant(s)
Versus
CM Pak (Pvt) Ltd. Islamabad & another
(in C.A. 977/2018)
CM Pak (Pvt) Ltd. Islamabad
(in C.A. 978/2018)
âĻRespondent(s)
For the Appellant/:
Mr. Sajid Ilyas Bhatti, Addl. A.G.P.
Applicant(s)
M. Ayub, Ministry of I.T.
(in C.A. 977/2018)
Mr. Munawar Iqbal Duggal, ASC
Sajjad Latif, D.G. (Law) PTA
M. Khurram Siddiqui,
Director Law, PTA
M. Kashif, A.D. PTA
(in C.A. 978/2018)
For the Respondent(s):
Mian Shafaqat Jan, ASC
M. Sharif Janjuah, AOR
(in all cases)
Mr. Rashid Hanif, ASC
(in C.M.A. 3658/2019)
Date of hearing:
22.04.2020.
. . . . . . . .
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
2
ORDER
Umar Ata Bandial, J. The impugned judgment dated
26.02.2018 was passed by the learned High Court in a first appeal
bearing No. FAO 42 of 2016 filed by the respondent telecom
licensee under the Pakistan Telecommunication (Re-Organization)
Act, 1996 (âActâ). The respondent licensee had challenged the
suspensory direction dated 28.03.2016 issued by the appellant
Pakistan Telecommunication Authority (âPTAâ). However, the
impugned judgment struck down the policy directive dated
26.12.2009 published by the Ministry of Information Technology
(I.T. & Telecom Division) under Section 8(2)(c) of the Act. The
impugned judgment held that the said policy directive failed to
meet the criteria and conditions laid down in Section 54(2) and (3)
of the Act.
2.
Pursuant to this impugned policy directive dated
26.12.2009, PTA from time to time had issued directions whereby
cellular services provided by telecom licensees were ordered to be
suspended in specified areas for limited time on grounds of
national security. To illustrate this point, certain suspensory
directions issued by PTA are given below. Email dated 22.03.2016:
âall Mobile and Wireless (2G/3G/4G/LTE/
CDMA/WiMax) Voice & Data Services would
remain blocked in 20 kilometer radius around
Multi Purpose Ground, Islamabad to avoid any
untoward incident during Joint Services Pakistan
Day Parade at Multi Purpose Groundâ
Email dated 21.10.2015:
âthe closure timing for closing of Mobile and
Wireless
Services
(2G/3G/4G/
LTE/CDMA/WiMax Voice & Data Services) in
district/cities/areas forwarded vide trailing emails
is: from 0630 Hours to 2000 Hours on 24th
October 2015 (10 Muharram ul Haram). It is
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
3
pertinent to highlight that the area of Karachi is
all five districts.â
3.
It is common ground that the events that invite such
directions are invariably related to national security or public
safety. What is disputed by the respondent licensee who
succeeded before the learned High Court is the extent of such
restrictions in terms of time, space and type of services that are
blocked. Specifically, the respondent licensee had challenged the
suspensory directions dated 28.03.2016. The first direction was
sent at 12.27 am:
âIt is requested to block all cellular mobile
(2G/3G/4G/LTE) Voice & Data services in 10km
radius around D-Chowk, Red Zone, Islamabad to
avoid any untoward incident by 0030 hrs on
March 28 2016 and control spill over sites as well.
The services would remain blocked till further
notice.â
This was followed by a further direction at 06.24 am:
âIs requested to restore mobile services by 0700
hrs on March 28, 2016 and confirm through
return email.â
There is agreement between the parties that national security or
public safety priorities should justify the imposition of such
restrictions and directions. However, the respondent licensee
contends that the Federal Government ought to have settled
procedures and benchmarks to regulate its discretion. This is
urged because the respondent has a right to do business and the
sudden curtailment of its rights has negative implications.
4.
The impugned directions dated 28.03.2016 under the
policy directive dated 26.12.2009 were not impeached by the
respondent licensee before PTA but were straightaway challenged
before the High Court in an appeal filed under Section 7(1) of the
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
4
Act. However, it appears that at the hearing the respondent
licenseeâs challenge shifted to the policy directive. There is nothing
on record to indicate that the respondent licensee expressed its
grievance before the Federal Government or its concerned
agencies about the said directive dated 26.12.2009 in the seven
years that elapsed before the filing of its appeal. Be that as it may,
the impugned judgment considered the provisions of the Act and
concluded that Section 54(3) of the Act which authorises the
suspension of services of telecom licensees is not attracted to the
facts of the case. That the policy directive issued under Section
8(2)(c) of the Act is controlled by Section 54(3) ibid and therefore,
the policy directive dated 26.12.2009 issued under the Act by the
Government is ultra vires.
5.
It would be useful at this stage to reproduce the
relevant provisions of the Act:
â8. Power of the Federal Government to issue
policy directives.- (1)âĻ
(2) The matters on which the Federal Government
may issue policy directives shall beâ
(a)âĻ
(aa)âĻ
(b)âĻ
(c) requirements of national security and of
relationships between Pakistan and the
Government of any other country or
territory outside Pakistan and other States
or territories outside Pakistan.â
(2A)âĻ
(3)âĻ
â54. National Security.-- (1) Notwithstanding
anything contained in any law for the time being
in force, in the interest of national security or in
the apprehension of any offence, the Federal
Government may authorise any person or persons
to intercept calls and messages or to trace calls
through any telecommunication system.
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
5
(2) During a war or hostilities against Pakistan by
foreign power of internal aggression or for the
defence or security of Pakistan, the Federal
Government shall have preference and priority in
telecommunication systems over any licensee.
(3) Upon proclamation of emergency by the
President, the Federal Government may suspend
or modify all or any order or licences made or
issued under this Act or cause suspension of
operation, functions or services of any licensee for
such time as it may deem necessary;
Provided that the Federal Government may
compensate any licensee whose facilities or
services are affected by any action under this sub-
section.â
Having carefully perused the foregoing provisions of the Act, we
are of the view that both sections cater to different circumstances.
Section 54(3) confers powers on the Federal Government to modify
or suspend all or any orders or licences in a situation where an
Emergency is imposed by the President under Article 232 of the
Constitution. On the other hand, Section 8(2)(c) empowers PTA to
take steps pertaining to matters of national security, diplomatic
protocols and State functions. The purpose of the two sections is
distinct. Section 54(3) is reactive and defensive in nature, coming
into the field when on account of grave circumstances in the
country or its provinces a Proclamation of Emergency is issued by
the President potentially involving suspension of Fundamental
Rights and the Provincial Government(s). Conversely, Section
8(2)(c) contemplates pre-emptive action as it allows for the
disruption of services before any perceived threat in a specified
area materialises. Further, under Section 54(3) cellular services
may according to the terms of the Emergency be disrupted for a
lengthy period of time over an extensive area. In contrast,
disruption of services under Section 8(2)(c) is likely to be event
specific and localised, in effect applying only for a temporary
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
6
period of time across a limited area. Clearly then, both sections
operate in separate spheres and situations with no conflict
between them nor any primacy being given to one over the other.
6.
As far as the policy directive dated 26.12.2009 is
concerned, it has been issued by the Federal Government in
exercise of its power under Section 8(2)(c) of the Act.
Consequently, the said directive is a piece of delegated legislation.
The purpose of such an executive instrument has been set out by
this Court in Muhammad Amin Muhammad Bashir Limited Vs.
Government of Pakistan (2015 SCMR 630) at para-7:
Para 7:âĻ â[delegated legislation is] intended to
enforce the law, not override it. [It] can fill in
details but not vary the underlying statutory
principles.â
The policy directive dated 26.12.2009 sets out the purpose,
causes and parameters of suspensory action by PTA. It gives law
enforcement authorities the power to forward written requests to
PTA specifying the cellular services to be closed, the time and
duration of closure and the specific area where such closure is to
be implemented in case of significant threat of âhostilities against
Pakistan by a foreign powerâ or âinternal aggression by
terrorists/groups.â It is obvious that these events are significant
for public safety and national security. However, their limited and
transient occurrence cannot justify the imposition of an
Emergency
under
the
Constitution
which
can
continue
uninterrupted for 60 days without sanction of the two Houses
[Article 232(7) of the Constitution]. Therefore, there is nothing in
the policy directive dated 26.12.2009 which contravenes any
substantive provision of Section 54 of the Act. Instead, it
complements and strengthens the purpose of the Act by attending
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
7
to national security situations that fall outside the ambit of
Section 54(3).
7.
Consequently, the only question arising before us for
determination is whether PTA has exercised its power under the
policy directive dated 26.12.2009 reasonably, fairly, justly and for
the advancement of the purposes of the Act [ref: Section 24-A(1) of
the General Clauses Act, 1897 (â1897 Actâ)]. This test has been
reiterated by this Court in the Muhammad Amin case (supra).
Reasonableness and fairness are criteria that bear nexus with the
factual matrix of a grievance and with the object of the law. In the
present case, the factual background for the impugned exercise of
such power vide PTAâs email dated 28.03.2016 has not been
examined by the learned High Court. In our considered view, in a
country where there is sectarian tension during the Ashoora in
Moharram the Zuljinah procession ought to be protected from
attacks and turmoil. This is attempted by PTAâs email dated
21.10.2015 which is necessary to ensure the religious freedom
guaranteed to the citizens under Article 20 of the Constitution.
Equally, the Pakistan Day Parade by the Armed Forces is an
annual national event where apart from the Armed Forces
personnel, the highest State and foreign dignitaries are assembled
to view the military parade. This again is an event which deserves
security protection. Indeed, PTAâs email dated 22.03.2016 seeks to
ensure that. Similarly, the impugned directions of 28.03.2016
were issued during the protest which marked the Chehlum of
Mumtaz Qadri. This protest had involved severe damage to public
property (Danish Hussain, âD-Chowk Protestors End Sit-In After
Successful Talksâ The Express Tribune (Islamabad, 31 March
2016)). Therefore to curtail further escalation of damage/violence
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
8
there was a legitimate need to suspend cellular services. These
protective measures are taken on the request of law enforcement
authorities in view of past experience of terrorist activities at
similar events. If such events caused the issuance of the
impugned directions then the same would be in the public
interest, reasonable, fair, consistent with the object of the law and
therefore valid. Accordingly, the exercise of power by PTA under
the policy directive dated 26.12.2009 ought to be evaluated in the
light of the threat that is anticipated.
8.
To our minds, the power of PTA under the policy
directive dated 26.12.2009 does not conflict with Section 54(3) of
the Act which operates in a different field. In fact, it is regulated
by Section 8(2)(c) of the Act read with Section 24-A(1) of the 1897
Act and the law laid down by this Court controlling the exercise of
delegated authority. Apart from the aforesaid parameters, it is not
within the province of a Superior Court to strike down or interfere
with decisions taken by Federal Government bodies pursuant to
the policy directive dated 26.12.2009.
9.
Accordingly, for the reason that the impugned
judgment has failed to examine the impugned suspensory
directions dated 28.03.2016 in the context of the power conferred
on PTA, we consider that the impugned judgment has arrived at a
hasty and incorrect conclusion. The learned High Court has
construed Section 8(2)(c) to be subservient to Section 54(3) of the
Act. In reaching this decision, the learned High Court has misread
the Act, specifically the provisions of Section 54, all of which serve
an express purpose/function. Whilst these purposes/functions
may incidentally be effectuated by the exercise of power under
Section 8(2)(c) of the Act but this does not lead to the conclusion
Civil Appeal Nos.977 & 978 of 2018 and C.M.A. No.3658/2019 in C.A. No.978/2018
9
that Section 54 ibid controls the exercise of such power.
Consequently, the impugned judgment is set aside. If the
respondent telecom licensee had any grievance regarding the
manner in which the power under Section 8(2)(c) of the Act was
exercised by PTA it should have taken up the matter in the first
instance with the Federal Government. Therefore, its recourse to a
Court of law straightaway was pre-mature and vexatious. The
appeals are accordingly allowed.
C.M.A. No.3658 of 2019: Disposed of.
Judge
Judge
Islamabad, the
22th April, 2020
Approved for reporting
Ghulam Raza/Meher LC
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Umar Ata Bandial, HACJ
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Munib Akhtar
Civil Appeal No.97/2003
(On appeal from the judgment dated
10.09.2002 passed by the Lahore
High Court, Rawalpindi Bench in
C.R. No.507/1992)
Faiz Ullah and others
Appellants
Versus
Dilawar Hussain and others
Respondents
For the Appellants:
Mr. Zulfiqar Khalid Maluka, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondents No.1,3-4:
Barrister Umar Aslam, ASC
For Respondents No.2,5-12:
Ex-parte
Date of Hearing:
01.09.2021
JUDGMENT
Mazhar Alam Khan Miankhel, J.- This appeal with leave of the
Court is directed against the judgment dated 10th September, 2002
whereby Civil Revision No.507/1992, filed by Mst. Noor Bibi (now
deceased), mother of the appellants, was dismissed and judgments
and
decrees
of
the
Courts
below
(decreeing
the
suit
of
plaintiffs/respondents No.1 to 7) were upheld.
2.
The facts necessary for adjudication of this matter are
that one Alia (in revenue record, recorded as Ali Bakhsh), who was
the common ancestor of the parties, was owner of 218 kanals 05
marlas of agricultural land situated in Chak No.491/GB, Tehsil
Samundri. Upon his death, his three sons namely Imam Din, Karim
Bakhsh and Rahim Bakhsh inherited his aforesaid property in equal
shares. Imam Din died in the year 1922. Having no mail issue, his
widow namely Mst. Amina Bibi, succeeded him as a limited owner
C.A.97/03
2
under the customary law prevailing at that time, for her lifetime or
until her remarriage. She got re-married somewhere in 1935/36. Her
re-marriage resulted into termination of her limited interest in the
property. Mst. Noor Bibi (now deceased), defendant No.1, daughter of
Imam Din and mother of the present appellants (Mst. Noor Bibi),
replaced her mother with similar terms as a limited owner of the said
property until her marriage. She got married in the year 1944-45
which legally terminated her limited interest in the property but no
changes in the revenue record were made in this regard. The claim of
the plaintiffs (L.Rs. of Karim Bakhsh) through plaint was that after
the marriage of Mst. Noor Bibi, the limited owner, the property left by
the last full owner (Imam Din) would revert back to his actual legal
heirs, the real brothers Karim Bakhsh and Rahim Bakhsh, (the
predecessors of plaintiffs and defendants No.2 to 6 respectively). It is
in this backdrop, Dilawar Hussain etc. respondents herein, the
plaintiffs of the main suit (âplaintiffsâ), filed a suit for declaration
that they, being legal heirs of Karim Bakh, along with legal heirs of
Rahim Bakhsh (the defendants No. 2 to 6 in the main suit)
(defendants), may be declared as owners in possession of the said
property by updating/correcting entries of the revenue record in this
regard. Since Mst. Noor Bibi married with Faiz Muhammad (one of
the son of Rahim Bakhsh), the legal heirs of Rahim Bakhsh did not
join the plaintiffs, Dilawar Hussain etc. in the suit, therefore, they
were impleaded as defendants. The suit of the plaintiffs was decreed
by the learned Civil Judge, Samundri vide Judgment & Decree dated
28th November, 1987 appeal where against filed by Mst. Noor Bibi,
defendants No.2 and 4 to 6 (the son and the daughters of Rahim
Bakhsh), was dismissed by the learned Additional District Judge,
Faisalabad vide Judgment & Decree dated 23rd February, 1992 and
concurred with the findings of trial Court. The civil revision, filed by
C.A.97/03
3
Mst. Noor Bibi alone by making her other co-appellants as
respondents, was also dismissed by the High Court vide impugned
judgment dated 10th September, 2002. Hence the instant appeal with
leave of the Court granted on 29th January, 2003 which reads as
under:-
âLeave to appeal is granted to consider
entitlement of Mst. Amina Bibi as widow of Imam Din
to the extent of 1/8th share under the Islamic law of
whom Petitioners are the heirs.
2.
Status quo as on date to be maintained by the
parties.â
3.
We have heard the learned counsel for the parties and
have gone through the available record.
4.
The record shows that the legal heirs of Karim Bakh, the
plaintiffs (respondents No.1 to7 herein) filed a suit for declaration by
impleading Mst. Noor Bibi as defendant No.1 and legal heirs of Rahim
Bakhsh as defendants No.2 to 6 (respondents No.8 to 12 herein) and
alleged and claimed the suit property to be their exclusive ownership
along with legal heirs of Rahim Bakh, defendants No.2 to 6, in equal
shares (as sharers) by excluding Mst. Noor Bibi as being not entitled
after termination of her limited interest. Mst. Noor Bibi (now the
appellant) through her legal heirs, denied the allegations made in the
plaint and claimed herself to be the exclusive owner of the entire
property, inherited from her father. Their suit was decreed in their
favour by Civil Judge, Samundari, Faisalabad vide judgment and
decree dated 28.11.1987 by holding the plaintiffs and defendants
No.2 to 6 to be the owners to the extent of their respective shares on
termination of limited interest and by operation of law automatically
and attestation of any mutation in this regard is not necessary.
Besides the above, there was no specific finding regarding the
entitlement of Mst. Noor Bibi (predecessor of appellants) and decided
C.A.97/03
4
issues No.9 & 10 in favour of plaintiffs and defendants No.2 to 6 (all
respondents herein). Similarly issue No.2 regarding limitation was
also decided in their favour.
5.
The appeal against the judgment & decree dated
28.11.1987 of the Civil Judge, Samundari, Faisalabad filed by Mst.
Noor Bibi, defendant No.2 Faiz Muhammad, her husband, and the
three daughters of Rahim Bakhsh was dismissed by the learned
Additional District Judge, Faisalabad vide his judgment & decree
dated 23.02.1992. However, the question of limitation was
concurrently decided in favour of the parties. The civil revision was
filed by Mst. Noor Bibi alone. The learned Judge-in-Chambers upheld
the concurrent findings of the two Courts below including the
question of limitation. Perusal of the findings of all the three Courts
below would reflect that the plaintiffs (legal heirs of Karim Bakhsh)
and defendants No.2 to 6 (legal heirs of Rahim Bakhsh) (both of them
now
respondents)
have
been
declared
to
inherit
as
residuaries/collaterals after termination of the limited interest of
defendant No.1 (predecessor of appellants) but nothing specifically
has been said regarding the entitlement of Mst. Noor Bibi.
6.
The controversy between the parties revolves around the
inheritance of one Imam Din son of Alia (Ali Bakhsh) who died in the
year 1922 (as appears from the inheritance mutation in the name of
his widow Mst. Amina Bibi) when the customary law of inheritance
was prevailing in the area. After his death, her widow Mst. Amina
Bibi succeeded him as a limited owner as he had no male issue and
when she got remarried (somewhere in the year 1934/35), the limited
interest in the property left by Imam Din was transferred to Mst. Noor
Bibi his daughter and mother of present appellants. When Mst. Noor
Bibi got married probably in the year 1944/45 (the evidence and the
record confirm so and are also not disputed by anyone else) her
C.A.97/03
5
limited interest in the property was legally terminated but no such
entries were made in the revenue record and her name appears now
as a full owner in the existing revenue record. The dispute between
the parties starts from here.
7.
The law on the subject is very much clear that in the
event of death or marriage of a Muslim female, having limited interest
in the property under the customary law, the succession would be
deemed to open on such termination in favour of all the persons who
would have inherited the last full owner at the time of his death, had
the Punjab Muslim Personal Law (Shariat) been applicable at the time
of his death. Even in case of death of any legal heir before
termination of the limited interest, as stated above, succession would
also devolve on his legal heirs to the extent of share of deceased legal
heir. The law had also protected the shares of females who retained
limited interest in the property will also get their sharai shares as if
the Muslim Personal Law (Shariat) was applicable at the time of death
of last full owner. Section 3 of The West Punjab Muslim Personal Law
(Shariat) Application Act, 1948 (âAct-IX of 1948â) which deals with
the situation is reproduced for ready reference:-
â3. In respect of immovable property held by a
Muslim female as a limited owner under the
Customary Law, succession shall be deemed to
open out on the termination of her limited interest
to all persons who would have been entitled to
inherit the property at the time of the death of the
last full owner, had the Muslim Personal Law
(Shariat) been applicable at the time of such
death, and in the event of the death of any of such
persons before the termination of the limited
interest mentioned above, succession shall devolve
on his heirs and successors, existing at the time of
the termination of the limited interest of the
female, as if the aforesaid such person had died at
C.A.97/03
6
the termination of the limited interest of the
female and had been governed by the Muslim
Personal Law (Shariat):
Provided that the share which the female
limited owner would have inherited, had the
Muslim Personal Law (Shariat) been applicable at
the time of the death of last full owner, shall
devolve on her, if she loses her limited interest in
the property, on account of her marriage or
remarriage and on her heirs under the Muslim
Personal Law (Shariat) if her limited interest
terminates because of death.
8.
Since there were different laws in force in the different
provinces of West Pakistan, a consolidated law known as West
Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (the
âAct V of 1962â) was promulgated on 31st December, 1962, section
2 whereof is the reproduction of section 2 of the Act of 1948.
However, under section 3 of the same, the limited estates held by
Muslim females under the Customary Law were terminated and
section 5 thereof prescribed the procedure for the devolution of
property on the termination of such estate more or less in the same
manner as was provided under section 3 of the Act of 1948. The Act
of 1962, while repealing all the previous laws and removing the
ambiguities in the previous laws, prescribed the following procedure
in section 5 supra for the devolution of property on the termination of
limited interest in the property: -
â5.
Devolution
of
property
on
the
termination of life estate and certain wills.----
The life estate terminated under section 3 or the
property in respect of which the further operation
of a will has ceased under section 4 shall devolve
upon such persons as would have been entitled
to succeed under the Muslim Personal Law
(Shariat) upon the death of the last full owner or
the testator as though he had died intestate; and
C.A.97/03
7
if any such heir has died in the meantime, his
share shall devolve in accordance with Shariat on
such persons as would have succeeded him if he
had died immediately after the termination of the
life estate or the death of the said legatee:
Provided that the share to which a Muslim
female holding limited estate under Customary
law would have been entitled under the Muslim
Personal Law (Shariat) upon the death of the last
full owner shall devolve on herâ.
Besides the above, Act V of 1962 has also given the retrospective
effect to the provisions of Sections 3, 4 and 5 which even covers the
questions and ambiguities of law of limitation in such like matters
which will be discussed in detail hereinafter. A similar provision,
rather in more clear words, is provided in Section 4 of the Khyber
Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935
(âAct VI of 1935â).
9.
A look at the above quoted provisions of law would
simplify the question/controversy, the parties of this lis are facing.
There is no dispute between the parties regarding their inter se
relationship and similarly the termination of limited interest of Mst.
Noor Bibi, as evident from the record and the same is not disputed
between the parties that after the death of last full owner, Imam Din
in the year 1922, his property devolved twice as a limited estate,
initially upon his widow Mst. Amina Bibi and after her re-marriage,
upon his daughter Mst. Noor Bibi till her marriage. Mutation of
widow Mst. Amina Bibi is available at page-94 of the paperbook and
entries in its last column reflect that the widow at the time of death of
her husband was pregnant which means the daughter (Mst. Noor
Bibi) of Imam Din was born after the death of her father. This very
mutation was attested by Karim Bakhsh, as Numberdar of the
village). Mst. Noor Bibi, as per mutation entries of 1934 at page-92 &
C.A.97/03
8
93 of the paperbook, succeeded to get limited interest in the property
left by her father till her marriage. Again, it has undisputedly come
on the record that she got married in the year 1944/45. Her marriage
resulted into termination of her limited interest in the property. This
termination, no doubt, was by operation of law. Here a big question
mark would be as to whether further non-compliance of said
termination by the concerned (the revenue authorities) would
adversely affect the rights of all those who have suffered due to said
non-compliance. The answer to this question would be a big âNoâ.
This would also get further explanation hereinafter.
10.
The other important and legal aspect which requires
consideration is that both the learned counsel for the parties, during
arguments, agreed to the proposition that the provisions of Section 2-
A of the Act V of 1962 are not applicable in the facts and
circumstances of the case. In this case, the widow of the last full
owner Imam Din succeeded her late husband as a limited owner till
her death or re-marriage and similarly the daughter of the Imam Din
acquired the same limited interest in the property on similar terms
from her mother Mst. Amina Bibi. When Mst. Noor Bibi got married
in the year 1944/45 (as per available record and not disputed by
anyone) her limited interest in the landed property was terminated
and as per law the property has to revert back to actual legal heirs
(lineals and collaterals) but such termination, as per record, was not
incorporated in the relevant record and till filing of the suit she
remained recorded as full owner (in the course of time, her limited
status was changed to full owner but no explanation in this regard is
available on the record) which even otherwise is against the law.
According to the above quoted provisions, on the termination of the
limited interest of Mst. Noor Bibi, the property is to be considered as
the ownership of the last full owner Imam Din and should have to
C.A.97/03
9
devolve upon his Shari heirs alive at the time of his death and if
anyone of such heirs has died prior to the termination of the limited
estate his heirs shall also get the share to which their predecessor
would have been entitled if alive. Accordingly, the limited owners
were also held entitled to their Shari share whether alive or dead.
Reference in this regard may be made to SUBA through his L.Rs. v.
Mst. Fatima Bibi (1992 SCMR 1721). Thus, Mst. Noor Bibi is entitled
only to the extent of 1/2 share as legal heir of her father (the last full
owner) and a share from her mother probably that would also be 1/2
from her 1/8 share. As such termination completed in the year
1944/45 prior to the Act IX of 1948 and the succession as per
Muslim Personal Law stood completed under Section 3 of the Act IX
of 1948. Thereafter, nothing left to be implemented. So, the provision
of Section 2-A and other provision of Act V of 1962 are not applicable
to the facts and circumstances of this case.
11.
Moreover, the marriage of Mst. Noor Bibi, resulted into
termination of the limited interest in the property held by her and as
per the provisions of Section 3 of the Act of 1948, the matter reverted
back to the year 1922, the year when the last full owner Imam Din
died. All the persons entitled to succeed the last full owner (the
sharers, residuaris, distant, kindred etc.) would succeed, as per their
respective share, as if the last full owner died during the application
of Muslim Personal Law âShariatâ. The proviso to Section 3 also
clearly speaks of the females retaining the property with limited
interest. They would also be entitled to get as per their ordained
shares in the sharia. The application of above provisions of law would
paint a picture showing Mst. Amina Bibi, the widow of Imam Din to
get 1/8 share, Mst. Noor Bibi, the daughter, defendant No.1, was
entitled to get 4/8 (1/2) (as she was the only daughter) and the
remainder 3/8 would go to the brothers Karim Bakh (predecessor of
C.A.97/03
10
plaintiffs) and Rahim Bakhsh (predecessor of defendants No.2 to 6)
as residuaries. Besides the above, the defendant No.1 (mother of
appellants) would also inherit her mother Mst. Amina Bibi as a
sharer.
12.
Now comes the question of limitation which was very
forcefully argued by the appellants. The acquisition of a limited
interest and then its termination makes the actual legal heirs to
inherit under the Muslim Personal Law and provision of Section 3 of
the Act IX of 1948 gives inbuilt/implied retrospective effect for such
inheritance. All the persons entitled to inherit the predecessor (who
were alive at the time of death of the predecessor) become the owners
to the extent of their respective shares from the date of his death as
discussed above. It is also the established law that inheritance under
Muslim Personal Law/Muhammadan Law opens just after the death
of a Muslim. All the legal heirs, lineal and collaterals inherit/acquire
to the extent of their respective shares just after the death of a
Muslim. They all by such inheritance/acquisition become co-
sharer/co-owner in the estate left by the deceased Muslim under
sharia. The shares of each heir/residuary are fixed and determined in
sharia. Our law so far developed in the country is that every co-
sharer/co-owner is presumed to be in possession of every inch of the
joint property unless the same is partitioned. Reference may be made
to the cases of Shabla v. Ms. Jahan Afroz Khilat (2020 SCMR 352),
Ghulam Sarwar (Deceased) v. Ghulam Sakina (2019 SCMR 567),
Ahmad Khan v. Abdur Rehman (2009 SCMR 191), Syed Shabbir
Hussain
Shah
and
others
v.
Asghar
Hussain
Shah
(2007 SCMR 1884)
and
Mst.
Reshman
Bibi
v.
Amir
(2004 SCMR 392). The law of the land further goes to the extent
that no limitation runs against a co-sharer/co-owner. Reference here
may also be made to the cases Khan Muhammad v. Mst. Khatoon Bibi
C.A.97/03
11
(2017 SCMR 1476), Mahmood Shah v. Syed Khalid Hussain Shah
and others (2015 SCMR 869), Muhammad Anwar and 2 others v.
Khuda Yar and 25 others (2008 SCMR 905), Mst. Suban v. Allah Ditta
and others (2007 SCMR 635), Riaz Ahmad and 2 others v. Additional
District Judge and 2 others (1999 SCMR 1328) and Ghulam Ali and 2
others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC 1). Whenever the
rights of a co-sharer are infringed, by way of wrong entries or by any
other means, he can seek the redressal by way of a suit for
declaration under Section 42 of the Specific Relief Act, 1877. When
no limitation runs against a co-sharer/co-owner and the attestation
of a mutation also established law of the land, is just for updating the
revenue record and for the fiscal purposes creating no title nor is
considered as a document of title then no question of limitation
arises against co-sharers. The question of limitation in the matters of
inheritance, with respect, is being misunderstood for quite some
time. When a legal heir becomes owner and at the same time a co-
sharer in the property left by a deceased Muslim and attestation of
mutation in this regard is also immaterial and is meant for very
limited purposes and besides the above, possession of a co-sharer is
considered as a possession on behalf of all other co-sharers then it is,
at least, beyond our consumption and understanding of law of
inheritance and the law of limitation as to how the law of limitation
can be made applicable for disinheritance of a legally entitled person
who becomes owner/co-sharer by operation of law. As per Para
7.1.(v) of the Land Record Manual, recording/entering of a mutation
of inheritance is the job of local revenue officials but with the passage
of time it has been left to the legal heirs and the parties concerned.
Any delay for asking for correction of entries in the record of rights is
then attributed to the parties which is not appropriate and against
the law. For convenience, the same is reproduced as under:-
C.A.97/03
12
â
âĻ
(v)
It shall not be difficult for a Patwari
(resident official) to learn in normal course
of the occurrence of death of land-owner in
his small circle. Mutations of inheritance in
such case can, therefore, be entered by the
Patwari suo motu on the basis of his
personal knowledge without waiting for any
formal intimation from any quarter. In
further failure to enter a mutation of
inheritance on the death of a resident land-
owner
shall
be
construed
to
reflect
adversely on the vigilance and awareness of
Patwari and shall be taken due notice of.
âĻâ
13.
In the facts and circumstances of the present case, the
predecessor of plaintiffs and the defendants No.2 to 6 (now all
respondents) became owners and co-sharers being residuaries to the
last full owner just after the termination of the limited estate held by
the predecessor of the appellants, Mst. Noor Bibi, in the year
1944/45 and this termination took the matter back to the year 1922
(the year of death of predecessor Imam Din) as per Section 3 of the
Act of 1948, as discussed above in detail, which made them co-
sharers/co-owners since 1922. Whether non-attestation of mutation
in their favour by the local revenue officials would make them to lose
their legal and sharai right when they were also in possession of their
property. As per un-rebutted evidence on the record that after
termination of limited estate, they, by operation of law, became
owners in possession of the property. After termination of limited
estate, noted above, they lived upto 1967 and 1968 with the
impression that they after such termination became owners (this has
been alleged in pleadings as well as in evidence) but the revenue
record was not updated by the revenue officials and the wrong entries
of the revenue record continued in the name of Mst. Noor Bibi
C.A.97/03
13
showing her to be owner beyond her legal and sharai entitlement
(now she is recorded as full owner to the extent of 1/3 share, held by
her father). Whether such wrong entries would legitimize her
excessive land beyond her entitlement? We can have a look from just
another angle. All the parties are co-sharers since the demise of their
propositus and are in actual physical possession of their joint
property as per the latest entries of record of rights available on the
record. One co-sharer is the protector of possession of all the others,
as per established law of the land then how the question of limitation
would come into play against the co-sharers. The law of the land,
developed so far, is that every wrong entry in the record of rights
gives fresh cause of action if the parties are in possession. Here in
this case, all the co-sharers are in physical possession from day one
what to talk of their symbolic possession. A co-sharer with symbolic
possession even can safeguard his rights. Reliance in this regard can
well be placed on the cases of Faqir Ali and others Vs. Sakina Bibi and
others (PLD 2022 SC 85), Khan Muhammad through L.Rs. and others
Vs. Mst. Khatoon Bibi and others (2017 SCMR 1476) and Mst. Gohar
Khanum and others Vs. Mst. Jamila Jan and others (2014 SCMR
801). So, we are of the view that all the three Courts below have
rightly decided the question of limitation in favour of the
plaintiff/respondents. Since the question of limitation was argued
with great vehemence, so, an attempt to explain the same in detail
has been made. The most of the judgments of this Court through
which clog of limitation on inheritance matters has been imposed and
the law of limitation have been made applicable are not regarding
simple claim of inheritance. We have attempted to go through many
of such judgments on this issue which, in our opinion, are
distinguishable. The main distinction that requires to be kept in mind
is that the case in hand revolves around the question of inheritance
C.A.97/03
14
alone and for that matter a lengthy discussion has been made above
but the judgments being referred to and distinguished almost involve
the issues of transfer of lands by way of sale, gift etc. by the
predecessors themselves in their lifetimes and not challenged or
questioned by them. The heirs, feeling themselves aggrieved,
challenged the same by claiming their right of inheritance after a
considerable delay and such cases were dismissed on the question of
limitation for want of proof and justifying the delay. Yes, in such like
cases, we can agree with the ratio laid down in the case of Mst. Grana
through legal heirs and others Vs. Sahib Kamal Bibi (PLD 2014 SC
167) that law of limitation involving matter of inheritance cannot be
ignored altogether but the narrow line of distinction is that where the
predecessor/propositus has transferred his property by way of sale,
gift etc. in his lifetime and after his death, the legal heirs claiming
right of inheritance regarding said property after lapse of
considerable time by questioning such transfer cannot be ignored
lightly. For convenience, the observations made in the above
mentioned case is as under:-
â6.
It appears that in a suit which involves some
element of inheritance the Courts are generally quick to
declare that the law of limitation would not be attracted. It
is not in all cases of inheritance that the question of
limitation becomes irrelevant. Even in Ghulam Aliâs case
the Court recognized that there could be exceptional
circumstances wherein a suit based on inheritance issue
of limitation may become relevantâĻâ
14.
Perusal of this case too would reflect that certain
transfers through registered sale deed and mutation were challenged
after a lapse of considerable delay and right of inheritance was
claimed. Similar is the case of Mst. Phaphan through Legal Heirs Vs.
Muhammad Bakhsh and others (2005 SCMR 1278). Facts and
C.A.97/03
15
circumstances of the case as reflected in the judgment justify the
application of Article 120 of the Limitation Act, 1908. The case of Lal
Khan through Legal Heirs Vs. Muhammad Yousaf through Legal Heirs
(PLD 2011 SC 657) is also distinguishable. The case of Atta
Muhammad Vs. Maula Bakhsh and others (2007 SCMR 1446) also
cannot be made basis for invoking the provisions of Limitation Act in
the case in hand. The facts narrated in the judgment rendered in the
case of Muhammad Rustam Vs. Mst. Makhan Jan (2013 SCMR 299)
would justify the question of limitation but cannot be compared with
the facts and circumstances of the present case. So, in our view,
looking each and every case involving the question of inheritance
with a yardstick of limitation, simply for the reason of delay, would
not be appropriate as vested rights of people cannot be tackled so
lightly. Each and every case requires to be dealt with according to its
own facts and circumstances.
15.
This would also not be out of context to discuss that an
order of this Court dated 14.11.2017 would also reflect that an
attempt by the learned counsel for the appellants was made to
confuse the things by arguing that the controversy in hand, in fact,
relates to matters which falls within the purview of the Colonization
of Government Lands (Punjab) Act, 1912 (âthe Act of 1912â) and as
such the Civil Court lacks jurisdiction to entertain and adjudicate the
present lis. It has been noted with great concerns that this was no
bodyâs case from day one. So, making altogether a new case that too,
at this stage, is not permissible under the law. This is a simple case
of inheritance of private land of the parties who being the owners of
the same from day one; thus, the Civil Court has had the jurisdiction
in the matter in hand. Moreover, neither was it a government land
nor was any question of tenancy or lease involved in the matter. So
the provisions of Sections 21(b) & 36 of the Act of 1912 are not
C.A.97/03
16
applicable in this case, as argued by the learned senior counsel for
the appellants.
16.
For what has been discussed above, the appeal in hand
is partially allowed and the judgments and decrees of the learned
Courts below are modified accordingly. The mother of appellants
namely Mst. Noor Bibi becomes entitled to inherit her 1/2 share from
her father Imam Din (the last full owner) plus share from her mother
(as discussed above) whereas the respondents (both plaintiffs and
defendants No.2 to 6) would be entitled to inherit their predecessors
Karim Bakhsh and Rahim Bakhsh to the extent of 3/8 shares equally
from Imam Din (the last full owner). Decree be drawn up accordingly.
17.
Before parting with the judgment, it has been observed
with a great concern that the copies of the record annexed with the
petitions do not reflect the exhibit marks, as if attached or brought
on the record for the first time. The law is very much clear in this
regard
that
fresh
record
and
new
documents
cannot
be
attached/brought on the record except in accordance with the
procedure prescribed under Rule 4 of Order XXXIII of the Supreme
Court Rules, 1980. Since none of the parties disputed the
authenticity of these documents, so we looked into and considered
the same. The office however should be vigilant in future and should
not accept such like record.
Acting Chief Justice
Judge
Judge
Announced in open Court on
at Islamabad
Judge
(Approved for Reporting)
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, C.J.
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
CIVIL APPEAL NO. 985 OF 2020
(Against
the
judgment
dated
21.11.2019 of the K.P.K. Service
Tribunal, Peshawar passed in
Appeal No.961/2018)
Secretary Elementary & Secondary Education Department,
Government of KPK, Peshawar and others
âĻAppellant(s)
VERSUS
Noor-ul-Amin
âĻRespondent(s)
For the appellant(s):
Mr. Zahid Yousaf Qureshi, Additional
Advocate General, KPK
For the respondent(s):
Mr. Khaled Rahman, ASC
Syed Rifaqat Hussain Shah, AOR
Date of hearing:
22.02.2021
âĻ
ORDER
Gulzar Ahmed, C.J.- The respondent was employed
as
Primary
School
Teacher
(âPSTâ)
in
the
Education
Department of Khyber Pakhtunkhwa. He was granted ex-
Pakistan leave from 02.12.2012 to 01.12.2014 vide order dated
31.12.2012. As the respondent did not report to duty on expiry
of his ex-Pakistan leave, he was issued show-cause notice dated
24.10.2017. As the respondent did not report for duty despite
issuance of notice in the newspaper, therefore, vide order dated
03.01.2018 the respondent was removed from service. The
CIVIL APPEAL NO. 985 OF 2020
-: 2 :-
respondent filed service appeal before the KPK Service Tribunal
(âTribunalâ) which by the impugned judgment was partly
allowed by converting the major penalty of removal from service
into a major penalty of compulsory retirement with effect from
the date of his absence i.e. January, 2013 and the absence
period was treated as unauthorized absence. While doing so, the
Tribunal in paragraph No.6 dealt with the matter as follows:-
â6.
Perusal of the record reveals that the
appellant
was
serving
in
Education
Department as Primary School Teacher. He
was appointed as Primary School Teacher
in the year 2000. The appellant was
imposed major penalty of removal from
service but the respondent-department has
not conducted a proper regular inquiry as
neither charge sheet statement of allegation
was framed and served upon the appellant
nor any regular inquiry was conducted
against
the
appellant.
Though
the
respondent-department has issued a show-
cause notice but neither the respondent-
department
has
dispensed
the
regular
inquiry in the show-cause notice nor any
reason for dispensing the regular inquiry
has been mentioned in the show-cause
notice.
Moreover,
the
appellant
was
appointed as Primary School Teacher in the
year 2000 and he was imposed major
penalty of removal from service on the
allegation of his absence from duty with
effect from January 2013 meaning thereby,
that he was having more than 10 years
service in his credit with effect from his
appointment till his absence, therefore, the
impugned order of removal from service appear
to be harsh. As such, we partially accept the
appeal, set aside the impugned order and
convert the major penalty of removal from
service into a major penalty of compulsory
retirement with effect from the date of his
absence i.e. January 2013. The absence period
is treated as unauthorized absence. Parties are
left to bear their own costs. File be consigned to
the record room.â
CIVIL APPEAL NO. 985 OF 2020
-: 3 :-
It may be noted that the Tribunal has proceeded to modify the
penalty on two counts; one that no regular inquiry was
conducted and the other that the respondent has 10 years
service. So far the question of regular inquiry is concerned, we
note that the very fact of respondent remaining absent is not a
disputed fact and thus there was no occasion for holding a
regular inquiry in the matter. Reliance in this behalf can be
placed upon the judgment reported as National Bank of
Pakistan and another Vs. Zahoor Ahmed Mengal (2021 SCMR
144).
2.
Being an employee for 10 years did not give any
authority to the respondent on the basis of which he can stay
away from job continuously for years altogether and thus in our
view, such ground could not have been pressed for modifying
the penalty imposed by the department upon the respondent
giving premium to him on this misconduct. More so, when we
look at the travelling history of the respondent given at page 15
of the paper-book it shows that almost twelve times the
respondent has visited abroad and returned to Pakistan
showing that he has some other activities and thus was not
interested in continuing as PST. We, therefore, find that the
modification of penalty by the Tribunal was not in accordance
with law. In this behalf reliance can be placed upon the
judgments reported as Commissioner Faisalabad Division,
Faisalabad and another Vs. Allah Bakhsh (2020 SCMR 1418)
and Government of the Punjab through Chief Secretary Vs.
CIVIL APPEAL NO. 985 OF 2020
-: 4 :-
Muhammad
Arshad
and 2 others (2020 SCMR 1962).
Resultantly,
the
impugned
judgment
to
the
extent
of
modification of penalty is set aside and the appeal to this extent
is allowed.
Chief Justice
Judge
Judge
Islamabad, the
22nd of February, 2021
Approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE SAJJAD ALI SHAH
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21 &
22 OF 2015, 57 TO 59 OF 2015
(On appeal against the judgments dated 12.11.2012, 11.02.2013, 13.11.2012, 06.05.2014,
25.03.2014, 26.03.2014 passed by the Lahore High Court, Rawalpindi Bench in ITR Nos.
14, 18, 19, 21, 22, 23, 24 to 34, 43, 69 to 72, 74, 75, 76 of 2012, 02, 03, 04, 05, 11, 15 &
16 of 2013)
S.No. Partiesâ names
Case No.
1.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Khan
CNG
Filling
Station,
Rawalpindi and others
CAs 992, 997 &
998/2013
2.
Commissioner
Inland
Revenue
Zone-II, RTO, Rawalpindi Vs. M/s
Badhan
CNG
Filling
Station,
Rawalpindi and others
CA 993/2013
3.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Zam Zam CNG Filling Station,
Rawalpindi and others
CAs 994 & 1010 of
2013
4.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Techno Gas Service CNG Station,
Rawalpindi and others
CAs 995-996/2013
5.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Khan Gee CNG Filling Station,
Rawalpindi and others
CAs 999 to 1001 of
2013
6.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Azizid and Alyees Associates CNG
Station, Rawalpindi and others
CAs 1002 & 1009
of 2013
7.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Rehman Associates CNG Station,
Rawalpindi and others
CAs 1003, 1206 &
1207 of 2013
8.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Rawal
Gas
Co.
CNG
Station,
CA 1004/2013
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
2
Rawalpindi and others
9.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Rawal Gas Co. CNG Filling Station,
Rawalpindi and others
CA 1005/2013
10.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Gas
Ways
CNG
Station,
Rawalpindi and others
CA 1006/2013
11.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Shaheen CNG Station, Rawalpindi
and others
CA 1007/2013
12.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Al
Burhan
CNG
Station,
Rawalpindi and others
CA 1008/2013
13.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Rizwan and Co. CNG, Rawalpindi
and others
CAs 1011 & 1012
of 2013
14.
Commissioner
Inland
Revenue
Zone-III, RTO, Rawalpindi Vs. M/s
Goodluck
CNG
Filling
Station,
Rawalpindi and others
CAs 1013 & 1014
of 2013
15.
Commissioner
Inland
Revenue
Zone-II, RTO, Rawalpindi Vs. M/s
Fuel Power CNG Filling Station,
Rawalpindi and others
CA 1015/2013
16.
Commissioner
Inland
Revenue,
RTO, Rawalpindi Vs. M/s Kaka
Khel
&
Co.
CNG
Station,
Rawalpindi and others
CAs 1016 & 1017
of 2013
17.
Commissioner
Inland
Revenue
Zone-I, RTO, Rawalpindi Vs. M/s
Mecca
CNG
Gas
Enterprises,
Rawalpindi and others
CAs 21 & 22/2015
18.
Commissioner
Inland
Revenue
Zone-II, RTO, Rawalpindi Vs. M/s
Mak Gas Station, Rawalpindi and
others
CAs 57 & 58/2015
19.
Commissioner
Inland
Revenue
Zone-II, RTO, Rawalpindi Vs. M/s
Raja CNG, Gujar Khan and others
CA 59/2015
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
3
For the Appellants:
Dr. Farhat Zafar, ASC
Mr. M.S. Khattak, AOR
Mr. Javaid Iqbal, Commissioner IR
Mrs. Nafeesa Satti, Commissioner IR
Mr. Tahir Mehmood Bhatti, IRO
Mr. Amir Sultan, Law Officer
For the Respondent (1): Hafiz Muhammad Idris, ASC
Syed Rifaqat Hussain Shah, AOR
(In CAs 992, 995 to 1001, 1004, 1005, 1007, 1012,
1017 of 2013, 21 & 22 of 2015)
N.R.
(In CAs 993, 994, 1002, 1003, 1006, 1007 to 1010,
1013, 1015, 1206, 1207 of 2013 & 57 to 59/2015)
Date of Hearing:
04.04.2017
JUDGMENT
FAISAL ARAB, J.- The respondents are engaged in the
business of selling Compressed Natural Gas (CNG). It is produced
by compressing the natural gas to less than one percent of the
volume it occupies. Economy in space facilitates the storage of CNG
in hard containers for use as a fuel. The natural gas is supplied in
volume which in Pakistan is measured on the gas meters as well on
the monthly bills by its energy content Million British Thermal Unit
known by the acronym MMBTU. After it is converted into CNG, it is
sold at the CNG stations by mass i.e. in kilograms at a retail price
regulated by Oil and Gas Regulatory Authority (OGRA). For the
purposes of determining the retail price per kilogram of CNG, OGRA
has adopted a formula that converts volume i.e. MMBTUs of natural
gas into kilograms of CNG.
2.
It appears that the tax authorities of Rawalpindi region
took a decision to select CNG stations as a separate class of
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
4
business in order to audit their income tax affairs. Their returns of
income were thus scrutinized and in the process, disparity between
the CNG sales reported by the respondents with the corresponding
purchase of the natural gas was noticed in the tax years 2004 and
2007. This conclusion was drawn after the prices of natural gas and
its volume (MMBTUs) consumed by the respondents in the tax years
in question were procured from Sui Northern Gas Pipelines Limited
(SNGPL) and the prices of CNG for the tax years in question and the
formula for converting MMBTUs of natural gas into kilograms of
CNG were procured from OGRA. Such information was gathered
from both the institutions by invoking the provisions of Section 176
of the Income Tax Ordinance, 2001 (Ordinance for short). As to the
adoption of conversion formula by OGRA, we may state that
internationally, the natural gas after it is transformed into CNG is
sold either by mass or on the basis of its energy level or by gasoline
gallon equivalent (gge). OGRA had adopted conversion formula that
is based on sale of CNG by mass (in kilograms). This conversion
formula is used by OGRA in the determination of countrywide retail
price per kilogram of CNG. After noticing significant disparity in the
consumption of natural gas and the sale of CNG declared in the
returns of income on the basis of the data procured from SNGPL
and OGRA, the Commissioner, Inland Revenue issued notices under
sub-Section (9) read with sub-Section 5 of Section 122 of the
Ordinance to confront the respondents with his intention to amend
the assessment orders that were deemed to have been issued under
the provisions of Section 120(1) of the Ordinance. Finally the
Commissioner, Inland Revenue after hearing the representative of
the respondents applied OGRAâs conversion formula (volume to
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
5
mass) to the information procured from SNGPL and OGRA and
determined the quantum of CNG produced by each of the
respondents in a tax year. After determining the quantum of CNG,
an allowance of 11% wastage of natural gas in the process of
conversion was also given to the respondents. Then, on basis of
actual prices of natural gas as well as of the CNG that were
prevalent from time to time in the tax years in question, the
quantum of CNG sold in the tax years in question was determined.
This exercise was repeated for all the tax years in question and the
amended assessment orders were issued accordingly.
3.
Keeping aside the determination of quantum of CNG on
the basis of OGRA formula for a moment, the Commissioner, Inland
Revenue made certain other amendments in the original assessment
orders on the basis of discrepancies that were noticed in the returns
of income which were separately pointed out in the notices to each
of the respondents. One of such discrepancies pertained to the
difference between the actual cost of natural gas and the cost that
was declared in the returns of income towards the purchase of
natural gas. Another discrepancy that was pointed out was with
regard to profit and loss expense account. Upon failure of the
respondents to substantiate such discrepancies, the Commissioner,
Inland Revenue adjusted the expenses which increased the tax
liability. The tax liability so imposed was not challenged by the
respondents in the departmental appeals and hence no more
remained the subject matter of dispute in these proceedings. The
only controversy that remained alive was with regard to the
application of OGRAâs conversion formula that was applied to
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
6
determine the quantum of CNG produced from the natural gas
consumed in the tax years in question, which resulted in issuance
of amended assessment orders.
4.
Against the decision of the Commissioner, Inland
Revenue to amend the original assessment orders on the basis of
application of OGRAâs conversion formula, the respondents
preferred departmental appeals but remained unsuccessful. Having
failed in the departmental appeal as well, the respondents filed their
respective appeals before the Appellate Tribunal, Inland Revenue,
Islamabad. The Tribunal, however, decided in respondentsâ favour
and annulled the amended assessment orders. The tax department
then chose to file Tax References in the Lahore High Court,
Rawalpindi Bench under Section 133 of the Ordinance. In all Tax
References following legal question was framed:-
âWhether âOGRA formulaâ constitutes âdefinite informationâ for
determination of sales and, therefore the deemed assessment
order passed under Section 120 of the Income Tax Ordinance,
2001 could be amended under Section 122(5) of the Income Tax
Ordinance, 2001?â
5.
The learned Division Bench of the Lahore High Court vide
its judgment dated 12.11.2012 answered the legal question in the
negative after holding that the âOGRA formulaâ does not constitute
âdefinite informationâ within the meaning of Section 122(5) of the
Ordinance so as to justify amendments in the original assessment
orders. The reasons that mainly prevailed with the Lahore High
Court in reaching such conclusion were as follows:-
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
7
â12. The term "definite information" in section 122(5) of the
Ordinance is not just any information but definite enough to
satisfy the concerned officer that income chargeable to tax of an
assessee has escaped assessment or total income of an
assessee
has
been
under-assessed,
etc6.
"Definite"
means indisputable, known for certain, explicitly precise,
clearly defined, leaving nothing to implication, established
beyond doubt and cut and dried. Definite information is,
therefore, that select information which falls within the
restrictive meaning of the word "definite" explained above. The
law also provides that definite information must be acquired
from
audit
or
otherwise.
Applying
the
interpretative
tool/doctrine of ejusdem generis which literally means "of the
same kind or class" and the doctrine provides that where
general words follow an enumeration of two or more things,
they apply only to persons or things of the same general kind or
class specifically mentioned the word "otherwise" appearing
next to the word "audit" in section 122(5) of the Ordinance on
the basis of the above doctrine means a methodology akin or
similar to audit where some determined, final, certain,
indisputable, calculated information is picked up from any
available record of the assessee. "Otherwise," therefore, does
not mean putting information through further process of
calculation by the department. The word "acquired" used in
section 122(5) of the Ordinance which literally means to "gain
possession of" in the present context connotes that the
information already exits and has to be picked up from the
records or documents. This acquisition provides no margin for
incomplete, imprecise and inexact information to be completed
through further calculation or processing as that would not be
acquiring information but analyzing it.â
6.
Having felt dissatisfied, the appellants challenged the
decision of the Lahore High Court in the present appeals after
obtaining leave of this Court.
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
8
7.
Learned counsel for the appellants argued that in all
these cases, the respondents were given due notice to respond to
the determination of quantum of CNG produced in the disputed tax
years on the basis of the conversion formula, which was adopted by
OGRA in consultation with SNGPL and All Pakistan CNG
Association and having received no challenge to the authenticity of
the formula, the same was applied. She further submitted that over
and above the determination of quantum of CNG by applying the
conversion formula, a wastage allowance of 11% was also granted
while amending the assessment orders. With regard to the veracity
of OGRAâs conversion formula, learned counsel for the appellants
submitted that this formula has also been accepted by CNG owners
in the legal proceeding that culminated upto this Court. In this
regard, reference was made to an unreported judgment rendered on
24.06.2016 in Civil Appeal Nos. 1436 to 1450 of 2015 by this Court
in the case of Shabbir Husseini vs. Federation of Pakistan and other
connected appeals.
8.
The leaned Counsel for the respondents on the other
hand argued that reliance on OGRA formula was misplaced as it
could not be made basis to estimate how much CNG was actually
sold by the respondents. It was contended that the actual sales
made by the respondents in the tax years in question were duly
disclosed in the returns of income alongwith the quantum of natural
gas purchased and even the gas bills were provided during the
process of investigation and audit yet the OGRA formula was
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
9
applied which in law does not constitute âdefinite informationâ so as
to warrant amendment to the original assessment orders. In support
of his arguments, the counsel for the respondents relied upon the
cases reported as Central Insurance Co Vs. Central Board of
Revenue, Islamabad (1993 SCMR 1232); Inspecting Assistant
Commissioner and Chairman Panel 20 Companies Vs. Pakistan
Herald Ltd (1997 SCMR 1256); Edulji Dinshaw Limited Vs. Income
Tax Officer (1990 PTD 155); EFU General Insurance Co. Limited Vs.
Federation of Pakistan (1997 PTD 1693) and Income Tax Officer Vs.
Chappal Builders (1993 PTD 1108) wherein the scope of âdefinite
informationâ has been elaborately discussed.
9.
We shall first proceed to examine the scope of making
amendment to a tax return filed under the provisions of Income Tax
Ordinance, 2001, which came into effect from 01.07.2002. Where a
return of income filed by a taxpayer is in accordance with the
provisions of sub-section 2 of Section 114 of the Ordinance then in
terms of Section 120(1) of the Ordinance, it is to be regarded as
complete and taken to be an assessment made and order issued by
the Commissioner though no assessment is made by him with
conscious application of mind. Notwithstanding such deeming
provision, Section 120(1A) of Ordinance vests in the Commissioner
the power to conduct audit of income tax affairs of a person in the
manner prescribed in Section 177 of the Ordinance. Under the
provisions of Section 177 of Ordinance, the Commissioner can call
from a taxpayer inter alia record or documents including books of
accounts, examine the same and make enquiries into the
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
10
expenditure, assets and liabilities. If deemed appropriate and
necessary, he may even order forensic audit to be conducted. Thus
the Commissioner can gather necessary information or data for the
purpose of investigation and audit. After completing the audit, if the
Commissioner considers necessary, he may obtain taxpayerâs
explanation on all issues raised in the audit and proceed to amend
the assessment by virtue of the power contained in sub-section (1)
or sub-section (4) of Section 122 of the Ordinance as the case may
be. Apart from conducting audit, the Commissioner, Inland Revenue
is also vested with the power under sub-section (5A) of Section 122
of the Ordinance to amend an assessment after making or caused to
be made such enquiries as he deems necessary if he considers that
the assessment order is erroneous in so far it is prejudicial to the
interest of the revenue. In cases where a person has either not
maintained or failed to produce books of accounts or any document
or record required to be maintained under Section 174 of the
Ordinance or any other evidence that was required for the purpose
of audit or investigation, the Commissioner is vested with the power
under Section 121 of the Ordinance to make best judgment
assessment based on any available information or material and
issue assessment order. Only when the Commissioner, Inland
Revenue invoke his powers as contained in the above referred
provisions of the Ordinance in order to conduct audit or
investigation of the income tax affairs of a person, the original
(deemed) assessment order come under scrutiny with conscious
application of mind. Thus the Commissioner, Inland Revenue by
virtue of and in exercise of the powers contained in Sections 120
(1A), 121, 122 (1)(5A) and 176 and 177 of the Ordinance can initiate
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
11
the proceedings for investigating the income tax affairs of a person
notwithstanding the fact that such return of income by virtue of
Section 120(1) of the Ordinance was taken as an assessment made
and assessment order issued by the Commissioner, Inland Revenue.
The deemed assessment order after its amendment with conscious
application of mind loses its legal effect in terms of sub-section 10 of
Section 177 of the Ordinance.
10.
The judgments cited by respondentsâ counsel pertain to
disputes arising from the provisions of repealed income Tax
Ordinance, 1979. A bare comparison of the provision of Section 65
(2) of the repealed Ordinance and Section 122(5) of the Income Tax
Ordinance, 2001 shows that the procedure prescribed for amending
an assessment order under the repealed law was not the same as in
the present law. In order to appreciate the difference between these
provisions of the two laws, it would be advantageous to reproduce
Section 65(2) of the repealed Ordinance and Section 122(5) of the
present Ordinance:-
Section 65(2) of Income Tax Ordinance, 1979
â65. Additional assessment.- (1) âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
(2)
No proceedings under sub-section (1) shall be initiated unless
definite information has come into the possession of the Deputy
Commissioner [and] he has obtained the previous approval of the
Inspecting Additional Commissioner of Income Tax in writing to do so.
Section 122(5) of Income Tax Ordinance, 2001
â122(5) An assessment order in respect of tax year, or an
assessment year, shall only be amended under sub-section (1) and
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
12
an amended assessment for that year shall only be further amended
under sub-section (4) where, on the basis of definite information
acquired from an audit or otherwise, the Commissioner is satisfied
that â
(i)
any income chargeable to tax has escaped assessment;
or
(ii) total income has been under-assessed, or assessed at
too low a rate, or has been the subject of excessive
relief or refund; or
(iii)
any amount under a head of income has been mis-
classified.âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.â
(underling is ours to lay emphasis)
11.
From the above provisions of the two laws, it is evident
that the power to initiate proceedings to amend an assessment
order was not available under Section 65(2) of the repealed
Ordinance unless some definite information had already come in the
hands of the Income Tax Officer. This was so, as under the repealed
Ordinance, the initial assessment used to be made by the Income
Tax Officer with the conscious application of mind, therefore, second
opinion on such assessment was not permissible as a matter of
course. The Income Tax Officer had to have definite information in
his hands before he could even initiate proceedings for making
additional assessment. In the case of Central Insurance Co. Vs.
Central Board of Revenue, Islamabad (1993 SCMR 1232) while
discussing the scope of Section 65 of the repealed Ordinance, it was
held that once the return of income, disclosing all material facts
without any concealment has been assessed under Section 59 of the
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
13
repealed Ordinance then unless some definite information first
became available to the income tax authorities, the assessment
order cannot be re-opened for scrutiny. In other words, no change of
opinion was held to be permissible on the basis of material on which
the Income Tax Officer has already made assessment with conscious
application of mind. Thus in absence of definite information, the
very initiation of the proceedings with the intent to make additional
assessment was prohibited under the repealed law. The ratio of
other judgment cited at the bar by the counsel of the respondents is
also the same. Under the Income Tax Ordinance, 2001, however, the
Commissioner has been given the authority to initiate proceedings
such as audit and investigation and in the process if he acquires
âdefinite informationâ which satisfies him to form an opinion that
any income chargeable to tax has been under assessed or escaped
assessment or wrongly classified or assessed at too low a rate then
he can proceed to amend the original assessment order, which on
account of provisions of Section 120(1) of Ordinance was deemed to
have already been issued by him. The main reason behind this
change brought about under the Ordinance was that the original
assessment orders are not issued with conscious application of
mind as was the case under the repealed Ordinance and therefore
the question of prohibiting second opinion on a consciously
assessed assessment order does not arise under the present
Ordinance.
12.
Before we examine what âdefinite informationâ came
in the hands of the Commissioner, Inland Revenue which
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
14
prompted him to amend the assessment orders, it would be
advantageous to reproduce the definition of the term âdefinite
informationâ as defined in sub-section (8) of Section 122 of the
Ordinance. It states âFor the purposes of this section, âdefinite
informationâ includes information on sales or purchases of any
goods made by the taxpayer, receipts of the taxpayer from
services rendered or any other receipts that may be chargeable to
tax under this Ordinance, and on the acquisition, possession or
disposal of any money, asset, valuable article or investment made
or expenditure incurred by the taxpayer.â Now, the information
available with the tax authorities in the present case was the
volume of natural gas purchased by each of the respondents and
the rates of the natural gas as well as of the CNG that were
prevalent in the tax years in question. Such information was
procured from SNGPL and OGRA by exercising powers contained
in Section 176(1) (a) of the Ordinance. After applying OGRAâs
conversion formula to the volume of the natural gas consumed,
the tax authorities ascertained the kilograms of CNG produced
by the respondents in each tax year in question. A wastage
allowance of 11% in the conversion process was also granted. On
the basis of the quantum of CNG so ascertained and taking into
account the rates of CNG that were prevalent at the relevant
time, the tax authorities reached the conclusion that the
respondents have not been truthful in their disclosures as they
underreported the sale of CNG in their returns of income. Based
on such calculations, the amended assessment orders were
issued.
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
15
13.
It is not the case of the respondents that the quantity of
CNG produced from a given volume of natural gas is not
ascertainable at all. Certainly it can be done with the application of
a mathematical or scientific formula and that is exactly what has
been done in the present case when conversion formula was
applied. For the purpose of determining the correct tax liability, any
information falling within the ambit of âdefinite informationâ may not
by itself produce an answer unless such information is further
processed. The use of any process to ascertain something depends
upon the type of information and the result that is sought to be
obtained. So the process could be a chemical analysis conducted in
a laboratory or the application of some mathematical or scientific
formula or simply the use of a calculator. For example need may
arise to apply some formula or method which converts volume into
weight or vice versa, miles into kilometers or vice versa. The word
âdefiniteâ not only means being certain of something but also means
that one knows with certainty that something will happen. In the 9th
edition of Oxford dictionary by A.S. Hornsby1 the word âdefiniteâ has
been defined as âsomething that you are certain about or that you
know will happenâ. Internationally there are three formulas that are
used to convert the volume of natural gas into CNG. Of these, the
one that is applied to convert volume of natural gas into kilograms
of CNG has been adopted by OGRA. The definite information
procured by tax authorities was then processed through this
formula to find out how much CNG was produced from the natural
gas consumed. To prohibit use of the conversion formula would in
1 Oxford Advanced Learnerâs Dictionary, 9th edition, A.S. Hornby
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
16
reality amount to prohibiting the tax authorities from ascertaining
the quantum of CNG sold by the respondents. If the tax authorities
are denied the means to ascertain the quantum of CNG then no
matter how disproportionate the sale of CNG to the consumption of
natural gas is declared, the same had to be accepted by Income Tax
Authorities and the evasion of tax would go undetected. Therefore,
application of any scientific or mathematical method to determine
the quantum of sale of CNG for the purpose of determining the tax
leviable under the Ordinance, by no stretch of imagination can be
excluded from consideration. We may point out here that the
parameters of conversion formula applied in the present case for the
purposes of converting the volume of natural gas into weight of
CNG, which were also reproduced in the amended assessment
orders, were also never challenged by the respondents to be
arbitrary or not sustainable on any mathematical or scientific basis.
14.
As to the veracity of the OGRAâs conversion formula, it
is pertinent to point out that a dispute between CNG station owners
and Sale Tax authorities came up for consideration before the High
Court of Sindh and with it came up for consideration OGRAâs
conversion formula. The decision rendered by the Sindh High Court
on 06.10.2015 in Constitution Petitions No. 3266 of 2014 (Shakeel
Ahmed Vs. Federation of Pakistan alongwith several other connected petitions)
was challenged by CNG station owners before this Court. After grant
of leave, the appeals of CNG owners were dismissed on 24.06.2016.
In this decision the validity of conversion formula adopted by OGRA
has been clearly acknowledged by CNG owners. The relevant portion
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
17
in paragraph 10 of the said judgment of this Court authored by our
learned brother Sheikh Azmat Saeed, J in Civil Appeals Nos. 1436 to
1450 of 2015 âShabbir Husseini Vs. Federation of Pakistan and
other connected cases is reproduced below:-
ââĻâĻâĻâĻâĻâĻâĻâĻâĻ There is an admitted formula for
conversion of Natural Gas into CNG, which is employed for
determining the tax liability. In pith and substance, it is the
case of the Appellants that though such formula may be
scientifically correct yet in practicable terms there is some
wastage in the process of conversion, as a consequence
whereof, Sales Tax is collected on Natural Gas with regard to
its levy on CNG, including the Natural Gas, which is lost
through wastage and is never supplied by the Appellants to the
CNG consumers resulting in collection of the Sales Tax with
regard to the supply of CNG which is never made. It is also the
case of the Appellants that such wastage is about 11% of the
Natural Gas. By way of the impugned judgment, it has been
held that the conversion formula has been notified and takes
into account the element of wastage.â
15.
The above quote from Shabbir Husseiniâs case supra
shows that CNG owners did not dispute the conversion formula and
were only seeking that wastage of natural gas, which in their
opinion occurs to the extent of 11% in the process of conversion,
ought to have also been factored in while fixing the price of CNG.
This claim for wastage was based on the ground that it has been
historically accepted by Federal Board of Revenue. We do not think
it is necessary to deliberate upon the question whether any wastage
occurs in the process of conversion or not for the simple reason that
in the cases before us wastage to the extent claimed by the CNG
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
18
owners i.e. 11%, has already been accounted for by the
Commissioner, Inland Revenue while amending the assessment
orders. The tax department also chose not to challenge the grant of
11% wastage allowance to the respondents before higher forum and
thus never made an issue in the present proceedings.
16.
From the above discussion, it is quite apparent that the
quantum of CNG produced by the respondents in each of the tax
years in question was not determined on the basis of some
hypothetical or arbitrary criteria. The tax authorities first procured
from SNGPL the volume of natural gas consumed by the respondent
and its rates that were prevalent during the tax years in question.
Likewise, they procured from OGRA the rates of CNG prevalent in
the tax years in question. All such information was procured by
exercising powers contained in Section 176 of the Ordinance. Both
the sources of information i.e. SNGPL and OGRA are bodies that are
competent to divulge such information with absolute correctness as
one is the supplier of natural gas and the other fixes the retail price
of CNG in the country. To the information so procured, which on the
face of it fall within the ambit of âdefinite informationâ, the tax
authorities applied OGRAâs conversion formula to ascertain the
quantum of CNG produced from the natural gas consumed in each
of the tax years in question. It then transpired that the sale of CNG
has been under-reported, which led to issuance of amended
assessment order. We find no legal infirmity in the manner in which
the tax authorities ascertained the quantum of CNG produced from
the volume of natural gas consumed in the process of conversion.
CIVIL APPEAL NOs. 992 TO 1017, 1206 & 1207 OF 2013, 21
& 22 OF 2015, 57 TO 59 OF 2015
19
17.
In view of what has been discussed above, the answer
to the legal question framed by the High Court could only be in the
affirmative. We, therefore, allow these appeals, set-aside the
impugned judgment passed in all connected cases and restore the
amended assessment orders issued to the respondents.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
Announced on _______________ by Honâble Mr. Justice Faisal Arab
Approved For Reporting
Khurram
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- S
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRES
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALT AKBAR NAQVI
Th%.
H
Civil Appeal No.997 of 2010.
(On appeal against the order dated 25.09.2010
P
ic
assed by the Lahore High Court, Muirart Bench,
Multan in PM No 198-2003)
Rana Muhammad Hanif Khan (decd) through LRs.
Versus
Appellant(s)
Saddiq Khan (deed) through LRs.
. - .Respondent(s
For the Appellant(s):
Rain M. Zahid, ASC.
(via video-link from Lahore)
For Respondents.] (I -11)
Nem o.
For Respondent No. 02
Ex-parte.
Date of Hearing: 14.02.2022
PRDER
1JAZ UL AWSAN, J.- This appeal is directed
against a judgment of the Lahore High Court, Lahore dated
23.06.2010 rendered in RFA No.198 of 2003 filed by the
Respondents. Through the impugned judgment, the judgment
and decree dated 21.11.2003 passed by the Trial Court was
set aside and it was held that the Civil Court(s) of Pakistan
had no jurisdiction to entertain the suit which, even
otherwise, was barred by time.
2. Briefly stated the facts necessary for disposal of
this Appeal are that, the Appellants filed a suit for recovery of
Rs.55,67,633/ as comPensationIdages As per the plaint,
one Kalu Khan was a joint owner in equal share(s) with Atta
Muhammad in respect of land measuring 1081 acres of Rich
0
Civil Appeal No.997 of 2010.
2
Rice Ranch in Willow Glen, California, USA. He executed a
Will in respect of his entire property and created a Trust. One
Faza.l Muhammad was appointed as Trustee through the Will
and the beneficiaries of the Trust were his brothers namely
Abdul Majeed Khan, Ahmed Khan and three sons of his
deceased brother namely Siddique Khan, Rana Muhammad
Hanif Khan and Aziz-ur-Rehman. The shares of the
beneficiaries as determined in the Trust were 1/3rd to each
brother and 1/9th to each nephew of the deceased Kalu Khan.
3. On 13.08.1962 the Trustee (Muhammad Fazal
terminated the Trust in consequence of which the nephews
jointly inherited 180 acres apart from the Farm machinery
According to the contents of the plaint, in early March 1958,
the predecessor of the Appellant and his brothers agreed that
being a citizen of the USA, the Respondent should manage
the share of the two brothers (nephew of Kalu Khan) in the
property of Kalu Khan (deceased) inherited by them from Kalu
Khan in the United States. He would perform the said duties
without any salary. It was averred in the plaint that; in return
it was agreed that the Appellant would manage the properties
of the deceased in Pakistan. In order to implement this
arrangement, a power of attorney was duly executed. The
record indicates that the Appellants revoked their power of
attorney on 03.11.1973 and appointed Nasim-ur-Rehman as
their attorney. They also demanded their past share in the
income of the property. It was alleged in the plaint that a sum
of US $ 88,599 was recoverable from the Respondent(s). The
suit filed by the Appellants was decreed by the Civil Court of
Ciui! Appeal No. 997 of 2010
3
Sahiwal vide judgment and decree dated 21.11.2003. The
Respondent(s) appealed the said judgment and decree. This
appeal was allowed through the impugned judgment dated
15.09.20 10 by the Lahore High Court. Hence this appeal.
4. The learned counsel for the Appellants submits
that the High Court erred in law in overturning the judgment
of the Trial Court which was based upon valid reasons. He
states that all relevant issues had properly been decided in
accordance with law. He further submits that the findings
recorded by the High Court in relation to the question of
limitation as well as jurisdiction of the Civil Courts are
patently erroneous. It is further argued that the findings of
the High Court to the effect that the claim of the Appellants
was barred by time was neither supported by the record nor
by the law. He finally maintains that the suit in question
sought a decree in personam. Admittedly, although
permanent residents of the United States, the Respondents
occasionally visited Sahiwal as mentioned in the plaint. As
such, the Civil Courts of Sahiwal had jurisdiction on their
person and could have passed an executable decree against
them.
5.
Respondent No.2 has already been proceeded
against ex parte. No one has entered appearance on behalf of
Respondent No. 1.
6.
We have heard the learned counsel for the
Appellants and gone through the record.
Civil Appeal No. 997 of 2010.
4
7. It is clear and obvious to us from a plain reading
of the plaint and Sections 16 and 20 of the Code of Civil
Procedure, 1908 ("CPC") that the Civil Courts of Pakistan had
no jurisdiction in the matter in light of the averments made in
para 20 (i), (ii) & (iii) as well as paragraphs 22 and 23 read
with the prayer made in the plaint. For ease of reference,
Section 16 and Section 20 of the CPC are reproduced as
under: -
"16. Subject to the pecuniary or other limitations prescribed
by any law, suits; (a) for the recovery of immovable property-
with or without rent or profits; (b) for the partition of
Immovable property; (c) for foreclosure, sale or redemption In
the case of a mortgage of or charge upon immovable
property, (d) for the determination of any other right to or
Interest in immovable property; (e) for compensation for
wrong to immovable property, (9 for the recovery of movable
property actually under distraint or attachment; shall be
instituted inthe Court within the local limits of whose
jurisdiction the property is situated, or, in the case of suits
referred to in clause (c), at the place where the cause of
action his wholly or partly arisen: - Provided that a suit to
obtain relief respecting, or compensation for wrong to,
immovable property held by or on behalf of the defendant
may, where the relief sought can be entirely obtained
through his personal obedience, be instituted either in the
Court within the local limits of whose jurisdiction the
property is situate or, in the case of suits referred to in clause
(c), at the place where the cause of action has wholly or
partly arisen) or in the Court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides, or
carries on business, or personally works for gain.
Explanation. - In this section 'property" means property
situate in Pakistan.
"20. Subject to the limitations aforesaid, every suit shall be
in a Court within the local limits of whose jurisdiction. (a) the
defendant-, or each of the defendants where there are more
Ihan one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain; or (b) any of the defendants,
where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides,
or carries on business, or personally works for gain, provided
that in such case either of the Court is given, or the
defendants who reside, or carry on business, or personally
work as aforesaid, acquiesce in such institution; or (c) the
cause of action, wholly or in part arises. Explanation I. -
Where a person has- a one place and also a temporary
residence shall be deemed to reside at both places in action
arising at the place where he residence." (Underlining is
ours)
Civil Appeal No.997 of 2010.
5
It is clear and obvious from the record that the subject
matter of the suit was situated in USA. This is fact admitted
in the plaint of the Appellants that the property in respect of
which the suit for rendition of accounts and recovery was
filed,, is situated in the County of Glenn, California. Section
16 of the CPC clearly stipulates that all suits in respect of
immovable property shall be filed in the Court within the local
limits of whose jurisdiction the property in question is
situated. The only exception to this rule is suits filed under
Section 16(c). There is nothing on the record to establish that
the suit in question was related to redemption of a mortgage
or charge regarding the property in question. We are therefore
in no manner of doubt that the even according to the
averments made in the plaint the suit of the Appellants did
not fall within the parameters of Section 10 of the CPC.
8. Section 20 of the CPC clearly provides that every
suit shall be filed in a Court within the local limits of whose
jurisdiction the defendant or each of the defendants where
there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on
business, or personally works for gain. It is a fact stated by
the Appellants in Para 5(a) of the plaint that the Respondent
was permanently residing in the US. It is for this reason that
an agreement was reached between the brothers to the effect
that the Respondent would manage the property inherited by
the Appellants, situated in USA. The fact that the Respondent
was a US citizen is further admitted at Para 20(iii) of the
plaint which states that the Respohdent acquired US
Civil Appeal No, 997 of 2010.
6
citizenship somewhere during the 1950s. It is the case of the
Appellants that the Respondent neither permanently resides
nor works for gain anywhere within the jurisdiction of the
Civil Courts of Sahiwal. However, in an attempt to create
jurisdiction it has been stated in the plaint that Civil Courts
of Pakistan have jurisdiction since the suit does not involve
any question regarding immovable property and involves
rendition of accounts and recovery of money. The argument
has been repeated by the learned ASC for the Appellants
before us. With all due respect, we find the argument to be
erroneous and misconceived. We are therefore unable to agree
with this assertion since the amount claimed is income
generated from the land in question is inextricably related to
the property inherited by the Appellants, which is situated in
USA. The language of Section 16(d) clearly provides that, for
the determination of any right or interest in respect of
immovable property, a suit must be filed in a Court within the
territorial jurisdiction of which the property situated.
9. We are therefore in no manner of doubt that even
if the averments made in the plaint are taken on their face
value the Civil Courts of Sahiwal lacked jurisdiction in the
matter. The learned High Court has therefore correctly come
to the conclusion that in light of the averments made in the
plaint read with the requirements of Sections 16 and 20 of
CPC, the Civil Courts of Sahiwal lacked personal and subject
matter jurisdiction in the matter. There is nothing on the
record which shows that the Respondent was actually and
voluntarily residing in Pakistan when the suit in question was
Civil Appeal No. 997 of 2010.
7
filed. On the contrary, it has been admitted that the
Respondent is a permanently resides in the US and is a US
citizen and visits Pakistani Sahiwal occasionally. The
understanding with the Respondent was also in respect of the
property inherited by the Appellants, situated in the United
States. The alleged breach of the agreement was purportedly
on part of the Respondent who at all relevant times resided in
the USA. Thus, the alleged cause of action also arose in the
USA when the Appellants found out about the money which
the Appellants claim is owed to them by the Respondent.
Even otherwise, presence of a Respondent within the
territorial jurisdiction of Pakistan does not ipso facto grant
jurisdiction to Pakistani Courts on the touchstone of Sections
16 or 20 of the CPC when the property in question is situated
outside Pakistan. Reliance in this regard is placed on
Muhammad Ramzan (deceased) v. Nasreen Firdous (2016
PLD 174 Supreme Court).
10. We also find that admittedly the Appellants came
to know about the alleged income on which they lay claim, in
early 1990 during Siddique's divorce proceedings. They did
riot file such claim by way of a suit if at all was legally
possible till the 04.09.2001 before a competent forum.
Further, the High Court has correctly come to the conclusion
that the record indicates that a settlement was reached
between the parties in the US which had been filed in the US
Courts and incorporated in judicial verdicts. We also find that
the suit in question was filed on the basis of two documents
I
which were allegedly discovered by a person namely
1
St
Chit! Appeal No. 99? of2010.
3
Zafayullah who handed over the same to Naseem Ahmed
which constituted the basis for filing of the suit. Despite
making an effort to establish the fact that in the facts and
circumstances of the matter and the claim made in the plaint
furnished sufficient basis for conferring jurisdiction on
Pakistani Courts, The learned ASC for the Appellant has been
unable to point to any provision of law that may vest
jurisdiction of Pakistani Courts. Admittedly, there existed a
financial relationship between the three brothers which came
to an end in 1973. Thereafter, a financial settlement appears
F
to have taken place and the relevant financial issues were
settled between the parties as is evident from Exh.D-93 which
was produced before the Trial Court and the said document
has not been denied by any of the parties. In consequence of
which, if at all, it could be raised before a Pakistani Court.
Such claim could only have been raised within the prescribed
period of limitation. It is clear and obvious from the record
that the suit has been filed at least 28 years thereafter for
which no valid reason or justification has been furnished nor
has the learned counsel for the Appellants been able to
convince us that there was any lawful basis to do so.
ii. We have carefully examined the record, gone
through the documents produced before the Trial Court as
well as the all legal and factual aspects examined by the High
Court and the reasons assigned by the High Court in support
of its conclusions. We have not found any legal, procedural or
jurisdictional defect, en-or or flaw in the impugned judgment
that
. may furnish basis or justification to overturn the
'
-.
.1
Appeal NO-9917 OJ 2010
9
impugned judgment of the High Court. Further, we find
ourselves in agreement with the reasoning adopted by the
High Court and the conclusions drawn are duly supported by
the record as well as the evidence produced by the parties.
Consequentiy, we do not find an y merit in this appeal. It is
accordingly dismissed.
H.
ISLAMABAD
14.02.2022
ZR/
,)(4APnrovea Foc\eportinc,
H
H
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry,HCJ
Mr. Justice Amir Hani Muslim
Mr. Justice Ejaz Afzal Khan
C.M.A. 1145-K/2013 IN S.M.C. 16/2011.
(Suo Moto Action on the news clippings
published on 04.03.2013 in Daily âThe
Newsâ, Dawn and âThe Nationâ Islamabad,
regarding incident of Abbas Town at Karachi
on 03-03-2013)
In attendance:
Mr. Abdul Fatah Malik, AG. Sindh.
Mr. Adnan Karim Memon, A.A.G. Sindh.
Mr. Shah Khawar, ASC on behalf of I.G.
Police.
Mr. Fayyaz Ahmed Leghari, I.G. Sindh.
Mr. Ghulam Shabbir Shaikh, Addl. I.G.
CID.
Mr. Abdul Aleem Jafri, DIG East.
Mr. Jawed Odho, DIG West.
Mr. Naeem Ahmed Shaikh, AIG
Operation.
Mr. Ali Sher Jakhrani, AIG Legal.
Rao Anwar Ahmed, SSP Malir.
Mr. Farooq Awan, SSP SIU.
Mr. Niaz Khoso, SSP AVCC.
Mr. Shiraz Nazeer, SSP Investigation
Malir.
Mr. Qamar Ahmed, DSP, Sohrab Goth.
Mr. Azhar Iqbal, SHO Sohrab Goth.
Mr. Anwar Mansoor Khan, ASC
On behalf of Province of Sindh.
Mr Rizwan Akhtar, DG Rangers,
Major Ashfaq Ahmed Baloch, DAJAG.
Allama Abbas Kumeli.
Syed Mehmood Akhtar Naqvi.
Date of hearing:
06-03-2013.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.-When we were
hearing the instant case, it was informed by Major Ashfaq
Ahmed Baloch, DAJAG Pakistan Rangers that vide notification
2
dated 25th August 2011, Ranger is also authorized to exercise
powers under Section 5 of the Anti Terrorism Act, 1997 etc. He
has read the contents of the notification, which indicates that to
combat terrorism Ranger has been given powers especially for
the Karachi City. Prima facie, it seems that Ranger is equally
responsible if any incident takes place. However we direct the
officer who appeared before us that he should place on record
copies of the notifications extended from time to time and also
ensure that Major General Rizwan Akhtar DG Rangers attends
the court at 11.30 a.m.
2.
Major General Rizwan Akhtar appeared and stated
that under Section 5 of the Anti Terrorism Act 1997 his force is
required to prevent commission of terrorist acts or scheduled
offences. It is to be noted that in the Province of Sindh Rangers
is deployed from 1995 to onward to perform their duties.
Whereas, w.e.f. 25th August 2011 powers of police have also
been conferred upon it so that they may cause arrest etc. of the
accused persons. He also informed that at present 11000 troops
of Rangers have been deployed in Karachi City and efforts are
being made to prevent the terrorism. It is to be noted that in
presence of considerable good number of troops of Rangers
crime of terrorism and other offences referred to in the Schedule
of the Act 1997 have not been controlled or prevented despite of
the fact that the Rangers has got its own system, though at a
small scale, to gather secret informations about the commission
of the terrorism etc. He also admitted that regarding incident of
Abbas Town dated 03.03.2013 no secret information was
received by his force, except that there was generalized
3
information about the happening of the incident. On our query,
he stated that the troops deployed near the place of incident
could not reach for the assistance of the victims on account of
protest launched by the inhabitants of the area and other
persons who had gathered there in the meanwhile.
When we enquired from him as to whether any detail of
the report has been transmitted to the Secretary Interior,
Government of Pakistan, he replied in affirmative and promised
to place on record the report on the next date. Similarly when
we enquired from him as to whether any action has been taken
against the officials/officers failing in preventing the terrorism in
Abbas Town, he stated that no such action was required to be
taken because the officers, who were posted there, had been
performing well in the past.
3.
Be that as it may, this aspect of the case would be
considered later on as prima facie it seems that despite of failing
to prevent the commission of terrorism no effective step by
initiating action against the persons posted over there had been
taken by him. He is directed to submit a detailed reply about the
incident of Abbas Town, dated 03.03.2013, and also explain that
as to why in presence of the notification under Section 5 of the
Act 1997, Rangers had failed to prevent the commission of
terrorism and other offences mentioned in the schedule,
particularly when the police powers had also been conferred
upon the Force for the purpose of arresting and conducing raids
to cause the arrest of the accused persons, on the next date of
hearing.
4
4.
Mr. Anwar Mansoor Khan, learned Sr. ASC appeared
on behalf of the Provincial Government and stated that after
hearing of the case, he has contacted to the Chief Minister Sindh
who has communicated to him that on account of the fact that
the Inspector General Police is a Grade-22 Officer, therefore, he
has been surrendered to the Federal Government, similar is the
situation with the DIG and the SSP will be transferred to the
Headquarters and appropriate action will be taken.
The learned counsel may produce the notification of the
surrender of both these officers, i.e. IGP (Fiaz Leghari) and DIG
East (Aleem Jafri) to the Federal Government during the course
of the day by supplying a copy to the Incharge Branch Registry
for our perusal in Chamber.
5.
It is to be noted that this Court in the case of Watan
Party & another v. Federation of Pakistan and others (PLD 2011
SC 997), which is generally known as Karachi Killing and Law
and Orders Case, delivered judgment on 06.10.2011, and, inter
alia, observed as under:
â55. It is to be noted that, primarily it is the duty of
the Province through its executive authorities to
control the law and order situation and ensure
implementation of Fundamental Rights of citizens.
But prima facie it seems that the Provincial
Authorities have not fulfilled their constitutional duty.
Under the Constitution, equally it is the obligation of
the Federation to protect every Province against
internal disturbances as well as external aggression
and to ensure that the Government of every Province
is carried on in accordance with the provisions of the
Constitution.â
6.
It is a matter of great concern that despite of
categorical observation made hereinabove, situation of law and
5
order has not been improved in Karachi, for which no one else
except the Provincial Government/Executives are responsible.
The citizens/general public of Karachi constantly are being
denied their fundamental rights of life and security in terms of
Article 9 of the Constitution. We were hopeful that in view of the
above observations situation of law and order would have been
improved but here the position is altogether different. The target
killings, kidnapping for ransom, Bhatta and terrorism have
increased day by day. It is unfortunate that despite of happening
of the instant incident and all the incidents which had been taken
place earlier, no action against the responsible police officers and
Rangers had been taken, may be for the reason known to the
Provincial Government/high-ups of the Rangers.
7.
Any way we have prima facie noticed that during the
happening of the incident of Abbas Town no one from the
position of the constable to I.G.P. Sindh and Rangers reached at
the place of incident immediately, whereas the material/report
which has been made available by the Media the inhabitants of
the area on their own had been helping to each other. Primarily,
it was the duty of the Law Enforcing Agencies, both Police as well
as Rangers, to prevent the commission of happening of such
offences and if at all on account of their negligence the incident
had taken place, they could have at least extended helping hand
to the victims but they have failed to do so. Admittedly, 50
persons had lost their lives and a good number of flats and
shops both situated in Iqra City and Rabia Flower Plaza have
been destroyed, peoples of the area are lying under the open
6
sky but so far administration has not moved at all in any manner
as no action against any police officers or rangers had taken. We
are reluctant to hold that the manner in which the incident had
taken place and subsequent thereto as the Executive behaved
with the victims etc. is highly unconstitutional, unlawful and
illegal. Action was required to be taken immediately against the
Incharge Police officers right starting from I.G.P. to SHO
inasmuch as, SSP, DSP, etc. had not been proceeded against so
far.
8.
In the circumstances, we direct the Chief Secretary,
Government of Sindh, being the head of the Executive that
immediately suspend SSP, DSP and SHO and issue such
notification during the course of the day. They also be directed
to join interrogation on account of their criminal negligence in
not providing the assistance to the inhabitants. The notification
should be also sent for our perusal in Chamber.
9.
We have been told that Mr. Iqbal Mehmood, CCPO,
Karachi was also not present there and Mr. Shabbir Shaikh, Addl.
IGP was holding the charge. The Chief Secretary is directed to
look into his conduct as well with reference to instant case and
send report to us on the next date of hearing. If need be, we
would also pass appropriate order in his case as well.
10.
As
DG
Rangers
requires
time
to
file
the
reply/explanation, therefore, this case is fixed for 08.03.2013.
In the meanwhile, we would direct the Federal Government
through Secretary Interior as well as ISI, M.I. and I.B. to put up
their reports through their counsel about happening of the
7
incident particularly pointing out as to whether before the
incident any information was communicated to the police,
Rangers and if so, then we have to examine this aspect of the
case as well. However, if need be some authorized officers may
also be deputed for purpose of providing assistance to the
Court..
CHIEF JUSTICE
JUDGE
Karachi, the
06th March, 2013.
JUDGE
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ī2
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īīīīĸ
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īīŦī īĨ īēī īīŽ īīēī§ ī
1997
īīī
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1995
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ī
īšīĸīĒ īēīģ īīīĒ
īģīŠīēīžī§īĢī¤ī¯
īŋ
2011
ī
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īīīŽ ī°īīģ ī§īģī
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īī
īļīī īīīžīˇīēīīŽ
1997
īŖī īīžīīī īą
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īŖ īīī ī
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ī¤īīīą īīĸīĨīļī°ī īģīŠīē
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3-3-2013
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3-3-2013
īĩ īīģīĸ īīžī§īīī
5
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1997
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īī (PLD 2011 SC 997)
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6-10-2011
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9
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| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Maqbool Baqar
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Amin-ud-Din Khan
CIVIL REVIEW PETITION NO.296 of 2020 a/w
Civil Misc. Application No.1243 of 2021 &
CIVIL REVIEW PETITION NO.297 of 2020 &
CIVIL REVIEW PETITION NO.298 of 2020 &
CIVIL REVIEW PETITION NO.299 of 2020 &
CIVIL REVIEW PETITION NO.300 of 2020 &
CIVIL REVIEW PETITION NO.301 of 2020 &
C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 &
CIVIL REVIEW PETITION NO.308 of 2020 &
CIVIL REVIEW PETITION NO.309 of 2020 &
CIVIL REVIEW PETITION NO.509 of 2020.
Justice Qazi Faez Isa
âĻ Petitioner(s)
(in CRP No.296/2020)
Sindh High Court Bar Association
âĻ Petitioner(s)
(in CRP No.297/2020)
Mrs. Sarina Isa
âĻ Petitioner(s)
(in CRP No.298/2020)
Supreme Court Bar Association
âĻ Petitioner(s)
(in CRP No.299/2020)
CRP.296 of 2020, etc.
2
Muhammad Asif Reki President
Quetta Bar Association
âĻ Petitioner(s)
(in CRP No.300/2020)
Shahnawaz Ismail, VC Punjab Bar
Council
âĻ Petitioner(s)
(in CRP No.301/2020)
Balochistan Bar Council
âĻ Petitioner(s)
(in CRP No.308/2020)
Pakistan Federal Union of Journalists
âĻ Petitioner(s)
(in CRP No.309/2020)
Abid Hassan Minto
âĻ Applicant(s)
(in CMA No.4533/2020
in CRP No.Nil of 2020)
Pakistan Bar Council thr. VC
âĻ Applicant(s)
(in CRP.509 of 2020)
VERSUS
The President of Pakistan and others
âĻRespondent(s)
(in CRP.296-301& 308-309 &
CRP.509 of 2020)
The Supreme Judicial Council thr.
its Secretary and others
âĻ Respondent(s)
(in CMA No.4533 of 2020)
For the petitioner(s)
: Mr. Justice Qazi Faez Isa (in-person)
(in CRP.296/2020)
Mr. Rasheed A. Rizvi, Sr. ASC.
(through Video Link from Karachi).
(in CRP.297 & 309/2020)
Mrs. Sarina Faez Isa (In-person)
(in CRP.298/2020)
Mr. Hamid Khan, Sr. ASC.
Syed Rifaqat Hussain Shah, AOR.
(in CRP.299, 300, 301 & 308/2020)
Nemo.
(in CMA.4533/2020)
Nemo.
(in CRP.509/2020)
For Federation of Pak.
: Ch. Aamir Rehman, Addl. AGP.
For President, PM &
AGP.
: Mr. Sohail Mahmood, Addl. AGP.
Dates of hearing
: 02.03.2021; 03.03.2021; 08.03.2021;
17.03.2021 & 18.03.2021.
* * * * * *
CRP.296 of 2020, etc.
3
O R D E R
Umar Ata Bandial, J. Civil Misc. Application
No.1243 of 2021. For reasons to be recorded later, this Misc.
Application is dismissed. However, the right of the people to
have access to information in matters of public importance
under Article 19-A of the Constitution is recognized, the
details and modalities of which are to be decided by the Full
Court on the administrative side.
Sd/-
JUDGE
I have given my separate note.
Sd/-
JUDGE
Sd/-
JUDGE
I have attached my separate note.
Sd/-
JUDGE
Sd/-
JUDGE
I have appended separate note.
Sd/-
JUDGE
Sd/-
JUDGE
I have appended my reasons for the
dismissal.
Sd/-
JUDGE
Sd/-
JUDGE
Announced in Court on
13th April, 2021.
J(2).
Sd/-
JUDGE
NOT APPROVED FOR REPORTING.
CRP.296 of 2020, etc.
4
Yahya Afridi, J. For the reasons already recorded in my
judgment delivered in Constitution Petition No.17 of 2019, the
present Civil Miscellaneous Application No.1243 of 2021 is
dismissed, as the relief sought by the petitioner would ânegate
the very spirit of the oath taken by the petitioning Judgeâ.
2.
However, for the reasons to be recorded later, I
find the right of the public to have access to live-streaming or
audio-video recording, written transcript or any other
medium, of the court hearings in the proceedings of public
importance, including those under Articles 184(3) and 186 of
the Constitution, is their fundamental right under Article 19A
of the Constitution. The Registrar of this Court is, therefore,
directed to place the matter before the Full Court for
appropriate steps as it deems fit, under Article 191 of the
Constitution, to effectuate this fundamental right of the
public.
Sd/-
Judge
CRP.296 of 2020, etc.
5
Short Order
For the reasons to be recorded later, we dispose of the
miscellaneous application (CMA No.1243/2021) filed by the Petitioner in review
petition (CRP No.296/2020) in the following terms:
(i)
Article 19-A of the Constitution of the Islamic Republic of Pakistan,
1973 (âConstitutionâ) creates an obligation on State institutions,
including the Judiciary, to take the necessary measures to ensure
realization of the fundamental right of citizens to have access to
information in matters of public importance. Cases under Article 184(3)
of the Constitution, including review petitions and other matters arising
therein, are matters of public importance, and the public has a right to
know and see how proceedings in these cases are conducted and
concluded by the Court. We, therefore, hold that Live Streaming (audio
and video) of court hearings of these cases should be made available for
information of the public through a link on the official website of this
Court, and for this purpose the Registrar of this Court should take steps
to provide for the requisite technological infrastructure and make
arrangements for necessary amendments in the Rules under Article 191
of the Constitution to regulate its practice and procedure in this regard;
(ii) Keeping in view the current state of technological infrastructure
available in this Court and the fact that the review petitions filed in the
case are fixed for hearing, we direct the audio recording of the
proceedings of the court hearings of the said review petitions to be made
available to the public through a link on the official website of this
Court. The Registrar of this Court shall ensure that the un-edited audio
recording of the proceedings of the court hearing of the review petitions
is made available to the public on the official website of the Court on the
same day soon after the hearing and before the close of the working
hours.
Announced.
Islamabad, the
13th April, 2021.
Sd/-
(Maqbool Baqar, J.)
Sd/-
(Manzoor Ahmad Malik, J.)
Sd/-
(Mazhar Alam Khan Miankhel, J.)
Sd/-
(Syed Mansoor Ali Shah, J.)
CRP.296 of 2020, etc.
6
ORDER OF THE BENCH:
By majority of 6 to 4 (Maqbool Baqar, J; Manzoor
Ahmad Malik, J; Mazhar Alam Khan Miankhel, J and Syed
Mansoor Ali Shah, J dissenting), Civil Misc. Application No.1243 of
2021 is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Announced in Court on
13th April, 2021.
Sd/-
J(2).
Sd/-
JUDGE
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ
Mr. Justice Khilji Arif Hussain
Mr. Justice Tariq Parvez
CMA No.1362 of 2012 AND
Civil Petition No.357 of 2012
Regional Director, Anti Narcotics Force
Petitioner
VERSUS
Rizwan Ahmed Khan & others
Respondents
For the Petitioner
:
Mr. Muhammad Akram Sheikh, Sr.ASC
Brig. Fahim Ahmed Khan,
Force Commander
Abid Zulfiqar, Dy. Director/IO, ANF
For the respondents
:
N.R.
Date of Hearing
:
10.04.2012
ORDER
This application (CMA No.1362 of 2012) has been
moved by Mr. Muhammad Akram Sheikh, learned Sr.ASC, on
behalf of ANF, in a case, which is already pending before this
Court bearing Civil Petition No.357 of 2012. The case relates to
FIR No.40 of 2011, dated 10.10.2011, under Sections 9(c), 14, 15
& 16 of Control of Narcotic Substances Act, 1997 registered with
Police Station ANF, District Rawalpindi.
2.
The facts as mentioned in the FIR as well as noted in
the memo of Civil Petition for Leave to Appeal, are reproduced
hereinbelow:-
âToday on 10.10.2011, I assistant director enforcement
section ANF RD was present at Rawalpindi, Assistant Atif
Hayat brought a letter No.9-9/10 police/I dated 19.09.2011 in
Civil Petition No.357 of 2012
2
reference
of
letter
No.13(302)ANF/LAH/2011
dated
18.08.2011 for registration of a case upon the direction
Secretary, Ministry of Narcotics Control issued from
Muhammad Hayat Section Officer. According to this letter,
on 03.02.2011 during 28th Session of National Assembly in
Narcotics Session the Federal Health Minister had stated on
the floor that two companies who got illegal permission to
export Ephedrine and letter on this Ephedrine was sold out
to manufacturers including unknown persons, we have
ordered for collection of their registration, issuance of show
cause notice for production of all relevant documents and
their subsequent seizure. M/s Berlex Lab international
Multan had obtained permit on 25.03.2010 for 6000 kg
Ephedrine and on 22.09.2010 500 kg Ephedrine for the
Ministry of Health and this allocation was for export
purpose. Whereas M/s DANAS Pharmaceutical Islamabad
has obtained allocation of 1500 kilogram on 15.04.2010 for
export purpose Iftikhar Ahmed Khan Babar Chief Executive
of M/s Berlex Lab International Multan and Ansar Farooq
Ch. Chief Executive of Danas Pharmaceuticals (Pvt) Ltd.
Lahooti Group Islamabad had obtained these export
allocations for Controlled Chemical Ephedrine by using the
influence of high officers. Later on the Ephedrine was sold
out to local manufactures and unknown persons in violation
of law for ulterior motives. Both these companies/firms had
committed offence of criminal negligence/illegal acts using
the powers of high officers. In this illegal act and criminal
negligence, the then Director General Health of Ministry of
Health
and
other
officers
of
Ministries
of
Health
Government of Pakistan had acted in connivance with them
and they allocated the extra ordinary quota for Ephedrine to
these firm/companies in abuse of their official position.
Therefore, the record was collected for the purpose of
registration of a case and sent to Police Station ANF,
Rawalpindi through Constable Ghulam Shabbir. Case may
be registered and number may be sent. I am busy in
investigation. From office of the enforcement Section RD
ANF Rawalpindi at 1.30 p.m. and on 10.10.2011. Signed in
English by Riaz Ali, Assistant Director Incharge Police
Station ANF Rawalpindi. The case has been registered
without any delay. The copies of the FIR are distributed
according to rule the copy of FIR is attached.
That the proper investigation was conduced by Investigation
Team who recorded statements of 70 witnesses, beside other
documentary
evidence
was
also
taken
in
custody.
Involvement of Pharmaceutical Companyâs administration
and the staff of Ministry of Health in the commission of
offences were taken on record. Interim challan has been
submitted on 18.02.2012 in CNS Court, Rawalpindi. Some of
the
accused
are
hiding
and
escaped
their
arrest.
Investigation qua highly influential figures of the Country is
in progress. Their involvement is mentioned in the
statements of co-accused which is being verified by the
Investigation Team which is also corroborated by the other
evidence collected by Investigation Team.â
3.
After the registration of FIR, one Rizwan Ahmed
Khan S/o Muhammad Khan, who is stated to be the Director of
Denas Pharmaceuticals Private Limited, Islamabad, instituted a
petition for quashment of the FIR, which was dismissed on
Civil Petition No.357 of 2012
3
26.01.2012 with the observation that âSecretary, Ministry of
Narcotics Control, is under an obligation to decide the same
within a reasonable timeâ. Against this observation of the High
Court, a Civil Petition for Leave to Appeal has been filed by
Regional Director, ANF, which is pending decision before this
Court. On the last date of hearing i.e. 29.03.2012, a request was
made on behalf of the petitioner to withdraw the petition, which
was declined for the reasons, mentioned in para 2 of the said
order, which read as under :-
â2.
In the normal course, such a request is
entertained and allowed, but in this case the Registrar
of this Court has received a letter through fax.
Attention of the learned counsel has been drawn
towards the contents of the said letter and is ordered to
be kept on record. Although whereabouts of the person,
who sent this letter to the Registrar have not been
mentioned, but when we have enquired from Brigadier
Faheem, Force Commander, Rawalpindi, to highlight
about the instant case, he stated that this matter
pertains to the grant of quota of Ephedrine to two
Companies namely M/s Berlex Lab International,
Multan and Danas Pharmaceuticals Private Limited
against the rules as both the companies got allotted
6500 KGs and 2500 KGs Ephedrine, respectively,
whereas under the rules a quota more than 500 KGs
Ephedrine cannot be allocated. Further it has been
pointed out that quota can be allotted to those
Pharmaceuticals Companies, who are manufacturing
the medicines in which Ephedrine as one of ingredients
is to be used, but the aforesaid Companies instead
have sold Ephedrine, which is also known as poorman
Cocaine, to the local manufacturers and unknown
persons and earned profit. It has been added that
investigation was conducted and case has been
challaned against 10 persons namely M/s Iftikhar
Ahmed Khan Babar; Rashid Jumma; Rizwan Ullah
Khan; Ehsan-ur-Rehman; Tanvir Hassan Sherazi;
Chaudhry Abdul Waheed; Ansar Farooq Chaudhry;
Col.(R) Tahir-ul-Wadood Lahoti; Muhammad Hashim
Khan; and Tauqir Ali Khan.â
4.
In view of the facts and circumstances stated before
this Court, it was further observed as under:-
â3.
According to the Force Commander, there are
few other persons, some of them succeeded in getting
bail before arrest. It has also been also informed that
Civil Petition No.357 of 2012
4
in the month of January, 2011 a question in this
regard
was
raised
in
National
Assembly
and
Makhdoom Shahabuddin, Federal Minister for Health,
made a statement for conducting investigation/inquiry
and accordingly a committee was constituted, which
had submitted its report, but this report has not so far
been brought on record of the National Assembly.
Meanwhile, Secretary, Narcotics Control, vide letter
dated 14.02.2012, concluded that no direct evidence
about the misuse of quota by the said Firms have been
established/found in the above mentioned reports,
which reports according to the Force Commander were
fictitious and got prepared by the Health Department,
therefore, he did not agree with the same and resisted
by sending a letter to the Secretary on 22.02.2012. The
Secretary on having seen the reaction from the Force
Commander ultimately wrote a letter on 22.03.2012
stating therein that evidence, if any, against the
applicant (Tauqir Ali Khan son of Shaukat Ali Khan)
or the political figure in the subject matter may be
brought into the notice of the Secretary and prior
approval of the Secretary may be obtained for further
prosecution of the applicant and said political figure.
4.
It is to be noted that the Investigating Officer
Abid Zulfiqar, Deputy Director, ANF, issued a notice to
Ali Musa Gillani on 12.03.2012 for recording of his
evidence, as according to him, material has come on
record that Touqeer Ali Khan used to claim himself to
be the Private Secretary of Ali Musa Gillani. We are of
the opinion that reference of the political figure in the
letter of the Secretary is of Ali Musa Gillani. However,
on having taken into consideration the importance of
the case, we are not inclined to grant permission to the
learned counsel to withdraw the petition and the
petitioner-department is directed to place on record all
the relevant documents i.e. copies of the inquiry
conducted by a team constituted by the Health
Minister; copies of the reports, which were got
prepared by the Secretary of Narcotics Control; copies
of the challans and FIR as well as summons issued;
and copies of the letters of the Secretary, dated
14.02.2012; 22.02.2012; and 22.03.2012. The Force
Commander, Rawalpindi, is also required to place on
record
complete history of the
case alongwith
supporting documents on the next date of hearing.
Meanwhile, without prejudice to the petition which has
been filed by the ANF, the investigation as well as trial
of the accused persons shall continue independently.â
However, it seems that as in view of the fact that
some influential personalities were being involved in the
proceedings, particularly, one Touqeer Ali Khan, who claims
himself to be Personal Secretary to Mr. Ali Musa Gillani S/o Syed
Yousaf Raza Gillani (Prime Minister of Pakistan) and Mr.
Civil Petition No.357 of 2012
5
Khushnood Akhtar Lashari, the then Secretary, Ministry of
Health, who is presently posted as Principal Secretary to Prime
Minister of Pakistan, therefore, notices were issued to both of
them to join the investigation, as also evident from the contents
of the paras reproduced hereinabove.
5.
It is to be noted that under Anti Narcotics Force Act,
1997, since its promulgation, the posts of Director General and
Field Directors are normally held by the serving Defence
Personnel of the ranks of Major General and Brigadiers,
respectively, but surprisingly Establishment Division, Cabinet
Secretariat, Government of Pakistan, Islamabad, by means of
notifications dated 06.04.2012 repatriated Major General Syed
Shakeel Hussain, the then Director General, ANF and in his
place allowed Mr. Zafar Abbas, Acting Secretary, Ministry of
Narcotics Control, (BS-21) to hold the additional charge of the
post of Director General, ANF. The said notifications read as
under:-
NOTIFICATION
The Secondment of Major General Syed
Shakeel Hussain â PA-17141, presently serving as
Director General, Anti-Narcotics Force (ANF), under
Ministry of Narcotics Control, is repatriated to
Pakistan Army with immediate effect.
Sd/-
(Abdul Latif)
Deputy Secretary to the
Government of Pakistanâ
âĻâĻâĻâĻâĻ..
NOTIFICATION
Mr. Zafar Abbas, a BS-21 officer of Police
Service of Pakistan, presently posted as Acting
Secretary, Ministry of Narcotics Control is allowed
to hold the additional charge of the post of Director
General, Anti-Narcotics Control (ANF), in addition
Civil Petition No.357 of 2012
6
to his own duties, with immediate effect and until
further orders.
Sd/-
(Abdul Latif)
Deputy Secretary to the
Government of Pakistanâ
6.
As it has been noted in order of this Court dated
29.03.2012 that in pursuance of a question raised in the National
Assembly, the then Federal Minister for Health Makhdoom
Shahabuddin ordered for an inquiry and thereafter the then
Secretary ANF, Mr. Sohail Ahmed, vide his letter dated
19.09.2011, addressed to the Director General, ANF, Rawalpindi,
advised the ANF to proceed with the investigation in the subject
case by exercising the powers as mandated/provided to the ANF
by CNS Act, 1997. However, after the registration of the case
reportedly Mr. Sohail Ahmed was transferred and acting charge
was given to Mr. Zafar Abbas, inasmuch as, it has been pointed
out that after passing of order by this Court, dated 29.03.2012,
when the directions were given to the ANF to proceed with the
matter SRO No.282(1)/2012 was issued with back date i.e.
21.03.2012 in pursuance whereof an amendment was made in
earlier notification No.SRO.594(1)/1997 dated 07.07.1997 to the
effect that in place of âDirector General, Anti Narcoticsâ the
words and comma âSecretary, Narcotics Control Divisionâ shall
be substituted. Prima facie, it requires to be noted that under
Section 3 read with Section 4 of ANF Act, 1997 the force is to be
headed by the Director General and not the Secretary.
7.
Be that as it may, at this stage, it is not necessary to
discuss this issue because so far we have not issued notice of this
Civil Petition No.357 of 2012
7
application and the facts are being noted herein just to
understand the controversy between the parties.
8.
It seems that after passing the order dated
29.03.2012, transfer order of Major General Syed Shakeel
Hussain has been issued, for which listed CMA has been moved
and despite it the ANF authorities continued probing into the
matter and issued summons in the name of Mr. Khushnood
Akhtar Lashari, Principal Secretary to Prime Minister of
Pakistan as well as for Mr. Ali Musa Gillani, enabling them to
appear for recording of their statements.
9.
Brig. Fahim Ahmed Khan has stated that he was
called by the Principal Secretary, who persuaded him to have a
one-on-one meeting in his office, which according to him, he
reluctantly accepted and during this meeting the investigation of
the case was discussed and Mr. Khushnood Akhtar Lashari
conveyed him six concerns but he has not agreed to any of the
same, as a result whereof, he was also transferred on 09.04.2012
alongwith Deputy Director Mr. Abid Zulfiqar, vide notification of
even date, which are reproduced hereinbelow.
âFollowing posting/transfer are made with immediate effect
and until further orders:-
S.No.
Name of
officer
From
To
1.
Brig. Fahim
Ahmad Khan
RD ANF
Rawalpindi
Director
(DAPRC) ANF
HQ Rwp.
Mr. Abid Zulfiqar, Deputy Director, RD ANF Rawalpindi, is
directed to report to ANF Hqs for further posting.
Note: Previous orders may please be treated as cancelled.
Sd/-
Zafar Abbas, PSP
Civil Petition No.357 of 2012
8
Director General, ANF
09.04.2012
Director (Hq) ANFâ
Mr. Khushnood Akhtar Lashari had a conversation
with Brig. Fahim Ahmed Khan and what has been discussed and
transpired between them, the latter has reduced the same into an
affidavit, which under his own signatures and duly attested has
been placed on record; contents whereof are reproduced
hereinbelow:-
âAFFIDAVIT
I, Brigadier Fahim Ahmed Khan S/O Muhammad Yasin
Khan Sherwani, force Commander, Anti Narcotics Force,
Regional Directorate, Rawalpindi, do hereby solemnly affirm
on oath that;
1.
ANF has registered FIR No. 40/2011 dated
10.10.2011 in PS ANF Rawalpindi.
2.
IO of the afore-mentioned case has sent notices and
letters to Mr. Khushnood Akhtar Lashari (Ex
Secretary Health) presently working as Principal
Secretary to Prime Minister Mr. Yousaf Raza
Gillani/Secretary
Establishment
Division,
for
recording of his statement.
3.
In response to the afore-mentioned notices, I along
with Lt. Col Syed Touqir Abbas Zaidi (Joint Director
ANF) and IO Abid Zulfiqar (Deputy Director ANF)
went to the office of Mr. Khushnood Akhtar Lashari,
in PM House on 24th March, 2010 and, on the desire
of Mr. Khushnood Akhtar Lashari and his assurance
to bring the real facts to light, I had a separate
meeting
with
him
in
his
office,
where
he
discussed/conveyed the following to me in a
maligning and threatening manner, because he
being one of the Prime (abettor/associate/facilitator)
in the case wanted to make full use of his present
appointment/office
to
suppress/distort/misdirect
investigation against himself and Ali Musa Gillani:-
īˇ
Mr. Khushnood Akhtar Lashari said that
father of Ali Musa Gillani is very upset and
worried due to the summon issued to him.
īˇ
He said that if ANF focuses on two
Pharmaceutical companies only and spare
others, ANF will be fully supported; Both
companies
will
be
ruined
and
State
Machinery will be with youâĻâĻâĻ
īˇ
He said that, you know, civil military relates
have recently improvedâĻâĻâĻ
īˇ
H said that all depends on you (Brigadier
Fahim) you can only save from chaos and
upheavalsâĻâĻ.
īˇ
He further said in a sarcastic manner and
meaningful expression that ANF is being
commanded
and
controlled
by
army
officersâĻâĻ..
Civil Petition No.357 of 2012
9
īˇ
He asked to spare Ali Musa Gillani, his
( ) will be done. This is a matte of
National Interest.
4.
In this regard, since then, may prejudiced, unfair
and unwarranted actions have been taken by
different state departments which confirms the
practical manifestation of above mentioned threats
and his heinous/malicious design to sabotage the
investigation by one way or the other.
Whatever I have stated above is true to the best of my
knowledge and belief and nothing has been concealed
therein.
Sd/-
Deponent
Brigadier Fahim Ahmed Khan
09.4.2012â
We would not like to comment in depth on the
conduct and reaction either of the personalities or functionaries
unless they are not heard except observing that commission of
the crime, as it has been disclosed in the FIR, is of serious nature
notwithstanding that whosoever is involved and what is his
status, however, prima facie it has got its own repercussions
independent with criminal proceedings and also in respect of the
alleged favour by Ministry of Health, particularly, to Berlex Lab
International, Multan and Danas Pharmaceuticals Private
Limited by extending them quotas of Ephedrine, which is a
chemical used in methamphetamine and the same is also used for
the purpose of addiction, may be within the country and outside
the country. Detail discussion, however, shall be made
subsequently, but we may observe that if the allegation as leveled
is there, the concerned authorities should have allowed a
transparent inquiry and investigation instead of causing
obstructions and hampering the same for one or the other reason.
Civil Petition No.357 of 2012
10
10.
At this stage, we are not concerned as to whether
what should be the punishment and what should be the result
because interim challan has already been submitted and the
matter is under probe and some of the accused persons have
approached Islamabad High Court, Islamabad, for grant of bail,
and their cases are also pending, which are required to be decided
in accordance with law, but after having taken into consideration
the above facts and circumstances of the case, prima facie we are
of the opinion that transfer/posting of Major General Syed
Shakeel Hussain, Director General, ANF; Brigadier Fahim
Ahmed Khan, Regional Director, ANF; and Mr. Abid Zulfiqar,
Deputy Director, ANF, in colorable exercise of powers, is not free
from extraneous consideration.
11.
Be that as it may, we direct that notice of this
application be issued by names to the Acting Secretary, Ministry
of Narcotics Control; Major General Syed Shakeel Hussain;
Brigadier Fahim Ahmed Khan; Mr. Ali Musa Gillani; the present
Secretary, Ministry of Health; and the Directors of the
aforementioned Companies. Meanwhile, the Regional Director
Brig. Fahim Ahmed Khan and Deputy Director Abid Zulfiqar are
directed not to relinquish the charge and should continue with
the investigation of the case without being influenced in any
manner from any one. However, if in the meantime Mr.
Khushnood Akhtar Lashari, Principal Secretary to the Prime
Minister and Mr. Ali Musa Gillani or anybody else appears to
Civil Petition No.357 of 2012
11
record his statement, he should be examined by providing fair
opportunity and in accordance with law.
12.
The case is adjourned to 20.04.2012. Meanwhile,
anti status-quo shall be maintained and no order shall be passed
without the concurrence of the Court pending decision of the case.
Notice to the learned Attorney General for Pakistan be also
issued for the next date of hearing.
Chief Justice
Judge
Judge
ISLAMABAD
10.04.2012
Zubair
| {
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} |
IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE MUHAMMAD SAIR ALI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
MR. JUSTICE MUHAMMAD ATHER SAEED
CMA NO. 1427 OF 2011
IN CIVIL REVIEW PETITION NO.129/2010
IN CONST. P. 76/2007
[Reply to Show Cause Notice dated 18.04.201 issued to Syed Nasir Ali
Shah, Solicitor General, Ministry of Law and Justice, Islamabad]
Federation of Pakistan through Secretary
M/o Law, Justice and Parliamentary Affairs, Islamabad
vs.
Dr. Mubashir Hassan, etc.
Syed Nasir Ali Shah: In person
On Court notice: Maulvi Anwar-ul-Haq
Attorney General for Pakistan
Date of hearing: 25.11.2011
âĻ
O R D E R
Syed Nasir Ali Shah, former Solicitor General appeared in
response to notice communicated to him through the learned Attorney
General for Pakistan and stated that he is no more in the service and
has been retired. He has full respect for the Court and by tendering
unconditional apology throws himself at the mercy of the Court. As we
have already granted pardon to Raja Abdul Ghafoor, AOR and also
taking into consideration the sincere statement made by Syed Nasir Ali
Shah as well as keeping in view that he has been retired from service,
we accept his apology and discharge the notice.
Islamabad, the
25th November, 2011
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
CMA NOS.1535 & 1536 OF 2013 IN CA NOS.191-L & 409 OF 2010
(Implementation proceedings of directions of this Court passed in
CA No.191-L of 2010 and CA No.409/2010 regarding initiation of
action against those who were involved in corrupt practice of
submitting bogus degrees at the time of getting of their nomination
papers during the election of 2008)
1. Mian Najeeb-ud-Din Owaisi
2. Muhammad Rizwan Gill
Appellants
VERSUS
1. Amir Yar Waran etc
2. Nadia Aziz etc
Respondent (s)
For the appellants
: Nemo
For the respondents
: Nemo
On Court Notice:
Mr. Ishtiaq Ahmed Khan, Secretary, ECP
Mr. Abdur Rehman Khan, Addl. D.G (L)
Date of Hearing
: 26.03.2013.
ORDER
In response to order of this Court, dated 25.03.2013, the
Secretary, Election Commission of Pakistan has appeared and filed a
comprehensive report (CMA No.1557 of 2013) and stated that the
CMA No.1535-2013 etc
- 2 -
Election Commission of Pakistan (hereinafter referred to as âthe ECPâ)
has already undertaken an exercise to verify the Educational
Testimonials of 1170 elected Representatives i.e. Members of the
National and Provincial Assemblies as well as the Senate, who
participated in the General Elections in the year 2008 and the Election
of the Senate subsequent thereto. Except in 69 cases the Educational
Testimonials of all of them were authenticated to be correct by the
Higher Education Commission. He further stated that the ECP itself
examined the cases which were not authenticated and concluded that
the Educational Testimonials of 27 of such Representatives suffer from
no deficiency. However, out of the remaining 34 cases, references were
made to the respective DPOs and the Courts and except for two cases,
one by the Sessions Judge at Dera Alllahyar and the other by the
Sessions Judge Dera Ismail Khan, rest of the cases have not been
decided and he needs some time to collect information about the
progress in the remaining cases, which shall be done within a period of
two days. Request so made by him is allowed.
In the meanwhile, a letter be sent to all the Registrars of the
respective Provincial High Courts and the Islamabad High Court, to
collect and furnish details from the Sessions Judges about pendency of
such cases with reasons as to why the same have not been disposed of
so far.
2.
The Secretary, ECP further stated that for the current
process of the General Elections, which has been scheduled for
CMA No.1535-2013 etc
- 3 -
11.5.2013, the Higher Education Commission has also been involved to
attest the Educational Testimonials of the candidates to ensure that no
candidate who on his own has disclosed his educational qualification
may rely on Educational Testimonials, which are fake because it is the
duty of the ECP under the command of the Constitution in terms of
Article 218 (3) to organize/conduct honest, free and fair elections. We
have pointed out to him that it is not necessary that all the prospective
candidates intending to participate in the General Elections are holders
of the Degrees from the Universities because there would be
candidates, who claim to be holder of a Sanad of Deeni Madaras, such
Sanads have to be verified by the Institution known as Wafaq-
Tanzeem-ul-Madaras, which grants recognition to Deeni Madrissas and
as far as Matriculation or Intermediate Certificates are concerned, the
Government of Pakistan under Section 3 of the Federal Supervision of
the Curricula Textbooks and Maintenance of Standards of Education
Act, 1976 read with Notification No.D.773/76-JEA,(CW), dated
04.12.1976, has constituted the Inter Board Committee of Chairman
(IBCC), which is the Competent Authority for determining of
equivalence of the Certificates/Diplomas upto Higher Secondary level
and as far as the Matriculate or Intermediate Certificates are concerned,
those are to be attested by the respective Boards functioning in the
Provinces and Federation respectively.
3.
Needless to observe that as far as the Higher Education
Commission (HEC) is concerned, it would be its duty to verify or attest
CMA No.1535-2013 etc
- 4 -
the Educational Testimonials of the Universities and all institutions of
Higher Education. However, it would be appreciated if a mechanism is
adopted by the ECP, enabling the HEC to supervise the
scrutiny/examination of the Educational Testimonials of the candidates
without wasting time and making reference to different institutions, the
HEC may adopt an effective procedure on the basis of which, the ECP
without loss of time may get correct information about the authenticity
of the Educational Testimonials.
4.
It is to be noted that under Section 14 of the Representation
of the People Act, 1976, an elector has also right to raise objections to
the nomination of a candidate, relevant provision therefrom are
reproduced herein below:
14(1) The candidates, their election agents, [the proposers
and seconders and one other person authorized in this
behalf by each candidate][and an elector who has filed an
objection to the nomination of a candidate,]may attend the
scrutiny of nomination papers, and the Returning Officer
shall give them reasonable opportunity for examining all
nomination papers delivered to him under section 12.
[Provided that an elector who has filed an objection
to the nomination of candidate shall only attend the scrutiny
of the nomination paper of that candidate.]
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
â14(5)
A candidate, may prefer an appeal against the
decision of the Returning Officer rejecting or, as the case
may be, accepting the nomination paper of the candidate to
the Tribunal constituted for the constituency to which the
nomination relates and consisting of not less than two nor
CMA No.1535-2013 etc
- 5 -
more than three Judges of the High Court nominated by the
Commissioner, with the approval of the President; and such
appeal shall be summarily decided within such time as may
be notified by the Commission and any other passed thereon
shall be final.
14(5A)
If on the basis of any information or material
brought to its knowledge by any source, a Tribunal
constituted under sub-section (5) is of the opinion that a
candidate whose nomination papers have been accepted is a
defaulter of loan, taxes government dues or utility charges
or has had any loan written off or suffers from another
disqualification from being elected as a member of an
Assembly, it may, on its own motion, call upon such
candidate to show cause why his nomination papers may not
be rejected, and if the Tribunal is satisfied that the
candidate is actually a defaulter as aforesaid or has had a
loan written off or suffers from any disqualification, it may
reject the nomination papers.â
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ...
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâ
5.
Undoubtedly, a citizen, who is also an elector or voter, has
a right to have access to the information in all manners with reference
to credentials, antecedents etc of a candidate for whom he is going to
vote for electing him as his representative, therefore, in terms of Article
19-A of the Constitution of the Islamic Republic of Pakistan, 1973, it is
the Fundamental Right of a citizen to have access to information about
the candidate for whom elector/voter may cast his vote. When we
inquired from the Secretary, ECP, he stated that it has been decided to
place the nomination papers on the web-site, enabling the electors or
the voters to obtain information and file objections in terms of the
CMA No.1535-2013 etc
- 6 -
above provisions of the law, which is to be read along with Article 19-
A of the Constitution but we have also asked him that besides making
available the nomination papers on the web-site, a simple procedure
should also be adopted, enabling the electors/voters, who intend to raise
objections to obtain a copy of the nomination paper by making a
request subject to payment of prescribed fee, etc. On this, he stated that
in this behalf a mechanism and SOP shall be issued because the object
and the purpose of the ECP is to adhere strictly to the legal provisions
refereed to herein before and as well as Article 218(3) of the
Constitution.
6.
Let the case be adjourned for 28.03.2013.
Chief Justice
Islamabad
Judge
26.03.2013
Judge
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| {
"id": "C.M.A.1535_2013.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ.
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
Mr. Justice Amir Hani Muslim
Mr. Justice Ejaz Afzal Khan
CMA No.1652/2013 in SMC No.16 of 2011
On Courtâs Notice:
Mr. Qasim Mir Jat, Addl. A.G. Sindh
Mr. Zafar Abbas Bokhari, DIG (West), Karachi
Mr. Amir Farooqi, SSP (Central), Karachi.
Date of Hearing:
29.03.2013
ORDER
Iftikhar Muhammad Chaudhry, CJ. The Daily EXPRESS TRIBUNE published a
story on March, 23rd, 2013 under caption âWHERE LAW ENFORCERS FEAR TO TREAD:
THE ENTRY FEE FOR THESE SPOTS OF KARACHI MAY BE YOUR LIFEâ. The publisher
had also appended a sketch; contents whereof have shown âNO-GO AREAS ONLY FOR A
PARTICULAR ETHNICITY IN TIMES OF ETHNIC VIOLENCEâ AND âCOMPLETE NO-GO
AREAS BECAUSE OF THE PRESENCE OF MILITANTS OR GANGSTERSâ. The report and
the sketch are hereby made part of the instant proceedings and instead of making reference
of its contents it is considered appropriate to reproduce the same in extenso.
âShortly after the armed forces launched the Kalosha II operation in South
Waziristan back in 2004, the crocodiles lazing in the murky natural pond in
Manghopir got new neighbours. Suddenly, they werenât the most dangerous
residents of the area.
Embedded in the increased influx of Mehsud tribesmen coming to Karachi were
militants who settled in Pakhtun-dominated areas of the city, attempting to blend in
unnoticed. They would soon go on to disrupt the life of the cityâs residents â
including the crocodiles at Hazrat Khawaja Hassanâs shrine, which was closed for
over a month following the bomb attack in 2010 on Abdullah Shah Ghaziâs shrine.
âFirst, the hunters â the law enforcers â used to only get hurt when they dared to put
their hands in the den of the lions, the militants. Now it seems as if the lions have
come out of the den and are stalking the hunters themselves,â DSP Qamar Ahmed
told The Express Tribune.
The militants, including Tehreek-e-Taliban Pakistan (TTP) members, now have an
iron grip over parts of the city, including Sohrab Goth, Manghopir and Ittehad
Town. Over the years, they made increasingly brazen attacks, including one on
Sohrab Goth police station on January 29 this year
First, the hunters â the law enforcers â used to only get
hurt when they dared to put their hands in the den of
the lions, the militants. Now it seems as if the lions have
2
come out of the den and are stalking the hunters
themselves
DSP Qamar Ahmed
SHO Ashfaq Baloch of the Manghopir police station admits that it is difficult to
impose the writ of the state in his jurisdiction and that standard operating
procedures followed by law enforcers elsewhere in the city have to be bent â very
drastically.
âWhen a killing occurs somewhere else in the city, a lone constable usually hops
onto a motorcycle and speeds off to the scene of the crime. Here, we canât think of
doing that unless we have a death wish,â he said. âWe have to make sure our
weapons are loaded. Then an entire team, headed by me, gets into a police mobile.
Only when we pacify the criminals that we havenât come to apprehend them can we
advance safely to retrieve the body.â
SHO Baloch added that he prefers not to send the officers on duty to pick up a body.
âWe often wait for a body to turn up at one of the hospitals and then head there to
question the family and any eyewitnesses.â What about raids and patrols in the
area? SHO Baloch shakes his head.
DSP Ahmedâs statement seems to suggest that no-go areas in the city will grow
organically like cancer. Should we fear that criminals want all-out anarchy where
the law of the jungle is followed all over the city? SSP Amir Farooqi, who heads the
policeâs Orangi division, doesnât think so. âThey donât want to turn Karachi into a
war zone.
âTheyâre here to recruit people and generate funds to send back to their comrades
along the tribal belt. Setting the economic hot spot of Pakistan ablaze wouldnât
exactly be conducive for this purpose.â
No-go areas only for a particular ethnicity in times of ethnic violence (Orange)
1. Safoora Goth
2. Area near Micassa apartment
3. Area around Old Sabzi Mandi
4. Shireen Jinnah Colony
5. Shah Rasool Colony
6. Hijrat Colony and Sultanabad
7. Memon Goth
8. Sharifabad
9. Kati Pahari
10. Quaidabad
11. Bilawal Shah Noorani Goth
12. Pehlwan Goth
13. Hazara Goth
14. Sherpao Basti
15. Natha Khan Goth
16. Bizerta Lines
17. Delhi Colony
18. Chanesar Goth
19. Ilyas Goth
20. PIB Colony
21. Parts of New Karachi
22. Azizabad
23. Jamali Goth
3
24. Areas along Drigh Road
25. Jackson and docks
26. Khokrapar
27. Mehran Town
28. Parts of Landhi
29. Shershah
Complete no-go areas because of the presence of militants or gangsters
(Red)
A. Pakhtunabad
B. Sultanabad
C. Ittehad Town
D. New Mianwali Colony
E. Parts of Lyari
F. Macchar Colony
G. Settlements in Sohrab Goth
H. Shanti Nagar & Dalmia
I. Qayyummabad
J. Afghan Basti
K. Kunwari Colony
L. Chota Plaza
M. Supermarket area of Sohrab Goth
Published in The Express Tribune, March 23rd, 2013â.
4
2.
We
have
issued
notice
to
the
Advocate
General. In response thereto, Mr. Zafar Abbas Bokhari, DIG (West) Karachi and Amir
Farooq, SSP (Central) have entered appearance. Mr. Zafar Abbas, DIG on his own
downloaded some maps from the Google Earth. He has handed over the same to the office.
In his presence, we have witnessed the different areas shown in the sketch/map as no-go
areas for a particular ethnicity and the complete no-go areas. The object of holding the
hearing before the date, which has already been fixed i.e. 4th April, 2013 at Karachi, is to
judicially bring into the notice to all the law enforcing agencies namely, Rangers, Police, etc.
that the lives of the citizens of Karachi are not protected as a consequence of the greater
influence of the criminals in the different areas which now is known as partially no-go and
complete no-go areas. During the previous hearings held by us at Karachi we were
persuaded to hold that there is no no-go area particularly in Lyari. Such statement has been
brought on record in writing by a person not less than a D.G. as well as Acting Inspector
General of Police. Immediately their stand was contradicted by police officers namely,
Najmud DinTareen and Niaz Muhammad Khoso which has been noted in our previous
orders. However, in presence of the documentary evidence which either is to be rejected or
accepted to hold that there is indeed no-go areas or otherwise and if it is so, then the claim
of the citizens of Karachi about their non-protection of lives and properties cannot be
denied. However, in view of the response and the prevailing law and order situation, a
preliminary purpose and object of the law enforcing agencies is to protect the lives of
citizens.
3.
Therefore, we direct to the Additional Advocate General to hand over copy of this
order alongwith story published in the Express Tribune dated 23rd March, 2013 for its
onward circulation to the DG Rangers as well the Inspector General of Sindh Police. It is the
duty of the Police to provide protection to the citizens and take them out of the fearful
influence of the criminals in the different pockets of the Karachi. Therefore, we direct the
I.G. Police that to testify firstly the SHO, DSP and SP of each police station even DSP or SP,
who are supervising more than one police station, the contents of the news items or
otherwise. If they accept the same, then shall explain as to why this dismal state of affairs
exists and also to disclose that why the police force is not controlling the law and order
5
situation. The Additional Advocate General would also hand over copy of his order and
appended news items to the DG, Rangers so that he may also make a categorical statement
in respect of the partial or complete existence of âno-go areasâ. The learned Additional
Advocate General would also remind him that earlier he had emphatically taken a stance
that there is no âno-goâ area in Lyari, whereas not only such areas exists in Lyari but also in
other parts of the Karachi which correspond with the sketch appended above. The D.G.
Rangers shall explain that despite availability of resources and command as to why the law
and order situation is not improved not only in Lyari but also in the rest of the areas of
Karachi for the last so many years. In the meanwhile, both the Agencies if desired, may
take necessary steps to abolish all âno-goâ areas for which purpose we have already given
two weeksâ time to the concerned agencies. The learned Additional A.G. shall hand over
copy of this order to the incumbent Chief Secretary Sindh.
To come up on 4th April, 2013 as already announced at Karachi.
Chief Justice
Judge Judge
Judge Judge
ISLAMABAD
29.03.2013
M. Azhar Malik
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Dost Muhammad Khan
CMA No.1656 of 2015 in Civil Petition No.2133 of 2014
(Application of Asad Kharal against NAB)
Applicant:
In person.
For the Federation:
Mr. Aamir Rehman, Addl. AGP
For NAB:
Mr. Waqas Qadeer Dar. PG
Mr. Akbar Tarar, Addl. PG
Mr. Fauzi Zafar, DPG
Date of hearing:
22.07.2015
ORDER
Jawwad S. Khawaja, J.- We have given a lengthy hearing to this matter today. At
the very outset the learned Additional Prosecutor General, NAB acknowledged that 29
major scams (details of which have been mentioned in CMA-4619/15) involving an amount
of approximately rupees 500 billion were not reported to the Court earlier. The learned
Additional Prosecutor General states that through a letter No.108/Cn. Misc./14/2015/01
dated 27.07.2015 the competent authority in the NAB Headquarters has taken a serious
view of the lapse on the part of the four senior functionaries of NAB and has sought a
report within seven days. In view of the importance of this letter, the same is reproduced as
under:-
âSubject:
Submission of List of 150 Mega Corruption Cases in Supreme Court
of Pakistan
The subject list was submitted in the SCP vide CMA No.4366 dated
10th July, 2015. The list was prepared from the cases provided by the Regional NABs
who are the custodians of the cases in their respective jurisdictions. A detailed
scrutiny of the list indicated that some major cases in the categories of Financial
Scams. Land grab & Misuse of Authority were not reported. Conversely some cases of
insignificant values have been provided. A supplementary CMA had to be submitted
to give a fuller picture in the honourable Court.
2.
The competent authority in the NAB HQ has taken a serious view of the lapse
on your part. An inquiry be carried out regarding the omission at your end.
3.
Report be submitted in 7 days for information of Competent Authority
CMA-1656/15 in CP-2133/14
2
-Sd-
(Syed Khalid Iqbal),
Director General (Operations)
1.
Col. (R) Siraj ul Naeem
Director General, RNAB, (Karachi)
2.
Syed Burhan Ali,
Director General, RNAB (Lahore)
3.
Major (R) Tariq Mehmood Malik,
Director General, RNAB (Balochistan)
4.
Mr. Zahid Shah, Director General, RNAB (Rawalpindi)â
2.
The federal government was asked previously as to the action, if any, it proposes to
take and also to state if the government has knowledge/information about the workings of
NAB. Mr. Aamir Rehman, the learned Additional Attorney General for Pakistan has firstly
stated that the federal government was unaware of any shortcomings or absence of due
diligence within NAB. The reason given by him was that NAB is an independent statutory
body and is not required to report to the federal government. We have found this
submission to be strange. Firstly, it is to be noted that NAB has been created through
legislation called the National Accountability Ordinance, 1999. Section 6(b)(i) of the same
stipulates that âthere shall be a Chairman NAB to be appointed by the President in consultation
with the Leaders of the House and the Leader of the Opposition in the National AssemblyâĻâ.
3.
What we understand from the submissions of the learned Additional Attorney
General is that after making the appointment of Chairman NAB it is not for the government
to keep a tab on the workings of NAB. The learned Law Officer, however, stated that it is
the Parliament which could take action. The Parliament we note can amend and if thought
appropriate, even repeal the statute so we are not impressed by this submission made by
the learned Law Officer. We may add that the leader of the House and the leader of the
Opposition are heading the treasury and opposition in Parliament, and it is for them to
firstly ascertain if NAB is performing its functions in accordance with the statute and if
considered appropriate take further action including, where necessary, or propose an
amendment in the statute.
4.
Secondly, it became evident from the submission of the learned Additional Attorney
General that in the government there was no feeling that it was necessary to gather
information about the workings of NAB. At this point, the learned Law Officer stated that it
was for the people to take action against NAB and they can do so through their chosen
CMA-1656/15 in CP-2133/14
3
representatives. We may add that the chosen representatives of the people are members of
the two Houses and the consultees of the President in the matter of appointment of
Chairman NAB which are the leaders of the House and of the Opposition in the National
Assembly. The learned Law Officer acknowledged that the said leaders were also the
chosen representatives of the people who could initiate such action.
5.
Thirdly, after hearing the learned Additional Attorney General and the learned
Additional Prosecutor General NAB, we gather that there appears to be satisfaction on the
part of the federation that nothing further is to be done including possible amendment in
the National Accountability Ordinance (NAO). He should confirm if this indeed is the case
and file a report on the basis of instructions from the government and its senior
most/responsible functionaries.
6.
Fourthly, we may mention that we had asked NAB to provide a breakdown of the
amount of rupees 262 billion which had been statedly recovered by NAB on the basis of
voluntary return (VR) or plea bargain (PB). We have been informed by the learned Addl.
PG NAB that these details for the cases relating to the year 2008 till date have been
uploaded on the website of NAB during the preceding night. We, however, have pointed
out to the learned Additional PG that there should be two further columns in the given
chart; one mentioning the total amount given in the complaint and the other column
indicating the amount determined after investigation. The learned Addl. PG stated that
this also shall be done if some time is allowed.
7.
The applicant Mr. Asad Kharal drew the attention of the Court to NLC Scam of
rupees four billion which is pending with NAB since 2011. The learned Additional
Prosecutor General states that he shall submit a separate comprehensive report on this
scam and other scams before the next date of hearing.
8.
Re-list on 10.08.2015.
Judge
Judge
Islamabad, The
29th July, 2015
M. Azhar Malik/*
| {
"id": "C.M.A.1656_2015.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
CMA No. 1674/13 in Constitution Petition No. 105/2012 and
Const. P. 104/12 and CMA 3464/12
AND
Constitution Petition No. 105/12 alongwith CMAs 3795 & 3798 of 2012,
HRC No. 23957-S/12 and Const. P. 53/2012
AND
Constitution Petition No. 117/12.
Mir Hamid and another.
âĻ
Petitioner(s)
Versus
Federation of Pakistan etc.
âĻ
Respondent(s)
For the petitioner(s):
Hamid Mir, & Absar Alam (both inperson)
For the petitioner(s):
Mr. Muhammad Akram Sheikh Sr. ASC &
(In Const.P.53/12)
Dr. Tariq Hassan, ASC
Syed Safdar Hussain, AOR
For the petitioner(s):
Nemo
(In Const.P.104/12)
For the petitioner(s):
Nemo
(In Const.P.117/12)
For the respondent-1:
Mr. Nasir Jamal, DG & Rashid Ahmed (Secy.)
Muhammad Azam (Press Information Officer)
For the respondents, 2-3:
Mr. Hasnain Ibrahim Kazmi, ASC
For the respondent, 4:
Syed Zahid Hussain Bukhari, ASC
For the respondent, 5:
Ch. M. Hanif Khatana, Addl. A.G. Pb.
For the respondent, 6:
Nemo.
For the respondent, 7:
Mr. Naveed Ihsan & Mr. Asif Hussain.
For the respondent, 8:
Nemo
For the Province of KPK:
Syed Arshad Hussain Shah, Addl. A.G.
For the Federation:
Mr. Dil Muhammad Khan Alizai, DAG
For USF:
Raja Aamir Abbas, ASC
For the respondent-11 &
Mr. Yasin Azad, ASC
Value TV:
Raja Muqsat Nawaz, ASC
Mr. Arshad Sharif, Bureau Chief, DUNYA TV.
Mr. Ghulam Nabi, President, Press Association SC.
Mr. M. Hanif Awan, in person (CMA 3464/12)
Nemo (HRC 23957-S/12)
For ECP
Mr. Ishtiaq Ahmed Khan, Secretary
Const. P. 105 of 2012 etc.
2
For M/s Vision Network:
Mr. Adnan Iqbal Chaudhry, ASC
For M/s AURORA:
Mr. Munir A. Malik, Sr. ASC
For Express TV:
Nemo.
For VIVE TV:
Nemo
For PTV:
Mr. Shahid Mehmood Khokhar, ASC
For Punjab TV:
Nemo.
For PEMRA:
Hafiz S.A. Rehman, Sr. ASC (In Const.P.104/12)
For Airways Media:
Nemo.
For ARY:
Nemo.
For Cable Operators:
Dr. Amjad Hussain Bukhari, ASC
For Pakistan Broadcasters:
Nemo.
(In CMA 3464/12)
Mr. M. S. Khattak, AOR
For Indus Television:
Tariq Ismail.
Date of hearing:
02.04.2013
O R D E R.
Jawwad S. Khawaja, J. On 28.3.2013, we had passed an order wherein it had been
noted that the two-Member Commission appointed by the Court had submitted its report
on ToR No. F. This ToR mandated the Commission âto enquire into allegations of media related
corruption and suggest steps to ensure impartial and independent media for the upcoming
electionsâ. The report on ToR No.F is dated 21.3.2013. Notice was issued to the Election
Commission of Pakistan. Mr. Ishtiaq Ahmad Khan, Secretary ECP has appeared. He states
that the ECP is already seized of the matter relating to the media Code of Conduct
particularly in the context of the forthcoming elections. A draft Code of Conduct has been
prepared by the ECP whereas another draft has been proposed by the media bodies and
personnel. The ECP is considering these two draft Codes of Conduct. The report on ToR
No. F, which has been filed in Court by the worthy Commission, shall also be handed over
to the ECP and the parties in these proceedings. The ECP shall, therefore, take into
consideration, in its deliberations, the report/recommendations of the Commission while
finalizing the Code of Conduct for the media. Since the activities in relation to the elections
have already commenced wherein political parties and others are actively engaged, it is our
expectation that the ECP shall revise and issue its Code of Conduct. According to the
Secretary, ECP, this exercise shall be completed within one week from today. Order
accordingly.
Const. P. 105 of 2012 etc.
3
2.
Vide order dated 20.12.2012, we had directed that the Ministry of Information and
Broadcasting shall submit details of the secret funds in Court. We had also observed that, if
at all, the Ministry claimed privilege against disclosure of information, it shall disclose the
basis for claiming such privilege. Para 13 of our order dated 20.12.2012 was passed in the
following terms:-
âPrima facie, while the Ministry may claim privilege from making public
disclosure of certain parts of its budget, such privilege is not automatically
available to the Government. It must be claimed from the Court. Information
for which secrecy is sought must be clearly marked and the reasons for
seeking secrecy must also be clearly stated. The Court can then make a
determination on this point in line with the law and the Constitutionâ.
The Ministry shall do the needful before the next date of hearing.
3.
Other Ministries also statedly were utilizing funds without disclosure. We have also
received an application (H.R.C No.12076-S/2013) wherein it has been alleged that a
summary has been approved for making payment of very heavy amounts for the purpose
of advertisements in a media campaign. It is also alleged that these funds are likely to be
disbursed in violation of rules. It has been further alleged that the summaries in respect of
disbursement of substantial amounts was approved after the expiry of the term of the
previous government. The learned DAG shall ascertain the correct factual position and
submit a report before the next date of hearing. Until the next date of hearing,
disbursement to any advertising agent/media house shall not be made. The learned DAG
shall provide particulars of any such summaries which may have been approved starting
from 10.3.2013.
4.
To come up on 8.4.2013.
Judge
Judge
Islamabad,
2nd April,2013
A.Rehman
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE SYED MANSOOR ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358
OF 2021 IN CIVIL PETITION NOs. NIL OF 2021 AND CIVIL
PETITION NOs. 802 & 979 OF 2021
(CMAs have been filed seeking permission to file and argue the civil petitions)
(On appeal against the judgment dated 12.02.2021 passed by the High Court of Sindh, Karachi in
Constitutional Petition Nos. D-7382/2019, D-7625/2019, D-7809/2019, D-4704/2020 & D-
5755/2020)
Ghayasuddin Shahani etc
(In CMA 1824/2021)
Abdul Ghani etc
(In CMA 2357/2021)
Mohammad Yaseen etc
(In CMA 2358/2021)
Mukhtiar Ahmed etc
(In CP 802/2021)
Rahamdil etc
(In CP 979/2021)
âĻApplicants/Petitioners
VERSUS
Akhtar Hussain etc
(In CMA 1824/2021)
Qadir Bux etc
(In CMA 2357/2021)
Abdul Majeed etc
(In CMA 2358/2021)
Province of Sindh through Chief Secretary etc
(In CP 802/2021)
Shah Murad etc
(In CP 979/2021)
âĻRespondent(s)
For the Applicants /
Petitioners:
Mr. M.M. Aqil Awan, Sr. ASC
(In CMAs 1824, 2357 & 2358/2021 & CP
979/2021)
For the Petitioners:
Mr. Mukhtiar Ahmed, petitioner No. 1 in
person
For Respondent (1-8):
Mr. Javed A. Khan, ASC
(In CMA 1824/2021)
For other Respondents:
N.R.
Date of Hearing:
19.05.2021
âĻ
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.-
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358/ 2021
IN CIVIL PETITION NOs. NIL/2021
1.
Subject to all just exceptions, these CMAs are allowed. Let
the petitions be numbered and fixed today.
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN
CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF
2021
-: 2 :-
CIVIL PETITION NOs. 3111, 3112, 3113, 802 & 979/2021
2.
Through these petitions under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973, the petitioners have
called in question the legality of the judgment of the High Court of Sindh
dated 12.02.2021 whereby the Constitutional Petitions filed by the
respondents were âdisposed offâ while directing the Health Department,
Government of Sindh to follow the instructions issued therein strictly in
accordance with law in the interest of safe dispensation of justice.
3.
Briefly stated the facts of the matter are that an
advertisement was published in the newspapers on 22.03.2018
wherein 1733 vacancies of Vaccinators (BPS-6) were announced by the
Health Department, Government of Sindh in order to expand the
program on âimmunizationâ in Sindh and as such applications were
invited from the residents of the union councils where the posts exist. As
per the contents of the advertisement, the basic qualification for
induction as Vaccinator was matric or equivalent, however, preference
was to be given to the candidates seized with vaccination certificate
from a recognized institute. The passing marks were prescribed as 60.
However, during the process, only 1611 candidates could meet the
criterion of obtaining 60 or higher marks. In order to fill the remaining
vacancies, the Health Department under the directions of Minister for
Health, Government of Sindh relaxed the criterion of 60 marks to 55
marks and thereby the number of qualified persons arose to 3245.
Thereafter, a Selection Committee headed by the Additional Chief
Secretary (Health), Additional Secretary (Services), SGA&CD and Project
Director EPI was constituted vide notification dated 19.12.2018. It is
noteworthy that during the process, the Additional Secretary (Services),
SGA&CD did not participate in the selection process by absenting
himself from interviews of the candidates. The final selection was made
on the recommendation of the two membersâ committee, as a
consequence of which, a list was prepared and finally 1733 candidates
including the petitioners were appointed. Some of the candidates who
could not succeed during selection, being aggrieved, challenged the
selection process before the High Court of Sindh by filing the
Constitutional Petitions, which have been disposed of vide impugned
judgment with following observations/directions:-
a)
All the successful candidates who obtained 60 marks
and above in the written test conducted by NTS (1611
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN
CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF
2021
-: 3 :-
candidates) are required to undergo a fresh interview by the
committee constituted by the competent authority vide
notification dated 07.08.2019; and, the rest of posts shall be
re-advertised in accordance with the recruitment rules. AND
b)
The appointment of successful candidates in the
interview is subject to Union wise seats as outlined in the
terms of advertisement published in daily newspapers dated
33.2.2018. AND
c)
The competent authority is directed to establish an
Institute for training of Vaccinators within three (03) months.
In the meanwhile, the successful candidates of the interview
are required to undergo training of Vaccinator for the post
within a reasonable time from any recognized institute of
Nursing and/or Government Hospital before administering
the subject vaccine to the public at large.
d)
The petitioners who obtained less than 60 marks have
to participate in fresh recruitment process, thus their
petition(s) stand dismissed.â
4.
The petitioners being not satisfied with the outcome of the
Constitutional Petitions have challenged the same before this Court by
filing the present civil petitions for leave of the court.
5.
At the very outset, learned counsel for the petitioners
contended inter alia that the petitioners were appointed as Vaccinators
after due process of appointment but they were neither arrayed as
respondents before the High Court of Sindh nor provided an opportunity
of hearing and were condemned unheard; that the impugned judgment
is not sustainable in the eyes of law as the same is devoid of due
process and has violated the salutary principle of natural justice; that
since there was no such institute in existence, which could give training
for vaccination and issue certificate, the condition precedent in the
advertisement to this effect was unjustified and as such the same
cannot be made basis for discarding the credentials of the candidates;
that the selection of candidates union wise is uncalled for as this has to
be on a larger canvas i.e. district wise or provincial level. He lastly
prayed for interference by this Court by setting aside the judgment
impugned before us.
6.
Mr. Mukhtiar Ahmed, petitioner, who appeared in person
adopted the arguments advanced by Mr. M.M. Aqil Awan, learned
counsel for the petitioners. He added that he has been discriminated on
flimsy grounds, which are not sustainable and as such he has a right to
be retained in service. He lastly stated that till the finalization of the
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN
CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF
2021
-: 4 :-
process of selection in pursuance of the observations/directions of the
High Court, no adverse order may be passed against him.
7.
We have heard learned counsel for the petitioners and
petitioner in person at some length and have gone through the available
record.
8.
The moot points for consideration of this Court are as
under:-
(i)
whether the process of appointment was according to the
criterion set out in the advertisement;
(ii)
whether the process of appointment was transparent and
all codal formalities justiciable under the law were
followed;
(iii)
whether the observations/directions issued by the High
Court have encroached upon the âlegal rightsâ of the
petitioners without providing them an opportunity of
hearing; and
(iv)
whether the observations/directions issued by the High
Court would actually sensitize the appointment process
with transparency/clarity of process for the entire
satisfaction of the candidates.
9.
As far as the basic qualification for induction as vaccinator
is concerned, it is not disputed. There are certain reservations qua
possessing of the vaccination certificate as it is an admitted fact that till
finalization of appointment process there was no institute available in
Province of Sindh exclusively for this purpose. However, there are other
quarters working under the Health Department i.e. DHO Office with the
collaboration of District Headquarter Hospital where this training
process is available as such it cannot be denied straightaway that there
is no such arrangement to get vaccination training to meet the
requirement as disclosed in the advertisement. The learned High Court
took notice of a summary dated 03.05.2019 moved to the Chief Minister
Sindh by Secretary Health wherein certain observations of the Services
Wing on the process of recruitment were mentioned i.e. (i) the
recruitment rules for the post of Vaccinator require qualification of matric
together with certificate in vaccination from a recognized institute
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN
CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF
2021
-: 5 :-
whereas in the advertisement the certificate in vaccination has been
published as preference instead of mandatory, (ii) the threshold of
minimum marks has been reduced from 60 marks to 55 marks without
any approval/justification, (iii) a number of candidates have been
declared âfailedâ or not selected despite having secured more marks in
the recruitment test than the candidates declared as selected by the
Selection Committee, and (iv) few candidates who secured passing or
more than passing marks have been declared as âdoes not read/writeâ.
Upon these discrepancies found in the recruitment process, the Selection
Committee was reconstituted by the competent authority and it was
decided that the threshold of minimum marks as 60 shall be adhered to
and no relaxation in this regard will be allowed and the condition of
certificate in vaccination from recognized institute shall be compulsory
and not relaxable as the same is requirement of Rules for the post of
vaccinator. However, no re-interview was done by the department and
the selection process was completed as was undertaken by the earlier
Selection Committee. We have noticed that the learned High Court after
detailed scrutiny and inquiry has only identified certain flaws in the
recruitment process and directed for removal of those flaws. The
impugned judgment is not against the petitioners rather it only bounds
the department to strictly follow the criterion laid down in the
advertisement for the appointment of vaccinators. The High Court has
addressed to all the issues those were brought forth in the recruitment
process. The recommendations made by the High Court are in
furtherance of clarity in the process and certainly would defeat any
chance of nepotism, favourtism and undue enrichment of individuals.
The learned High Court has also directed to establish an institute for
training of vaccinators and in the meanwhile, the successful candidates
of the interview have been required to undergo training of vaccinator.
This direction of High Court was specifically very timely and beneficial
to public at large when these vaccinators are primarily to deal with
infants and young generation. As far as other limb of queries is
concerned, those are interconnected, hence are pondered upon
conjointly. The learned High Court was seized with the extraordinary
power under Article 199 of the Constitution of Islamic Republic of
Pakistan to entertain any matter if it is brought into notice that any act
done by the public functionaries has encroached upon the basic rights of
the people as enshrined in the Constitution of Islamic Republic of
CIVIL MISCELLANEOUS APPLICATION NOs. 1824, 2357 & 2358 OF 2021 IN
CIVIL PETITION NOs. NIL OF 2021 AND CIVIL PETITION NOs. 802 & 979 OF
2021
-: 6 :-
Pakistan. No fundamental right of the petitioners has been infringed
because the recruitment process was initiated through advertisement
with certain terms and conditions and only those who fulfill those
conditions are eligible to be appointed. So far as the argument of learned
counsel for the petitioners that the appointment cannot be made
according to union council basis is concerned, the basic purpose of
Expanded Program on Immunization (EPI) was to control the spread of
Vaccine Preventable Diseases among infants/children and this target
cannot be achieved unless it goes to grass roots level, which means that
it needs to be spread over the union council level by making
appointments of the vaccinators from the concerned union councils
enabling the public at large to be benefited from it. Secondly, it was
specifically mentioned in the advertisement that applicant must be
resident of the same union council and it has time and again been held
by this Court that whatever the terms of the advertisement are the
appointments must follow the criterion as disclosed therein without any
departure so that no one can raise any objection regarding its
transparency.
10.
For what has been discussed above, we are of the
considered view that the learned High Court has passed a well
reasoned judgment to which no exception can be taken. These petitions
having no merit are accordingly dismissed and leave to appeal is
refused.
11.
The above are the detailed reasons of our short order of
even date.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
19th of May, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
CMA No. 19002/2012
in
CONSTITUTION PETITION No. 77 OF 2010.
President Balochistan High Court Bar Association
âĻ
PETITIONER
VERSUS
Federation of Pakistan, etc.
âĻ
RESPONDENTS
For the petitioner(s)
Malik Zahoor Shahwani, Advocate/President
Balochistan High Court Bar.
Mr. Sajid Tareen, Advocate/Vice President
Sardar Akhtar Jan Mengal
For the applicants:
Mr. Nasarullah Baloch (CMA 178-Q/2012)
Mr. Mahmood A. Sheikh, AOR
Ms. Tehniat Zahra, Adv./Member PIHRO (CMA
3966/2012)
For SCBAP:
For Fed. of Pakistan:
Mr. Irfan Qadir, Attorney General for Pakistan
For M/o Defence:
Commander Hussain Shahbaz, Dir(L)
For M/o Interior:
Mr. Munir Piracha, ASC
Mr. Masoodur Rehman Tanoli, Dir. NCMC
For Govt. of Balochistan: Mr. Amanulah Kanrani, A.G.
Mr. Azam Khatak, A.A.G.
Mr. Babar Yaqoob Fateh Muhammad,
Chief Secy.
For IG FC:
Raja Muhammad Irshad, Sr. ASC
For FBR:
Rana M. Shamim, ASC
Date of hearing :
27.09.2012
Cont Pet 77-2010
2
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. Sardar Akhtar
Jan Mengal, former Chief Minister and Head of Balochistan National
party, in pursuance of direction of this Court dated 20.09.2012
appeared to assist the Court to resolve the issue of missing persons
and target killings of the citizens in the Province of Balochistan. He
briefed the Court by making oral submissions and also placed on
record extract from the book titled Zulfiqar Ali Bhutto â Afwah aur
Haqiqat composed by Altaf Ahmad Qureshi. He has suggested different
ways and means to resolve the issues, which are being faced by the
residents of the Province. He has also placed on record a statement in
writing under his signature, one of the Paras along with suggestions
thereof reads as under: -
âBefore
initiating
a
meaningful
process
of
conflict
resolution it is imperative that the Government of Pakistan
should take and practically implement some measures
which are must to build a conducive atmosphere for Baloch
reconciliation process: -
(1)
All covert and overt military operations against the
Baloch should immediately be suspended.
(2)
All missing persons should be procured before a
court of law.
(3)
All
proxy
death
squads
operating
under
the
supervision of Inter Services Intelligence (ISI) and
Military Intelligence (MI) should be disbanded.
(4)
Baloch political parties should be allowed to function
and resume their political activities without any
interference from intelligence agencies.
Cont Pet 77-2010
3
(5)
Persons responsible for inhuman torture, killing and
dumping of dead bodies of the Baloch political
leaders and activists should be brought to justice.
(6)
Measures should be taken for the rehabilitation of
thousands of displaced Baloch living in appalling
condition.
After taking the above mentioned confidence building
measures,
a
meaningful
negotiation
between
the
recognized and genuine representatives of the Baloch and
military establishment could take place to decide the future
relationship of Balochistan.â
2.
On 19.09.2012, we had asked the Chief Secretary,
Government of Balochistan to bring the issues highlighted therein into
notice of the Prime Minister (Chief Executive), Governor, Chief Minister
of Balochistan as well as the heads of the agencies. Although he had
meetings with the said functionaries, but it seems that so far no
fruitful results have come out. Be that as it may, as the matter is
pending, and is now likely to be concluded, therefore, we direct him
that he should bring the above suggestions of Sardar Akhtar Jan
Mengal into the notice of the concerned authorities, including, Prime
Minister, Heads of ISI, MI, IB, etc. As the Chief Secretary along with
Inspector General of Police has traveled all the way from Quetta and
realizing the importance of the issues and the hearing of the case
before this Court, he may discuss the issue as already directed by this
Court vide order referred to above, and the suggestions which Sardar
Akhtar Jan Mengal has made today in Court keeping in view the
previous general situation in the Province of Balochistan, and give us
the reaction in black and white of all those functionaries on
28.09.2012.
Cont Pet 77-2010
4
3.
We place on record our thanks and appreciation for Sardar
Akhtar Jan Mengal who has come forward to provide assistance to this
Court for the purpose of resolving the issues raised in the petition
moved by the High Court Bar Association.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, 27th September, 2012
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In the Supreme Court of Pakistan
(Appellate Jurisdiction)
Order Sheet
Civil Misc. Appeal No.193 of 2013
in
Civil Review Petition No. Nil of 2013
in
Constitution Petition No.8 of 2009
General (R) Pervaiz Mushrraf
Appellant
Versus
Nadeem Ahmed (Advocate) & others
Respondents
Prayer:
âthat this appeal may kindly be allowed and the
Review Petition may kindly be ordered to be
entertained.â
8.1.2014
Syed Sharifuddin Pirzada, Sr. ASC
Raja Muhammad Ibrahim Satti, Sr. ASC
Order
While examining this review petition on behalf of
General (Retd) Pervaiz Mushrraf against the judgment dated
31.7.2009, passed in Constitution Petition No.8 of 2009, the office
has raised following objections with regard to its maintainability:-
i.
Scandalous language has been used against the Honâble Judges
of this Court at so many places in this Review Petition, therefore
it cannot be entertained under Order XVII, Rule 5 of the Supreme
Court Rules, 1980.
ii.
As per certificate of the AOR this is second Review Petition
against the order under Review dated 31.07.2009 passed in
Constitution Petition No.08/2009, first Review Petition was
dismissed vide judgment reported as PLD 2010 SC 483.
Therefore, it is not entertainable under Order XXVI Rule 9 of
Supreme Court Rules, 1980.
iii.
It is mentioned in this Review Petition that it has been drawn by
Syed Sharif ud Din Pirzada, Sr.ASC, Raja Muhammad Ibrahim
Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC, Sahibzada Ahmed Raza
Civil Misc. Appeal No.193 of 2013
2
Khan Qasuri, Sr.ASC, Barrister Dr. Muhammad Ali Saif, ASC and
Rana Ijaz Ahmad, ASC, however, it has not been signed by Syed
Sharif ud Din Pirzada, Sr.ASC.
iv.
Certificate of fitness of Review Petition has only been signed by
Raja Muhammad Ibrahim Satti, Sr.ASC instead of having been
signed by all the counsel who have drawn this Review Petition
which is essentially required under Order under Order XXVI Rule
4 of Supreme Court Rules, 1980.
v.
An application for exemption to the requirements of Order XXVI
Rule 6 has been filed. In this Review Petition and permission has
been sought that petitioner may be allowed to engage Raja
Muhammad Ibrahim Satti, Sr.ASC in this Review Petition.
However, this Review Petition has been mentioned to have been
drawn by Syed Sharif ud Din Pirzada, Sr.ASC, Raja Muhammad
Ibrahim Satti, Sr.ASC, Dr. Khalid Ranjha, Sr.ASC, Sahibzada
Ahmed Raza Khan Qasuri, Sr.ASC, Barrister Dr. Muhammad Ali
Saif, ASC and Rana Ijaz Ahmad, ASC.
vi.
It has been mentioned in this Review Petition that Petitioner was
not party in Constitution Petition No.08/2009 order passed in
which is sought to be reviewed through this Review Petition and
no application for permission to the petitioner to file this Review
Petition has been filed.
vii.
Party names cannot be verified as paper books of Constitution
Petition No.08/2009 have not been filed.
viii.
Misc. Application for staying the proceedings of High Treason
Trial before the Special Court is misconceived in this Review
Petition.
ix.
Instead of 14 Paper books only four paper books of Review
Petition have been filed.
2.
I have heard the arguments of Raja Muhammad
Ibrahim Satti, learned Sr. ASC on behalf of the appellant. He
candidly stated that so far as the office objections No.iii, v, vi, vii &
ix are concerned, their compliance will be made by the appellantâs
AOR within two days time; so far as office objections No.i, ii & viii
are concerned, those are of the nature which are to be considered
and decided by the Court while hearing the case, and so far as
office objection No.iv is concerned, due to filing of certificate of
fitness of the review petition by him under Order XXVI Rule 4 of
the Supreme Court Rules 1980, such objection is not maintainable
and liable to be overruled.
Civil Misc. Appeal No.193 of 2013
3
3.
After careful examination of the case record,
particularly, the reply to these objections contained in the memos
of appeal, I find submissions of the learned Sr. ASC quite fair, just
and equitable. Accordingly, office objection No.iv is overruled; two
daysâ time is allowed for compliance of office objections No.iii, v, vi,
vii & ix, while the office objections No.i, ii & viii are ordered to be
placed before the Court at the time of hearing of review petition.
Title appeal against the order of the Registrar is accordingly
disposed of.
(Anwar Zaheer Jamali)
Judge
In the Supreme Court of Pakistan
(Appellate Jurisdiction)
Order Sheet
Civil Misc. Appeal No.194 of 2013
in
Civil Review Petition No. Nil of 2013
in
Constitution Petition No.9 of 2009
General (R) Pervaiz Mushrraf
Appellant
Versus
Sindh High Court Bar Association and others
Respondents
Prayer:
âthat this appeal may kindly be allowed and the
Review Petition may kindly be ordered to be
entertained.â
8.1.2014
Syed Sharifuddin Pirzada, Sr. ASC
Raja Muhammad Ibrahim Satti, Sr. ASC
Order
While examining this review petition on behalf of
General (Retd) Pervaiz Mushrraf, against the judgment dated
31.7.2009 passed in Constitution Petition No.9 of 2009, the office
has raised following objections with regard to its maintainability:-
i.
Scandalous language has been used against the
Honâble Judges of this Court at so many places in
this case, therefore it cannot be entertained under
Order XVII, Rule 5 of the Supreme Court Rules,1980.
ii.
As per certificate of the AOR this is second Review
Petition against the order under Review dated
31.07.2009
passed
in
Constitution
Petition
No.09/2009, first Review Petition was dismissed vide
judgment reported as PLD 2010 SC 483. Therefore, it
is not entertainable under Order XXVI Rule 9 of
Supreme Court Rules, 1980.
iii.
It is mentioned in this Review Petition that it has
been drawn by Syed Sharif ud Din Pirzada, Sr.ASC,
Civil Misc. Appeal No.194 of 2013
2
Raja Muhammad Ibrahim Satti, Sr.ASC, Dr. Khalid
Ranjha, Sr.ASC and Barrister Dr. Muhammad Ali
Saif, ASC however, it has not been signed by Syed
Sharif ud Din Pirzada, Sr.ASC.
iv.
Certificate of fitness of Review Petition has only been
signed by Raja Muhammad Ibrahim Satti, Sr.ASC
instead of having been signed by all the counsels
who have drawn this Review Petition which is
essentially required under Order under Order XXVI
Rule 4 of Supreme Court Rules, 1980.
v.
An application for exemption to the requirements of
Order XXVI Rule 6 has been filed, in this Review
Petition and permission has been sought that
petitioner may be allowed to engage Raja Muhammad
Ibrahim Satti, Sr.ASC in this Review Petition.
However, this Review Petition has been mentioned to
have been drawn by Syed Sharif ud Din Pirzada,
Sr.ASC, Raja Muhammad Ibrahim Satti, Sr.ASC, Dr.
Khalid Ranjha, Sr.ASC and Barrister Dr. Muhammad
Ali Saif, ASC.
vi.
Petitioner was not party in Constitution Petition
No.09/2009 order passed in which is sought to be
reviewed through this Review Petition and no
application for permission to the petitioner to file this
Review Petition has been filed.
vii.
Misc. Application for staying the proceedings of High
Treason
Trial
before
the
Special
Court
is
misconceived in this Review Petition.
viii.
Instead of 14 Paper books only four paper books of
Review Petition have been filed.â
2.
I have heard the arguments of Raja Muhammad
Ibrahim Satti, learned Sr. ASC on behalf of the appellant. He
candidly stated that so far as office objections No.iii, v, vi & viii are
concerned, their compliance will be made by the appellantâs AOR
within two days time; so far as office objections No.i, ii & vii are
concerned, those are of the nature which are to be considered and
decided by the Court while hearing the case, and so far as office
objection No.iv is concerned, due to filing of such certificate of
fitness for review petition under Order XXVI Rule 4 of the Supreme
Court Rules 1980 by him, such objection is misconceived and
liable to be overruled.
Civil Misc. Appeal No.194 of 2013
3
3.
After careful examination of the case record,
particularly, the reply to various objections contained in the memo
of appeal, I find the submissions of the learned Sr. ASC quite fair,
just and equitable. Accordingly, office objection No.iv is overruled;
two daysâ time is allowed for compliance of office objections No.iii,
v, vi & viii, while the office objections No.i, ii & vii are ordered to be
placed before the Court alongwith the review petition. Title appeal
against the order of the Registrar is accordingly disposed of.
(Anwar Zaheer Jamali)
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ (in Chambers)
C.M.A. 2012 OF 2023
IN
C.M. APPEAL NO. 81 OF 2021
The President of Pakistan and others
Versus
Justice Qazi Faez Isa
C.M. APPEAL 81 OF 2021
IN
C.R.P. NO. 296 OF 2020
IN CONST. P. 17 OF 2019
The President of Pakistan and others
Versus
Justice Qazi Faez Isa
C.M.A. 2013 OF 2023
IN
C.M. APPEAL NO. 82 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Sindh High Court Bar Association through its President
C.M. APPEAL 82 OF 2021
IN
C.R.P. NO. 297 OF 2020
IN CONST. P. 24 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Sindh High Court Bar Association through its President
C.M.A. 2014 OF 2023
IN
C.M. APPEAL NO. 83 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Mrs. Sarina Isa Wife of Qazi Faez Isa
CMA NO. 2012 OF 2023 ETC.
2
C.M. APPEAL 83 OF 2021
IN
C.R.P. NO. 298 OF 2020
IN CONST. P. 17 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Mrs. Sarina Isa wife of Qazi Faez Isa
C.M.A. 2015 OF 2023
IN
C.M. APPEAL NO. 84 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Supreme Court Bar Association, Islamabad through its President and
another
C.M. APPEAL 84 OF 2021
IN
C.R.P. NO. 299 OF 2020
IN CONST. P. 19 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Supreme Court Bar Association, Islamabad through its President and
another
C.M.A. 2016 OF 2023
IN
C.M. APPEAL NO. 85 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Muhammad Asif Reki, President Quetta Bar Association, Quetta and
another
C.M. APPEAL 85 OF 2021
IN
C.R.P. NO. 300 OF 2020
IN CONST. P. 23 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Muhammad Asif Reki, President Quetta Bar Association, Quetta and
another
CMA NO. 2012 OF 2023 ETC.
3
C.M.A. 2017 OF 2023
IN
C.M. APPEAL NO. 86 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Shahnawaz Ismail, Vice Chairman, Punjab Bar Council, Lahore and
another
C.M. APPEAL 86 OF 2021
IN
C.R.P. NO. 301 OF 2020
IN CONST. P. 32 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Shahnawaz Ismail, Vice Chairman, Punjab Bar Council, Lahore and
another
C.M.A. 2018 OF 2023
IN
C.M. APPEAL NO. 87 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Balochistan Bar Council, through Vice Chairman Balochistan High Court,
Quetta and others
C.M. APPEAL 87 OF 2021
IN
C.R.P. NO. 308 OF 2020
IN CONST. P. 25 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Balochistan Bar Council, through Vice Chairman, Balochistan High Court,
Quetta and others
C.M.A. 2019 OF 2023
IN
C.M. APPEAL NO. 88 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Pakistan Federal Union of Journalists (PFUJ) through its Secretary General,
Islamabad and others
CMA NO. 2012 OF 2023 ETC.
4
C.M. APPEAL 88 OF 2021
IN
C.R.P. NO. 309 OF 2020
IN CONST. P. 34 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Pakistan Federal Union of Journalists (PFUJ) through its Secretary General,
Islamabad and others
C.M.A. 2020 OF 2023
IN
C.M. APPEAL NO. 89 OF 2021
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Pakistan Bar Council through its Vice Chairman, Islamabad and others
C.M. APPEAL 89 OF 2021
IN
C.R.P. NO. 509 OF 2020
IN CONST. P. 21 OF 2019
The President of Pakistan through Secretary to the President, Islamabad
and others
Versus
Pakistan Bar Council through its Vice Chairman, Islamabad and others
C.M.A. 2021 OF 2023
IN
C.M. APPEAL NO. 90 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Justice Qazi Faez Isa and others
C.M. APPEAL 90 OF 2021
IN
C.R.P. NO. 296 OF 2020
IN CONST. P. 17 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Justice Qazi Faez Isa and others
CMA NO. 2012 OF 2023 ETC.
5
C.M.A. 2022 OF 2023
IN
C.M. APPEAL NO. 91 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Sindh High Court Bar Association through its President
C.M. APPEAL 91 OF 2021
IN
C.R.P. NO. 297 OF 2020
IN CONST. P. 24 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Sindh High Court Bar Association through its President
C.M.A. 2023 OF 2023
IN
C.M. APPEAL NO. 92 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Mrs. Sarina Isa wife of Qazi Faez Isa and others
C.M. APPEAL 92 OF 2021
IN
C.R.P. NO. 298 OF 2020
IN CONST. P. 17 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Mrs. Sarina Isa wife of Qazi Faez Isa and others
C.M.A. 2024 OF 2023
IN
C.M. APPEAL NO. 93 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Supreme Court Bar Association, Islamabad through its President and
others
C.M. APPEAL 93 OF 2021
IN
C.R.P. NO. 299 OF 2020
IN CONST. P. 19 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Supreme Court Bar Association, Islamabad through its President and
others
CMA NO. 2012 OF 2023 ETC.
6
C.M.A. 2025 OF 2023
IN
C.M. APPEAL NO. 94 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Muhammad Asif Reki President Quetta Bar Association and others
C.M. APPEAL 94 OF 2021
IN
C.R.P. NO. 300 OF 2020
IN CONST. P. 23 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Muhammad Asif Reki President Quetta Bar Association and others
C.M.A. 2026 OF 2023
IN
C.M. APPEAL NO. 95 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Shahnawaz Ismail Vice Chairman, Punjab Bar Council, Lahore and others
C.M. APPEAL 95 OF 2021
IN
C.R.P. NO. 301 OF 2020
IN CONST. P. 32 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Shahnawaz Ismail Vice Chairman, Punjab Bar Council, Lahore and others
C.M.A. 2027 OF 2023
IN
C.M. APPEAL NO. 96 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Balochistan Bar Council through its Chairman, Quetta and others
C.M. APPEAL 96 OF 2021
IN
C.R.P. NO. 308 OF 2020
IN CONST. P. 25 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Balochistan Bar Council through its Vice Chairman, Quetta and others
CMA NO. 2012 OF 2023 ETC.
7
C.M.A. 2028 OF 2023
IN
C.M. APPEAL NO. 97 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Pakistan Federal Union of Journalists (PFUJ) through its Secretary General,
Islamabad and others
C.M. APPEAL 97 OF 2021
IN
C.R.P. NO. 309 OF 2020
IN CONST. P. 34 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Pakistan Federal Union of Journalists (PFUJ) through its Secretary General,
Islamabad and others
C.M.A. 2029 OF 2023
IN
C.M. APPEAL NO. 98 OF 2021
Federal Board of Revenue, Islamabad through it Chairman
Versus
Pakistan Bar Council through its Vice Chairman and Chairman Executive,
Islamabad and others
C.M. APPEAL 98 OF 2021
IN
C.R.P. NO. 509 OF 2020
IN CONST. P. 21 OF 2019
Federal Board of Revenue, Islamabad through its Chairman
Versus
Pakistan Bar Council through its Vice Chairman and Chairman Executive,
Islamabad and others
PRAYER :-
âthat CMAs may kindly be accepted and the appellants may
be allowed to withdraw the C.M. Appeals and Curative
Review, in the interest of justice.â
CMA NO. 2012 OF 2023 ETC.
8
DATE OF
HEARING
ORDER OF HONâBLE CHIEF JUSTICE
10.04.2023
For the applicant(s)/appellant(s)
Mr. Mansoor Usman Awan, Attorney General for Pakistan
Ch. Aamir Rehman, Addl. AG
. . . . . . . .
Through these 18 Civil Misc. Applications the
appellants seek the withdrawal of their curative review
petitions filed against the Supreme Courtâs (âthe Courtâ)
decision dated 26.04.2021 given in its review jurisdiction in
Justice Qazi Faez Isa Vs. President of Pakistan (PLD 2022
SC 119) (âSubject Judgmentâ).
2.
The facts giving rise to the present withdrawal
applications are that by a majority of 6-4 the Court vide the
Subject Judgment allowed the review petitions filed by Mr.
Justice Qazi Faez Isa and other parties against the decision
of the Court dated 19.06.2020 delivered in Justice Qazi
Faez Isa Vs. President of Pakistan (PLD 2021 SC 1)
(âoriginal judgmentâ). As a result, certain directions issued
to the Federal Board of Revenue and the Supreme Judicial
Council by the original judgment were recalled. Aggrieved by
the Subject Judgment, the appellants preferred curative
review petitions before the Court on 25.05.2021.
3.
The Institution Officer raised certain objections on the
filing of the curative review petitions. The main objection
urged was that the purpose behind seeking a curative review
is to avail a second review which is not entertainable under
Order XXVI, Rule 9 of the Supreme Court Rules, 1980
(â1980 Rulesâ). In response to the objections, the appellants
filed chamber appeals under Order V, Rule 3 of the 1980
Rules. During the pendency of these appeals on 31.03.2023
the President, whilst acting on the advice of the Prime
Minister, granted his authorisation to the concerned
CMA NO. 2012 OF 2023 ETC.
9
ASC/AOR for the withdrawal of the curative review petitions
filed by the appellants. These withdrawal applications are
fixed for decision in Chambers today.
4.
The learned Attorney General for Pakistan and the
learned Additional Attorney General for Pakistan entered
appearance on behalf of the appellants. The rationale behind
withdrawing the curative review petitions is reflected in the
Federal Cabinetâs decision dated 27.07.2022. Essentially the
legal points pressed are:
i.
That the 1980 Rules prohibit the filing of a second
review petition after the final disposal of the first
review petition; and
ii.
That the curative review petitions have been filed on
the strength of a judgment delivered by the Indian
Supreme Court (âSCIâ) in Rupa Ashok Hurra Vs.
Ashok Hurra (AIR 2002 SC 1771) wherein the SCI
had explicitly recognised its right to âre-consider its
judgments in exercise of its inherent power.â However,
no pronouncement to such effect has been made by
the Court. Hence, the concept of a curative review
petition is alien to the laws and jurisprudence of
Pakistan and therefore these petitions being not
maintainable are liable to be withdrawn.
5.
I have heard the learned Attorney General and have
also perused the record. The bar on filing a second review
petition is declared in the 1980 Rules in the following words:
âORDER XXVI
REVIEW
...
9. After the final disposal of the first application
for review no subsequent application for review
shall lie to the Court and consequently shall
not be entertained by the Registry.â
This bar has also been affirmed by a 5 Member Bench of the
Court in Khalid Iqbal Vs. Mirza Khan (PLD 2015 SC 50) at
para 12. Therefore, under the current scheme of the law the
appellants appear to be precluded from filing a review
against the Subject Judgment because it has finally
CMA NO. 2012 OF 2023 ETC.
10
disposed of the review petitions filed against the original
judgment.
6.
Be that as it may, the Court in the past has of its own
motion corrected its decisions wherein wrong principles of
law have been laid down. In this regard the dictum of the
Court in the case of Khalid Iqbal (supra) is illustrative:
â13. This, however, does not mean that the
jurisdiction of this Court is barred by any
restriction placed by the Constitution; there is
no Article in the Constitution which imposes
any restriction or bar on this Court to revisit its
earlier decision or even to depart from them,
nor the doctrine of stare decisis will come in its
way so long as revisiting of the judgment is
warranted, in view of the significant impact on
the fundamental rights of citizens or in the
interest of public good. This issue was fully
comprehended and answered in the case titled
Regarding
pensionary
benefits
of
the
Judges of Superior Courts from the Date of
their respective retirements, irrespective of
their length of service as such Judges (PLD
2013 SC 829 at page 993). The relevant
portions are reproduced herein below:--âĻ
4. âĻ Therefore, if any law which has been
invalidly pronounced and declared by this
Court, which in particular is based upon
ignorance of any provisions of the Constitution,
and/or
is
founded on gross
and
grave
misinterpretation thereof; the provisions of the
relevant law have been ignored, misread and
misapplied; the law already enunciated and
settled by this Court on a specific subject, has
not been taken into account, all this, inter alia,
shall constitute a given judgment(s) as per
incuriamâĻ Therefore, if a judgment or a
decision of this Court which is found to be per
incuriamâĻ it shall be the duty of this Court to
correct such wrong verdict and to set the law
right. And the Court should not shun from
such a dutyâĻ
On perusal of the paragraphs referred to
hereinabove, we can safely reach a conclusion
that this Court has absolute powers to re-visit,
to review and or to set aside its earlier
judgments/orders by invoking its Suo Motu
Jurisdiction under Articles 184(3), 187 or 188
of the Constitution. The Powers of this Court to
exercise its inherent jurisdiction under the
above referred Articles of the Constitution are
not depend[e]nt upon an application of a
party.â
(emphasis supplied)
What becomes apparent from the above-quoted passages is
that our jurisprudence recognises the Courtâs Suo Motu
jurisdiction under Article 184(3) and Article 188 read with
Article 187 of the Constitution to re-visit, review or set aside
CMA NO. 2012 OF 2023 ETC.
11
its judgments/orders that have finally disposed of the first
review petitions. However, such jurisdiction has so far not
been invoked by the Court in the present matter.
7.
Insofar, as the principle of curative review petitions is
concerned, it is not disputed by the appellants that the
existence of this jurisdiction has hitherto not been
considered by the Court. In fact, all the judgments cited by
them in support of their curative review petitions reiterate
what has been held above: that a second review is barred by
law and that the Court alone is empowered, if so inclined, to
re-visit,
review
or
set
aside
any
of
its
previous
judgments/orders.
8.
Further a study of the Indian law on curative review
reveals that it is a remedy altogether distinct from the Suo
Motu exercise of jurisdiction by the Court. Whereas curative
review has no standing in our jurisprudence the availability
of Suo Motu review has long been accepted by the Court,
albeit in the limited circumstances of doing complete justice
under Article 184(3) and/or Article 188 read with Article 187
of the Constitution. It is of course clear that both types of
judicial interventions, curative review and Suo Motu review,
possess a similar purpose i.e., to correct a fundamental
error in a previous judgment/order. However, the key
difference, inter alia, between the two jurisdictions lies
mainly in their mode and manner of invocation. Order
XLVIII, Rule 2 of the Supreme Court Rules, 2013 mandates
that curative review must be invoked by a party:
âOrder XLVIII
CURATIVE PETITION
âĻ
2. (1) The petitioner, in the curative petition,
shall
aver
specifically
that
the
grounds
mentioned therein had been taken in the
Review Petition and that it was dismissed by
circulation.â
(emphasis supplied)
CMA NO. 2012 OF 2023 ETC.
12
On the other hand, Suo Motu review can only be invoked by
the Court in its discretion, including on the information
received from an aggrieved or concerned party. Therefore,
the lack of the proceedings being initiated by a party is
inconsequential to the Courtâs exercise of Suo Motu
jurisdiction. That does not appear to be the case for curative
review petitions filed in the SCI.
9.
In the present case no Honâble Member of the Bench
that delivered the Subject Judgment (nor any other Judge of
the Court) has so far considered it necessary to re-visit,
review or set aside that judgment on the ground that it has
had a significant impact on the Fundamental Rights of
citizens; or that it is in the interest of the public good; or
that it is per incuriam. Consequently, in the absence of such
a judicial view and the lack of an enabling jurisdiction that
allows an aggrieved or concerned party to file a second
review, the appellants curative review petitions appear to be
not maintainable.
10.
In the above circumstances the ordinary course of
action would have been to refer the matter to the Court for a
conclusive determination on its maintainability. However,
the appellants are now seeking the withdrawal of their
curative review petitions. This right of the appellants to
withdraw their curative review petitions (and generally of
parties to withdraw their cases) is acknowledged by the law
[ref: Reviews on behalf of Justice (Retd.) Abdul Ghani
Sheikh (PLD 2013 SC 1024]. Exceptions to the said rule
exist for instance public interest litigation filed under Article
184(3) of the Constitution cannot be withdrawn except with
the permission of the Court [ref: Jurists Foundation Vs.
Federal Government (PLD 2020 SC 1) at para 6]. But that
exception is not applicable to the instant case because it is
not litigation in the public interest. Rather the present
CMA NO. 2012 OF 2023 ETC.
13
matter emanates from Article 209 of the Constitution which
grants the Supreme Judicial Council, and not the Court, the
exclusive power to inquire into the misconduct of a Superior
Court
Judge.
Therefore,
the
appellants
retain
the
unconditional right to withdraw their curative review
petitions filed against the Subject Judgment. This result is,
however, without prejudice to what has been noted above,
namely, that the pendency of proceedings or the presence of
a party is not necessary for the Court to exercise Suo Motu
jurisdiction. All that is required for the Court to act is
cognizable information.
11.
The instant Civil Misc. Applications filed by the
appellants are accordingly allowed and their curative review
petitions are dismissed as withdrawn.
Sd/-
Umar Ata Bandial
Chief Justice
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
( Review Jurisdiction )
Present:
Mr. Justice Amir Hani Muslim
Mr. Justice Mushir Alam
Mr. Justice Mazhar Alam Khan Miankhel
CMAs NO.204 AND 233 OF 2017 IN C.R.P. NO.474 OF 2016.
(Review arising out of the judgment dated 26.09.2016
passed by this Court in Const. Petition No.3 of 2014)
Shahzada Aslam and others.
âĻ
Applicants(s)
(in both Applications)
VERSUS
Ch. Muhammad Akram and others (in both Applications)âĻ
Respondents
For the Applicants
:
Syed Iftikhar Hussain Gillani, Sr. ASC
Mr. Mehmood A. Sheikh, AOR (Absent)
For Respondents
:
Not represented.
Date of hearing
:
20-01-2017.
O R D E R
AMIR HANI MUSLIM, J. -
CMA 204/2017 in C.R.P 474/2016 in Const. P. 3/2014
Syed Iftikhar Hussain Gillani, learned Sr. ASC has, inter alia
contended that if the impugned judgment remains in the field, no Superior
Court including this Court, would be able to dispense justice without fear
and anxiety. He next contended that the superior judiciary has a special place
and immunity under the Constitution of Pakistan and the judiciary is
protected from ridicule even in the Parliament of Pakistan but the impugned
judgment is being used to malign the Honâble Judges at various forums and
that the two judgments i.e Muhammad Iqbal and others vs Lahore High
Court (2010 SCMR 632) and Asif Saeed vs Registrar Lahore High Court
(PLD 1999 Lahore 350), were wrongly overruled by holding them to be per
C.M.A.No.233/2017
2
incurim. He prays for the constitution of a larger Bench to examine the
points raised by him.
2.
We have heard the learned Senior ASC and we are of the
considered view that the request for the constitution of a larger Bench will
be covered by Order XI of the Supreme Court Rules, 1980 which clearly
provides that the constitution of Benches is the domain of the Chief Justice
and no litigant or lawyer can be permitted to ask that his case be heard by a
Bench of his choice. We are in agreement with the view taken in the case of
In re: M.A. No. 657 of 1996 in Reference Nos. 1 and 2 of 1996 (PLD 1997
SC 80), wherein the request for the constitution of a Full Court Bench was
considered and turned down. While dismissing the application, it was
observed that this is the exclusive jurisdiction of the Chief Justice to
constitute Bench of any number of Judges and it is not at all mandatory or
necessary for him to constitute Full Court Bench for hearing of the
References.
CMA 233/2017 in C.R.P 474/2016 in Const. P. 3/2014
3.
On 02.12.2016, when this matter was fixed before a Bench of
which the author Judge of the impugned judgment was a Member, Syed
Iftikhar Hussain Gillani, learned Sr. ASC contended that in terms of Order
XXVI, Rule 8 of the Supreme Court Rules, 1980, this matter is to be placed
before the same Bench, which had passed the judgment under review.
Therefore, this Court passed the following order on 02.12.2016:
âSyed Iftikhar Hussain Gillani, learned Sr. ASC for the review
petitioners, submits that in terms of Order XXVI Rule 8 of the
Supreme Court Rules, 1980, this matter may be placed before
C.M.A.No.233/2017
3
the same Bench, which has passed the judgment under review,
as both the other learned Members of the Bench are available.
Office to examine and put up the case before the same Bench,
subject to its availability.â
4.
In pursuance of these directions the office examined the case
and a note was put up before the Honâble Chief Justice of Pakistan by
referring to the Supreme Court Rules. The âConstitution of Benchesâ of this
Court is the sole privilege and prerogative of the Honâble Chief Justice of
Pakistan envisaged under Order XI of the Supreme Court Rules, 1980. After
perusal of the note, the Honâble Chief Justice of Pakistan was pleased to
direct the office to fix the case before a three Member Bench of which the
author judge is a Member. Thereafter, on 09.01.2017 when this case was
again fixed for hearing, the following order was passed:
âSyed Iftikhar Hussain Gillani, learned Sr. ASC requests time to file
objections to the order dated 9.1.2017, passed by the Honâble Chief
Justice in C.R.P No. 474/2016, whereby he has directed the office to fix
the matter before the three member Bench of which the author Judge is a
Member. This matter is adjourned to next week; meanwhile, the learned
Counsel shall collect the order dated 9.1.2017, from the office.â
5.
Now the matter is fixed today for hearing and the learned
Counsel has filed CMA No. 233/2017 and has contended that the review
Petition can only be heard by the same Bench. In this regard he has referred
to the case of Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161). He
further contended that the order passed by the Court to fix the matter before
the same Bench was a judicial order and it could not be substituted by an
administrative order of the Honâble Chief Justice of Pakistan.
C.M.A.No.233/2017
4
6.
We have heard the learned Counsel at length on this point. We
are of the considered view that the constitution of Benches is the privilege
and prerogative of the Honâble Chief Justice of Pakistan. The same was done
in accordance with the Rules and even the order of this Court dated
02.12.2016 was subject to examination by the Office of this Court and
availability of the same Bench.
7.
Before answering the contentions of the learned Counsel for the
Petitioners, we would like to reproduce the language of Rule 8 of Order
XXVI of the Supreme Court Rules:-
â8.
As far as practicable the application for review shall be posted
before the same Bench that delivered the judgment or order sought to be
reviewed.â
8.
The contention of the learned Counsel for the Petitioners that
this Rule has been interpreted in the case of Asad Ali vs. Federation of
Pakistan (PLD 1998 SC 161) (at page 253) and this Court has held that âa
matter is to be heard as far as possible by the same Benchâ, is
misconceived. Even this judgment, in no way, extends any help to the
learned Counsel for the Petitioners, whereas the language of the said Rule
and the interpretation given by this Court in the aforesaid case are very much
clear and does not mandate that the same Bench should hear the Review
Petition. In fact, it states that the same Bench that delivered the judgment
needs to hear the matter, but subject to the availability and practicability of
the Bench, which in other words suggests that the Review Petition needs to
be assigned by the Chief Justice or the office at least before a Bench of
which the author Judge is a Member. If the contention of the learned
Counsel is accepted, it would lead to anomalous consequences, because
C.M.A.No.233/2017
5
hundreds of review petitions are filed and the practice of the nature will
deprive the Honâble Chief Justice from exercising powers under Order XI,
besides it would cause inconvenience to the lawyers and the office. Even the
plain reading of Rule 8 of Order XXVI itself does not suggest so.
9.
Moreover, Order XXXIII Rule 7 of the Supreme Court Rules
provides that âwhere at any stage of the proceedings in the Court, there has
been a failure to comply with these rules, the failure shall be treated as an
irregularity and shall not nullify the proceedings or the judgment.â The
Rules are procedural in nature and do not confer any right on a party to
object the formation of a Bench. We are also fortified by the judgment of
this Court in the case of Federation of Pakistan Vs. Muhammad Shahbaz
Sharif (PLD 2009 SC 391) wherein this Court was pleased to observe that:
â4.
The expression âby the same Benchâ appearing in the
aforereferred provision is qualified by âAs far as practicableâ. The
rotationale for this may not be difficult to discern because the
number of applications for review coming up before this Court
may be frequent being the apex Court and the remedies of appeal
and revision not being available. Since the hearings of this Court
are held at the four Branch Registries as well i.e. at Lahore,
Karachi, Peshawar and Quetta, it may not be practicable for
Member of the same Bench to be available at a Bench in a given
time. Perhaps a strict adherence to provisions of âhearing by the
same Benchâ could seriously affect the functioning of different
Benches of this Court. Moreover, the well settled practice and
convention of this Court is that an application for review is
ordinarily placed before the Bench of which the author Judge or in
case of unavailability any other member of the earlier Bench is a
Member, so as to ensure that working of that Bench is not
interrupted. The Office Order No.P.Reg.99/90 (14)/SCA dated 3-3-
1990 of this Court is reflective of this convention. Since two out of
the three Honâble Judges of the Bench which passed the judgment
under review are part of this Bench and as both of them are authors
C.M.A.No.233/2017
6
of the same, the mandate of Order XXVI, Rule 8 of the Supreme
Court Rules, 1980, stands substantially complied with. The
applications devoid of any merit are accordingly dismissed in
limine.â
10.
Furthermore, two out of the three Honâble Judges of the Bench
who had heard the Constitutional Petition and delivered the impugned
judgment are on the Bench today. In the case of Government of Punjab Vs.
Aamir Zahoor-ul-Haq (PLD 2016 SC 421), the issue of the nature came up
before this Court and it was observed that:
17.
âĻ..First we will address the objection raised by Mr.
Kamran Murtaza, learned ASC for the respondent on the formation
of the Bench Rule 8 of Order XXVI of Supreme Court Rules, 1980
stipulates that as far as practical the review will be heard by the
same Bench. The Rule provides a flexibility in constitution of the
Bench, and rightly so, as there may be situation where the
constitution of the same Bench may be impossible for the reason
beyond the control of anyone, as in case of retirement of a judge or
his indisposition on account of failing health. The objection
therefore, is misconceived and accordingly repelled.â
11.
The above are the reasons for our short order of even date
which reads as under:-
âFor reasons to be recorded later, the Review Petitions
alongwith Civil Misc. Applications No.204/2017 and
233/2017, are dismissed.â
Judge
Judge
Judge
Islamabad the, 20th January, 2017.
Not approved for reporting.
Sohail/**
| {
"id": "C.M.A.204_2017.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Mian Saqib Nisar
Mr. Justice Amir Hani Muslim
Mr. Justice Khilji Arif Hussain
CMA No.209-K of 2014 in C.P.
No.152-K
of
2011
and
CMAs
No.657 to 660-K of 2015 and CMA
No.869-K of 2015 in CMA No.209-
K of 2014.
(Report of Karachi Cantonment Board
regarding Hoardings and signboards
installed with permission and without
permission)
In attendance:
Mr. Salman Talibuddin, Additional Attorney
General, Pakistan
Mr. Nisar Ahmed Durrani, Advocate General,
Sindh
Mr. Adnan Karim, Additional Advocate General,
Sindh
Mr. Mukesh Kumar Karara, Additional Advocate
General, Sindh
Mr. Yasin Azad, ASC for Karachi Cantonment
Board (CMA No.869-K of 2015)
Syed Jamil Ahmed, ASC and Mr. Khaleeq Ahmed,
ASC for KMC
Mr. Nazar Hussain Dhoon, ASC for Defence
Housing Authority
Mr. Sanaullah Noor Ghouri, ASC for Civil
Aviation Authority
Mr. Sohail H.K. Rana, ASC for CEO, Karachi
Cantonment
Rana Manzoor, CEO, Karachi Cantonment
Mr. Arfin Zubair Chaudhry, Additional CEO,
Clifton, Karachi
Mr. Rabnawaz, CEO, Korangi, Karachi
Mr. Asif Ameer Khan, CEO
Ms. Ayesha Abro, Administrator, DMC
Lieutenant Colonel Khadim Hussain Changezi
from Station Head Quarter, 5 Core
Lieutenant Imranul Haq, Senior Staff Officer, Legal
to Commander Karachi
Lieutenant Shafiq-ur-Rehman, Assistant Director
Legal Services, Naval
Mr. Muhammad Aslam Chaudhry, Legal Advisor,
Karachi Cantonment
CMA 209-K/14 etc.
- 2 -
2
Syed Zahid Hussain, Officer Incharge, Control
Room
Amicus curiae:
Mr. Abdul Rehman, Advocate
Date of Hearing:
05.5.2016
ORDER
Amir Hani Muslim, J. In compliance with the Orders of this
Court passed on 10.3.2016, the learned Additional Attorney General for
Pakistan has placed before us an interim report reflecting that the meetings
held in the Office of the Commissioner Karachi with the object to achieve
city-wide uniformity for installation of Billboards and Hoardings. The
interim report further reflects that all the stakeholders, who attended the
meetings, proposed the amendments in the respective by-laws. The
proposed amendments on the subject, annexed with the interim report,
read as follows:-
īˇ
âThere are following types of advertisement:
1. Bill Boards/Hoardings :
45â x 15â (Max. Height 30 feet)
10â x 20â (Max. Height 20 feet)
60â x 20â (Max. Height 60 feet)
The total height of hoarding including
board should not exceed 80 feet from
ground.
2. Pylons / Canopi
:
6â x 12â
3. Bridge Panel :
Length as per Bridge & Height not
exceeding 10 feet.
4. Panel / Wall Panel :
Length as per Area & Width 20 feet
5. LED Screens :
Maximum 1200 sq. feet. No other Board
within 500 feet.
īˇ
The Bill Boards / Hoardings on Roof Top and Over Handing on
Footpath, Roads and Triangles are not allowed.
īˇ
Distance of 400 feet between the two bill boards must be
maintained.
īˇ
High marks are not allowed.
CMA 209-K/14 etc.
- 3 -
3
īˇ
Apart from Pole Sign, no other type of hoarding should be
allowed on Central Median / Triangle / Square and Roundabouts.
īˇ
Responsible organizations to ensure aesthetic beauty of the city &
public safety.
īˇ
On boundaries of lands, 100 feet be left by each organization on
either side.
īˇ
For pedestrian bridge minimum 3 feet space from walking track
be left open for ventilation / security of pedestrian.
īˇ
Maximum allowed angle is upto 45 Degrees to the road.
īˇ
Every Contractor shall provide structural plane, stability
certificate duly vetted by another Engineer registered with PEC.
īˇ
Third party insurance shall be carried out by Contractor for each
boardâ.
2.
We have inquired from the learned Advocate General Sindh,
present in Court, the view point of the Sindh Government on the issue of
installation of Billboards and Hoardings on public properties. He has made
a statement on behalf of the Sindh Government that no Billboards or
Hoardings of any nature can be allowed to be installed on public properties.
The learned Additional Attorney General was also of the view that
Billboards and Hoardings cannot be installed on the public properties.
3.
The term âpublic propertyâ has wide meaning and, therefore,
we would like to clarify it in the order to avoid any ambiguity. The term
âpublic propertyâ shall include the following places:
â(i)
Roads.
(ii)
Sidewalks.
(iii)
Islands in the centre of a road/service lane â including but
not limited to âSponsored Islandsâ whereby the entire
Island is maintained by a private person who displays his
name and products on the traffic signs.
(iv)
Overhead Bridges and Underpasses.
(v)
Overhead pedestrian walkways/bridges.
CMA 209-K/14 etc.
- 4 -
4
(vi)
Roundabouts â including but not limited to âSponsored
Roundaboutsâ
whereby
the
entire
Roundabout
is
maintained by a private person/or any organization who
displays his or their name and products on the traffic signs.
(vii) Green Belts/Dividers between a road.
(viii) Pedestrian lanes.
(ix)
Nullahs (Storm Water Drains) and the banks of Nullahs
(Storm Water Drains) which abut roads.
Notes:
(i)
Traffic signs i.e. signs set up by the Traffic
Department providing directions are permissible on
these locations but should not be âSponsored
Traffic Signsâ i.e. Traffic Signs that are sponsored
by private persons and display their name and
products on the traffic signs.
(ii)
Signboards located within a plot not listed above but
which in any manner âoverhangâ any of the areas
listed aboveâ.
4.
We have heard Mr. Abdul Rehman Advocate as amicus, the
learned Additional Attorney General for Pakistan, Advocate General Sindh
and Administrators of District Town Committees. There is no law which
permits K.M.C., D.M.C., Cantonment Boards or any other agency in Karachi
to install Billboards or Hoardings on a public property. Such an act on the
part of permission granting agency is against the civil rights of the citizens.
The civil rights of the citizens cannot be hampered with by erecting the
Billboards or Hoardings on the civic amenity meant for the use and benefit
of public at large besides such an act would endanger the life and property
of the common man.
5.
As a first step, we are of the considered view that no Billboard
or Hoarding can be permitted to be installed on any public property as
defined in the preceding paragraph by any authority under the garb of by-
laws which militate the civil rights of the public at large. Therefore, all the
CMA 209-K/14 etc.
- 5 -
5
concerned authorities are directed to immediately remove all the
Billboards/Hoardings installed without permission within their jurisdiction
within 15 days from today and report compliance.
6.
The Billboards/Hoardings which have been installed in the
public properties under any license or lease shall be uprooted by 30th June,
2016 by the concerned advertising agencies which own that poles or
displaying materials or by the contractors if they own such material or by
the authorities with whose permission the Billboards or Hoardings have
been installed. In the intervening period, no permission shall be granted by
any of the authority in Karachi to install the Billboard/Hoarding on any
portion of public place/property as clarified hereinabove.
7.
The learned Additional Attorney General is further directed to
hold meetings, within a month, with all the stakeholders who grant
permission for installation of such Billboards/Hoardings in Karachi to
finalize the amendments in the proposed by-laws applicable beyond the
public properties so that city-wide uniformity could be achieved on the one
hand and safety measures of the citizens of Karachi shall be ensured on the
other hand. The proposed meetings shall be attended by the Advocate
General Sindh, as well. The learned Additional Attorney General shall
submit report within one month.
8.
Copy of this Order be faxed and sent to the Registrar, Sindh
High Court for placing it before the learned Chief Justice and all the learned
Judges for their information. Office shall also send copies to the learned
Amicus Curiae, the learned Additional Attorney General and the learned
Advocate General Sindh.
CMA 209-K/14 etc.
- 6 -
6
9.
Office is directed to re-list this matter after 30th June, 2016. All
the authorities concerned shall submit their compliance reports in the light
of above referred directions.
Judge
Judge
Judge
Karachi, the
5th May, 2016
| {
"id": "C.M.A.209-K_2014.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE GULZAR AHMED
MR. JUSTICE SH. AZMAT SAEED
CIVIL MISC. APPLICATIONS NO.2134, 2148, 2165 & 2249 OF 2007
& SMC NO.9 OF 2007 AND CONSTITUTION PETITION NO.54 OF
2007 AND HRC NO.3564 OF 2007 AND CRIMINAL ORIGINAL
PETITION NO.40 OF 2008 IN CONSTITUTION PETITION NO.56
OF 2007.
CMAs No.2134/2007, etc.
Prevention from Extra Judicial Killings of
Innocent Persons in the Premises of Lal
Masjid and Jamia Hafsa.
Const.P.No.54/2007.
Dr.
Akmal
Saleemi
Vs.
Federal
Government and others.
HRC No.3564/2007.
Anonymous
Cr.Orig.P.No.40/2008 in
Const.P.No.56/2007.
Dr. Akmal Saleemi Vs. Kamal Shah and
others.
For the petitioner:
Mr. Tariq Asad, ASC
For the Federation:
Mr. Zafar Mehmood Mughal, DAG
Mr. Tahir Alam, AIG Police, Islamabad
For CDA:
Raja Abdul Ghafoor, AOR
Date of hearing:
04.12.2012.
ORDER
These matters are pending before this Court since long.
We had been issuing directions from time to time to the Police
Department to probe into the matter but so far no satisfactory action
has been taken. We understand that in the unfortunate incident of Lal
Masjid/Jamia Hafsa reportedly a large number of people had lost
their lives and the property of the Jamia Hafsa had also been
SMC.9/2007, etc.
- 2 -
damaged. There are allegations and counter-allegations by the police
and the complainant, victims and their relatives but in the absence of
any concrete evidence and findings, we are of the opinion that it
would not be possible to finally conclude this matter.
2.
Therefore, it is decided to appoint a Commission, who
shall probe into the matter in accordance with the following terms of
references:-
(i)
What were the causes of the incident, which
took place at Lal Masjid-Jamia Hafsa in
between 2nd July 2007 to 12th July 2007?
(ii)
How many persons, if any, male or female,
civilian
or
law
enforcement
agencies
personnel lost their lives?
(iii)
Whether the dead bodies of all the persons,
who had lost their lives during the incident,
were identified and were handed over to the
legal heirs, after observing the codal
formalities?
(iv)
Whether any compensation has been paid to
the legal heirs of the victims by the State?
(v)
Whether any action has been taken under the
law against the persons, who were found
responsible by the police and if so to what
effect?
(vi)
Whether on the basis of the material
collected, it is possible at this stage to fix the
responsibility upon the personnel of security
agencies or other individuals responsible for
the incident?
(vii) Is there any person(s), male or female, who
was reportedly missing during the incident?
SMC.9/2007, etc.
- 3 -
(viii) Any recommendations other than the points
noted herein above?
3.
Mr. Justice Shahzado Sheikh, Senior Pusine Judge of the
Federal Shariat Court is appointed as Commission. He may follow
the procedure laid down in the Order XXXII of the Supreme Court
Rules, 1980 and submit a report as far as possible within 45 days,
after receipt of the above order.
4.
The office is directed to send the photo-state copies of
the record of these cases to the learned Commission to facilitate it in
submitting the report.
Chief Justice
Judge
Judge
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| {
"id": "C.M.A.2134_2017.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE GULZAR AHMED
MR. JUSTICE SH. AZMAT SAEED
CMA NO.2243 & 3683 OF 2012 IN SMC NO.16-2010
On Court notice:
For FBR:
Dr. Rana Muhammad Shamim, ASC
Date of hearing:
4.3.2013
ORDER
The report (CMA No.1112 of 2013) has been submitted on
behalf of the Federal Board of Revenue, which has been examined with
the assistance of the learned counsel for the FBR.
2.
The proceedings in the instant Suo Moto Case pertaining to
the ISAF Container Scam commenced in the year 2010. During the
course of the proceedings, allegations surfaced, which prima facie,
constituted âmal-administrationâ, as defined by Section 2(3) of the
Establishment of the Office of Federal Tax Ombudsman Ordinance,
2000, (hereinafter referred to as âthe Ordinanceâ). Consequently, vide
order dated 30.9.2010, a Reference in terms of Section 9 of the
Ordinance, sent to the Federal Tax Ombudsman. In the said order, 14
specific questions were framed.
CMA No.2243-2010
- 2 -
3.
The Federal Tax Ombudsman submitted its report, giving
the following Findings and following making Recommendations:-
FINDINGS:
(i)
The quality of data held by PRAL was found to be
highly unreliable. The available cross-checks within
FBR were also found to be highly vulnerable to fraud
and corrupt practices of various actors involved in
Afghan transit trade.
(ii)
It was soon realized that the abuse was massive,
though difficult to quantify with a high degree of
precision.
(iii)
It was estimated that at least 7,922 transit containers
were pilfered within Pakistan during the last almost
four years. However, this could be just a tip of the
iceberg.
(iv)
The estimated loss to national exchequer during
2007-June 2010, based on 7,922 containers, was
worked out at Rs.19 billion.
(v)
It was gathered that the Customs procedural
framework being highly porous suffered from serious
vulnerabilities.
(vi)
While responsibility in general terms has been fixed,
the individuals involved in various mega scams of
recent years are to be indentified through criminal
investigation for which a mechanism is provided
under Section 17 of the FTO Ordinance.
(vi)
One-Customs manual clearance system was found
particularly prone to huge transit scams.
CMA No.2243-2010
- 3 -
(viii) The senior management of Customs failed to take
necessary steps to put in place appropriate
countermeasures against repeatedly occurring scams.
(ix)
The Investigation of four mega scams of containers in
past few years indicates a clear pattern. The
phenomena of pilferage is not new, neither are the
glossing over efforts by senior officers to provide
cover
up
through
creating
hindrances
in
investigations, manipulation of record and data,
diverting
focus
by
âfact
finding
committee.â
Deliberate attempts to diffuse focus of investigation
against corrupt and influential officials through âfact
finding committeeâ were clearly discerned.
(x)
In Lunar case the Collector who had failed to prevent
wrong clearance of 52 containers laden with liquor
was made part of the âfact finding committeeâ. To
frustrate the course of investigation by Director
General (Intelligence and Investigation).
(xi)
The leadership of Customs rather than initiating
appropriate
disciplinary/criminal
proceedings
against the real culprits repeatedly tried to put a
different gloss on these scams.
(xii)
The modus operandi in these mega scams remains the
same; fake/forged documents, primitive and manual
clearance and processing systems, wide discretion in
the hands of unscrupulous customs officials, lack of
transparency
and
effective
accountability,
involvement of seniors otherwise responsible for
oversight.
(xiii) The picture that emerges is of gross inefficiency,
maladministration and corruption in an organization
CMA No.2243-2010
- 4 -
that is geared to further principally individual and
communal self interest of a few individuals at the cost
of Pakistan and her people.
(xiv) This report is an exploratory start-up to. Although it
provides some answers, it raises many more
questions. The report indentifies the work that needs
to be done in future and provides a good roadmap for
the way forward.
RECOMMENDATIONS:
(i)
Customs clearance and cross border certification and
reconciliation procedures need massive improvement,
consolidation and rationalisation.
(ii)
Cross checks need to upgraded, diversified and
externalized.
(iii)
Transport system used for ATT needs to be organized
on competitive basis, and transporters given a level-
playing field.
(iv)
Only bonded carries should be allowed to transport
ATT cargo. The vehicle fleet used for the purpose
must be upgraded in terms of technology input for
safe transpiration of transit cargo.
(v)
Security of cargo needs immediate enhancement
through RFID seals, and live monitoring through
GPS.
(vi)
ATT cargo should bear bar code embeddings for ease
of detection, and to minimise the chances of its
smuggling back into Pakistan.
CMA No.2243-2010
- 5 -
(vii)
ISAF/UN/NATO should adopt the same technology
and transport precautions as are being used by US
Forces (e.g. RFID seals and effective tracking/
monitoring though GPS)
(viii) Collusion by and corruption of Customs Officials be
effectively discouraged and deterred in a sustainable
manner.
(ix)
A specialized and dedicated Collectorate needs to be
created to deal exclusive with the entire cargo in
transit to Afghanistan.
(x)
The definition of smuggling should be broadened to
include in its purview any enroute pilferages of
transit goods.
(xi)
The
Directorate
General
(Intelligence
and
Investigation) needs to be suitably upgraded to act as
an effective deterrent against actual and potential tax
evaders and their accomplices within the Customs
Department.
(xii) For better administration, FBR should be split into two
Boards, one dealing exclusively with Customs matters
and the other dealing with taxes like income tax, sales
tax and federal excise duty. If that is not found
appropriate at this stage, a competent and honest
senior officer of Pakistan Customs Service may be
appointed as deputy chairman FBR. The measure will
provide better focus on matters relating to
management of Customs.â
4.
The said report inter alia indicated the quantum of the loss
caused to the Public Exchequer. Such loss in fact is approximately
CMA No.2243-2010
- 6 -
Rs.55 billion as was disclosed by Mr. Suleman Siddique, the then
Chairman, FBR, which fact was incorporated in our order dated
22.11.2011. The report now filed by the FBR, indicates that to-date the
amount recovered is only Rs.5,602,754/- which for all intents and
purposes is insignificant, when examined in juxta position, with the
loss to the Public Exchequer admittedly occasioned, as has been
admitted by the FBR.
5.
The performance of the FBR, as indicated by the report,
now submitted is far from satisfactory. Despite elapse of almost one
and a half year since the Report was compiled by the Federal Tax
Ombudsman, no progress worth mentioning has been made for the
recovery of the loss identified, which is regrettable.
6.
It has also not been brought on record as to how far the
Recommendations made by the FTO in his above mentioned report
have been implemented despite the fact that a time frame in this behalf,
having specifically been mentioned in Section 11(1) of the Ordinance.
7.
Consequently, let the report be obtained from the Federal
Tax Ombudsman as well as Chairman, FBR as to the extent of the
implementation of the Recommendations of the FTO by the
Department and further such reports shall also identify the modus
operandi proposed and required to be undertaken to efficiently and
expeditiously effect the recovery of the loss caused to the Public
Exchequer. Such report should be filed within two weeks.
CMA No.2243-2010
- 7 -
8.
The Chairman, FBR, is directed to appear in person, on the
next date of hearing. Re-list after two weeks.
Chief Justice
Judge
Judge
Announced on _______________
at Islamabad
Judge
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
CIVIL MISC. APPLICATION NO.230 OF 2019 IN SUO
MOTU CASE NO.26 OF 2018 AND CIVIL MISC.
APPLICATIONS NO.4479, 4955 AND 4956 OF 2019 IN
CIVIL MISC. APPLICATION NO.230 OF 2019 IN SUO
MOTU CASE NO.26 OF 2018 AND CIVIL REVIEW
PETITIONS NO.109, 150 TO 153, 165, 214 TO 226 OF
2019 IN SUO MOTU CASE NO.26 OF 2018 AND CIVIL
MISC. APPLICATION NO.2072 OF 2019 IN CIVIL
REVIEW PETITION NO.NIL OF 2019 IN SUO MOTU
CASE NO.26 OF 2018
(Regarding selling of Bottled Water extracted from the
ground without any charge and its fitness for Human
Consumption)
AND
CIVIL PETITIONS NO.1195, 1196, 1197 AND 1322 OF
2019
Water and Sanitation Agency, Lahore through its Managing
Director
âĻPetitioner(s)
(In all cases)
VERSUS
Lotte Akhtar Beverages (Pvt.) Ltd., Lahore etc.
In
C.P.1195/2019
Shezan International Ltd., Lahore etc.
In
C.P.1195/2019
Coca Cola Beverages Pakistan Ltd., Lahore etc.
In
C.P.1195/2019
Nestle Pakistan Ltd., Lahore etc.
In
C.P.1195/2019
âĻRespondent(s)
In attendance:
Mr. Sajid Ilyas Bhatti, Addl.A.G.P.
Mr. Tariq Mehmood Jehangiri, A.G. Islamabad
Mr. Qasim Chohan, Addl.A.G. Punjab
Barrister Qasim Wadood, Addl.A.G. KPK
Mr. Ayaz Swati, Addl.A.G. Balochistan
Mr. Zahid Nawaz Cheema, ASC
C.M.A.No.230/2019 etc.
-: 2 :-
Mian Abdul Rauf, ASC
Mian Irfan Akram, ASC
Mr. Khalid Javed Khan, ASC
Mr. Qasim Mirjat, AOR
Mr. Suleman Akram Raja, ASC
Mr. M. Munir Paracha, ASC
Mr. Hassan Irfan Khan, ASC
Mr. Munawar-us-Salam, ASC
Mr. Iftikhar Ahmed Mian, ASC
Mr. Farooq Amjad Meer, ASC
Mr. Gulzar Begum, ASC
Mr. Sikandar Bashir Mohmand, ASC
Mr. Gohar Ali Khan, ASC
Dr. M. Ahsan Siddiqui, Head of Committee
Mr. Ashiq Ali, Director SEPA
Mr. Shahbaz Ahmed Sheikh, Law Officer Finance
Punjab
Mr. M. Ramzan, A.D. Legal EPA
Dr. Zubair Khan, in person
Syed Zahid Aziz, M.D. WASA Lahore
Mr. Aamir Latif, Secy. Industry KPK
Mr. Rahim Ullah, S.O Local Govt. KPK
Mr. Wajhat A. Qureshi, Executive Vice President,
NBP
Mr. M. Ali Bator, Acting Dir. EPA Balochistan
Date of hearing:
02.07.2019
ORDER
We have heard the learned Additional Attorney
General, the Advocate General ICT and the Additional
Advocate General Balochistan, KP and Punjab, Dr. M.
Ahsan Siddiqui, Chairman of the Coordination Committee
constituted by this Court and M.D, WASA, Lahore. The
following observations are made about the proceedings at
the hearing.
2.
The Additional Attorney General informs that
the Law Officers of the Federation, ICT and the Provinces
have
discussed
draft
legislation
for
uniform
C.M.A.No.230/2019 etc.
-: 3 :-
implementation of the water cess through legislative
measures. It is clarified that the uniform law is intended
to cater not just ground water but also surface water
usage.
Whereas
water
has
several
categories
of
consumers, inter alia, agricultural, domestic, commercial
and industrial users, nevertheless presently the focus of
the proposed legislation for the charge and collection of
water cess shall be the industrial users. The ambit of the
proposed regulatory law for water conservation shall be
extended gradually to other categories of consumers. The
learned Attorney General and the Provincial and ICT Law
Officers have assured the Court that a consensually
proposed Model Law shall be filed in the Court within one
month.
3.
The Court has earlier directed the installation
of flow meters at the industrial units where bottled
drinking water or other beverages are prepared for
measuring the volume of water that is consumed, utilized
and wasted. The Government of Punjab has sought three
weeks time to install flow meters along with CCTV
cameras and monitors at all units in the Province. The
other Provinces have also made progress in this regard but
are not equipped with data. Accordingly, six weeks time is
granted to the Provinces and ICT for installing the
requisite flow meters, the specifications and data about
C.M.A.No.230/2019 etc.
-: 4 :-
which shall be shared by them with the Coordination
Committee.
4.
This Court has previously directed the water
cess funds to be invested in the National Bank of Pakistan
(âNBPâ). Such funds have been deposited by all the
Provincial Governments and ICT in accounts established
with the NBP which has filed CMA No. 6617 of 2019 to
seek directions regarding the deposited funds. At this
stage, whilst the water cess collection mechanism is under
finalization, it is directed that all funds of the water cess
shall be deposited by the Provincial and ICT governments
in the NBP account established by them under the title
âWater Conservation Accountâ in one of the authorized
branches of the NBP. Upon deposit the NBP shall
forthwith transfer such funds from its respective branches
to the Head Office Account bearing the title Principal
Water Conservation Account (âPrincipal Accountâ). All
funds credited to the Principal Account shall be invested
immediately in the best available NBP investment scheme
on a daily balance basis for onward recurring investment
in 03 months treasury bills at the first available biweekly
auction by the State Bank of Pakistan. The funds
deposited with the NBP shall be reported to the Court
through monthly statements providing the details of the
depositor agencies, the amount of deposit, date thereof
C.M.A.No.230/2019 etc.
-: 5 :-
and profit accrued on daily basis; the date of transfer to
Principal Account, its investment and maturity value in
Treasury Bills and the dates thereof. It may be noted at
this juncture that Government of Punjab has already
deposited an amount of Rs.380/- million in the Principal
Account, the Government of KP has deposited Rs.15.5/-
million and the Government of Balochistan has deposited
Rs.2.7/- million in the said account. The Government of
Sindh is not represented today as also on the last date of
hearing. It is directed that on the next date of hearing, the
Advocate General, Sindh shall personally assist the Court
duly prepared in respect of the matters in issue otherwise
the Chief Secretary, Government of Sindh shall be in
attendance to assist the Court.
5.
Be that as it may, Dr. M. Ahsan Siddiqui,
Chairman of the Coordination Committee has informed
that roughly an amount of Rs.70-75/- million has been
deposited by the Government of Sindh in the NBP under
the heading of water cess. It is directed that the respective
Governments of the Provinces and the ICT shall convert or
open accounts under the afore-mentioned title âWater
Conservation Accountâ in the concerned NBP branches
from where such funds shall forthwith be transferred to
the Principal Account for investment in the terms directed
by the Court. The charging of, transfer, disbursement and
C.M.A.No.230/2019 etc.
-: 6 :-
use of such funds shall be subject to orders of this Court.
The compliance reports by each of the Provinces and the
ICT with respect to the foregoing discussion shall be filed
before the next date of hearing.
6.
Dr.
M.
Ahsan
Siddiqui
has
expressed
admiration for the Faisalabad plant which filters and
cleanses canal water to supply pure drinking water. The
Provincial Governments shall apprise whether they have
received offers of foreign assistance for establishing such
plants and if so, their responses thereto. The details of the
Faisalabad project are available in CMA No.5588/2019.
Further technical and financial details about the said
project as well as its smaller variants shall be filed by the
Punjab Government with disclosure of the foreign sponsor
and its terms of assistance. Comment shall also be made
on
the
feasibility
of
such
smaller
projects.
This
information may be helpful for the other Governments in
understanding and for adopting, the concept and
technology enabling the project. The Court is inclined that
in the first place the available funds be deployed in areas
that are severely deficient in clean drinking water, for
example desert lands in District Tharparkar e.g Mithi and
such like areas in Balochistan Province where canal water
may be procured for supply to drinking water treatment
plants installed for public consumption. The Law Officers
C.M.A.No.230/2019 etc.
-: 7 :-
of Balochistan and Sindh Provinces shall apprise the
Court about the areas where unavailability of drinking
water may be redressed by such water treatment plants.
7.
The concerned urban water supply agencies
throughout the country shall consider the framing of
regulations and or executive directions that mandate the
installation of push-button faucets at water supply points
in all public and commercial premises. The proposed
means,
mechanism,
incentives
based
on
locally
manufactured equipment and penalties for enforcing the
regulatory measures shall be presented in writing to this
Court before the next date of hearing.
8.
Finally, the Provinces and ICT shall share their
experiences and knowledge about simple, cost efficient
methods for rain harvesting and for recycling used water.
These shall also be brought to the notice of the Court on
the next date of hearing.
Relist on 26.08.2019.
Judge
Judge
Islamabad
Judge
02.7.2019
Naseer
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ.
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
CMA No.2371 of 2012
in Constitution Petition No.24 of 2012
(Action taken on a news item dated 4.6.2012
published in daily âthe Newsâ regarding murders of
five women in Kohistan Division)
On Court Notice:
Mr. Irfan Qadir, AGP
Mr. Asad-ullah Chamkani, A.G. KPK
Syed Arshad Hussain Shah, Addl. A.G, KPK
Mr. Navid Akhtar, Addl. A.G. KPK
Mr. Ghulam Dastgir, Chief Secy. KPK
Mr. Muhammad Azam Khan, Secy. Home
Mr. Khalid Khan Umerzai, Commissioner
Dr. Naeem Khan, DIG Hazara
Mr. Majeed Afridi, DPO
Mr. Aqal Badsha, DCO
With Afzal, brother of Bin Yasir
Voluntarily appeared: Ms. Kashmala Tariq, MNA
Dr. Farzana Bari, Ms. Riffat Inam Butt Adv.
Dr. Fauzia Saeed and Ms. Shabina Ayaz.
Date of hearing:
07.6.2012
O R D E R
In pursuance of earlier order, the Federal Government of
Pakistan
and
Provincial
Government
of
KPK
made
adequate
arrangements for visit of a delegation comprising Dr. Farzana Bari, Ms.
Riffat Inam Butt, Dr. Fauzia Saeed and Ms. Shabina Ayaz. Although it
is the hilly terrain and it was difficult to travel but courtesy the Federal
Government, which arranged three helicopters for their travelling.
CMA 2371/12
Kohistan incident
2
2.
We may note that news has spread by some sections of
Media that five women/girls have been killed as a punishment because
they were clapping while two boys were dancing. Naturally these news
cast sensitization, not only within but also outside Pakistan. All efforts
were being made by this Court as well as by both the Governments to
find out the truth because KPK Government had denied the happening
of incident whereas the boys, one of them, namely, Afzal, present in
Court and two others, namely, Bin Yasir and Gul Nazar, now in police
custody, were supporting their version about the killing of these ladies.
3.
In that situation when such news was communicated, a
large number of people started feeling disturbed as everyone by the
time realized about the human rights. Therefore, the respected ladies
including Ms Kashmala Tariq, MNA shown their keen interest and when
the matter was initiated in exercise of jurisdiction under Article 184(3)
of the Constitution as the matter involved violation of fundamental
rights and apparently it was a matter of public importance, they
offered their services to visit the area to meet with those girls.
4.
It is to be noted that despite of rought weather in the area
the object has been accomplished after exercise of 48 hours and it has
been reported by the delegation that they had to undergo lot of
difficulties because at some places there were climbing mountains and
they had no other means to reach those girls, however, they
succeeded in meeting with Amna and Shaheena out of five girls. They
have expressed that the news of their killing has been found false. As
far as remaining three girls namely Begum Jan, Bazigha and Sareen
Jan are concerned, they are stated to be present in the same district
and it has been pointed out by the delegation that there was no such
report of their killing and the video, which has been supplied to the
Media has not been prepared recently but it pertains to another
function, which was some family gathering taken place about a year
before.
5.
Learned Attorney General for Pakistan and learned
Advocate General, KPK, under instructions from their respective
Governments have stated that if some time is given, arrangements
possibly would be made for visiting to remaining three girls in the
CMA 2371/12
Kohistan incident
3
same district. On this Ms. Kashmala Tariq has stated that as
proceedings have commenced, therefore, it would be appropriate if
arrangements are made for a delegation to visit Kohistan to meet with
the girls, whose names are noted above, because she is of the opinion
that the impression of killing the ladies in the manner as it has been
quoted in the media, should be dispelled once for all.
6.
Thus, we adjourn this case for 20th June, 2012. In the
meanwhile learned Attorney General and Advocate General shall
communicate with Federal as well as Provincial Governments and Ms.
Kashmala Tariq, MNA for making adequate arrangements for the visit
of the delegation to Kohistan. We would appreciate if the delegation is
accompanied by some Judicial Officer. The Registrar may communicate
with the Registrar of the Peshawar High Court to spare Ms. Munira
Abbas, Additional Sessions Judge, who had been attending the course
in the Federal Judicial Academy, to accompany the delegation so their
presence may also be authenticated judicially.
7.
We place our thanks/appreciation to Ms. Kashmala Tariq
MNA, Dr. Farzana Bari, Ms. Riffat Inam Butt, Dr. Fauzia Saeed and Ms.
Shabina Ayaz as well as to the Learned Attorney General, Advocate
General, Administration of the Federal and Provincial Governments for
making it convenient to implement the order of this Court as a result
whereof the impression which was being carried out about killing of
five girls for a petty matter has mostly been dispelled.
Chief Justice
Judge
Judge
Islamabad
7th June, 2012
Nisar/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate/Original Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
Mr. Justice Ejaz Afzal Khan
CMA NO.2376/2013, etc. IN CONST. P. NO.105/2012
Hamid Mir & another
vs.
Federation of Pakistan, etc.
For the applicant
:
Mr. Tariq Mehmood, ASC (in CMA No.2383/13)
(in CMA No.2376, 2381-2385/13 (applicants in-person)
For the petitioner (s)
:
Mr. Absar Alam & Mr. Asad Kharral.
(in Const.P.105/2012)
On Court Notice
:
Mr. Irfan Qadir, Attorney General for Pak.
Mr. Dil Muhammad Khan Alizai, DAG.
Mr. Jamal Nasir, DG Information.
Mr. Tahir Hassan, Director Information.
Mr. Azam Khan, Director (Law) FIA.
Raja Amir Abbas, ASC for M/o Information.
Date of hearing
:
07.05.2013
O R D E R
Jawwad S. Khawaja, J. â Constitution Petition No.105 of 2012 was filed by two
journalists namely, Hamid Mir and Absar Alam Haider. They were later joined by other
journalists. A number of issues have been raised in this Constitution Petition. Vide order
passed by us on 15.01.2013, a two-Member Commission has been appointed by the Court
for the purpose of preparing a report on nine Terms of References (ToRs) numbered A to
I, which have been set out in our order dated 15.01.2013. The Commission has already
submitted a report in respect of ToR No.F and is due to finalize its report on the
remaining ToRs by 31.05.2013.
2.
While the Commission is engaged in finalizing its report, the issue of establishing
and maintenance of accounts by the Government (respondent No.1) which have not been
subjected to audit has come to the fore. Over the last few hearings of this petition, we
have been informed that substantial sums of money have been spent by the Ministry of
Information and Broadcasting. Details of these expenditures have neither been disclosed
nor audited by the office of the Auditor General. This has raised constitutional issues. The
Const.P.105/2012
2
petitioners have also highlighted the need for openness and transparency in spending
funds from the public exchequer which have been collected by the government by way of
taxes, fiscal levies and impositions. It has also been submitted by the petitioners that
substantial amounts have been allocated to various ministries/departments which have
not been audited.
3.
There is a fundamental premise, relating to disclosure/audit, on which allocation
of such funds and their spending is to be judged. Article 19A of the Constitution
stipulates in very clear terms that âevery citizen shall have the right to have access to
information in all matters of public importance, subject to regulation and reasonable restrictions
imposed by lawâ. Article 19 of the Constitution, inter alia, guarantees âfreedom of the press,
subject to any reasonable restrictions imposed by lawâ. Such reasonable restriction can only
relate to and be imposed âin the interest of the glory of Islam or the integrity, security or defence
of Pakistan or friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of Court, [commission of] or incitement to an offenceâ. The fundamental
premise to be kept in mind, is that all funds in the State exchequer are funds which have
come out of the pockets of the people of Pakistan. These funds are the product of the toil,
sweat, tears and blood of the people. The Government is at most a trustee and custodian
of these funds and is accountable for the expenditure of these funds in a fiduciary
capacity as envisioned in the Constitution. The only exception against public disclosure is
given in Articles 19 and 19A of the Constitution referred to above. Even where the
government or the legislature choose to regulate or impose restrictions upon disclosure of
disbursement of funds, such restrictions cannot be arbitrary but have to be reasonable. As
to what is or what is not reasonable is a matter of which the government is not the sole
arbiter. It is constrained by the Constitution and by law. Any restriction on disclosure of
expenses made from the exchequer, which the government imposes, or the legislature
provides for, would be justiceable on the touchstone of Articles 19 and 19A of the
Constitution.
4.
It is in this context that at least since September, 2012, we have repeatedly been
asking the Government to state its basis to justify non-disclosure of expenses from the
public exchequer; but, it is most unfortunate that despite our repeated directions and
Const.P.105/2012
3
orders nothing material has been done. In our order dated 13.9.2012, we had directed the
respondent Ministry to âset out in detail the budget allocation for the financial years ending
30.6.2010, 30.6.2011, 30.6.2012 and 30.6.2013 alongwith supplementary grantsâ. We had
further required the Ministry to furnish details of the budget allocation and
supplementary grants for these years alongwith the report of the Auditor General of
Pakistan in respect of the said budget allocations. Although this was required to be done
before 17.9.2012, we note that our order has not been complied with. Instead, on
17.10.2012, learned counsel representing the respondent Ministry stated that there were
only three heads of account in respect of which a privilege against disclosure was being
claimed namely, (a) Special Publicity Fund, (b) Secret Service Expenditure and (c) the
Institute of Regional Studies. A relatively small amount totaling Rs.14,00,00,000/- (rupees
fourteen crores) approximately was mentioned as the sum expended from these accounts.
The order which was then passed by us on 20.12.2012 is of relevance to the question
presently being considered by us. The issue is as to whether âthe federal budgets have
allocated from time to time to the federal Ministry of Information and Broadcasting any funds that
may be spent in its discretion or that may be spent in secrecy without disclosing the purpose of the
disbursements or the identity of its recipients? If so did the said Ministry have a constitutional
basis for such disbursements?â It was clarified by us that in line with the provisions of
Articles 19A and 19 of the Constitution, we were not inclined to accept the contention of
the Ministry that use and expenditure of these funds could be kept secret. We also
observed and recorded as under:
âPrima facie, while the Ministry may claim privilege from making public disclosure
of certain parts of its budget, such privilege is not automatically available to the
Government. It must be claimed from the Court. Information for which secrecy is
sought must be clearly marked and the reasons for seeking secrecy must also be
clearly stated. The Court can then make a determination on this point in line with
the law and the Constitutionâ.
5.
In the same order we noted the submissions of Mr. Asad Kharal, a journalist, who
has been impleaded as a petitioner, that âthe budgets of 27 other Ministries also contain secret
funds similar to the ones which are in place in the Ministry of Informationâ. If correct, this
would be a disturbing matter since secret funds can potentially be a tool for undermining
Const.P.105/2012
4
the rights of citizens protected under Articles 19 and 19A of the Constitution and may
encourage waste and corruption. It has consistently been stated by this Court that all
public authorities and functionaries are fiduciaries of the public and receive their
perquisites, positions and funding from the public. The Auditor General is
constitutionally empowered to have access to information relating to budgeted
expenditures and supplementary grants in order to ensure that there is no misuse of
money spent from the public exchequer and the possibility of corrupt practices is
eliminated. It may also usefully be noted that in our three immediate preceding orders
dated 25.04.2013, 02.05.2013 & 06.05.2013, we have again and again emphasized to the
Government that without a lawful justification, there cannot be a denial of disclosure or
withholding of accounts from audit by the Auditor General. Numerous opportunities
were given to the learned Attorney General but as noted, he has not been able to render
any assistance whatsoever or to give any meaningful response to the simple question
raised by us.
6.
Today, the Attorney General started his submissions by referring to Article 241 of
the Constitution, in support of the Governmentâs plea that some funds identified by the
Government itself, are not subject to audit by the Auditor General. We have gone through
Article 241 of the Constitution and note that it is wholly irrelevant and has no nexus
whatsoever with the question of audit of accounts. Article 241 ibid relates to service
matters and deals with the âappointment to and conditions of service of persons in the service of
Pakistanâ. We are, therefore, quite surprised that this Article was referred to in the context
of expenditure from the exchequer referred to above.
7.
When this was pointed out to the Attorney General, he readily conceded that
Article 241 of the Constitution had no relevance in the present matter. We, therefore, are
constrained to record the lack of preparation and seriousness on the part of the Attorney
General in this important Constitutional case. The Attorney General then stated that Para-
130, Appendix-VIII of the General Financial Rules, 1973 (hereinafter referred to as the
âGFRâ) provided complete justification against disclosure/audit of expenses which the
government itself designates as being not subject to audit or disclosure. When we asked
the learned Attorney General to give us the legal sanction, under which the GFR were
Const.P.105/2012
5
made or adapted in Pakistan, he was unable to do so; instead he referred to Section 124 of
the Government of India Act, Article 224 of the Constitution of 1956, Article 241 of the
Constitution of 1962 and Article 268 of the Constitution of 1973. Article 268 of the
Constitution, inter alia, provides that âexcept as provided by this Article, all existing laws shall,
subject to the Constitution, continue in force, so far as applicable and with the necessary
adaptations, until altered, repealed or amended by the appropriate Legislatureâ. In the light of
this Article the obvious question which arose and which was put to the Attorney General
was to show as to how the GFR can be treated as existing law. We were given no
justification from the government in support of a plea that GFR can be treated as âexisting
lawâ. At this point, we may add that there has been no adaptation of the GFR in Pakistan
and none was shown to us by the learned Attorney General. In India, however, we have
tentatively ascertained that some adaptation was made after 1947. We are also quite
amazed that nobody in government seems to be aware of the legal sanction behind the
GFR and yet the same are being accepted (contrary to the Constitution and law) as having
legal backing. Surprisingly, this absence of relevant statutory backing is reflected in
confusing and misleading replies given in the CMAs filed by the Government. It is the
Governmentâs case in CMA No.3827 of 2012 that âtransaction/operation under the head of
account âSecret Service Expenditureâ is not auditable. A certificate is recorded by the Controlling
Officer as required vide S.No.37 of General Financial Rules Vol. IIâ. In CMA No. 3827 of 2012,
no indication whatsoever is given as to the source of legitimacy of the GFR. Sub-Rule (5)
of Rule 37 stipulates that âthe accounts of secret service expenditure will not be subjected to
scrutiny by the Audit authorityâ. CMA No. 446 of 2012 filed by the Government makes the
averment, inter alia, that âthe details of spending of amounts specified as secret funds in the
budget cannot be divulged to the petitioners as the same are different from other public funds which
are open to scrutiny and auditâ. While no basis has been given for this averment made in the
CMA a brief has been appended with the said application. For ease of reference and in
view of its significance, the brief is reproduced in its entirety as under:-
âBRIEF :
1. âSecret Service Fund is an allocation made under the Annual Budget Book (now
CFY:2012-13) titled under âDEMAND NO.058: Head of Account ID 1358: Secret Service
Expenditureâ (Rs. 1,20,00,000/-) which is similar in nature to Secret Fund provided to other
GOP organizations. Besides, regular annual allocation in this Head of Account, special
Const.P.105/2012
6
allocations are made by the Prime Minister for various specific assignments and projects
given to this Ministry from time to time. The expenditure for such allocations are maintained
separately as per law.
2. âThe Secret Service Fund is judiciously utilized by the Secretary of Information &
Broadcasting as Principal Accounting Officer (PAO) to supplement and support the
publicity and projection efforts of the Governmentâs development policies/action plan, and to
counter negative propaganda which is against national interest, both within and outside the
country. Since the expenditure incurred on such sensitive assignments cannot be met out of
regular auditable budgetary allocation, all the previous governments in the past have been
placing these funds at the disposal of this Ministry which is strictly utilized in accordance
with the rules and regulations governing âSecret Service Expenditureâ issued by the Finance
Division from time to time. The fund has always been audited by various Finance Secretaries
in the past as and when required as per regulationsâ.
3. âThe Secret Service Fund was established since long most probably in the 70s. The
allocation for specific assignments/projects was initiated sometimes in the 80s. Logically, it
would not be possible to trace the record of last 30 years in order to find out as to when the
fund was formally established. However, one of the documents traced indicate that the Bank
Account was shifted from Muslim Commercial Bank, Civic Centre, Islamabad to National
Bank of Pakistan, Model Branch, Islamabad in 1997. At present the Accounts are being
maintained in the National Bank of Pakistan as per law.â
5. âThe annual budget documents of the Finance Division titled Demands for Grant and
Appropriations provides details of budget allocation out of FEDERAL GOVERNMENTâS
CONSOLIDATED FUND to each Ministry/Division/Department/Organization. The
Finance Act 2012-13 which extends to whole of Pakistan in terms of Federal Government
financial proposals gives legal effect to this authorized budget and its components including
allocations under classified head of Secret Service Fund (SSF) of M/o I&B. The said Act
passed by the Parliament is duly assented by the President, authorizing each
Minister/Division including I&B to incur expenditure as per allocation. Historically this
fund has existed since 1947-50 onwards when the Federal Capital was located in Karachi. It
has time tested authenticity and utility.â
6(a). âThe AGPRâs quarterly release of SSF to I&B Division is always preceded by provision
of Certificate of Expenditure for the earlier quarter, a copy of which is invariably sent to
Directorate General of Audit in terms of Para- 37 of Appendix â8 of GFR Vol-II, for its
record and reference.â
8.
The salient aspects of the above brief, which represents the case of the Federation,
can now be noted. It is not disputed that the Secret Service Fund is an allocation made
under the Annual Budget Book titled Demand No.058. A self serving statement has been
made that the Secret Service Fund is judiciously utilized by the Secretary of Information &
Broadcasting as Principal Accounting Officer. It has also been stated in the brief that the
annual budget document of the Finance Division titled âDemands for Grant of
Appropriationsâ provides details of budget allocations out of the Federal Governmentâs
Consolidated Fund to each Ministry/Division/Department/ Organization and these
amounts including allocations are classified as Secret Service Fund. From this, it is
Const.P.105/2012
7
evident that the government has allocated funds to various Ministries, which funds or
expenses therefrom are neither disclosed nor audited. One of the petitioners namely, Mr.
Asad Kharal has stated in his CMA No. 5226 of 2013 that there are 27 Ministries to which
funds have been allocated but which are neither audited nor disclosed to the public on the
untenable plea that the same are secret.
9.
What we also find surprising is that in the above referred brief, it is stated that âthe
Secret Service Fund was established since long, most probably in the 70sâ (emphasis provided).
At another point in the brief, it has been stated contrary to this averment, that the âSecret
Service Fund is existing since 1947-50 onwardsâ. When the above submissions are analyzed,
it becomes evident that without any statutory or constitutional backing, Rule 37(5) of GFR
cannot be legally sustained. If indeed, the Federal Government is seeking protection under
the aforesaid Rule, this is not legally permissible because no justification or basis or source
of Rule 37(5) of the GFR has been shown to us. Under the Constitution, in Articles 78 to 86
the financial procedure for the Federationâs accounts has been clearly spelt out. The entire
revenues of the Federation are either part of the Federal Consolidated Fund or the same
are part of the Public Accounts of the Federation. There is no third account of the
Federation. No part of the Consolidated Fund and the Public Accounts of the Federation,
is exempted from audit under the Constitution.
10.
We can now advert to two Statutes, which are of direct relevance to the issue
before us; these are the Auditor Generalâs (Functions, Powers and Terms & Conditions of
Service) Ordinance, 2001 and the Controller General of Accounts (Appointment, Functions &
Powers) Ordinance, 2001. It is quite clear from the submissions made by the learned
Attorney General in Court today, that the provisions of Article 169 and 170 of the
Constitution have not been taken note of by him nor is he aware of the existence of these
statutes as is evident from his misguided reliance on Article 268 of the Constitution, noted
above. Article 170 of the Constitution, it may be noted, was materially amended in 2010
through the 18th Amendment. The original Article was renumbered as sub-Article (1) and
a new sub-Article (2) was added. The same being directly relevant is reproduced as
under:-
Const.P.105/2012
8
â(2) The audit of the accounts of the Federal and of the Provincial
Governments and the accounts of any authority or body established by, or
under the control of, the Federal or Provincial Government shall be
conducted by the Auditor-General, who shall determine the extent and
nature of such auditâ. (underlining for emphasis is ours)
11.
By virtue of the amended Article, the audit of accounts of the Federal and the
Provincial Governments must be conducted by the Auditor General, who is also to
determine the extent and nature of the said audit. The Constitution does not recognize any
exception to the provisions of Article 170(2) ibid. In this view of the matter the
Consolidated Fund and Public Accounts cannot remain unaudited. The provisions of the
two statutes of 2001, which are relevant in this case, can now be examined. The terms of
appointment in service of the Auditor General have been given in Section 4 of the Auditor
Generalâs (Functions, Powers and Terms & Conditions of Service) Ordinance, 2001. It has
also been expressly stipulated in section 7 of the statute that âthe Auditor-General shall on
the basis of such audit as he may consider appropriate and necessary, certify the accounts, compiled
and prepared by Controller-General of Account âĻâ. Section 8 of the statute is also extremely
relevant. It directs and mandates the Auditor General to âaudit all expenditure from the
Consolidated Fund of the Federation âĻ and to ascertain whether the moneys shown in the accounts
as having been disbursed were legally available for, and applicable to, the service or purpose to
which they have been applied or charged and whether the expenditure conforms to the authority
which governs itâĻ.â(emphasis provided). Section 8(b) of the statute requires the Auditor-
General to âaudit all transactions of the Federation and of the Provinces relating to Public
Accounts (emphasis provided)â. It thus becomes abundantly clear that where the amount
is charged on the Consolidated Fund or relates to the Public Accounts of the Federation or
of the Provinces, the same must be audited by the Auditor-General without exception.
12.
The powers of the Auditor General in connection with the audit of accounts have
been given in Section 14 of the aforesaid statute. This legal provision stipulates that âthe
Auditor-General shall, in connection with the performance of his duties under this Ordinance, have
authority:-- (a) to inspect any office of the accounts, under the control of the Federation or of a
Province âĻ (b) to require that any accounts, books, papers and other documents which deal with,
or form, the basis of or otherwise relevant to the transactions to which his duties in respect of audit
Const.P.105/2012
9
extend, shall be sent to such place as he may direct for his inspectionâĻâ. It is not necessary to
reproduce the entire text of the aforesaid Ordinance or of the Controller General of
Accounts (Appointment, Functions & Powers) Ordinance, 2001 because the same are clear
and do not exclude any amount forming part of the Consolidated Fund or the Public
Account from audit.
13.
As we have noted above sub-Article (2) of Article 170 of the Constitution was
added by the 18th Amendment which amply empowers and directs the Auditor General to
fulfill his constitutional obligation as watchdog of the people of Pakistan. It is only
through audit that it can be ensured that the hard earned income of citizens of this
country is being spent for lawful purposes. Without the audit specified by the
Constitution and the two statutes, referred to hereinabove, there can be little or no room
for any transparency. Absence of audit by the Auditor General, apart from being violative
of the Constitution and law, is a sure and certain invitation to corruption and lack of
accountability.
14.
We have already noted in our judgment in Watan Party and others vs. Federation of
Pakistan and others (PLD 2012 SC 292) that Article 19A of the Constitution, which also has
been added through the 18th Amendment, constitutes a major advance of fundamental
rights and is essential for the effective functioning of democracy. In that judgment, we
held that â[t]he very essence of a democratic dispensation is informed choice. It is through such
choice that the political sovereign, the People of Pakistan acquire the ability to reward or punish
their elected representatives or aspirants to elected office, when it is time for the People to exercise
their choice. If information on matters of public importance is not made available to citizens, it is
obvious they will not have the ability to evaluate available choices. Information on matters of public
importance thus, is a foundational bedrock of representative democracy and the accountability of
chosen representatives of the people. It is in this context, both historical and conceptual, that the
fundamental right to information has to be seen.â It was noted that democracy itself becomes
meaningless if the electorate is not provided the information, which can enable it to
exercise its right to franchise on the basis of informed choice. It is through their choice that
the electorate rewards good governance and punishes bad governance and
maladministration.
Const.P.105/2012
10
15.
The necessity for passing a detailed interlocutory order has arisen because our
previous orders have neither been read nor complied with and the fundamental issues
raised therein have not been addressed. We are concerned that without proper assistance
on behalf of the Federation, it might suffer. We are, therefore, adjourning the matter to
9.5.2013 to enable the Federal Government to render proper assistance. We would also
direct a senior functionary of the Auditor Generalâs Office to be present in Court on the
next date of hearing.
Adjourned. To come up on 09.05.2013 for further hearing.
Judge
Judge
Judge
Islamabad,
07.05.2013.
Irshad Hussain /*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
Mr. Justice Ejaz Afzal Khan
CMAs Nos.2380 to 2385 of 2013 alongwith CMA-2376/2013 in Constitution Petition
No.105/2012
AND
Constitution Petition No.105/2012 alongwith CMA-3795/2012 & CMA-3798/2012
HRC No.23957-S/12 and Const. Petition No.53 of 2012
AND
Constitution Petition No.117 of 2012
Hamid Mir and another
âĻ
Petitioner (s)
Versus
Federation of Pakistan, etc.
âĻ
Respondent (s)
For the applicant(s):
Ms. Asma Jehangir, Sr. ASC
(In CMAs-2380 to 2385/13
Mr. Tariq Mehmood, Sr. ASC
Applicant in person (in CMA-2376/13)
For the petitioner(s):
M/s Hamid Mir and Absar Alam (both in person)
Mr. Asad Kharal
For the petitioner(s):
Dr. Tariq Hassan, ASC
(In Const.P.53/12)
For the petitioner(s):
Mr. Taufiq Asif, ASC
(In Const.P.104/12)
Mian Gul Hassan Aurangzeb, ASC
For the petitioner(s):
Sheikh Ahsan ud Din, ASC
(In Const.P.117/12)
For respondent No.1:
Raja Aamir Abbas, ASC
Mr. M. Azam, Additional Secretary.
Mr. Nasir Jamal, DG
Mr. Tahir Hassan, Director o/o Secretary.
Muhammad Azam (Press Information Officer)
For M/o Information:
Mr. Tahir Hassan, D.G. Information
For Pak. Broadcasting
Khawaja Tariq Sohail, ASC
Association:
For respondents 2-3:
Mr. Hasnain Ibrahim Kazmi, ASC
For respondent No.4-5:
Nemo
For respondent No.6:
Nemo.
For respondent No.7:
Mr. Naveed Ihsan & Mr. Asif Hussain
For respondent No.8:
Nemo.
For the Federation:
Mr. Dil Muhammad Khan Alizai, DAG
CMAs-2380/13 etc. in Const.P.105/13
2
For the Province of KPK:
Syed Arshad Hussain Shah, Addl. A.G.
For respondent No.11 &
Mr. Yasin Azad, ASC and Raja Muqsit Nawaz, ASC
Value T.V.:
Mr. Asad Kharal, Express TV.
Mr. Arshad Sharif, Bureau Chief, DUNYA TV.
Mr. Ghulam Nabi, President, Press Association SC.
Mr. M. Hanif Awan, (CMA 3464/12)
For PFUJ:
Mr. Riffat Qadri
For ECP:
Mr. Abdul Rehman, Addl. DG Law.
For M/s Vision Network:
Mr. Adnan Iqbal Chaudhry, ASC
For M/s AURORA:
Nemo.
For Airwaves:
Mr. Babar Bilal, ASC
For Express TV:
Nemo
For VIVE TV:
Nemo.
For PTV:
Mr. Shahid Mehmood Khokhar, ASC
For Punjab T.V.:
Nemo.
For PEMRA:
Syed Hasnain Ibrahim Kazmi, ASC
For Airways Media:
Nemo.
For ARY:
Nemo.
For Cable Operators:
Dr. Amjad Hussain Bokhari, ASC
For Pakistan Broadcasters:
Nemo.
(In CMA-3464/12):
Mr. M. S. Khattak, AOR
For Indus Television:
Mr. Tariq Ismail
On Courtâs Notice:
Dr. Asif ur Rehman, D.G. (Federal Audit)
Date of Hearing:
25.4.2013
ORDER
Jawwad S. Khawaja, J.- These applications have been filed by the applicants Ms
Rameeza Nizami (CMAs-2380/13, 2382/13), Ms. Fareeha Idrees (CMA-2381/13,
2385/13), Ms. Muniza Jehangir (CMAs-2383-2384/13) and Mr. Shakeel Ahmed Turabi
(CMA-2376/13). The applicants have raised certain objections as to the contents of list
âAâ posted as part of our previous order on the Supreme Courtâs web-site. The same list
has also been posted on the web site of PEMRA.
2.
Let notice issue to the other parties including the petitioners in the main petitions
who may file a reply to the same within this week.
3.
The Director General Federal Audit is present in person. He says that it will take
approximately three weeks to audit the amount mentioned in list âAâ referred to in our
previous order. He will do so within the said period and submit the report in Court.
CMAs-2380/13 etc. in Const.P.105/13
3
4.
We may add that the learned Attorney General has also sought time to show to
the Court such laws, rules, regulations, directives etc. which we have been asking for
repeatedly through our previous orders, to justify the Governmentâs opposition to audit
of expenditure or non-disclosure of information to the public from whom the amounts
spent have been extracted.
5.
This order shall also be posted on the Supreme Courtâs web-site. To come up on
2.5.2013.
Judge
Judge
Judge
Islamabad,
25.4.2013
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
CIVIL MISC. APPLICATIONS NO.2593 AND 2812 OF 2008 IN
CIVIL APPEAL NO.1268 OF 2008
CDA and another
âĻAppellant(s)
VERSUS
Hashwani Hotels Ltd.
âĻApplicant/Respondent
For the Appellant:
Syed Najmul Hassan Kazmi, Sr. ASC
Mian Muhammad Hanif, ASC
Raja Abdul Ghafoor, AOR
For the Applicant/
Respondent:
Mr. Naeem Bukhari, ASC
Date of Hearing:
25.9.2017
...
ORDER
MIAN SAQIB NISRA, CJ.- Through the noted CMAs,
the applicant (who is the respondent in the main appeal) seeks the dismissal
of the appeal filed by the appellants on 11.8.2008 challenging the
impugned judgment of the learned Islamabad High Court dated
10.7.2008 on the ground that the same is barred by 44 days for
the reason that when the appeal was filed, the decree-sheet was
not attached thereto and when it (decree-sheet) was filed on
24.09.2008 vide CMA No.2720/2008 by that time the appeal had
become barred by the above-stated number of days.
2.
Brief facts of the case are:- that the applicant filed a
suit for declaration, permanent injunction, restitution and damages
alternative for the specific performance, possession and compulsory
execution and registration of lease deed in its favour against the
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 2 :-
appellants. This suit was dismissed by the learned Trial Court vide
judgment and decree dated 29.7.2006. Aggrieved of the said
decision, the applicant filed RFA No.86/2006 before the learned
Islamabad High Court, which was allowed vide impugned
judgment dated 10.7.2008 and the judgment and decree of the
learned Trial Court was set aside. It may be pertinent to mention
here that the suit of the applicant was not specifically decreed in
any of the terms as per the prayer made by it in the plaint. Be that
as it may, on 23.7.2008, Mr. Zafar Khan, Advocate applied on
behalf of the appellants for the certified copy of the impugned
judgment vide Form No.4451 and the same was delivered to the
appellants on 25.7.2008 and the appeal as mentioned above was
filed on 11.8.2008 which was within time. The office entertained
the appeal without any objection or calling upon the appellants to
file the copy of the decree-sheet as well. The case of the applicant
is that through this Form, the appellant did not apply for the copy
of the decree-sheet, but only the impugned judgment; besides, as it
is evident from the memo of appeal, the title and the prayer clause,
the appellants had only challenged the impugned judgment dated
10.7.2008 but not the decree. It is argued that as the appeal was
incompetently filed, therefore, the applicant moved the instant
application for the dismissal of the same and it is only thereafter
that the appellants applied for the copy of the decree on 9.9.2008
which was supplied on the same day and they filed the same in
this Court on 24.9.2008 and by that time the appeal had been
rendered barred by time.
3.
The learned counsel for the applicant has argued that
according to Order XII Rule 4 of the Supreme Court Rules, 1980
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 3 :-
(Rules, 1980) the memo of appeal had to be accompanied by the
certified copy of the judgment and decree to be challenged and as
the appellants have failed to do so, therefore, the appeal should be
dismissed as being barred by law. For the purposes of drawing
support that the memo of appeal should be accompanied by the
decree-sheet, the learned counsel has relied upon the provisions of
Order XLI Rule 1 of the CPC and the judgments of superior Court
reported as Haji Abdul Karim and others Vs. Messrs Florida
Builders (Pvt.) Limited (PLD 2012 SC 247 at page 263, para
10), Apollo Textile Mills Ltd. And others Vs. Soneri Bank Ltd.
(PLD 2012 SC 268 at pages 287 & 288, para 27), Cooperative
Model Town Society through Secretary Vs. Mst. Asghari Safdar
and others (2005 SCMR 931), Anoud Power Generation Ltd.
and others Vs. Federation of Pakistan and others (PLD 2001
SC 340 at pages 353 & 358) and Imtiaz Ali Vs. Atta Muhammad
and another (PLD 2008 SC 462 at page 465, para 6).
4.
On the contrary, learned counsel for the appellants
has argued that the decree-sheet in this case was not prepared
along with the impugned judgment, but it was much later in time.
When the appellants applied for the judgment of the court on
23.7.2008, the decree-sheet was not ready and prepared and thus,
only the impugned judgment was delivered to them. He has further
argued that while passing the impugned judgment, the learned
High Court has not passed a decree to hold as to what relief has
been allowed to the applicant, i.e., either the relief pertaining to
declaration, injunction or the specific performance etc., therefore,
any decree prepared in the case is beyond the scope of the
judgment, rather it is absolutely not in consonance thereto. He has
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 4 :-
further submitted that when the file of the Trial Court was sent
back to it on 15.07.2008, only the copy of the impugned judgment
of the learned High Court was attached thereto and not the decree-
sheet. Had the decree-sheet been prepared, that should have also
been attached therewith. It is also submitted that according to the
provisions of Order XII Rule 4 of the Rules, 1980, the filing of the
decree-sheet in all cases is not required as the language of this
rule is absolutely different from the provisions of Order XLI Rule 1
of the CPC, which provisions even otherwise are not applicable to
the appeals filed before this Court. Learned counsel has also
submitted that when the appeal was filed, the office did not raise
any objection about the non-attachment of the decree-sheet. Such
objection was only conveyed to the appellants when the office in
this respect issued a notice on 5.9.2008, but before that the
appellants had already procured the decree-sheet and filed the
same. He has also submitted that even the applicant had applied
for the judgment and decree of the learned Trial Court, but only
the copy of the judgment was supplied to it on 15.7.2008 because
till then the decree-sheet had not been prepared. It is for such
reason that when Criminal Original Petition No.77/2008 was
initiated by the applicant before the learned High Court, seeking
implementation of the impugned judgment/decree, the decree-
sheet had not been filed alongwith. Learned counsel in support of
his submissions has relied upon the judgment reported as Imtiaz
Ali vs. Atta Muhammad (PLD 2008 SC 462) and Prime Dairies
Ice Cream Ltd, Lahore vs. Commissioner of Income Tax,
Companies Zone (2002 SCMR 540 at page 543, para 6). In the
former judgment this Court held that where a copy of the judgment
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 5 :-
impugned has been appended with the memo of appeal, while filing
of appeal in this Court, the same would be competent as the
impugned judgment has been treated as a decree by fiction of law
due to the provision of Order XLV, Rule 1 of the C.P.C. In the later
judgment it was held by this Court that since by virtue of
subsection (2) of Section 137 of the Income Tax Ordinance, 1979
(ITO), the provisions of the CPC relating to appeals to the Supreme
Court against the judgment and decree of the High Court so far as
applicable shall apply to the appeals under that section, and the
provisions of CPC shall be deemed to have been incorporated by
way of legislation with regards to the regulation of the procedure of
filing of appeals to judgments under the ITO in the Supreme Court,
therefore, by fiction of law, a judgment under appeal is to be
treated as a decree of the High Court passed in a regular civil
matter.
5.
Heard. The gist of the submissions made by the
learned counsel for the parties has been provided above. However
during the course of reasoning of this opinion, if any further
submission made by them requires mention, it shall be so
depicted. In order to resolve whether the provisions of Order XII
Rule 4 of the Rules, 1980 have been complied with by the
appellants or not, suffice it to say that this rule prescribes as
under:-
â(4). The petition of appeal shall be accompanied by:
(i)
certified copies of the judgment and decree
or final order appealed against, and of
Courts below;
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 6 :-
(ii)
a certified copy of the certificate granted
under Article 185(2)(f) where that certificate
is not embodied in the judgment; and
(iii)
an affidavit of service of copy of the petition
or appeal on the respondent.â
It may also be relevant to mention here the specific provisions
under Order I Rule 5 of the Rules, 1980 which provide that âSave as
otherwise expressly provided by these Rules, the provisions of the Code shall not
apply to any proceedings in the Courtâ. The âCodeâ has been defined in
the Rules to mean âthe Code of Civil Procedure, 1908â (CPC). We have
not come across any provision of the Rules, 1980 whereby the
provisions of Order XLI Rule 1 of the CPC has been made
applicable thereto; therefore, the case law relied upon by the
applicantâs counsel and his reliance upon Order XX Rule 7 of CPC
is not of much help in this case. Even otherwise order/rule ibid is
not meant for the purpose of the determination and the calculation
of period of limitation for the purposes of appeal, rather according
to the said provisions, regardless of the decree-sheet when it is
prepared, the purpose and the object is that it (decree) shall have
the effect from the date of the pronouncement of the judgment.
This is so clear from the wording of the rule which stipulates that
âThe decree shall bear date the day on which the judgment was pronounced âĻâ.
It does not mean that such date should be considered to be the
date of coming into existence of the decree-sheet, rather the decree
sheet should mention the date of its preparation and completion,
so that the limitation for the appeal purpose should be reckoned
from that date. It may not be irrelevant to mention here that there
are no two opinions that the decree-sheet is not prepared on the
same day, rather it takes time and therefore, the date on which it
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 7 :-
came into existence is relevant and has to be mentioned in the
decree-sheet. It may be mentioned that according to the judgment
reported as Government of Sindh through Land Acquisition
Officer and others Vs. Muhammad Juman and another (2009
SCMR 1407) the limitation for filing appeal will commence from
the
date
of
decree
and
the
time,
elapsed
between
the
announcement of the judgment and signing of the decree, shall be
included in the time requisite for obtaining the copy of the
judgment and decree. In another judgment of this Court reported
as The Government of West Pakistan through Chief Secretary,
Lahore etc. Vs. Niaz Muhammad (PLD 1967 SC 271) in which it
has been clearly held that the limitation for the purposes of appeal
shall commence from the date of preparation of the decree. In this
case, we had sought report from the learned High Court as to when
the decree was prepared and had also requisitioned the original
record but it is not clear therefrom on what specific date the
decree-sheet has been prepared. There is no material about the
movement of file indicating as to when, after the judgment had
been signed by the Honâble Bench, the file was sent to the office for
the preparation of the decree, how much time was consumed in
this respect and what is the exact date when the decree-sheet was
prepared and completed in all respects. It is this date, on which
the decree comes into existence and thus there is a serious doubt
in this regard. This view is fortified by the fact that when the
applicant filed the contempt petition before the learned High Court,
the decree-sheet was not appended thereto. We had repeatedly
required the learned counsel for the appellants to produce any
certified copy of the decree which the applicant had applied and
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 8 :-
was supplied to him so as to suggest the exact date on which the
decree-sheet was prepared. The record of the Trial Court when sent
by the learned High Court also does not accompany the decree-
sheet, rather it is only the impugned judgment was sent. The office
had entertained the appeal against the impugned judgment alone
and never required the appellants to also file the decree-sheet till
such date when a notice in this regard was issued but before that
the appellants had already filed an application for obtaining the
copy of the decree-sheet which was, as mentioned earlier, supplied
to them and had been filed. Keeping in view all these
circumstances in totality, we are of the candid view that no sure
date can be ascertained as to when the decree as per the
provisions of Rule 8 Part H of Volume V of the Rules and Orders of
the Lahore High Court, Lahore (which too were adopted by the Islamabad High
Court) was prepared because one thing is absolutely and
unequivocally clear that the decree-sheet was not prepared and
was not in existence on the date of the pronouncement of the
impugned judgment i.e. 10.7.2008, rather it is subsequently
prepared and, as repeatedly mentioned above, the date in this
regard is absolutely obscure. Obviously in such a situation the
appellantsâ appeal cannot be with surety held to be barred by time
and even if that being so on account of the facts forthcoming and
the law mentioned, the appellants are entitled to the condonation
of delay which is hereby condoned. Before parting with this
opinion, we must make it clear that we do not agree with the
contention of the learned counsel for the appellants that as per
Order XII Rule 4 of the Rules, 1980 (reproduced above) it is not
mandatory that the impugned judgment and the decree (whereby the
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 9 :-
decree-sheet has been prepared pursuant to the impugned judgment) is not required
to be filed, rather in case where either the judgment or the decree
has not been filed, that shall be the sufficient compliance of the
above provision. Rather to the contrary, such an appeal filed by the
appellants would be incompetent and the defect would only stands
cured from the date when the decree-sheet or the impugned
judgment is filed and obviously the time limitation shall also be
reckoned from the date of complying with the mandatory provision
of law. Obviously this shall be subject to the appellant in any case
showing âsufficient causeâ for not filing the copy of either of the two
documents and can seek the condonation of delay which would be
dependent upon the facts and circumstances of each case.
6.
In light of the above, the delay of 44 days as alleged by
the applicant in filing the present appeal is condoned. The
applications seeking dismissal of the appeal on account of the
limitation are dismissed.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
25th of September, 2017
Approved for reporting
Waqas Naseer/*
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 10 :-
Be that as it may, we have required a report from the learned High
Court as to when the decree was prepared and also requisitioned
the original record from the learned High Court. It is not clear
therefrom that on what specific date the decree-sheet had been
prepared. As there is a serious doubt about the date of preparation
of the decree in this case and the signing thereof by the competent
authority, throughout, we have asked the learned counsel for the
applicant to place on the record the decree-sheet which had been
provided to it pursuant to the application which it had filed for the
attested copy of the judgment and decree, but it has not been able
to do so. There is no material on the record as to when the file of
the case after the pronouncement of the judgment was sent to the
office, where the decree sheet had to be prepared by the office.
Moreover, the office of this Court also did not raise any objection
while entertaining the appeal of the appellants, rather issued a
notice on 15.07.2008 requiring them to file the copy of the decree.
Before that date, the appellants having the awareness that the
applicant is seeking the dismissal of this appeal being time barred,
as a precaution, had moved an application for obtaining the
certified copy of the decree, which was supplied to the appellants
on 9.9.2008 and immediately, the same was filed in the office.
Keeping in view all the facts in totality, we find it obvious that the
decree which had to be prepared by the office in terms of the
provisions of Rule 8 Part H of Volume V of Rules and Orders of the
Lahore High Court, Lahore (which too were adopted by the Islamabad High
Court) the decree-sheet was not prepared on the same day when the
judgment was pronounced on 10.7.2008, rather it was prepared
subsequently, but it is not divulged from the record that on which
C.M.A.Nos.2593 & 2812/2008 in C.A.No.1268/2008
-: 11 :-
date the same was prepared and thus came into existence.
Obviously, in such a situation, the benefit should be given to the
appellants for the purpose of condoning the delay. Thus, following
the view set out in the judgment reported as The Government of
West Pakistan through Chief Secretary, Lahore etc. Vs. Niaz
Muhammad (PLD 1967 SC 271), we hold that the decree-sheet
having not been prepared on the same day, but subsequently on
an unknown date, hence, in the circumstances, the provisions of
Order XX Rule 7 of CPC shall not be attracted.
6.
In light of the above, we find it to be a fit case for
condonation of delay; resultantly, the delay of 44 days in filing of
the appeal is condoned. The applications are accordingly
dismissed.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
25th of September, 2017
Not approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ
MR. JUSTICE JAVED IQBAL
MR. JUSTICE SARDAR MUHAMMAD RAZA KHAN
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE RAJA FAYYAZ AHMED
MR. JUSTICE CH. IJAZ AHMED
MR. JUSTICE GHULAM RABBANI
MR. JUSTICE MUHAMMAD SAIR ALI
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE RAHMAT HUSSAIN JAFFERI
C.M.A. No.2745/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009
Justice Khurshid Anwar Bhinder
âĻApplicant
Versus
Federation of Pakistan and another
âĻRespondents
C.M.A. No.2747/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Justice Hasnat Ahmed Khan
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
..Respondents
C.M.A. No.2748/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009
Justice Zafar Iqbal Chaudhry and another
âĻApplicants
Versus
Federation of Pakistan and another
âĻRespondents
C.M.A. No.2750/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Justice Syed Shabbar Raza Rizvi
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
âĻRespondents
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
2
C.M.A. No.2776/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Syed Sajjad Hussain Shah
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
âĻRespondents
C.M.A. No.2779/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Mrs. Yasmin Abbasi
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
âĻRespondents
C.M.A. No.2782/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009
Syed Sajjad Hussain Shah
âĻApplicant
Versus
Nadeem Ahmed Advocate and another
âĻRespondents
C.M.A. No.2788/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Muhammad Ahsan Bhoon
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
âĻRespondents
C.M.A. No.2790/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Anwar-ul-Haq Pannu
âĻApplicant
Versus
Sindh High Court Bar Association, Sindh
âĻRespondents
High Court, Karachi through its Secretary, etc.
C.M.A. No.2825/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Syed Hamid Ali Shah
âĻApplicant
Versus
Sindh High Court Bar Association, etc.
âĻRespondents
C.M.A. No.4002/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009
Barrister Jahanzeb Rahim
âĻApplicant
Versus
Federation of Pakistan through
âĻRespondents
Ministry of Law, Justice & Human
Rights, Islamabad, etc.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
3
CRIMINAL ORIGINAL PETITION NO.90/2009
[Contempt matter regarding press statement
made by Syed Zulfiqar Ali Bokhari]
For the applicant
:
Mr. Wasim Sajjad, Sr. ASC
(in C.M.A.No.2745/2009)
Mr. Ejaz Muhammad Khan, AOR
For the applicant
:
Mr. Farooq Amjad Meer, ASC
(in C.M.A.No.2747/2009)
For the applicant
:
Malik Muhammad Qayyum, Sr. ASC
(in C.M.A.No.2748/2009)
For the applicant
:
Dr. A. Basit, Sr. ASC
(in C.M.A.No.2750/2009)
Mr. G. N. Gohar, AOR
For the applicant
:
Sheikh Zamir Hussain, Sr. ASC
(in C.M.As.No.2776 & 2782/2009)
Mr. Ejaz Muhammad Khan, AOR
Mr. Mahmoodul Islam, AOR(absent)
For the applicant
:
Dr. Khalid Ranjha, Sr. ASC
(in C.M.A.No.2779/2009)
Mrs. Yasmin Abbasi (In person)
Mr. Mazhar Ali B. Chohan, AOR (absent)
For the applicant
:
Dr. Khalid Ranjha, Sr. ASC
(in C.M.A.No.2788/2009)
Mr. A.H. Masood, AOR (absent)
For the applicant
:
In person
(in C.M.A.No.2790/2009)
For the applicant
:
Syed Ali Zafar, ASC
(in C.M.A.No.2825/2009)
Mr. G. N. Gohar, AOR
For the applicant
:
Syed Naeem Bokhari, ASC
(in C.M.A.No.4002/2009)
Mr. G. N. Gohar, AOR
For the Federation
:
Mr. Shah Khawar,
Acting Attorney General for Pakistan
For the Sindh High Court Bar
:
Mr. Hamid Khan, Sr. ASC
(On caveat)
Mr. Rashid A. Rizvi, ASC
Mr. M.S. Khattak, AOR
For Nadeem Ahmed, Advocate
:
Mr.Muhammad Akram Sheikh, Sr. ASC
(On caveat)
Ch. Muhammad Akram, AOR
On Court notice
:
Syed Zulfiqar Ali Bokhari (In person)
Date of hearing
:
13.10.2009
âĻâĻ..
JUDGMENT
JAVED IQBAL, J.- The above captioned applications for
permission to file review petitions against judgment dated 31.7.2009
passed in Constitutional Petitions No.9 and 8 of 2009 have been
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
4
dismissed by means of short-order dated 13.10.2009 which is
reproduced herein below for ready reference:-
âFor reasons to be recorded later, by majority of 13
to 1 (Sardar Muhammad Raza Khan, J dissenting), all
these applications for permission to file review petitions
against the judgment dated 31.07.2009 passed in
Constitution Petitions Nos. 9 & 8 2009 are dismissed.
2.
For reasons to be recorded later, we unanimously
hold and direct as under:-
(1)
The notices issued under Article 204 of the
Constitution read with sections 3 and 4 of the
Contempt of Court Act, 1976 or any other enabling
provisions of the relevant law, to the Judges who
have expressed their regrets and repentance; by
tendering unconditional apologies and affirming
their remorse through withdrawal of the petitions
filed by them and tendering of resignations, are
discharged;
(2)
Similarly, as to the Judges who have already retired
and have tendered unconditional apologies and
have expressed their repentance and remorse, the
notices issued to them are discharged.
(3)
As to the Judges, who are contesting notices, they
shall be proceeded against separately along with
the cases of those Judges, who have not filed
replies and/or have prayed for grant of time;
(4)
The Judges of the Supreme Court and the High
Courts,
who
tendered
resignations
after
pronouncement of the judgment dated 31.07.2009
in deference thereto shall not be proceeded against;
(5)
The Judges who have tendered resignations, but
have not filed replies to the notices, the process
shall be repeated to them so as to file the replies
within two weeks;
(6)
The
Judges,
who
have
neither
tendered
resignations nor have filed replies, are required to
file replies within two weeks;
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
5
(7)
Mr. Ahmed Raza Kasuri, ASC, has prayed for grant
of four weeksâ time to submit reply on behalf of
Justice (Retd.) Abdul Hameed Dogar. Let the reply
be filed within two weeks.
(8)
Justice (Retd.) Muhammad Nawaz Abbasi has filed
reply, which is not unconditional apology, therefore,
his matter shall be proceeded along with other
cases; and
(9)
As far as Syed Zulfiqar Ali Bokhari is concerned, he
has tendered unconditional apology and has
thrown himself at the mercy of the Court, the notice
issued to him is also discharged.â
2.
The reasons for the above reproduced short-order are as
follows.
3.
We may make it clear at the outset that we are not dilating
upon the merits of the review petitions and we shall confine ourselves to
the pivotal question which needs determination at first instance as to
whether these review petitions are maintainable or otherwise? Before we
could answer the said question, we intend to examine the respective
contentions as agitated on behalf of the petitioners.
4.
Mr. Wasim Sajjad, learned Sr. ASC entered appearance on
behalf of Mr. Khurshid Anwar Bhinder in CMA No.2745 of 2009 and
addressed the Court at length on the question of maintainability whose
prime contention remained that no such decision could have been given
without affording proper opportunity of hearing in violation of the well
entrenched doctrine of âaudi alteram partemâ and the fundamental
rights guaranteed in the Constitution coupled with the judicial
precedents which ought to have been followed but were ignored. In
order to substantiate his contention it is argued that it is a cardinal
principle of law that no person should be condemned unheard and
besides that the principle of audi alteram partem has also been jealously
guarded by this Court. It is contended that the petitioner and all other
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
6
removed judges were neither impleaded as party in the above mentioned
Constitutional Petitions nor any opportunity of hearing was afforded
which resulted in serious miscarriage of justice. It is next contended
that this Court has ample powers as conferred upon it under Article
188 of the Constitution of Islamic Republic of Pakistan, 1973
(hereinafter referred to as the Constitution) to hear the review petitions
and besides that no bar whatsoever has been imposed in the provisions
enumerated in Order XXVI of the Supreme Court Rules, 1980 and even
otherwise the petitioner may not be knocked out on the basis of sheer
technicalities in the absence of any restraints imposed by law. It is also
argued that in Civil Petition No.8 of 2009, a specific prayer was made
for removal of the Judges including the applicant, who were not
appointed in consultation with the Honâble Chief Justice of Pakistan but
in consultation with Abdul Hameed Dogar, J, who was not a
constitutional consultee. The applicant was appointed as Additional
Judge of the Lahore High Court, Lahore on 14.12.2007 and as
permanent Judge of that Court on 12.12.2008. The order dated
03.11.2007 passed by a seven-member Bench of this Court restraining,
inter alia, the Judges of the Supreme Court and High Courts from
taking oath under any extra-constitutional set up, was set aside by an
eight-members Bench vide order dated 06.11.2007. The applicant had
no means to know that the latter order would be declared illegal and
void at any time in the future. Further, the order dated 06.11.2007 got
merged in the final order dated 19.11.2007, by which the Constitution
Petition No. 73 of 2007 (Wajihuddin Ahmed v. Chief Election
Commissioner) was dismissed. The order dated 03.11.2007 became
alive on 31.07.2009 when a judgment was passed by a fourteen-
member Bench. On 03.11.2007, the applicant was not a Judge but was
a lawyer, therefore, the order dated 03.11.2007 was not applicable to
him. It is further argued that in the matter of removal of a Judge of a
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
7
superior Court, Articles 4, 9 and 25 of the Constitution would be
attracted. Access to justice had been made a fundamental right. The
applicants had been deprived of their right to hold office, therefore, they
had a right to be heard against their removal. By virtue of Article 2A of
the Constitution, the Islamic principles would be attracted, and an
affected person would be granted the right of hearing. It is next
contended that the applicant was an aggrieved person within the
contemplation of Order XXVI, Rule 1 of the Supreme Court Rules 1980,
read with Order XLVII, Rule 1 of the CPC and had a right to file the
review petition against the judgment of the Honâble Supreme Court,
which adversely affected him. In order to substantiate his view as
mentioned hereinabove the following case law has been referred to by
Mr. Wasim Sajjad, learned Sr. ASC:-
H. M. Saya & Company v. Wazir Ali Industries Limited (PLD
1969 SC 65), Custodian of Evacuee Property v. Saifuddin
Shah (PLD 1981 SC 565), Muhammad Siddique v. Chief
Settlement & Rehab Commr. (PLD 1965 SC 123), Fehmida
Khatoon v. Addl. Dy. Commr. PLD 1975 Lah.942 at 949, Al-
Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 at
367, Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) at
2212, Shivdeo Singh v. State of Punjab AIR 1963 SC 1909
at 1911, Noubahar v. the State 2002 SCMR 1218 at 1219,
Muhammad Yaqub v. Saeed Shah PLD 1961 Kar. 656,
Jhabba Lal v. Shib Charan (AIR 1917 ALL. 160), Kawdu v.
Berar Ginning Co. (AIR 1929 NAG 185), 1986 CLC 1048,
Muhammad Akram Sheikh v. Federation of Pakistan (PLD
1989 SC 229), Pakistan Muslim League (N) v. Federation of
Pakistan (PLD 2007 SC 642 at 668).
5.
Mr. Farooq Amjad Meer, learned ASC entered appearance
in CMA No.2747/2009 on behalf of Mr. Justice Hasnat Ahmed Khan
and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with
the further submission that the applicant irrespective of his status
enjoys the protection as afforded by Article 4 of the Constitution and at
least a notice should have been given enabling him to defend himself as
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
8
an adverse order has been passed against him without affording proper
opportunity of hearing. It is pointed out that notice was issued to
General (Retd.) Pervez Musharraf and accordingly it should have been
issued to the petitioner in the interest of justice, fair play and equity.
6.
Malik Muhammad Qayyum, learned Sr. ASC entered
appearance on behalf of Mr. Zafar Iqbal Chaudhry and Mr. Muhammad
Akram Qureshi in CMA No.2748/2009 and adopted the arguments as
canvassed at bar by Mr. Wasim Sajjad, learned Sr. ASC with the further
submission that neither the opportunity of hearing was afforded to the
petitioners nor they were impleaded as party and, therefore, no adverse
order could have been passed against them as it would be in violation of
the well entrenched principles of the law of natural justice. It is also
contended that mere publication of the proceedings in the electronic
and print media did not constitute sufficient notice in law. Non-
issuance of notice to the applicant was against the very finding recorded
by the fourteen-member Bench.
7.
Dr. A. Basit, learned Sr. ASC entered appearance on behalf
of Mr. Justice Syed Shabbar Raza Rizvi in CMA No. 2750/2009 and
submitted that Mr. Justice Syed Shabbar Raza Rizvi has no grievance
qua the judgment impugned which is historic one but a few lapses are
there which need rectification. It was urged with vehemence that the
judgment passed by seven Members Bench was not within the
knowledge of Mr. Justice Syed Shabbar Raza Rizvi who was not
available at Lahore on the day when the said order was passed and
besides that it was never communicated by the Registrar concerned to
the Honâble Judges. It is pointed out that Mr. Justice Syed Shabbar
Raza Rizvi was in his village on Saturday when the said order was
passed by the seven Members Bench of this Court. It is also pointed out
that Supreme Court has unbridled powers under Article 188 of the
Constitution as well as Order XXVI of the Supreme Court Rules and,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
9
therefore, in the absence of any restraint imposed by any law the
application may be allowed. It is also contended that this Court may
exercise its power as conferred upon it under Article 187 of the
Constitution. The learned counsel has relied upon case titled Zafar Ali
Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC
869 at pages 1214, 1216). It is also contended that the celebrated
judgment dated 31.07.2009 was required to be partially reviewed, in
that, in Para 248, it was unequivocally laid down that the Judges, who
made oath in violation of the order dated 03.11.2007 were guilty of the
breach of the order. The said finding had pre-empted the power and
jurisdiction of the Supreme Judicial Council. As a matter of fact, the
Court, in such a proceeding, would record a tentative finding by using
the words âprima facieâ.
8.
Mr. Anwar-ul-Haq Pannu appeared in person in CMA
No.2790/2009 and adopted the arguments of Mr. Wasim Sajjad,
learned Sr. ASC and Malik Muhammad Qayyum, learned Sr. ASC. He
also reiterated the submission that the judgment impugned has been
passed in violation of universally accepted principles of natural justice
i.e. audi alteram partem and the petitioner has been condemned
unheard without affording him proper opportunity of hearing causing
serious prejudice against him.
9.
Syed Ali Zafar, learned ASC entered appearance on behalf
of Mr. Justice Syed Hamid Ali Shah in CMA No.2825/2009 and
submitted that a person though not a party to a lis can file a review in
view of the provisions as enumerated in Order XLVII CPC. It is next
contended that no one should be condemned unheard and opportunity
of proper defence being mandatory in nature required to be provided
irrespective of the fact whether it has been provided by a particular
statute or otherwise. It is pointed out that Order XLVII CPC makes it
abundantly clear that any person considering himself to be aggrieved
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
10
may file a review petition and neither any embargo whatsoever has been
imposed nor any condition laid down therein. It is also contended that
in view of the provisions as enumerated in Article 188 of the
Constitution this Court has ample powers to hear a person at any stage
irrespective of the fact whether he remained a party in appeal or
otherwise. In this regard, particular reference has been made to the
powers of Suo Motu review jurisdiction as conferred upon this Court.
Syed Ali Zafar, learned ASC also referred to Article 187 (1) of the
Constitution which according to him can also be invoked for the
redressal of the grievances of the petitioner. Besides that the provisions
as enumerated in Order 33 Rule 6 of the Supreme Court Rules, 1980
have also been mentioned with the further submission that procedure
should not be considered as a hindrance but justice should be done. It
is also contended that the Constitution did not place any restriction on
the power of the Supreme Court to review its earlier decisions or even to
depart from them nor the doctrine of stare decisis would come in its
way so long as review was warranted in view of the significant impact
on the fundamental rights of the citizens or in the interest of public
good. The learned counsel lastly submitted that access to justice was a
fundamental right and a Judge, as much as a citizen, was entitled to
approach the Court for the redress of his grievance. In support of the
submission, the learned counsel placed reliance on the case of Mr.
Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan v.
President of Pakistan (PLD 2007 SC 578).
10.
It is also mentioned that the order passed on 03.11.2007 by
seven Members Bench of this Court on Saturday was never
communicated or served upon the petitioner, hence the question of its
violation does not arise and no conclusion can be drawn qua
service/communication of said order on the presumption having no
value in the eye of law. In order to substantiate the said version it is
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
11
pointed out that no punishment could be awarded without having a
concrete proof qua service of the said order on the petitioner. It is also
mentioned that presumption of knowledge of the order passed on the
assertion that it was widely circulated in the media and communicated
to the Registrar of the High Court has no legal footings in such like
proceedings and it can not be equated to that of an effective service.
11.
Syed Naeem Bokhari, learned ASC who entered appearance
on behalf of Mr. Justice Jahanzeb Rahim, applicant in CMA
No.4002/2009 referred to the case of M. H. Khondkar v. The State (PLD
1966 SC 140) and sought recusal of certain Members of the Bench on
the ground of bias. It was contended that he would exercise his right to
raise issue of bias and the Court must hear him instead of knocking
him out of the Court. It was also submitted by Mr. Naeem Bokhari,
learned ASC that his arguments may be heard in Chambers so that he
could highlight certain important aspects having substantial bearing on
merits of the case. It is also contended that petitioner could not have
been condemned unheard without impleading him as a party or
issuance of notice. It is contended that the judgment impugned is in
violation of basic norms of principle of natural justice which resulted in
serious miscarriage of justice and on this score alone the review petition
preferred by the petitioner may be heard on merits and proper
opportunity of hearing be afforded. The learned ASC also explained two
cardinal principles of natural justice i.e. âaudi alterm partemâ and
ânemo judex in causa suaâ. The learned ASC has referred case of M.H.
Khondkar (supra) to support his view point. It is argued with vehemence
that the applicant was not a party to the judgment dated 31.07.2009,
wherein it was concluded that the applicant had committed misconduct
and his case was directed to be placed before the Supreme Judicial
Council. He lastly submitted that the provisions of Rule 6 of Order XXVI
of the Supreme Court Rules 1980, can be taken into consideration in
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
12
the instant case because the applicant was not represented at the
hearing of the main case.
12.
Sheikh Zamir Hussain, learned Sr. ASC entered appearance
on behalf of Mr. Justice Syed Sajjad Hussain Shah in C.M.As. No.2776
&
2782
of
2009
and
adopted
the
arguments
of
Mr. Wasim Sajjad, learned Sr. ASC, Malik Muhammad Qayyum, learned
Sr. ASC and Mr. Farooq Amjad Meer, learned ASC with the further
submission that the provisions as enumerated in Order XXVI Rules 1
and 6 of the Supreme Court Rules read with Article 188 of the
Constitution can be pressed into service conveniently by allowing the
civil miscellaneous application. It is also pointed out that no restriction
whatsoever has been imposed in Order XXVI Rules 1 and 6 of the
Supreme Court Rules and for the sake of arguments if presumably
there is any hurdle that can be removed as technical knockout is not
desirable and every lis should be decided on merits and in accordance
with law. It is pointed out that the Supreme Court Rules are
subservient to the Constitution and may not be considered as
hindrance for imparting justice. It is also pointed out that rule can be
relaxed in case of hardship which is discretion of this Court and it
should be exercised as it would be in the interest of justice. It is also
contended that the Supreme Court and the High Courts were the
Courts of record. The principle of absolute justice and absolute fairness
demanded that if the Court, while writing a judgment found that the
judgment was going to affect someone, who was not heard notice would
be issued to him, and generally it did the same thing. Article 188 of the
Constitution conferred upon the Supreme Court substantive power of
review. Though such power was subject to any act of Majlis-e-Shoora
and the rules framed by the Supreme Court, but the constitutional
power could not be curtailed by any subordinate legislation, and would
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
13
always prevail over the law/rules. The learned counsel has relied upon
the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161).
13.
Dr. Khalid Ranjha, learned Sr. ASC entered appearance on
behalf of Mrs. Justice Yasmin Abbasi in CMA No.2779/2009 and
adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with the
further submission that Supreme Court Rules cannot curtail the
Constitutional powers conferred upon this Court under Article 188 of
the Constitution. Mrs. Justice Yasmin Abbasi also argued for herself
and submitted that she was not aware of the restraining order of seven
Members Bench by this Court passed on 3.11.2007 as it was never
communicated to her by the Registrar concerned. It is submitted that
oath was taken on 3.11.2007 in a good faith by following the prevalent
precedents. It is submitted that non-communication of restraining order
passed by seven Members Bench of this Court being a question of fact
requires consideration and no conclusion can be drawn qua its service
on the petitioner merely on the basis of presumption. It is also
submitted that notice was given on 22.7.2009 to General (Retd.) Pervez
Musharraf and accordingly all the affected persons including removed
Judges should have been impleaded as party by issuance of notice
which was not done resulting in serious miscarriage of justice. It is also
pointed out that social justice as enunciated by Islam also requires that
no person should be condemned unheard and proper opportunity of
defence must be afforded which was not done in this case. It is time and
again pointed out that on 3.11.2007 the order passed by seven
Members Bench was never communicated to her. It is also contended
that clause 3 of the Oath of Office (Judges) Order, 2000 provided that
any person holding office of Judge of the Supreme Court or a High
Court would not continue to hold office if he did not make oath within
the time determined in that behalf. Accordingly, the Judges who did not
make oath ceased to hold office. The matter came up before a twelve-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
14
member Bench of the Supreme Court where it was held that the
removal of the Judges under the Oath Order, 2000 was past and closed
transaction. Therefore, even if she had got proper knowledge of the
order dated 3.11.2007, she would have made oath otherwise, on the
basis of the past practice, if she had not made oath on 3.11.2007, she
would also have been deprived of office of Judge.
14.
Mr. Muhammad Ahsan Bhoon entered appearance in
person in CMA No.2788/2009 and requested that the grounds
mentioned in the review petition may be considered as his arguments.
15.
Mr. Rashid A. Rizvi, learned Sr. ASC entered appearance on
behalf of caveat (Sindh High Court Bar Association) and strenuously
controverted the view point as canvassed at bar by the learned Sr. ASC
on behalf of applicants with the further submission that CMAs are not
maintainable as the applicants were never impleaded as party and
besides that they were neither necessary parties nor proper parties,
hence the question of filing review petition against judgment dated
31.7.2009 does not arise. In order to substantiate his version it is
argued that no Honâble Judge was involved in Constitutional Petitions
No.9/2009 and 8/2009 and no question whatsoever regarding their
eligibility, qualification or entitlement for appointment against the post
of Judge was ever raised rather the prime question urged before the
Honâble Court was that the purported act done by General (Retd.) Pervez
Musharraf between 3.11.2007 to 16.12.2007 aimed at to suspend and
amend
the
Constitution
through
several
instruments
were
unconstitutional, invalid and without legal consequence and of the
appointments of Judges of superior judiciary made on or after
3.11.2007 up-till 22.3.2009 without having consultation of Honâble
Chief Justice of Pakistan were unconstitutional, invalid and without
any legal consequence and the prime thrust was on the question
whether PCO was a valid piece of legislation? He submitted that none of
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
15
the Judges were impleaded as party nor criticized in this regard and
more so the judgment dated 31.7.2009 does not amount to any stigma
regarding any of the Judges and hence re-hearing of the case would be
nothing but an exercise in futility. The learned ASC further argued that
entire superstructure raised on the foundation was based on the
actions of General (Retd.) Pervez Musharraf taken between 3.11.2007 to
16.12.2007 which were declared unconstitutional, null and void and
therefore, no one can claim and say that such a superstructure was
Constitutional and legal. It is mentioned that none of the advocates on
behalf of applicants has supported the PCO and subsequent action of
General (Retd.) Pervez Musharraf. The learned Sr. ASC on behalf of
caveat also referred to the provisions as enumerated in Order XXV Rule
9 of the Supreme Court Rules which, inter alia, provides that notice
shall be served on all persons directly affected and on such other
persons as the Court may direct but no such direction was ever issued
by the Court. It is also contended that the judgment dated 31.7.2009 is
a judgment in rem and, therefore, the applicants have no locus standi to
make such petitions. In order to substantiate his version case titled
Federation of Pakistan v. Qamar Hussain Bhatti (PLD 2004 SC 77) has
been referred. Mr. Rashid A. Rizvi, learned Sr. ASC urged with
vehemence that in the past Constitutional history no affected Judges
have ever pleaded their cause for seeking service as a Judge which
otherwise is neither desirable nor in accordance with the principles
relating to morality and ethics. It is further argued that the applicants
had not challenged PCO and the verdict given in case titled Tika Iqbal
Muhammad Khan v. General Pervez Musharraf Chief of Army Staff (PLJ
2008 SC 446) rather supported the judgment of 31.7.2009 and once the
judgment is supported no particular observation can be challenged or
any prayer for its review can be made because the judgment has been
supported in its entirety and had the applicants been aggrieved by the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
16
judgment of 31.7.2009 they would have challenged it. The learned Sr.
ASC also pointed out that Order XXVI Rule 1 of the Supreme Court
Rules hardly renders any assistance to the case of applicants. The
learned Sr. ASC has referred cases titled Pir Bakhsh v. Chairman,
Allotment Committee (PLD 1987 SC 145 at 166), Ghulam Muhammad
v. Saeed Ahmad (1986 CLC 1048), Federation of Pakistan v. Qamar
Hussain Bhatti (PLD 2004 SC 77) in support of his above mentioned
contentions.
16.
Mr. Hamid Khan, learned Sr. ASC also entered appearance
on behalf of caveat (Sindh High Court Bar Association) and supported
the arguments as advanced by Mr. Rashid A. Rizvi, learned Sr. ASC
with the further submission that the applicants were fully aware
regarding the proceedings and they could have joined it at appropriate
stage and before the pronouncement of judgment dated 31.7.2009. This
was not done for the reasons best known to them. Mr. Hamid Khan,
learned Sr. ASC also invited the attention of this Court to Order XXVI
Rule 9 of the Supreme Court Rules and submitted that it cannot be
interpreted in such a manner to infer that each party can file a separate
review without having sufficient lawful justification which is lacking in
this case. It is also argued that the appointments of certain Judges were
declared unconstitutional and unlawful as a sweep and consequence of
the judgment impugned and therefore, no one can claim as a matter of
right that he is an aggrieved person as it would be against the fall out of
judgment which is binding in its nature in view of the provisions as
enumerated in Article 189 of the Constitution. It is also contended that
no new principle whatsoever has been enunciated but on the contrary
the well entrenched legal principles qua appointment of Judges in cases
titled Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) have been
followed. In case of enunciation of any new principle the applicants may
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
17
have some grievance but now they cannot be considered aggrieved in
any manner. According to Mr. Hamid Khan, learned Sr. ASC the
applicants are seeking review of the judgment delivered in cases titled
Al-Jehad Trust, Asad Ali (supra) and Ghulam Hyder Lakho v. Federation
(PLD 2000 SC 179) which cannot be allowed at this belated stage. It is
also contended that case law mentioned by Mr. Wasim Sajjad, learned
Sr. ASC cannot be made applicable as there is a difference between
review and appeal which was not kept in view while referring to the case
law. It is also pointed out that in case titled Al-Jehad Trust (supra) the
affected Judges from Peshawar and Sindh were never impleaded as
party and impleading of the applicants as a party would set a new
precedent which would not be in consonance with the dictum laid down
in the cases of Al-Jehad Trust, Asad Ali and Ghulam Hyder Lakho
(supra) but rather it would be contrary and in violation thereof. It is also
mentioned that individuals are not important but it is the national
interest which is supreme and the same has been kept intact in the
judgment dated 31.7.2009 which being historic one hardly needs any
kind of review as each and every aspect of the controversy brought
before the Court has been dilated upon and decided in a comprehensive
manner. Mr. Hamid Khan, learned Sr. ASC further contended that some
time we have to go by legally permissible presumption and argued that
the order dated 03.11.2007 passed by learned seven Members Bench
restraining all the Judges of superior Courts to take oath was in the
knowledge of applicants and by no stretch of imagination it can be said
that they remained unaware. It is contended that for the sake of
arguments if their ignorance is accepted even then there could be no
justification for their conduct after taking oath as they could have taken
appropriate action in accordance with the order passed by seven
Members Bench when it came to their knowledge which was not done
and it speaks volumes about their conduct. The learned Sr. ASC also
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
18
contended that country remained in turmoil for a considerably long
time and such instances must not be repeated again. For the first time
in the history this has been checked by this Court in judgment dated
31.7.2009. Mr. Hamid Khan, learned Sr. ASC submitted in a categoric
manner that it is not his case that no affected person can file a review
who was not a party in the proceedings but the case of applicants
cannot be equated to that of an ordinary case being very exceptional
and in view of special circumstances and sweeping effects of the
judgment. The controversy before the Court was in respect of the
unconstitutional acts of General (Retd.) Pervez Musharraf from
3.11.2007 to 15.12.2007 and the judgment in Tika Iqbal Muhammad
Khanâs case (supra) validating the same were either to be upheld or
declared unconstitutional. Whenever a judgment of this generality was
passed, it would not be a few applicants who would be affected, rather
innumerable others would be affected and the right of review cannot be
conferred on each of them. Mr. Hamid Khan, learned Sr. ASC has also
invited our attention to Article 112 of the Qanun-e-Shahadat, Order
1984. The learned Sr. ASC has referred the case law enunciated in Al-
Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Asad Ali v.
Federation of Pakistan (PLD 1998 SC 161), Ghulam Hyder Lakho v.
Federation of Pakistan (PLD 2000 SC 179), Hussain Bakhsh v.
Settlement Commissioner (PLD 1970 SC 01), Jibendra Kishore etc v.
Province of East Pak (PLD 1957 SC 09).
17.
Mr. Muhammad Akram Sheikh, learned Sr. ASC entered
appearance for caveat (Nadeem Ahmed, Advocate) and pointed out that
law qua appointment regarding Judges has already been declared in
case of Al-Jehad Trust (supra) wherein it was held that even the
consultation with Honâble Acting Chief Justice of Pakistan was not
constitutional and lawful. It is next contended that the CMAs are not
maintainable as no rights whatsoever were accrued in favour of the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
19
applicants and besides that foundation of their claim is not based on
constitutional and valid grounds and as such right of hearing would not
be available to them. Mr. Muhammad Akram Sheikh, learned Sr. ASC is
also of the view that, however, the rights of aggrieved persons and
individuals can be taken care of in view of the provisions as enumerated
in Article 188 of the Constitution and Order XXVI of the Supreme Court
Rules but the cases of applicants are absolutely distinguishable and
hence the above mentioned provisions cannot render any assistance to
their cause. It is pointed out that the powers as conferred upon this
Court under Article 188 and the Rules made thereunder must be
utilized for the benefit of the people of Pakistan and the doors for
aggrieved persons should not be closed in view of the provisions of
review as provided under the law. The learned Sr. ASC has relied upon
cases titled Rustomji v. Offl. Liquidator (AIR 1919 Lahore 180),
Muhammad Rafique v. Maryam Bibi (1996 SCMR 1867), Hameed
Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185).
18.
Mr. Shah Khawar, learned Acting Attorney General for
Pakistan, entered appearance on behalf of Federation and submitted
without any ambiguity that CMAs are not competent and all the actions
taken by Chief of Army Staff were unconstitutional and ab initio void as
declared by this Court in its judgment dated 31.7.2009 and in
consequence thereof the Review petitions are not maintainable. It is also
argued that notice was issued to General (Retd.) Pervez Musharraf. If he
wished to join the proceedings, he could do that. Similarly, notice was
also meant for all others concerned, who could join those proceedings.
Clearly, ample opportunity was provided to all the applicants. In the
light of Article 188 and rules, because they were not party to the
proceeding before the Court, technically and legally they had no right to
file review. The judgment of the fourteen-Member Bench had interpreted
the Constitution and settled a principle of law, it had the force of law
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
20
and was binding upon all concerned and therefore no exception can be
taken.
19.
We have carefully examined the respective contentions as
agitated on behalf of the parties in the light of relevant provisions of the
Constitution, law and rules made thereunder. It is to be noted that
there are two categories of Judges i.e. the first comprising those who
were Judges of this Court or of any of the High Courts on 3.11.2007
and the second category is of those persons who were notified as
Judges of this Court or of the High Courts between 4.11.2007 and
23.3.2009 on the basis of âconsultationâ with Abdul Hameed Dogar, J.,
purporting to act as Chief Justice of Pakistan. The need for classifying
the applicants into the aforesaid categories will be apparent from the
discussion below.
20.
It is to be kept in mind that the judgment of 31.7.2009 has,
in clear and unequivocal terms, declared the actions of 3.11.2007 taken
by General (Retd.) Pervez Musharraf to be un-Constitutional and void
ab initio. In none of the petitions before us, has any challenge been
made against this declaration which is the foundation and bedrock of
the judgment. The other aspects of the judgment naturally and logically
flow as a consequence of such declaration. Once this premise is
understood, the adjudication of the petitions before us becomes simple.
21.
We first take up for consideration the case of the petitioners
in the second category noted above. These petitioners were notified as
Judges on the basis of âconsultationâ with Mr. Justice Abdul Hameed
Dogar. For reasons which have been elaborately set out in the judgment
sought to be reviewed, it is clear that Mr. Justice Dogar was not the
Chief Justice of Pakistan. The petitioners in this category have not
claimed or even remotely suggested that Mr. Justice Dogar was the
Chief Justice of Pakistan. The most which has been urged by them is
that he was the de facto Chief Justice of Pakistan and, therefore,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
21
consultation with him was sufficient to fulfill the requirement of Article
193 of the Constitution. This contention is misconceived and wholly
without merit. We need go no further than the case titled Al-Jehad
Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324) to
debunk the argument. The ratio in the said precedent has been followed
and reiterated in the cases titled Malik Asad Ali and others Vs.
Federation of Pakistan and others ( PLD 1998 SC 161) and Ghulam
Hyder Lakho Vs. Federation of Pakistan ( PLD 2002 SC 179). In the
light of these precedents, there remains no doubt whatsoever as to the
exact meaning of Article 193 of the Constitution viz. that none other
than the Chief Justice of Pakistan and not even an Acting Chief Justice
of Pakistan, who is a Constitutional functionary, can be the consultee
in terms of the aforesaid Constitutional provision. It therefore follows
(consistent with established precedent) that the persons comprised in
the second category mentioned above were not Judges of the High
Courts regardless of the fact that they purported to occupy such office.
In the circumstances, we are not in any doubt that they do not possess
locus standi to file the CMAs or review petitions, the sole object of which
is to seek an order that they were validly appointed as Judges and are
entitled to hold such office.
According to Mr. Wasim Sajjad, learned Sr. ASC, pursuant to
acceptance of C.P. No.8 of 2009 the petitioners have been declared not
to be Judges and soon after the judgment impugned the petitioners in
CMA No.2745 of 2009 and the other persons falling in the second
category were removed from their offices by means of Notification No.
F.12(4)/2007-A.II-(Vol.II)(d) dated 2.8.2009. We have considered this
argument advanced by learned counsel but find little force to commend
it. Firstly, it is to be noted that the removal of the petitioners from the
office being occupied by them was a direct consequence of the finding
that the actions of General (Retd.) Pervez Musharraf taken on 3.11.2007
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
22
were void ab initio and secondly that the Notifications of those
petitioners who were appointed Judges of the High Courts between
3.11.2007 and 23.3.2009 had not been issued after âconsultationâ with
the Chief Justice of Pakistan as mandated by Article 193 of the
Constitution. These findings enunciate a principle of law and are based
on the interpretation of the relevant provisions in Part-VII of the
Constitution including Article 193, supra relating to the Judicature. The
same are binding in view of the provisions as envisaged in Article 189 of
the constitution which, inter alia, provide that any decision of the
Supreme Court shall, to the extent that it decides a question of law or is
based upon or enunciates a principle of law shall be binding on all
other Courts in Pakistan. The ultimate responsibility of interpreting the
law of the land is that of the Supreme Court. (Maroof Khan v. Damsaz
Khan NLR 1992 Civ. 97, Salah-ud-Din v. The State PLJ 1990 Cr.C. 270,
Malik Muhammad v. Jan Muhammad 1989 CLC 776, Abdul Ghaffar
Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358, Abdul Ghaffar Khan
v. Saghir Ahmed Aslam PLJ 1987 Lah. 384, Abdul Ghaffar Khan v.
Saghir Ahmed Aslam, etc 1987 LN 504, Roshan Ali v. Noor Khan PLD
1985 SC 228, Roshan Ali v. Noor Khan PLJ 1985 SC 370, Roshan Ali v.
Noor Khan 1985 PSC 734, Muhammad Khan v. Sanaullah PLD 1971
S.C.324, Khalid Rashid v. State PLD 1972 Lah. 729, Ali Muhammad v.
Mahmood-ul-Hassan PLD 1968 Lah. 329, Hashim v. State PLD 1963
Lah. 82). Where the Supreme Court deliberately and with the intention
of settling the law, pronounces upon a question, such pronouncement
is the law declared by the Supreme Court within the meaning of this
article and is binding on all Courts in Pakistan. It cannot be treated as
mere obiter dictam. Even obiter dictam of the Supreme Court, due to the
high place which the Court holds in the hierarchy of courts in the
country, enjoy a highly respected position as if it contains a definite
expression of the Courtâs view on a legal principle, or the meaning of a
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
23
law. (M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966
Dacca 296, Nagappa v. Ramchandra AIR 1946 Bombay 365,
K.C.Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173, K.P.
Doctor v. State of Bombay AIR 1955 Bom. 220, Bimla Devi v.
Chaturvedi AIR 1953 All. 613). In the case of non-implementation of the
judgment it will have to be found out as to who is responsible for not
implementing it. Article 190 of the Constitution is a mandatory
provision under which there is no alternative for the Executive but to
act in aid of the Supreme Court. Persons identified as responsible for
non-implementation of the judgment can be punished by the Supreme
Court for contempt for disobedience of its judgment. (Al-Jehad Trust v.
Federation of Pakistan PLD 1997 SC 84, Abdul Hameed v. Special
Secretary, Education Schools 2007 SCMR 1593, Abdul Waheed v.
Ramzanu 2006 SCMR 489, Nazar Abbas Jaffri v. Secretary to
Government of the Punjab 2006 SCMR 606, Muhammad Sharif v.
Settlement Commissioner 2007 SCMR 707, Shaukat Baig v. Shahid
Jamil PLD 2005 SC 530). Such judgments, to the extent of the legal
principle settled therein, are judgments in rem. Courts as also parties
litigating in respect of matters covered by legal principles enunciated by
the Supreme Court, can at best, distinguish the precedent of this Court
but the Courts before which such litigation arises cannot disregard the
legal principle so enunciated. This Court, however, by virtue of powers
under Article 188 of the Constitution may review any judgment
pronounced or any order made by it. In the present case, since there is
no challenge made to the findings and declarations recorded in the
judgment of 31.7.2009 in respect of the actions of 3.11.2007 and
âconsultationâ in terms of Article 193 of the Constitution, the true
meaning of the relevant Articles of the Constitution, has been laid
down. Such enunciation affects not only the petitioners but others as
well to lesser or greater degrees. To illustrate this point, the case of all
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
24
those litigants who have lost legal actions in the High Courts and in this
Court between 4.11.2007 to 23.3.2009, can be taken note of. Such
litigants are directly and adversely affected by the judgment of
31.7.2009. This is so because they have been prevented from agitating
those matters on the ground that the Courts which rendered decisions
against them were coram non judice. If the argument advanced on
behalf of the petitioners is accepted, there will be no justification for not
allowing each one of the said litigants from seeking review of the
judgment of 31.7.2009 on the ground that they were not impleaded as
parties or afforded an opportunity of hearing before affecting their rights
to their detriment. Such losing litigants as aforesaid, have a much
better case than the petitioners.
22.
We next take up for consideration the cases set up by those
petitioners who fall in the first category mentioned above. At the outset,
it is to be stated that they too have not challenged the findings and the
declaration recorded in the judgment of 31.7.2009 to the effect that the
actions taken by General (Retd.) Pervez Musharraf on 3.11.2007 were
un-Constitutional and void ab initio. In so far as the Honâble Judges
who fall within the first category are concerned, their cases stand
entirely on different footing and are distinguishable from the cases of
Honâble Judges who were appointed in superior judiciary in violation of
the Constitution and precedent law already discussed in preceding
paragraphs. However, they have deliberately and knowingly violated the
order of seven Members Bench and took oath not only in flagrant
violation thereof but from Justice Abdul Hameed Dogar who was never
and could have never been appointed as Chief Justice of Pakistan for
the reasons mentioned in the judgment impugned. They have acted in a
highly prejudicial, unconstitutional and contemptuous manner fully
knowing the implications and consequences of non-compliance of the
said order being mandatory in nature and binding upon them pursuant
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
25
to the provisions as enumerated in Article 189 of the Constitution
which has been discussed in the preceding paragraphs. After having
taken into consideration all the pros and cons of the issue it was held in
the judgment impugned as follows:-
(iv)
the Judges of the Supreme Court of Pakistan, if any,
the Chief Justices of the High Court, if any and the Judges
of any of the High Courts, if any, who stood appointed to the
said offices prior to 3.11.2007 but who made oath or took
oath of their respective offices in disobedience to the order
passed by a Seven Member Bench of the Supreme Court of
Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in
Constitution Petition No.73 of 2007, shall be proceeded
against under Article 209 of the Constitution. The Secretary
of the Law Division of the Government of Pakistan shall take
steps in the matter accordingly.
Provided that nothing hereinabove shall affect those
Judges who though had been appointed as Judges/Chief
Justices of any of the High Courts between 3.11.2007 to
22.3.2009 but had subsequently been appointed afresh to
other offices in consultation with or with the approval of or
with the consent of the Constitutional Chief Justice of
Pakistan.â
It was their Constitutional, legal and moral duty to defend the
Constitution but amazingly they took oath under the PCO having no
Constitutional and legal sanctity. In such view of the matter to check
such transgressions and blatant violation of the order passed by this
Court, there was no escape but initiation of action under Article 209 of
the Constitution and there is absolutely no lawful justification
warranting interference in the judgment impugned. We are deliberately
withholding our comments lest it may not prejudice the case of Honâble
Judges in future before the Supreme Judicial Council.
23.
In view of what has been stated herein above it is not
necessary to discuss all the arguments advanced by Mr. Wasim Sajjad,
learned Sr. ASC on behalf of applicant (Khurshid Anwar Bhinder in
C.M.A. No.2745/2009) and adopted by learned counsel representing
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
26
other applicants, however, we are dilating upon some of the contentions
to show that absolutely no case of review is made out and the petitions
are not maintainable.
24.
First of all we intend to deal with the prime contention of
Mr. Wasim Sajjad, learned Sr. ASC that in view of the provisions as
enumerated in Article 188 of the Constitution and Order XXVI of the
Supreme Court Rules these CMAs are maintainable and the applicants
cannot be knocked out on sheer technicalities which has always been
considered undesirable. Article 188 of the Constitution is reproduced
herein below for ready reference:-
â188. Review of judgments or orders by the Supreme
Court. The Supreme Court shall have power, subject to
the provisions of any Act of (Majlis-e-Shoora (Parliament)]
and of any rules made by the Supreme Court, to review
any judgment pronounced or any order made by itâ.
25.
A bare perusal would reveal that it has been couched in a
very simple and plain language hardly necessitating any scholarly
interpretation. It, inter alia, provides that the Supreme Court has power
to review its judgment or order subject to the provisions of any Act of
Parliament and any rule made by the Supreme Court itself. (The
contention whether Supreme Court Rules, 1980 are subservient to the
Constitution have been discussed in later part of this judgment) It is to
be noted that no Act of Parliament whatsoever has been promulgated
and thus it can reasonably be inferred that legislature does not want to
restrict or impose any condition on the powers conferred upon this
Court under Article 188 of the Constitution. In fact the words âsubject
to the provisions of any Act of (Majlis-e-Shoora/Parliament) and of any
rules made by the Supreme Court" are indicative of the fact that
indirectly the powers so conferred have been enhanced and there was
absolutely no intention for curtailment of such powers conferred upon
this Court under Article 188 of the Constitution. The point under
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
27
discussion has been examined by this Court in case titled Evacuee
Trust Property Board v. Hameed Elahi (PLD 1981 SC 108) with the
following observations:-
â6.
Nothing in these Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to make
such orders as may be necessary for the ends of justice or
to prevent abuse of the process of the Court. Now, as we
observe d, âa litigant should not suffer on account of the
mistakes or errors of the Court, and the corollary of this
principle is that the Court should have the inherent power
to correct its errors. The said rule only clarifies in terms
that this Court has the inherent power to make such orders
as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.â There is no ambiguity
about these words, and if the respondentâs plea be true, he
has brought his case within the meaning of the said rule.
Additionally, the said rule was not framed for first
time by this Court. It is almost verbatim reproduction of
section 151 of the Civil Procedure Code and of section 561-
A of the Criminal Procedure Code, and these two sections
(which in turn are in pari materia with each other) have
been part of our procedural laws for generations, so that
there is no ambiguity about of our procedural laws for
generations, so that there is no ambiguity about them,
because they have been repeatedly construed by the
superior Courts. Thus, for example, taking first, section 151
of the Civil Procedure Code, the Indian Supreme Court held
in Keshardeo Chamaria v. Radha Kissen Chamaria and
others (AIR 1953 SC 23) that a Court could in the exercise
of its powers under section 151 re-call an order passed by it
without notice to the parties concerned. Next, as to section
561-A of the Criminal Procedure Code this Court held in
Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD
1970 SC 335) that a Court was competent under section
561-A to re-call an order passed by it without notice to the
parties concerned. However, as this judgment was
pronounced long after the rules of this Court had been
framed in 1956, the case-law on section 561-A before 1950
would be more relevant. We say 1950 and not 1956,
because the said rule was originally enacted as rule 6 of
Order LIII of the Federal Court Rules of 1950. And on the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
28
repeal of those rules of 1956, the same provision was re-
enacted in the present rules as the said rule.â
26.
We are conscious of the fact the principles of CPC also need
to be examined and thus the provisions as enumerated in Order XLVII
Rule 1 of CPC would require consideration qua its application which is
reproduced herein below for ready reference:-
â1.
Application for review of judgment.- (1) Any
person considering himself aggrievedâ
(a)
by a decree or order from which an appeal is
allowed, but from which no appeal has been preferred,
(b)
by a decree or order from which no appeal is
allowed, or
(c)
by a decision on a reference from a Court of
Small Causes,
and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence, was
not within his knowledge or could not be produced by him
at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face
of the record, or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against
him, may apply for a review of judgment to the Court
which passed the decree or made the order.
(2)
A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where
the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the
review.â
27.
A bare perusal would reveal that the salient features of
Order XLVII CPC are as under:-
(i)
discovery of new and important matter or evidence
which after the exercise of due diligence, was not
within his knowledge or could not be produced by
the petitioner at the time when the decree was
passed or order made; or
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
29
(ii)
on account of some mistake or error apparent on
the face of the record; or
(iii)
for any other sufficient reason. [2003 CLC 1355)
28.
We have examined the salient features and grounds as
enumerated in Order XLVII Rule 1 CPC and we are of the view in so far
as these CMAs are concerned that neither there is discovery of new
important fact nor some mistake or error has been pointed out and
besides that no sufficient reasoning has been advanced on the basis
whereof the principle as enunciated in Order XLVII Rule 1 CPC can be
made applicable. It may not be out of place to mention here that
âsufficient causeâ is not susceptible of an exact definition and no hard
and fast rule can be laid down to cover all possible cases. Each case
must be judged upon its merits and its peculiar circumstances. The words
âsufficient causeâ mentioned in O. XLVII, R.1 of the Code do not mean
any and every cause but it means any reason sufficient on ground at
least analogous to those stated in the rule. The view that the âsufficient
groundsâ need not necessarily be construed ejusdem generic with the
words preceding cannot be accepted as laying down the correct law.â
Suruj Mian v. Asst. Manager, Govt. Acquired Estate (PLD 1960 Dacca
1045). None of the grounds urged by the petitioners attracted the
provisions as enumerated in Order XLVII CPC and thus CMAs cannot
be declared competent. A similar proposition was examined in Yusuf Ali
v. State (PLD 1971 SC 508) with the following observations:-
âThe right of review granted by Article 62 of the
Constitution of 1962 is subject not only to the provisions of
any Act of the Central Legislature but also to the provisions
of any rules made by the Supreme Court and the Rules of
the Court specifically provide by Order XXVI that âsubject to
the law and practice of the Court, the Court may review its
judgment or order in a civil proceeding on grounds similar
to those mentioned in Order XLVII, rule 1 of the Code and
in a criminal proceeding on the ground of an error apparent
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
30
on the face of the recordâ. Where none of the grounds urged
by the petitioner come within the ambit of this rule no valid
ground could be said to have been made out for the review
of the judgment.â (Emphasis provided)
29.
It may be mentioned that the words âany other sufficient
reasonsâ used in Order XLVII Rule (1) (c) CPC means a reason sufficient
on grounds at least analogous to those mentioned in a categoric
manner in clauses (a), (b), and (c) of Rule 1 of Order XLVII CPC. âA
review, as has been pointed out by this Court in the case of Lt. Col.
Nawabzada Mohammad Amir Khan v. The Controller of Estate Duty
Government of Pakistan, Karachi and another (PLD 1962 SC 335) is by
its very nature not an appeal or a rehearing merely on the ground that
one party or another conceives himself to be dissatisfied with the
decision of this Court. It can only be granted for some sufficient cause
akin to those mentioned in Order XLVII, rule 1 of the Code of Civil
Procedure the provisions whereof incorporate the principles upon which
a review can be granted.â In this regard we are fortified by the dictum
laid down in the following authorities:-
i)
Chhaju v. Neki (AIR 1922 PC 112),
ii)
Iftikhar Hussain Shah v. Azad Govt. of The State of J
& K (PLD 1984 SC AJ&K 111),
iii)
Muhammad Ghaffar v. State (1969 SCMR 10)
30.
In our view decision once given cannot be reviewed subject
to certain legal exceptions pursuant to the provisions as enumerated in
Order XLVII Rule 1 CPC, scope whereof can neither be enlarged nor it
can be farfetched in such a manner as argued by the learned ASCs for
the petitioners in view of the language as employed in Order XLVII Rule
1 CPC its application would be only upto that limited extent and it
cannot be unlimited. As mentioned above, the powers of review are not
wide but definite and limited in nature. âIt has to be confined to the four
corners of the relevant rules or the phrase or for any other sufficient
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
31
reason even the review jurisdiction as visualized must be traced to
Order XLVII which contains the prescribed conditions and limitations in
terms of the requirement of the section and more so power to review is
not an inherent power. On a proper consideration it will be found that
the principles underlying the limitations mentioned in Order XLVII, rule
1, Civil Procedure Code, are implicit in the nature of review jurisdiction
and cannot be equated to that of a technical obstruction.â In this regard
the case law as enunciated in the following cases can be referred:-
Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah. 596),
Prahlad Krishna Kurne AIR 1951 Bom. 25, Hajee Suleman
v. Custodian Evacuee Property (AIR 1955 Madhya Bharat
108, Rukan Din and others v. Hafiz-ud-Din and another
(PLD 1962 Lah. 161), Mohd. Amir Khan v. Controller of
Estate Duty PLD (1962 SC 335) Abdul Jabbar v. Collector
of Central Excise and Land Customs Review Application
No.15 of 1959 (Quetta) unreported considered.
31.
Mr. Justice Pir Hamid (as he then was) while discussing the
provisions as enumerated in Order XLVII Rule 1 CPC has opined that âI
for my part would be inclined to hold that a review is by its very nature
not an appeal or a rehearing merely on the ground that one party or
another conceives himself to be dissatisfied with the decision of this
Court, but that it should only be granted for some sufficient cause akin to
those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure, the
provisions whereof incorporate the principles upon which a review was
usually granted by Courts of law in England. The indulgence by way
review may no doubt be granted to prevent remediable injustice being
done by a court of last resort as where by some inadvertence an
important statutory provision has escape notice which, if it had been
noticed, might materially have affected the judgment of the Court but in
no case should a rehearing be allowed upon merits.â (Emphasis
provided). (Muhammad Amir Khan v. Controller of Estate Duty PLD
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
32
1962 SC 335, Young v. Bristol Aeroplane Company Limited (1944) 1 K B
718, Gower v. Gower (1950) 1 A E R 804 distinguished).
32.
Mr. Justice Ghulam Mujaddid Mirza (as he then was) has
also examined the provisions as enumerated in section 114 CPC and
Order XLVII Rule 1 CPC in the light of dictum laid down in H. M. Saya
& Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD
1969 SC 65) as under:-
â2.
I called upon Mr. K. H. Khurshid, learned counsel for
the petitioners to first convince me as to how this petition
was competent when the petitioners were not a party to the
writ proceedings. Learned counsel submitted that as the
petitioners had been adversely affected by the order of this
Court dated the 5th of December 1973, they are, therefore,
aggrieved persons and hence have a locus standi to file this
petition in the present form. Learned counsel relied on PLD
1971 SC 130, in order to prove that the petitioners were
aggrieved persons but in my view this authority would not
be of much help to him because in this case the question
examined was as to who would be the person aggrieved
within the ambit of Article 98 of the late Constitution of
Islamic Republic of Pakistan whereas in the instant case the
petitioners have to bring their case within the purview of
Order XLVII, rule 1, C.P.C. Learned counsel tried to avail of
section 114, C.P.C. which deals with the power of review
and argued that the words âany person considering himself
aggrievedâ were wide enough to include even those persons
who initially were not a party to the proceedings but at a
later stage were affected by an order adverse to their
interest. My attention was invited to Order XLVII, rule 1,
C.P.C. and it was submitted that even in this provision the
above mentioned words have been repeated, and the
learned counsel, therefore, emphasized that these words
would cover the case of even a stranger, the only essential
requisite being that he must consider himself to be an
aggrieved person, the test for which, according to the
learned counsel would be subjective. Reliance was also
placed on H.M. Saya & Co., Karachi v. Wazir Ali
Industries Ltd. Karachi and another (PLD 1969 SC 65) with
special reference to the following observations:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
33
There can be no dispute that the only party which
was adversely affected by the order of ad interim injunction
was respondent No.1. We are satisfied that Saya & Co.,
deliberately omitted to make them parties with the intention
of avoiding a contest. They knew fully well that the relief
sought were really directed against Wazir Ali Industries
Limited, and their bankers. A stranger to a suit or a
proceeding is not prohibited by the Code of Civil Procedure
from filing an appeal from an order passed therein. It is true
that there is no express provision permitting such party to
prefer an appeal against such an order. This omission,
however, cannot be understood to amount to prohibition.
The Court ought not to act on the principle that every
procedure is to be taken as prohibited unless it is expressly
provided for. To give such a meaning to the omission would
result in grave injustice. The facts of this case are clear
example in point. The Court should proceed on the principle
that every procedure which furthers administration of
justice is permissible even if there is no express provision
permitting the same. Section 96 of the Civil Procedure Code
deals with appeals from decrees and section 104 deals with
appeals from orders. These provisions do not in terms say
who is entitled to prefer an appeal. The Code, however, lays
down that it is the decree or the order that has to be
appealed against. If the decree or order appealed from
adversely affects a person he should be permitted to
challenge the same in appeal even if he was not made a
party to the original suit for proceeding.â
and it was argued that the principle laid down in this case
was fully applicable to the present petition and hence not
only that the petition was competent but also that the order
dated the 5th of December 1973, of this Court deserves to be
reviewed.
3.
I have very carefully gone through this decision and
find that the law laid down by the Supreme Court is only
with regard to the appellate proceedings, whereas the scope
of review is much different and the review jurisdiction is
substantially and materially different to the appellate
jurisdiction, because it can be only utilized on the specific
grounds mentioned in Order XLVII, rule 1, C.P.C.
(Emphasis provided). In this connection it would be
worthwhile to reproduce in extenso rule 1 of Order XLVII,
C.P.C. which is to the following effect:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
34
â(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at
the time when the decree was passed or order made, on
account of some mistake or error apparent on the face of
the record, or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against
him may apply for a review of judgment to the Court which
passed the decree or made the order.â
The important words to be noted in this connection
are âdesires to obtain a review of the decree passed or order
madeâ. These words leave no room for doubt that the
remedy of review could be availed of only by a person who
initially was a party to the proceedings in which either a
decree had been passed or an order had been made against
him, otherwise the very essence of the grounds on which a
review would be competent, would be rendered ineffective. It
is, therefore, obvious that a stranger to the proceedings
would not be permitted to avail of the grounds on which a
review petition would be competent. I, therefore, do not
agree with the contention of the learned counsel that a
wider interpretation of the words âany person considering
himself aggrievedâ would be the only proper and reasonable
interpretation. On the other hand, I find that these words
would have to be read and interpreted in the light of the
main rule and when so done in my view their operation
would be restricted and would cover the case of only those
persons who initially were party to the proceedings.â
(Emphasis provided). (Qaim Hussain v. Anjuman Islamia
PLD 1974 Lah. 346).
33.
We have no reason to disagree with the said conclusion
which also finds support from the case titled Muhammad Rafiq v.
Marium Bibi (1996 SCMR 1867). In the said case âthe petitioners filed
review petition for review of the Courtâs order dated 25.11.1991 passed
in C.A.No.87 of 1987 and C.A.No.698 of 1990. The petition was returned
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
35
to the petitioners with the observation that the review was placed before
the Acting Chief Justice and his Lordship has been pleased to pass the
following order:---
âParties not before this Court when the judgment was
passed cannot be permitted to file a review petition. This
review petition cannot be entertained.â
The petitioners, therefore, submitted an application for reconsideration
under Order V, Rule 2 of the Supreme Court Rules which was heard by a
Bench of three Judges (Mr. Justice Dr. Nasim Hasan Shah, C.J., Mr.
Justice Saleem Akhtar and Mr. Justice Manzoor Hussian Sial) and held
that âwe do not think this is a fit case for reconsideration of the earlier
order refusing to entertain the review petition.â(Order dated 14.2.1994
passed in C.M.A. No.1-L of 1992). In the case of Lt. Col. Nawabzada
Muhammad Amir Khan v. The Controller (PLD 1962 SC 335) it was held
that even if there be material irregularity but there is no substantial
injury consequent thereon, the exercise of power of review to alter the
judgment would not necessarily be required as the irregularity must be of
such a nature as converts the process from being one in aid of justice to a
process that brings about injustices. In the same case it was held that to
permit a review on the ground of incorrectness would amount to granting
the Court the jurisdiction to hear appeals against its own judgments. In
the case of Raja Prithwi Chand Lal Chodhry v. Sukhraj Rai and others
(AIR 1941 FC 1) it was observed that the Federal Court will not sit as a
Court of Appeal from its own decisions nor will it entertain applications to
review on the ground only that one of the parties in the case conceives
himself to be aggrieved by the decision and that the Federal Court will
exercise its power of review for the purpose of rectifying mistakes which
have crept in.(Emphasis provided). In the case of Syed Muhammad Zaki
v. Maqsood Ali Khan (PLD 1976 SC 308) it was observed that merely
because a decision of case is erroneous per se is not a ground to justify
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
36
its review for what would seriously impair the finality attaching to the
judgment of this Court which allowed the apex of the judicial system, but
if there be found a material irregularity in the decision which converts the
process from being one in aid of justice to a process which brings about
injustice, or if the decision is in conflict with the law of the land then it
would be the duty of the Court to mend the error.â It is well settled by
now that âwhere the decision sought to be reviewed is a conscious and
deliberate decision for which full reasons are given in the impugned
judgment. The petitioner may or may not agree with those reasons. But
where a conscious and deliberate decision had been made with regard to
the nature of orders which it was empowered to pass under a provision
of law only because another view with regard thereto was canvassed
could not and did not constitute a ground for review.â (Muhammad
Saifullah Khan v. Federation of Pakistan PLD 1990 SC 79).
34.
The CMAs have been argued in oblivion of the fact that
âright of appeal and review are not analogous as an appeal is, review is
not the continuation of same proceedings, a person not party to
proceeding has no right to file review. The two sub-rules of R.1 read
together lead to this conclusion. Sub-rule (2) begins with the words âparty
who is not appealing. Sub-rule (1), no doubt, begins with the words âany
person considering himself aggrieved.â But R.(1), read as a whole
persuade to take the view that a the words âa party who is not
appealingâ cannot be kept confined to sub-r (2) alone and cannot but we
read in sub-r (1) also for the sake of consistency, so that the expression
âpersonâ in the opening words of sub-r(1) can only mean a person who is
a party in the concerned suit or proceeding. A person who is a stranger to
a suit or proceeding cannot be a person aggrieved by the decision in the
suit or proceeding.â (Emphasis provided). (Khan Muhammad v. Injuman
Islamia 1987 CLC 1911).
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
37
35.
On the touchstone of the criterion as laid down in the above
mentioned cases we are firmly of the view that allowing the review
applications would not be in aid of justice and besides that the
judgment impugned is not in conflict with the Constitution or law of the
land in any manner and hence no lawful justification is available for its
review as it has protected, preserved and defended the Constitution
being supreme law of the land.
36.
After having discussed Article 188 of the Constitution,
Order XXVI Rule 1 of the Supreme Court Rules and Order XLVII Rule 1
CPC, now we intend to discuss the point as canvassed at bar that the
Supreme Court Rules are subservient to the Article 188 of the
Constitution by which unbridled powers qua review has been conferred
upon this Court. In order to appreciate the said point of view it seems
proper to examine the provisions as enumerated in Article 188 of the
Constitution from another angle to determine i.e. the legal status of the
Supreme Court Rules. The language as employed in Article 188 of the
Constitution is very plain and simple and there is absolutely no
confusion on the basis whereof different interpretation could be made.
âA fundamental principle of constitutional construction has always been
to give effect to the intent of the framers of the organic law and of the
people adopting it. As has been aptly observed, âthe pole star in the
construction of a Constitution is the intention of its makers and
adopters.â When the language of the statute is not only plain but admits
of but one meaning, the task of interpretation can hardly be said to
arise. It is not allowable to interpret what has no need of interpretation.
Such language best declares, without more, the intention of the law-
givers, and is decisive of it. The rule of construction is âto intend the
Legislature to have meant what they have actually expressedâ. It matters
not, in such a case, what the consequences may be. Therefore if the
meaning of the language used in a statute is unambiguous and is in
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
38
accord with justice and convenience, the Courts cannot busy themselves
with supposed intentions, however admirable the same may be,
because, in that event they would be travelling beyond their province
and legislating for themselves. But if the context of the provision itself
shows that the meaning intended was somewhat less than the words
plainly seem to mean then the Court must interpret that language in
accordance with the indication of the intention of the Legislature so
plainly given.â (Shah Jahan Begum v. Baloch PLD 1975 Lahore 390, Faiz
Muhammad v. Soomar PLD 1972 Karachi 459), Abdul Hameed v.
Municipal Committee PLD 1973 Lahore 339). It may be kept in view that
âthe first and primary rule of construction is that the intention of the
Legislature must be found in the words used by the Legislature itself. If
the words used are capable of one construction only then it would not
be open to the Courts to adopt any other hypothetical construction on
the ground that such hypothetical construction is more consistent with
the alleged object and policy of the Act.â (Ahmad Hassan v. Govt. of
Punjab 2005 SCMR 186). The judicial consensus seems to be that âthe
essence of law lies in its spirit, not in its letter, for the letter is significant
only as being the external manifestation of the intention that underlies it.
Nevertheless in all ordinary cases the Courts must be content to accept
the litera legis as the exclusive and conclusive evidence of the sententia
legis. They must, in general, taken it absolutely for granted that the
Legislature has said what it meant, and meant what it has said. Ita
scriptumest is the first principle of interpretation. Judges are not at liberty
to add to or take from or modify the letter of the law simply because they
have reason to believe that the true sententia legis is not completely or
correctly expressed by it. That is to say, in all ordinary cases grammatical
interpretation is the sole form allowable. It is no doubt true that the felt
necessities of the times must, in the last analysis, affect every judicial
determination, for the law embodies the story of a nationâs development
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
39
through the centuries and it cannot be dealt with as if it contains only
axioms and corollaries of a book of mathematics. A Judge cannot stand
aloof on chill and distant heights. The great tides and currents which
engulf the rest of men, do not turn aside in their course and pass the
Judge by. But at the same time, the Judge must remember that his
primary function is to interpret the law and to record what the law is. He
cannot allow his zeal, say, for social or agrarian reform, to overrun his
true function. He does not run a race with the Legislature for social or
agrarian reform. His task is a more limited task; his ambition a more
limited ambition. Of course in this process of interpretation he enjoys a
large measure of latitude inherent in the very nature of judicial process. In
the skeleton provided by the Legislature, he pours life and blood and
creates an organism which is best suited to meet the needs of society and
in this sense he makes and moulds the law in a creative effort. But he is
tied by the basic structure provided by the Legislature which he cannot
alter and to appeal to the spirit of the times or to the spirit of social or
agrarian reforms or for the matter of that any other reform for the purpose
of twisting the language of the Legislature is certainly a function which he
must refuse to perform.
The words of a statute must, prima facie, be given their ordinary
meaning. We must not shrink from an interpretation which will reverse
the previous law; for the purpose of a large part of our statue law is to
make lawful that which would not be lawful without the statute, or,
conversely, to prohibit results which would otherwise follow. Judges are
not called upon to apply their opinions of sound policy so as to modify the
plain meaning of statutory words but where, in construing general words
the meaning of which is not entirely plain there are adequate reasons for
doubting whether the Legislature could have been intending so wide an
interpretation as would disregard fundamental principles, then we may
be justified in adopting a narrower construction. At the same time, if the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
40
choice is between two interpretations the narrower of which would fail to
achieve the manifest purpose of the legislation, we should avoid a
construction which would reduce the legislation to futility and should
rather accept the bolder construction based on the view that Parliament
would legislate only for the purpose of bringing about an effective resultâ.
(Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). The
above
mentioned principles of interpretation have been followed in the
following authorities:-
Viscountess Rhondaâs Claim, (1922) 2 AC 339, p.365 by
Viscount Birkenhead, LC; Jurisprudence at p.152, 11th
Edn.; Motilal v. L.T. Comr, AIR 1951 Nag. 224, 225;
Thakorelal Amritlal Vaidya v. Gujarat Revenue Tribunal AIR
1964, Guj. 183, 187; Maxwell in Interpretation of Statues,
p.7 10th Edn. Satyanarain v. Buishwanth AIR 1957 Pat.
550, 554; Nokes v. Doneaster Amalgamated Collieries
(1940) AC, pp. 1014, 1022; Kanai Lal v. Parannidhi 1958
SCR 360; 367 AIR 1957 SC 907; 910-11; Municipal Board,
Rajasthan v. S.T.A.Rajasthan AIR 1955 SC 458, 464;
Bootamal v. Union of India, AIR1962 SC 1716, 1718, 1719;
Sirajul Haq v. S.C. Board AIR 1959 SC 205; (1857) 6 HL
Cas 61; 26 Lt. Ch. 473; 1901 AC, at pp. 102, 107 Collector
of Customs, Baroda v. Digvijayasinhji and others Mills AIR
1961 80 1549, 1551; Shri Ram v. State of Maharashtra, AIR
1961 SC 674, 678; AIR 1950 SC 165, 168; Madan Lal v.
Changdeo Sugar Mills, AIR 1958 Bom. 491, 495; AIR 1954
SC 749; (1955) 1 SCR 829, 836-7; AIR 1955 SC 376, 381;
AIR 1955 SC 504; Kanai Lal v. Parannidhi 1958 SCR 360,
367, AIR 1957 SC 907, 910-11; Municipal Board, Rajasthan
v. S.T.A. Rajasthan AIR 1955 SC 458,464; Jamat-i-Islami v.
Federation of Pakistan PLD 2000 SC 111; Muhammad Iqbal
v. Government of Punjab PLD 1999 Lah. 109, Province of
East Pakistan v. Noor Ahmad PLD 1964 SC 451, Collector of
Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600;
Shujat Hussain v. State 1995 SCMR 1249; Province of
Punjab v. Munir Hussian Shah 1998 SCMR 1326;
Interpretation of Statues 7th Edn. 1984 by Dr. Tahir
Mahmood; understanding Statutes Canons of Construction,
2nd Edn. By S.M. Zafar; The Interpretation of Statutes by M.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
41
Mahmood and Craies on Statues Law, 7th Edn. by S.G.G.
Edgar.
37.
In view of the above discussed principles of interpretation it
seems immaterial to discuss whether Supreme Court Rules are
subservient to Article 188 of the Constitution for the simple reason that
the main object to enact Article 188 of the Constitution was to enhance
the power of review conferred upon this Court and in order to achieve
this object it has been provided specifically in the Article itself that such
power would be subject to âany rules made by the Supreme Courtâ
meaning thereby that it was entirely left to this Court that how and in
what manner such power is to be regulated and exercised. We are
conscious of the fact that âit cannot be said that an unlimited right of
delegation is inherent in the legislative power itself. This is not
warranted by the provisions of the Constitution and the legitimacy of
delegation depends entirely upon its being used as an ancillary measure
which the Legislature considers to be necessary for the purpose of
exercising its legislative powers effectively and completely. The
Legislature must retain in its own hands the essential legislative
functions which consist in declaring the legislative policy and laying
down the standard which is to be enacted into a rule of law, and what
can be delegated is the task of subordinate legislation which by its very
nature is ancillary to the statute which delegates the power to make it.â
(Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). There is no denial
of the fact that Courts are creatures of the Constitution; they derive
their powers and jurisdictions from the Constitution and must confine
themselves within the limits set by the Constitution but it hardly needs
any elucidation that it is the right of the judiciary to interpret the
Constitution and determine as to what a particular provision of the
Constitution means or does not mean even if it is a provision seeking to
oust its own jurisdiction. In this regard reference can be made to the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
42
case of Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151), Pak.
v. Saeed (PLJ 1974 SC 77). A line of distinction is to be drawn between
statutory rules made by the executive pursuant to an Act or an
Ordinance and statutory rules made by the Supreme Court pursuant to
the mandate of Constitution as conferred upon it under Article 188 of
the Constitution. In the former case we are mindful of the fact that
âstatutory rule cannot enlarge the scope of the section under which it is
framed and if a rule goes beyond what the section contemplates, the rule
must yield to the statute. The authority of executive to make rules and
regulations in order to effectuate the intention and policy of the
Legislature, must be exercised within the limits of mandate given to the
rule making authority and the rules framed under an enactment must be
consistent with the provisions of said enactment. The rules framed under
a statue, if are inconsistent with the provisions of the statute and defeat
the intention of Legislature expressed in the main statue, same shall be
invalid. The rule-making authority cannot clothe itself with power which
is not given to it under the statute and thus the rules made under a
statute, neither enlarge the scope of the Act nor can go beyond the Act
and must not be in conflict with the provisions of statute or repugnant to
any other law in force.â The said principle of interpretation has been
followed in the under mentioned cases:-
Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186, Institute of
Patent Agents v. Lackwood (1894) AC 347, 359, 360, 364, 365;
Cf. London Traffic Act, 1924, S. 10(3), Land Realization Co. Ltd.
v. Postmaster-General (1950) 66 TLR (Pt.1) 985, 991 per
Romer, J. (1950) Ch. 435), 1951 SCR 747, Harilal v. Deputy
Director of Consolidation 1982 All LJ 223, Chief Inspector
Mines v. K.C. Thapar AIR 1961 SC 838, 845, Narasimha Raju
v. Brundavanasaha AIR 1943 Mad. 617, 621, Aribam Pishak
Sharma v. Aribam Tuleswar Sharma AIR 1968 Manipur 74,
Quoted James, LJ in Ex parte Davies (1872) 7 Ch. A. 526, 529.
âNew Sindhâ, AIR 1942 Sindh 65, 71, Barisal Cooperative
Central Bank v. Benoy Bhusan AIR 1934 Cal.537, Municipal
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
43
Corporation v. Saw Willie AIR 1942 Rang. 70, 74, Hazrat Syed
Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR
1954 Cal.436, Shankar Lal Laxmi Narayan Rathi v. Authority
under
Minimum
Wages
Act
1979
MPLJ
15,
M.P.
Kurmaraswami Raja AIR 1955 Mad. 326, K. Mathuvadivela v.
RT Officer AIR 1956 Mad. 143, Kashi Prasad Saksena v.State of
U.P. AIR 1967 All. 173, PLD 1975 Azad J&K 81, PLD 1966 Lah.
287, Shanta Prasad v. Collector, Nainital 1978 All. LJ 126,
Dattatraya Narhar Pitale v. Vibhakar Dinka Gokhale 1975 Mah.
LJ 701, Narayanan v. Food Inspector, Calicut Corporation 1979
Ker LT 469, Ganpat v. Lingappa AIR 1962 Bom. 104,105,
Adarash Industrial Corporation v. Market Committee, Karnal
AIR 1962 Punj. 426, 430 by Tek Chand, J, Devjeet v. Gram
Panchayat AIR 1968 Raj LW 231, Shri Synthetics, Ltd, Ujjain v.
Union of India 1982 Jab LJ 279, 1982 MPLJ 340, Central Bank
of India v. Their Workmen AIR 1960 SC 12, Barisal Cooperative
Central Bank v. Benoy Bhusan AIR 1934 Cal.537, 540, Rajam
Chetti v. Seshayya ILR 18 Mad. 236, 245, Raghanallu Naidu v.
Corporation of Madras AIR 1930 Mad. 648, Pakistan v. Aryan
Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370, Ziauddin
v. Punjab Local Government 1985 SCMR 365, Hirjina Salt
Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522,
Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806,
Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001
SC 600.
The Supreme Court Rules are on a higher pedestal and promulgated on
the basis of mandate given by the Constitution itself and not by the
Government, object whereof was to enhance the power of review as
conferred upon Supreme Court under Article 188 of the Constitution.
38.
Now we intend to discuss the question as to whether
issuance of notice to the applicants was mandatory? Before we could
answer this question, another question would arise here at this
juncture as to whether the former question needs any reply for the
simple reason that it has been dilated upon, discussed and determined
in a comprehensive manner in the judgment impugned, relevant portion
whereof is reproduced herein below for ready reference:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
44
â146. However, we did not issue notices to the concerned
Judges of the Supreme Court and High Courts who made
oath in violation of the order dated 3rd November, 2007
passed by a seven-member Bench of this Court in
Wajihuddin Ahmedâs case, as also the Judges who were
appointed in consultation with Abdul Hameed Dogar, J,
inter alia, on a consideration of the law laid down in
Supreme Court Bar Associationâs case where this Court
examined the question of issuance of notice in a somewhat
similar situation with reference to the law laid down in the
cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam
Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179).
It was held that the principle of natural justice would not be
violated if no notices were issued to the concerned Judges.
Relevant portion from the judgment is reproduced below:-
â32.
This brings us to the next common contention
that the senior Judges of the Lahore High Court were
condemned unheard and even in these petitions
notices have not been issued to them. It is rather
unnecessary to consider the contention as we have
already held that the recommendations of the judicial
consultee are not justiciable. Be that as it may, the
contention is misconceived. The recommendations in
questions
were
manifestation
of
subjective
satisfaction of the judicial consultee, therefore, the
principle of natural justice âaudi alteram partemâ was
not attracted. Moreover, the contention in essence is
identical with contentions Nos.(iv) and (vii) raised in
the case of Ghulam Hyder Lakho which read as
under:-
â(iv)
That the petitioners were de-notified or the
appointments were nullified by the Government
without hearing them and as such the action of
Government nullifying their appointments as Judges
of the High Court offended against the principles of
natural justice.â
â(vii) That the removal of the petitioners from the
office of Judges of the High Court in the above
manner amounted to a stigma and as such the
petitioners were entitled to be heard.â
The above contentions were held to be devoid of force
as is evident from the following observations at page 196 of
the judgment:--
âIn these circumstances, we are inclined to
hold that where the Chief Justice of the High Court
concerned and the Chief Justice of Pakistan do not
recommend a particular incumbent for confirmation
or appointment as a Judge of the High Court and
these
recommendations
are
accepted
by
the
President/Executive the same cannot be brought
under challenge in the Court on the ground that the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
45
incumbent was not heard before making such
recommendations.â
33.
As regards the question of notices we are of
the considered view that issuance of notices to the
concerned Judges will do more harm than good. This
question was considered in the Judgesâ case also and it was
clearly held at page 534 of the judgment that the principle
of natural justice is not violated if notice is not issued to the
concerned Judges. The observations in Asad Aliâs case at
page 327 of the judgment are also relevant which read as
under:-
âIt must be borne in mind that Judges of
superior Courts by their tradition, maintain high
degree of comity amongst themselves. They are not
expected to go public on their differences over any
issue. They are also not expected to litigate in Courts
like ordinary litigant in case of denial of a right
connected with their offices. Article VI of the Code of
Conduct signed by every Judge of the Superior
Courts also enjoins upon them to avoid as far as
possible any litigation on their behalf or on behalf of
others. Therefore, in keeping with the high tradition
of their office and their exalted image in the public
eye, the Judges of superior Courts can only express
their disapproval, resentment or reservationsâ on an
issue either in their judgment or order if the
opportunity so arisesâĻ..â
39.
In the light of what has been reproduced herein above, the
only inescapable conclusion would be that issuance of notice was not
necessary. We may point out that some of the petitioners have taken the
plea that they were unaware of the Supreme Court order of 3.11.2007.
They have, therefore, contended that the finding in the judgment of
31.7.2009, which holds that they had knowledge of the order amounts
to denial of the rule of natural justice and as a consequence they will be
prejudiced in the proceedings to be initiated under article 209 of the
Constitution. On this point, it may be noted that the petitioners are
silent as to when the petitioners got knowledge of the order and what
they did thereafter to show respect and obedience to the same. It is an
admitted feature of the case that the judgment impugned has not been
challenged and what is claimed is re-hearing in the interest of natural
justice in oblivion of the fact that all the questions required to be re-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
46
heard have been dealt with in the judgment impugned after having
taken into consideration each and every aspect of the controversy. The
provision qua review in fact is not meant for getting the matter re-heard.
In this regard reference can be made to case titled Abdul Hamid Saqfi v.
Service Tribunal of Pakistan (1988 SCMR 1318). No doubt that the
petitioners are dissatisfied but this does not constitute a valid ground
for review. (Nawab Bibi v. Hamida Begum 1968 SCMR 104, Abdul
Majeed v. Chief Settlement Commissioner 1980 SCMR 504, Rashid
Ahmed v. Irshad Ahmed 1968 SCMR 12). We may make it clear that a
mere desire for rehearing of the matter does not constitute a valid cause
and sufficient ground for the grant of review. In this regard we are
fortified by the dictum laid down in the following authorities:-
Abdul Hameed Saqfi v. Service Tribunal of Pakistan (1988
SCMR 1318), Ali Khan v. Shah Zaman (1980 SCMR 332),
Abdul Majeed v. Chief Settlement Commissioner (1980 SCMR
504), Maqbool Ahmed Tabassum v. The State (1980 SCMR 907),
Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741), Nawab Bibi
v. Hamida Begum (1968 SCMR 104), Muhammad Najibullah
Khan v. Govt. of Pakistan (1968 SCMR 768), Muhammad
Ghaffar v. The State (1969 SCMR 12), Ghulam Fatima v.
Settlement Commissioner (1969 SCMR 5), Feroze Din v. Allah
Ditta (1969 SCMR 10).
40.
It is also an admitted legal position that âreversing an
action taken initially without issuing a show-cause notice was not a
principle of universal application. Undoing of such an act was also
refused where the facts leading to the impugned action were
uncontrovertible and admitted and where despite a prior hearing, the
results could and would not have been any different. Reliance is placed
on the following authorities:-
S.L.Kapoor v. Jagmohan and others AIR 1981 SC 136,
Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
47
Abdul Haq Indhar and others v. Province of Sindh and
others 2000 SCMR 907.â
Besides the reasoning as given above, it may not be lost sight of that the
applicants were never made respondents in Const. Petition No.9 of 2009
and Const. Petition No.8 of 2009 and no specific relief whatsoever was
sought against them in person. The removal of the applicants is fall out
of the judgment impugned which cannot be questioned individually.
41.
No stricture was passed qua their eligibility, integrity,
entitlement, qualifications and besides that their removal from the office
of Judges does not amount to be a stigma and therefore, the doctrine of
âaudi alteram partemâ argued with vehemence cannot be pressed into
service which otherwise is not universally recognized due to certain
limitations. Let us examine the doctrine itself which was referred to
time and again by the learned ASC on behalf of petitioners. âIn Senecaâs
Medea, it is said: âa judge is unjust who hears but one side of a case,
even though he decides it justlyâ. Based on this, has been developed
âAudi alteram partemâ as a facet of natural justiceâ. (Seneca Medea 4
BC-AD 65). âAudi alteram partemâ means hear the other side; hear both
sides. Under the rule, a person who is to decide must give the parties an
opportunity of being heard before him and fair opportunity to those who
are parties in the controversy for contradicting or correcting anything
prejudicial to their view.â (emphasis provided). (Union of India v.
Tulsiram Patel AIR 1985 SC 1416 at p.1460). The petitioners were
admittedly not a party in the main controversy. âSince the audi alteram
partem rule is intended to inject justice into the law, it cannot be applied
to defeat the ends of justice, or to make the law lifeless, absurd,
stultifying, self-defeating or plainly contrary to the common sense of the
situation. âAudi alteram partemâ rule as such is not cast in a rigid mould
and judicial decisions establish that it may suffer situational
modifications.â (Emphasis provided). (Maneka Gandhi v. Union of India
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
48
AIR 1978 SC 597). It may not be out of place to mention here that by
now it is well established that âwhere a right to a prior notice and an
opportunity to be heard before an order is passed would obstruct the
taking of prompt action, such a right can be excluded. Thus, the rule may
be discarded in an emergent situation where immediate action brooks no
delay to prevent some imminent danger or injury or hazard to paramount
public interests.â (Swadeshi Cotton Mills v Union of India AIR 1981 SC
818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533. Note: Decisions in
Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248,
Mohinder Sindh Gill v The Chief Election Commissioner AIR 1978 SC
851, (1978) 1 SCC 405, Union of India v Tulsiram Patel AIR 1985 SC
1416, (1985) 3 SCC 398. The âaudi alteram partemâ rule would be
excluded, if importing the right to be heard has the effect of paralyzing
the administrative process or the need for promptitude or the urgency
of the situation so demands. (Pearlberg v Varty (Inspector of Taxes),
[1971] 1 WLR 728 (CA), [1971] 2 All ER 552 (CA). A prima facie right to
opportunity to be heard may be excluded by implication in the following
cases:-
(i)
When an authority is vested with wide discretion
(H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.391
H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.392)
(ii)
When the maxim âexpressio unius est exclusio alteriusâ is involved
(Colquhoun v Brooks 21 QBD 52 at p. 62
Humphreyâs Executor v. United States (1935) 295 US 602)
(iii) Where absence of expectation of hearing exists
(Y.G. Shivakumar v B.M. Vijaya Shankar (1992) 2 SCC 207, AIR 1992
SC 952)
(iv)
When compulsive necessity so demands
(Union of India v. W.N.Chadha (supra)
(v)
When nothing unfair can be inferred
(Union of India v. W.N.Chadha (supra)
(vi)
When advantage by protracting a proceeding is tried to be reaped
(Ram Krishna Verma v State of U.P. (1992) 2 SCC 620, AIR 1992 SC
1888).
(vii)
When an order does not deprive a person of his right or liberty
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
49
(Indian Explosive Ltd. (Fertiliser Division), Panki, Kanpur v State of
Uttar Pradesh (1981) 2 Lab LJ 159)
(viii) In case of arrest, search and seizure in criminal case
(Union of India v W.N. Chadha 1993 Cr LJ 859, 1993 Supp (4) SCC
260, AIR 1993 SC 1082)
(ix)
In case of maintaining academic discipline
(1992) 2 SCC 207)
(x)
In case of provisional selection to an academic course
(S.R. Bhupeshkar v Secretary, Selection Committee, Sarbarmathi
Hostel, Kilpauk, Medical College Hostel Campus, Madras AIR 1995 Mad
383 (FB)
(xi)
In case of enormous malpractices in selection process
(Biswa Ranjan Sahoo v Sushanta Kumar Dinda (1996) 5 SCC 365, AIR
1996 SC 2552)
42.
It must not be lost sight of that in the above mentioned
âexclusionary cases, the âaudi alteram partemâ rule is held inapplicable
not by way of an exception to fair play in action but because nothing
unfair can be inferred by not affording an opportunity to present or
meet a case.â (Maneka Gandhi v Union of India AIR 1978 SC 597,
(1978) 1 SCC 248. vide also Mohinder Singh Gill v The Chief Election
Commissioner AIR 1978 SC 851, (1978) 1 SCC 405. The doctrine of
âaudi alteram partemâ is further subject to maxim nemo inauditus
condemnari debet contumaxâ. Therefore, where a person does not appear
at appropriate stage before the forum concerned or is found to be
otherwise defiant the doctrine would have no application. It is also to be
kept in view that âapplication of said principle has its limitations. Where
the person against whom an adverse order is made has acted illegally
and in violation of law for obtaining illegal gains and benefits through
an order obtained with mala fide intention, influence, pressure and
ulterior
motive
then
the
authority
would
be
competent
to
rescind/withdrawn/cancel such order without affording an opportunity
of personal hearing to the affected party. Said principle though was
always deemed to be embedded in the statute and even if there was no
such specific or express provision, it would be deemed to be one of the
parts of the statute because no adverse action can be taken against a
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
50
person without providing right of hearing to him. Principle of audi
alteram partem, at the same time, could not be treated to be of
universal nature because before invoking/applying the said principle
one had to specify that the person against whom action was
contemplated to be taken prima facie had a vested right to defend the
action and in those cases where the claimant had no basis or
entitlement in his favour he would not be entitled to protection of the
principles of natural justice.â (Nazir Ahmad Panhwar v. Govt. of Sindh
thr. Chief Secy. Sindh 2009 PLC (CS) 161, Abdul Haque Indhar and
others v. Province of Sindh through Secretary Forest, Fisheries and
Livestock Department, Karachi and 3 others 2000 SCMR 907 and
Abdul Waheed and another v. Secretary, Ministry of Culture, Sports,
Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It
has been elucidated in the detailed reasoning of the judgment of
31.7.2009 how the order passed by a seven Member Bench of this
Court has been flagrantly violated. Besides that the applicants had no
vested right to be heard and furthermore they have acted illegally and in
violation of the order of seven Member Bench for obtaining illegal gains
and benefits which cannot be ignored while examining the principle of
âaudi alteram partemâ.
43.
Now let us discuss the concept of natural justice which has
been addressed repeatedly by almost all the learned counsel on behalf
of the applicants. In India, the concept of natural justice was discussed
in the case of âSwadeshi Cotton Mills v. Union of India (AIR 1981 SC
818) and R.S. SARKARIA, J, speaking for himself and on behalf of D.A.
DESAI, J, observed:
âThe phrase is not capable of a static and precise definition.
It cannot be imprisoned in the straight-jacket of a cast-iron
formulae. Historically, ânatural justiceâ has been used in a way
âwhich implies the existence of moral principles of self-evident and
unarguable truthâ, âNatural justiceâ by Paul Jackson, 2nd Edn.,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
51
page 1. In course of time, judges nurtured in the traditions of
British Jurisprudence, often invoked it in conjunction with a
reference to âequity and good conscienceâ. Legal experts of earlier
generations did not draw any distinction between ânatural justiceâ
and ânatural lawâ. âNatural Justiceâ was considered as âthat part
of natural law which relates to the administration of justiceâ.â
In Maclean v. The Workersâ Union, MAUGHAM, J. observed that
justice, and with it ânatural justiceâ, is in truth an elaborate and artificial
product of civilization which varies with different civilisations. BLACK, J
in Green v Blake remarked that ânatural justiceâ understandably meant
no more than âjusticeâ without the adjective. But what is âjusticeâ? It is a
question which has been asked for thousand of years by distinguished
scholars and men of eminence. Socrates asked it 2000 years ago, and
never got a satisfactory answer. LORD DENNING said:
âJustice isnât something temporal-it is eternal-and the
nearest approach to a definition that I can give is, âJustice is what
the right thinking members of the community believe to be
fair.â(Emphasis provided)
44.
It is also well acknowledged by now that ârules of natural
justice are principles ingrained into the conscience of men. Justice being
based substantially on natural ideals and human values, the
administration of justice here is freed from the narrow and restricted
considerations which are usually associated with a formulated law
involving linguistic technicalities and grammatical niceties. Rules of
natural justice are not embodied rules. Being means to an end and not
and end in themselves, it is not possible to make an exhaustive catalogue
of such rules. âThe principles of natural justiceâ, said SIR RAYMOND
EVERSHED, MR, âare easy to proclaim, but their precise extent is far less
easy to define.â (Swadeshi Cotton Mills v Union of India AIR 1981 SC
818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533., Abbott v.
Sullivan [1952] 1 KB 189, [1952] 1 All ER 226), [1929] 1 Ch 602; [1929]
All ER Rep 468, [1948] IR 242, âConstitutional Developments in Britianâ,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
52
BY LORD DENNING as published in The Fourteenth Amendment, [A
Century in American Law and Life], Centennial Volume, Edited by
Bernard Schwartz) The concept of natural justice is a combination of
certain rules i.e. âaudi alteram partemâ (nobody should be condemned
unheard) and discussed in depth in preceding paragraphs and ânemo
judex in re suaâ (nobody should be a Judge in his own case or cause)
application whereof is to be decided by the Court itself in accordance
with the fact, circumstances, nature of the case vis-Ã -vis the law
applicable on the subject. It squarely falls within the jurisdictional
domain of the Court concerned whether it would be necessary to
embark upon the concept of natural justice and whether it would be
inevitable for the just decision of the case. The Court is not bound to
follow such rules where there is no apprehension of injustice. It can be
said with certainty that the concept of natural justice is flexible and it
cannot be rigid because it is the circumstances of each case which
determine the question of the applicability of the rules of natural
justice. âThere are a number of cases in India in which the flexibility of
the rules of natural justice has been upheld. In New Parkash Transport
Co. Ltd. v. New Sawarna Transport Co. Ltd., the Supreme Court
observed that rules of natural justice vary with varying constitutions of
statutory bodies and the rules prescribed by the legislature under
which they have to act, and the question whether in a particular case
they have been contravened must be judged not by any preconceived
notion of what they may be but in the light of the provision of the
relevant Act. While natural justice is universally respected, the standard
vary with situations contacting into a brief, even post-decisional
opportunity, or expanding into trial-type trappings. As it may always be
tailored to the situation, minimal natural justice, the bares notice,
âlittlestâ opportunity, in the shortest time, may serve. In exceptional
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
53
cases, the application of the rules may even be excluded.â A few other
important cases which may be referred to are as under:-
Suresh Koshy George v University of Kerala AIR
1969 SC 198, (1968) 2 SCWR 117, Union of India v Col.
J.N. Sinha AIR 1971 SC 40, (1971) 1 SCR 791, A.K. Kraipak
v Union of India AIR 1970 SC 150, (1970) 1 SCR 457, (1969)
2 SCC 262, (1969) 1 SCA 605, Swadeshi Cotton Mills v
Union of India AIR 1981 SC 818, (1981) 2 SCR 533, (1981)
51 Comp CAs 210 (SC), J. Mahapatra & Co. v State of
Orissa AIR 1984 SC 1572, (1985) 1 SCR 322, Smt. Maneka
Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC
248. AIR 1957 SC 232, Mohinder Singh Gill v The Chief
Election Commissioner, New Delhi AIR 1978 SC 851, (1978)
1 SCC 405, S.L. Kapoor v Jagmohan AIR 1981 SC 136,
(1980) 4 SCC 379, Union of India v Tulsiram Patel AIR 1985
SC 1416, (1985) 3 SCC 398).
45.
The concept of audi alterum partem cannot be invoked in
view of the peculiar circumstances of the case as it would be an aid to
and violation of the Constitution, which can never be the object of
natural justice.
We have already held in the judgment impugned that:
âiii)
since Mr. Justice Abdul Hameed Dogar was never a
constitutional Chief Justice of Pakistan, therefore, all
appointments of Judges of the Supreme Court of Pakistan,
of the Chief Justices of the High Courts and of the Judges of
the High Courts made, in consultation with him, during the
period that he, un-constitutionally, held the said office from
3.11.2007 to 22.3.2009 (both days inclusive) are hereby
declared to be un-constitutional, void ab initio and of no
legal effect and such appointees shall cease to hold office
forthwith;
Provided that the Judges so un-constitutionally
appointed to the Supreme Court while holding the offices as
Judges of any of the High Courts shall revert back as
Judges of the respective High Courts subject to their age of
superannuation and like-wise, the Judges of the High
Courts, who were District and Sessions Judges before their
said un-constitutional elevation to the High Courts shall
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
54
revert back as District and Sessions Judge subject to
limitation of superannuation;
(iv)
the Judges of the Supreme Court of Pakistan, if any,
the Chief Justices of the High Court, if any and the Judges
of any of the High Courts, if any, who stood appointed to the
said offices prior to 3.11.2007 but who made oath or took
oath of their respective offices in disobedience to the order
passed by a Seven Member Bench of the Supreme Court of
Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in
Constitution Petition No.73 of 2007, shall be proceeded
against under Article 209 of the Constitution. The Secretary
of the Law Division of the Government of Pakistan shall take
steps in the matter accordingly.
Provided that nothing hereinabove shall affect those
Judges who though had been appointed as Judges/Chief
Justices of any of the High Courts between 3.11.2007 to
22.3.2009 but had subsequently been appointed afresh to
other offices in consultation with or with the approval of or
with the consent of the Constitutional Chief Justice of
Pakistan.â
46.
As mentioned above all appointments made in the superior
judiciary have been declared to be unconstitutional, void ab initio and of
no legal effect and such appointees shall cease to hold office forthwith.
In such view of the matter as rightly pointed out by Mr. Rashid A. Rizvi,
learned Sr. ASC that any super structure subsequently built on the
basis of such void orders passed under the garb of PCO did not possess
any legal sanctity and besides that it is well settled by now that
Constitutional jurisdiction cannot be invoked in aid of injustice. It is
noteworthy that the courts have refused to intervene and the judicial
consensus is that âwhere the grant of relief would amount to retention of
ill-gotten gains or would lead to injustice or aiding the injustice,â as such
the question of the applicability of natural justice does not arise and in
support thereof various cases can be cited which are as under:-
Government of N.W.F.P. v. Muzaffar Iqbal and others 1990
SCMR 1321, Hussain Bakhsh and others v. Settlement
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
55
Commissioner and others PLD 1969 Lah. 1039, Pakistan
Gum and Chemicals Ltd. v. Chairman, Karachi Municipal
Corporation PLD 1975 Kar. 495, Yousaf Ali v. Muhammad
Aslam Zia PLD 1958 SC 104, Khuda Bakhsh v. Khushi
Muhammad PLD 1976 SC 208, Conforce Ltd. S. Ali Shah
PLD 1977 SC 599, Mazhar Hussain Khan v. Government of
West Pakistan 1983 SCMR 40, Muhammad Swalehâs case
PLD 1964 SC 97, Yousaf Ali Mullah Noor Bhoy v. The King
PLD 1949 PC 108, Muhammad Fazil v. Chief Settlement
Commissioner PLD 1975 SC 331, Sharif Ahmad Hashmi v.
Chairman, Screening Committee 1978 SCMR 367, Raunaq
Ali v. Chief Settlement Commissioner PLD 1973 SC 236,
Chittagong Chamber of Commerce and Industry v. C.S. Ltd
PLD 1970 SC 132, PLD 1973 SC 236, Begum Shamsun
Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413,
Gul Muhammad v. Additional Settlement Commissioner
1985 SCMR 491, Nazim Ali and others v. Mustafa Ali and
others 1981 SCMR 231, Wali Muhammad and others v.
Sheikh Muhammad and others PLD 1974 SC 106, Meraj
Din v. Director, Health Services 1969 SCMR 4, Tufail
Muhammad v. Muhammad Ziaullah Khan PLD 1965 SC
269, Azmat Ali v. Chief Settlement and Rehabilitation
Commissioner PLD 1964 SC 260, Province of the Punjab v.
S. Muhammad Zafar Bukhari PLD 1997 SC 351, Nawab
Syed Raunaq Ali and others v. Chief Settlement
Commissioner and others PLD 1973 SC 230, Reg v.
Eastbourne Corporation (1900) 83 LTR 338, The Queen v.
The Eastern Counties Railway (1843) 12 LJR 271, The
Queen v. Lord Newborough (1869) LR 4 QB 585) Khiali
Khan v. Nazir PLD 1997 SC 304, Raunaq Ali v. Chief
Settlement Commissioner (PLD 1973 SC 236), Muhammad
Baran v. Member (Settlement and Rehabilitation), Board of
Revenue PLD 1991 SC 691, Engineer-in-Chief Branch v.
Jalauddin PLD 1992 SC 207, Manager, Jammu and
Kashmir State Property in Pakistan v. Khuda Yar PLD 1975
SC 678, Allah Ditta v. Barkat Ali 1992 SCMR 1974, Vulcan
Company (Pvt.) Ltd. v. Collector of Customs PLD 2000 SC
825, Nawab Syed Raunaq Ali and others v. Chief Settlement
Commissioner and others PLD 1973 SC 236, The Chief
Settlement Commissioner, Lahore v. Raja Muhammad Fazil
Khan and others 1975 SC 331 at 350, Syed Nazim Ali and
others v. Syed Mustafa Ali and others 1981 SCMR 231, Wali
Muhammad and others v. Sakhi Muhammad and others
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
56
PLD 1974 SC 106, Tufail Muhammad and others v. Raja
Muhammad Ziaullah and others PLD 1965 SC 269, Khaili
Khan v Haji Nazir and others PLD 1997 SC 304, Abdul Haq
Indhar and others v. Province of Sindh and others 2000
SCMR 907, Farzand Ali v. Province of West Pakistan PLD
1970 SC 98, Muhammad Shoaib v. Govt. of NWFP 2005
SCMR 85.
47.
It is well settled by now that âthe object of the
establishment and the continued existence of the Courts of law is to
dispense and foster justice, and to right the wrongs. This purpose can
never be completely achieved unless the injustice done was undone and
unless the Courts stepped in and refused to perpetuate what was
patently unjust, unfair and unlawful. It is for this reason that the
Courts have never permitted their judicial powers to be invoked or used
for retention of illegal and ill-gotten gains. Nor have the Courts ever
opted to exercise their powers in aid of injustice or to grant any relief to
persons with unclean hands or for protecting the unethical or
underserved benefitsâ. We cannot render any help to the applicants who
were
admittedly
the
consequent
beneficiaries
of
the
said
unconstitutional, illegal and unethical actions. âThere is no gain
reiterating that superior Courts are not expected to act in aid of injustice
and to perpetuate the illegalities or put a premium on ill-gotten gains.â
48.
We are afraid that the Objectives Resolution relied upon by
Mr. Wasim Sajjad, learned Sr. ASC may not render any assistance to
the case of applicants for the simple reason that no interpretation of
any Article of the Constitution repugnant to the Islamic provisions has
been made in the judgment impugned. The Objectives Resolution
remained a subject of discussion in various judgments and the judicial
consensus seems to be that âwhile interpreting the Constitution, the
Objectives Resolution must be present to the mind of the Judge and
where the language of the Constitutional provision permits exercise of
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
57
choice, the Court must choose that interpretation which is guided by the
principles embodied therein. But that does not mean, that Objectives
Resolution is to be given a status higher than that of other provisions and
used to defeat such provisions. One provision of the Constitution cannot
be struck down on the basis of another provision. The Objectives
Resolution made substantive part of the Constitution provides a new
approach to the constitutional interpretation since the principles and
provisions of the Objectives Resolution have been placed in the body of
the Constitution and have now to be read alongwith the other provisions
of the Constitution. While interpreting the provisions of the Constitution
and the law the Supreme Court observed that the provisions contained in
Article 2-A read with Objectives Resolution have also been kept in mind in
the sense that any doubt, major or minor, has been resolved in such a
manner so as to advance the dictates of justice as well as the rule that
justice not only should be done but it should seem to have been done. The
last mentioned principle is enshrined as much in the Islamic
jurisprudence as in any other juridical system. It may also be clarified
that had a need arisen to further rely on Article 2-A of the Constitution so
as to give effect to the Objectives Resolution treating the right to obtain
justice as a very important substa ntive part of our entire Constitutional
set up as well as the Constitution itself, the court would have done
it.âGhulam Mustafa Khar v. Pakistan) (PLD 1988 Lah. 49), Khar v.
Pakistan (NLR 1988 Civ. 35), Malik Ghulam Mustafa Khar v. Pakistan
etc (KLR 88 Cr. C 128), Farhat Jaleel (Miss) v. Province of Sindh (PLD
1990 Kar. 342), Mrs. Resham Bibi v. Elahi Sain (PLD 1991 SC 1034),
Mirza Qamar Raza v. Tahira Begum (PLD 1988 Kar. 169), Bank of
Oman Ltd. v. East Trading Co. (PLD 1987 Kar. 404).
49.
The judgment impugned is neither in violation of the
Objectives Resolution as enumerated in Article 2-A of the Constitution
nor is repugnant to any principle of Qurâan and Sunnah. We are afraid
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
58
the Objectives Resolution would not render any help to the case of the
applicants because the main purpose of insertion of Article 2-A in the
Constitution was the enforcement of Qurâan and Sunnah within the
framework of the principles and provisions of the Objectives Resolution
through Courts of law. (Shaukat Hussain v. Rubina PLD 1989 Kar 513,
Qamar Raza v. Tahira Begum PLD 1988 Kar 169, Habib Bank Ltd v.
Muhammad Hussain PLD 1987 Kar. 612, Muhammad Sharif v. MBR
Punjab PLD 1987 Lah. 58).
50.
It is worth mentioning that in the judgment impugned it
has been declared that PCO was not a valid piece of legislation,
therefore, the entire structure raised on it was bound to fall alongwith
it. In such view of the matter no person can prefer review with the plea
that he was deprived of the benefit which had accrued to him by the
said illegal construction. It is also to be kept in view that electronic and
print media had widely published the proceedings and judgment
impugned and all the applicants were aware that they were deriving
their legitimacy under the garb of judgment delivered in Tika
Muhammad Iqbal Khanâs case (supra) and thus it was incumbent upon
them to have approached this Court for impleadment. They had no
other legitimacy and no legal right to hold the office of Judges of
superior courts once the dictum as laid down in Tika Muhammad Iqbal
Khanâs case (supra) has been set aside and would be too late in the day
to take the plea that they were unaware and should be afforded proper
opportunity of hearing.
51.
By no stretch of imagination it can be believed that order
dated 3.11.2007 was not within their knowledge. It was held at page
183 of the judgment impugned that the entire world âknewâ about the
order dated 3.11.2007 which was appreciated not only in the country
but at global level hence the plea of ignorance is not tenable. In the
same wake of events it has been observed that notice was issued both
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
59
in general as well as in specific terms as is indicative from paragraphs
No. 145 and 261 of the judgment impugned wherein it was made
abundantly clear that any one interested in the proceedings was at
liberty to join the same and thus all the aggrieved and affected persons
could have approached the Court which was not done by the
petitioners. As mentioned herein above, the above notice was specific
for General (Retd.) Pervez Musharraf and it was general for anyone
interested in the proceedings which negates the version of petitioners
that no notice was given to them. The question as to the issuance of
notice was mandatory which was only issued to General (Retd.) Pervez
Musharraf has been examined and we are of the view that such a
contention is devoid of merit because General (Retd.) Pervez Musharraf
was a person responsible for violating the Constitution by means of
action taken on 3.11.2007 and therefore proper opportunity of hearing
was afforded to him to put forward his defence. The petitioners do not
assail the judgment in respect of the treatment it gives to those actions.
They, therefore, are not on the same footing as General (Retd.) Pervez
Musharraf but their grievances are altogether different in nature. It may
be correct upto the extent that no notice was served individually and by
name which was not felt necessary in view of the peculiar
circumstances of the case and for the reasons discussed earlier. It is
also not believable that the order dated 3.11.2007 was not within their
knowledge which was widely published in print and electronic media
and the petitioners being members of higher judiciary cannot remain
ignorant as their entire fate was revolving around the PCO and the Oath
Order hence the question of lack of knowledge does not arise. We fully
subscribe to the view of Mr. Hamid Khan, learned Sr. ASC that the
houses of people were being raided, many arrest has been taken place,
some had gone to hiding, whole of the country was at turmoil and it was
not an isolated matter but it affected the entire country which was
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
60
completely paralyzed. In such a situation how the petitioners could
remain ignorant qua the order passed on 3.11.2007. The presumption
of knowledge of the order can be validly drawn.
52.
After having discussed the relevant provisions of law qua
review and various judicial pronouncements, we are of the view that no
yardstick can be fixed that by whom review can be filed and therefore,
no restriction can be made on an ordinary litigant for the redressal of
his genuine grievances subject to circumstances of the case. After
having a careful perusal of all the review petitions it can be inferred
safely that no grievance whatsoever was expressed against the
judgment impugned whereby all the actions of General (Retd.) Pervez
Musharraf taken w.e.f. 3.11.2007 to 15.12.2007 were declared unlawful
and unconstitutional. It is worth mentioning that the petitioners were
also not defending the dictum laid down in Tika Muhammad Iqbal
Khanâs case (supra) rather they were aggrieved of the fall out of the
judgment impugned declaring their appointments as invalid. It is,
however, to be noted that this principle was never evolved at first
occasion and rather the law laid down in the cases of Al-Jehad Trust
and Asad Ali (supra) was followed and re-affirmed. In our view it was not
the first occasion as mentioned herein above that the validity or
otherwise of the appointment of a person as a Judge of the superior
Court was examined. How a declaration can be given that the
appointment of the petitioners were not unconstitutional and illegal as
it would be in contravention of the law laid down in Al-Jehad Trust and
Ghulam Hyder Lakhoâs case (supra). The impugned judgment had only
re-affirmed the well entrenched legal proposition finally decided in the
above referred two cases.
53.
We may clarify once again that the powers as conferred
upon this Court under Article 188 of the Constitution, Rule XXVI of the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
61
Supreme Court Rules, 1980 and Order XLVII CPC can be invoked in
suitable cases as this Court had a prerogative and privilege to do so if
found in the interest of justice, fair play and equity. An ordinary litigant
must not be prejudiced by the observation made herein above in a
peculiar backdrop and scenario already discussed at length in
preceding paragraphs.
54.
Mr. Wasim Sajjad and other counsel representing the
petitioners have not been able to satisfy us as to the implication of a
judgment in rem which binds parties and non-parties alike as opposed
to a judgment in personam which only affects the parties to a lis. The
cases of Pir Bakhsh Vs. Chairman Allotment Committee (PLD 1987 SC
145) and Hameed Akhtar Niazi Vs. Secretary, Establishment Division
(1996 SCMR 1185) have established the distinction between judgments
in rem which apply to all regardless of whether they were parties or not
and a judgment in personam which does not bind non-parties. It would
be appropriate to mention here at this stage that the judgment of
31.7.2009 sought to be reviewed was a judgment in rem enunciating a
legal principle. It, therefore, had the status of conclusiveness and
finality and no person can be allowed to challenge it merely for the
reason that he was not a party in the case and had not been heard.
55.
In fact the judgment impugned has been considered in
the country as well as on global level as a triumph of democratic
principles and a stinging negation of the dictatorship. It is the
first instance of the Supreme Court stating in a categoric, loud
and abundantly clear manner that military interventions are illegal
and will hardly find any colluder in future within the judiciary.
The impugned judgment provides much needed redress as it will
render considerable help in blocking the way of adventurers and
dictators to creep in easily by taking supra Constitutional steps
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
62
endorsed, supported and upheld under the garb of the principle of
necessity in the past which will never happen again. Had our superior
judiciary followed the path of non-PCO Judges, the course of Pakistanâs
political and judicial history would have been different. The verdict has
been appreciated by all segments of society for being issue oriented
rather than individual specific and therefore, no individual including
the petitioners should be aggrieved. The judgment impugned would
encourage future justices to take the firm stand against usurpers. The
judgment impugned being in the supreme national interest hardly
needs any justification for review. The review applications being not
maintainable are accordingly dismissed. These are the reasons for our
short-order dated 13.10.2009.
Chief Justice
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Judge
Islamabad the
13th October, 2009
Iqbal Naseer
NOT APPROVED FOR REPORTING
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
63
56.
Sardar Muhammad Raza, J.â The background, the
circumstances and detailed introduction has already been
furnished by my Honourable brother Mr. Justice Javed Iqbal.
Suffice it to say that the learned Judges of High Courts, affected
by our judgment dated 31.7.2009 in Constitutional Petitions No.8
and 9 of 2009, through applications in hand, seek permission to
get the judgment reviewed, on the ground, inter alia, that they had
been condemned unheard. Majority held, through short order
dated 13.10.2009, that the Reviews are not maintainable. With my
humble comprehension of law and justice, I happened to dissent
with the majority view.
57.
Mr. Wasim Sajjad, learned Senior ASC was the first to
initiate. His elaborate arguments were followed by rest of learned
counsel,
among
whom,
Shaikh
Zameer
Hussain,
Malik
Muhammad Qayyum, Mr. Khalid Ranjha, Syed Ali Zafar, Syed
Naeem Bokhari and Dr. A. Basit, added their finishing notes. The
caveat contentions were supported by Mr. Rashid A. Razvi, Mr.
Hamid Khan, Mr. Muhammad Akram Sheikh; Mr. Shah Khawar,
being the Acting Attorney General.
58.
The learned counsel on either side seem to have agreed
on one thing that the review jurisdiction is exercised by the
Supreme Court under (i) Article-188 of the Constitution, (ii)
Order XXVI of the Supreme Court Rules, 1980, and (iii) Order
XLVII of the CPC, all taken together. I would like to dilate upon
Article-188 of the Constitution and Order XXVI of the Supreme
Court Rules, 1980 and would not rely upon Order XLVII because
as per Rule-9(ii) substituted by the Federal Adoption of Laws
Order, 1975 (P.O 4 of 1975), Order XLVII, CPC is not applicable to
the Supreme Court.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
64
59.
A close perusal of Article-188 of the Constitution and
Order XXVI of the Supreme Court Rules, 1980 would indicate that
both these provisions commence with the words âthe Supreme
Court shall have powerâ. Similar are the words in Order XXVI that
âthe Court may review its judgment or Orderâ. This makes it
abundantly clear that the Supreme Court has wide, rather, suo
moto powers to review its judgments or orders provided the
grounds for such review are available. Order XLVII, CPC,
according to the Supreme Court Rules, are referable only to the
extent of the grounds, not the ones mentioned in the Order but
similar to those mentioned therein. The Rules, therefore, provide a
much wider ambit for review than that mentioned in Order XLVII.
Once again I may mention that except for the similarity of
grounds, nothing can be borrowed from Order XLVII, CPC so as to
restrict the jurisdiction of the Supreme Court for the simple
reason that nothing mentioned in Order XLVII CPC is applicable to
the Supreme Court.
60.
The above conclusion leads to further analogy that even
filing of application by a person is not necessary. If, at all, an
application is filed by any person feeling aggrieved, it may be
considered as an information furnished for the Supreme Court to
exercise its powers under Article-188 of the Constitution. I have
purposely mentioned Article 188 of the Constitution and avoided
the Supreme Court Rules because any jurisdiction, original or
appellate, exercised by the Supreme Court under the provisions of
the Constitution (Article-184(3) â 188) cannot be limited, abridged,
curtailed or restricted even by the Supreme Court itself, under its
rule making power. I fully agree on this point with Sheikh Zamir
Hussain, learned counsel for one of the applicants that in order to
do complete justice under Article-4, 25, 187 and 188, the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
65
Supreme Court should rather assume jurisdiction instead of
refusing to do justice. Malik Asad Aliâs case (PLD 1998 SC 161).
61.
It was contended that the applicants have no locus
standi to get the judgment in question reviewed. This argument
makes room for discussion as to whether the applicants (the
judges of superior judiciary) are the aggrieved persons, in view
further of a phenomenon, as to whether the judgment in question
was in rem or in personam. In order to determine as to who is the
person aggrieved, I would be referring to the case law produced by
the learned counsel on either side. Before that, I may emphatically
express my belief that no previous authority is required on any of
the points involved. If this Bench of 14 Honourable Judges of the
Supreme Court consider a view to be based on natural justice, fair
play and good conscience, it can render a favourable verdict which
by itself would be the strongest of rulings to be followed by all
concerned as a source of relief for teeming millions. I would, thus,
refer to the authorities only to satisfy those, who believe in letters.
62.
Far back in the year 1917, in Jhabba Lalâs case (AIR
1917 Allahabad 160), Mr. Walsh, J. of Allahabad described the
person aggrieved as ânot the one who is disappointed of a benefit,
which he might have received if some other order had been made.
He must be a man, who has suffered a legal grievance, a man
against whom the decision has been pronounced, which has
wrongfully deprived him of something or wrongfully refused him
something or wrongfully affected his title to some somethingâ. In
the instant case, the applicants claimed, and rightly so, that
through the judgment in question, they have wrongfully been
deprived of the status and their right and title to such status has
wrongfully been affected.
63.
It was also argued that the applicants are not the
persons aggrieved, because they were not a party to the case in
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
66
which the judgment is pronounced. In Kawduâs case (AIR 1929
Nagpur 185(d), a Director of the company was considered an
aggrieved person, though he was not a party to the original case. I
have already observed that under Article-188 of the Constitution,
the Supreme Court has wide powers to review its judgment, in
order to prevent miscarriage of justice, without having regard to
any intriguing technicalities. Similar view seems to have been
taken by a five member larger Bench of the Indian Supreme Court
in Shiv Deo Singhâs case (AIR 1963 SC 1909), where nothing in
Article-226 of the Indian Constitution was considered precluding a
High Court from exercising the powers of review, which inheres in
every Court of plennary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors committed by it. In
this case review of a person, not a party to the proceedings, was
allowed with remarks that âKhosla, J. (of the High Court) did what
the principles of natural justice required him to doâ. Khosla, J.
had reviewed his own order on the application of a person, who
was not a party to the earlier one.
64.
Coming to the case law of our own country, the learned
counsel placed reliance on H.M Saya & Companyâs case (PLD
1969 SC 65), where it is observed that even a stranger to suit can
file an appeal. To my mind, this verdict is extremely important
because, if a stranger can file an appeal, he can file a review as
well on the same analogy. In the instant case, the entertainment of
review is all the more important, because the judgment in
question is that of the Supreme Court against which not appeal is
provided. Obviously, an aggrieved person can file nothing, but a
review on a very strong ground that he was not a party and was
not heard. The restriction prevailing in the mind of the learned
opposite counsel might not have been damaging, had the order
under review been passed either by the Civil Court or by the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
67
District Court or the High Court because any aggrieved person
could have filed an appeal. If such principle is applied to the
judgment of the Supreme Court, it would tantamount to
absolutely barring the remedy to persons who have certainly been
condemned unheard. Fahmida Khatoonâs case (PLD 1975 Lahore
942) is though a single Bench judgment of Lahore High Court yet
numerous rulings have been mentioned and discussed therein;
holding that even a stranger, without being a party, can file a
review, even under Order XLVII, Rule-1, CPC.
65.
To be treated in accordance with the law, and to be heard
by any forum, likely to decide some matter against him, is the
fundamental and inalienable right of a citizen. Any violation
thereof would be a violation of Article-4 & 25 of the Constitution.
In this behalf, I would like to refer, with credit, to a judgment
rendered by a seven member Bench of this Court in case of
Pakistan Muslim League (PLD 2007 SC 642) which, with pleasant
coincidence, happened to be authored by my honourable brother,
Javed Iqbal, J., who also is the author of majority judgment in the
instant case. In this case, with reference to Article 184 (3) of the
Constitution, it was under consideration as to whether it was
necessary that the person invoking relevant jurisdiction should be
an aggrieved party. This Court held that it is not necessary for the
purpose involved in the said case. Presently, the case of the
applicants is on a better footing because they are most certainly
the aggrieved party.
66.
After having discussed the law produced in the case of
Pakistan Muslim League, supra, the Honourable author Judge
observes in view of judicial consensus that;
â(i)
that while interpreting Article 184(3) of the Constitution the
interpretative approach should not be ceremonious observance of
the rules or usages of the interpretation but regard should be had
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
68
to the object and purpose for which this Article is enacted i.e. the
interpretative approach must receive inspiration from the triad of
provisions which saturate and invigorate the entire Constitution
namely the Objectives Resolution (Article 2-A), the fundamental
rights and the directive principles of State policy so as to achieve
democracy, tolerance, equity and social justice according to Islam.
(ii)
That the exercise of powers of Supreme Court under Article 184(3)
is not dependent only at the instance of the âaggrieved partyâ in
the context of adversary proceedings. Traditional rule of locus
standi can be dispensed with and procedure available in public
interest litigation can be made use of, if it is brought to the Court
by a person acting bona fide.
(iii)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
(iv)
That under Article 184(3) there is no requirement that only an
aggrieved party can press into service this provision. Supreme
Court can entertain a petition under Article 184(3) at the behest of
any person.
(v-vii)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
(viii)
That the language of Article 184(3) does not admit of the
interpretation that provisions of Article 199 stood incorporated in
Article 184(3) of the Constitution. Therefore, this Court while
dealing with a case under Article 184(3) of the Constitution is
neither bound by the procedural trappings of Article 199 ibid, nor
by the limitations mentioned in that Article for exercise of power
by High Court in a case.â (Emphasis provided).
Though the discussion aforementioned refers to Article 184(3) yet
the principles of prudence, interpretation and assumption of
jurisdiction, in order to do complete justice, are fully in
consonance with what I feel in the instant case with reference to
Article 187-188 of the Constitution.
67.
Faqirullahâs case (1999 SCMR 2203) is another example
of doing justice by invoking review jurisdiction. In this case,
despite State being the protector of the rights of complainant in
criminal cases, was present yet on the review application of
complainant, who was not a party in the original case, he was
heard and, no less a judgment of acquittal was set aside and the
accused sentenced to death. This Court maintains the practice of
imparting ultimate justice throughout. It should not be departed
from in the instant cases.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
69
68.
I am of the firm view that, for the Supreme Court to
exercise its powers under Article 188 of the Constitution and
Order XXVI of the Supreme Court Rules, it is not at all necessary
for the applicant/petitioner to be a party in the judgment under
review. Such inferences are drawn, if at all, from Order XLVII of
the CPC, which is not applicable to the Supreme Court. Rather, in
cases where complete justice was needed to be done, even
strangers were entertained in review matters under Order XLVII,
CPC.
69.
The instant applications are further contested on the
ground that our judgment sought to be reviewed was judgment in
rem and conclusive against world and thus could not be
challenged by the individuals. Mr. Rashid A. Razvi placed reliance
on Pir Bukhshâs case (PLD 1987 SC 145). After having gone
through the above ruling and also having reconsidered our own
judgment in question, I believe that the judgment in totality is not
in rem. So far as our declaration with regard to the Proclamation
of Emergency, the Enforcement of Provisional Constitution Order
and Oath of Office (Judges) Order, 2007 is concerned, it can be
dubbed as judgment in rem, but so far as the fall out thereof with
regard to the applicants is concerned, it is in personam, especially
because such judges were not a party and could have been
impleaded in view of the prospective results of our principal
findings. The amends can be made only by hearing them now at
this stage.
70.
Quite forcefully, it was alleged that this Court in Al-Jehad
Trustâs case (PLD 1996 SC 324) had not impleaded many judges
despite the fact that they were eventually affected. No doubt Al-
Jehad Trustâs case, Supra, has been extensively relied upon in our
judgment in question, but this aspect of Al-Jehad Trustâs case,
where also the Judges were condemned unheard, is not at all
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
70
enviable. It was admitted at the Bar that judges of some High
Courts were even issued notice in Al-Jehad Trustâs case, but it is
equally undeniable that many affected were not made party.
Should we, in the circumstances, feel bound by an action, where
the judgment operated in rem for those who were not impleaded
and in personam for those who stood impleaded. This course of
action adopted in that case was also not judicial and should not
be followed as a precedent, especially by a Bench of as many as 14
Judges. To my mind, even in Al-Jehad Trustâs case, the Court was
not sure, whether it is going to pronounce a judgment in rem or in
personam. To some, it impleaded, to others, it did not, thereby,
condemning them unheard. If such a precedent is followed once
again, as was followed in our judgment in question, and is placed
reliance upon even to deny hearing in the review petitions, it
would not be a judgment in rem, but a âcondemnation-in-remâ.
71.
It was further argued in the light of the case of Hameed
Akhtar Niazi (1996 SCMR 1185) considering the judgment to be
one in rem, that the benefit thereof was extended to those people
as well, who were not a party. I think this judgment, rather, serves
my view point. In the judgment aforesaid, benefit of one verdict
was given to all universally and not that the people were
condemned universally. The ruling aforesaid was beneficiary and
not jeopardizing and hence, cannot be pressed into service.
Assuming for the sake of arguments that our judgment in
question was a judgment in rem, which I do not believe it was,
how on earth it was inferred that such judgment cannot be
challenged by a person or persons who were not a party to it, but
seriously and adversely affected thereby. There is every likelihood
that if heard in review, the applicants might be able to influence
the Court to change its decision concerning the applicants. It all
depends upon the hearing of the case and, for the sake of doing
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
71
ultimate justice, I hold the view that the review petitions be heard
on merit.
72.
A judgment cannot be called one in rem when questions
of fact being a deciding factor and being variously relevant and
applicable to the affectees involved, has differently and specifically
been pleaded in defence.
73.
Now I come to the most important aspect of the case
concerning the principle of audi alteram partem. The applicants
claimed that they have been condemned un-heard. That they have
not been a party to the constitutional petitions No.8 & 9/2009;
that they were not even issued notice to appear and answer the
charges before taking the drastic action against them and that the
review petitions filed by them are the first and last chance that
they are likely to avail. If not given a chance to be heard, the
principle of audi alteram partem would stand violated, not once
but thrice.
74.
The centuries old concept of audi alteram partem is
nothing but a principle of due process embodied clearly and
expressly in Article 4 of our constitution. The principle which now
has become of universal acceptance is a wide ranging guarantee of
procedural fairness in the judicial process. Giving the defendant
his day in the Court is of the essence of principle of justice as also
of natural justice. Guarantee of due process refers to procedure
that protects the people against arbitrary treatment. Essential
elements of due process in âMethew Vs. Albridgeâ were laid down
as follows:-
i)
Adequate notice of charges or basis for action;
ii)
A neutral decision maker;
iii)
An opportunity to make an oral presentation to the
decision maker
iv)
An opportunity to present evidence;
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
72
v)
An opportunity to controvert and cross-examine the
evidence;
vi)
The right to have a counsel;
75.
In his book âJudicial Review of Public Actionâ Mr.
Justice Fazal Karim has elaborately discussed the principle of due
process associating the same with human rights. He further goes
on to refer to Section 24-A of the General Clauses Act and
concludes that the concept of âfairnessâ has received legislative
recognition and confirmation through its insertion in the General
Clauses Act. According to the learned author, Section 24-A of the
Act embodies, by necessary implication, the principles of natural
justice, which include the right of hearing before an impartial
Tribunal. In the case of Fisher Vs. Keen (1878) 11 Ch.D.353, it
was observed that persons who decided upon the conduct of
others, they are not âto blast a manâs reputation forever, to ruin
his prospects for life, without giving him an opportunity of either
defending or palliating his conductâ. The jurists have gone to such
an extent of holding that the defect created by an absence of
hearing cannot be cured by a second and subsequent hearing
because the original decision is a nullity.
76.
The concept of audi alteram partem based on the
principle of natural justice is Centuries old. Audi alteram partem
applies to âEveryone who decides Anythingâ. The history quite
laboriously is traced by a five member larger bench of Supreme
Court of India in Tulsi Ramâs case (AIR 1985 SC 1416). The
expression ânatural lawâ, was largely used in the philosophical
speculation of the Roman Jurists and was intended to denote a
system of rules and principles for the guidance of human conduct
which, independently of enacted law or of the systems peculiar to
any one people, might be discovered by rational intelligence of
man and would be found to grow out of and conform to his
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
73
nature, meaning by that word his whole mental, moral and
physical constitution. This principle was opposed by those who
believed natural justice, with reference to its terminology, as the
law of jungle that prevailed widely on earth. From the clash of
those theories, if there was any help to be found or any hope to be
discovered, it was only in a law based on justice and reason which
transcended the laws and customs of men, a law made by
someone greater or mightier than those men who made these laws
and established these customs. Such a person could only be a
divine being and such a law could only be ânatural lawâ or âthe
law of natureâ, so just that it could be binding on all mankind. It
was not the law of nature in the sense of the law of jungle. With
the passage of time, the natural justice happened to be considered
as part of the law of God.
77.
Natural justice fulfills the requirements of substantial
justice and the natural sense of what is right and wrong. Many
writers have dubbed it as âfundamental justiceâ, âfair play in
actionâ and a âduty to act fairlyâ. Ormond, LJ in Lewis Vs. Heffer
(1978) I WLR 1061.1076 have found the phrase of natural justice
to be âa highly attractive and potent phraseâ.
78.
Maugham, J., in Maclean Vs. Workers Union (1929) 1
Ch. 602, 624) held a different view and considered natural justice
to be a law of jungle and of might is right. He summed up with the
observation that, âthe truth is that justice is a very elaborate
conception, the growth of many centuries of civilization; and even
now the conception differs widely in countries usually described
as civilizedâ. Some jurists following Maugham L. J., were of the
opinion that âthe principle of natural justice are vague and
difficult to ascertainâ. This fallacious view was well rebutted by
Lord Reid in Ridge Vs. Baldwin (1964) AC 40, in the following
words:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
74
âIn modern times opinions have sometimes been
expressed to the effect that natural justice is so vague as to be
practically meaningless. But I would regard these as tainted
by the perennial fallacy that because something cannot be cut
and dried or nicely weighed or measured therefore it does not
exist. The idea of negligence is equally insusceptible of exact
definition, but what a reasonable man would regard as fair
procedure in particular circumstances and what he would
regard as negligence in particular circumstances are equally
capable of serving as tests in law, and natural justice as it has
been interpreted in the courts is much more definite than that.
It appears to me that one reason why the authorities on
natural justice have been found difficult to reconcile is that
insufficient attention has been paid to the great difference
between various kinds of cases in which it has been sought to
apply the principleâ. (Emphasis supplied)
79.
The whole discussion boils down to the conclusion that
justice should not only be done but should manifestly be seen to
be done. In Bosweelâs case (1605) 6 Co.Rep.48b, 52a), it was
beautifully held that;
âHe who shall decide anything without the other side
having been heard, although he may have said what is
right, will not have done what is right.â
The principle of natural justice has now received international
recognition by being enshrined in article 10 of the Universal
Declaration of Human rights adopted and proclaimed by the
General Assembly of the United Nations by resolution 217A (III) of
December 10, 1948. It was further recognized by Article 6 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 14 of the International Covenant
on Civil and Political Rights adopted by the General Assembly
Resolution 2200A (XXI) of December 16, 1966, having come into
force on March 23rd, 1976.
80.
The outcome of the short history of audi alteram partem
narrated hereinbefore, as applicable to the present judicial
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
75
systems of the whole world, is put in a nutshell by the Supreme
Court of India in the case of Tulsi Ram Supra, as follows:-
ââĻâĻaudi alteram partem rule, in its fullest amplitude means
that a person against whom an order to his prejudice may be
passed should be informed of the allegations and charges
against him, be given an opportunity of submitting his
explanation thereto, have the right to know the evidence, both
oral or documentary, by which the matter is proposed to be
decided against him, and to inspect the documents which are
relied upon for the purpose of being used against hi m, to have
the witnesses who are to give evidence against him examined
in his presence and have the right to cross-examine them,
and to lead his own evidence, both oral and documentary, in
his defenceâĻ..â
81.
Coming to the learned discourse of my honourable
brother in the majority view, the reliance was placed on the
assertions of Mr. Rashid A. Razvi and Mr. Hamid Khan, learned
counsel for the caveators that the applicants were not a party to
Constitution Petitions No.8 & 9 of 2009 and hence have no locus
standi to file a review, not maintainable in turn. This argument, I
have already mentioned, is derived from Order XLVII of the CPC
which, as observed earlier, is not applicable. It was further alleged
that the applicants, not being a party, no relief was claimed
against them. Such argument makes the review petitions all the
more necessary to be heard. If the actions challenged in the
Constitution Petitions were those of General Pervez Musharraf,
taken in between 3.11.2007 and 16.12.2007, and if this Court
deemed it necessary to issue notice to General Pervez Musharraf,
it was rather obligatory to issue notices to the applicants, if any
possible action was intended to be taken against them as a fallout
of any declaration.
82.
Mr. Hamid Khanâs assertion that the applicants were
aware of the hearing of Constitution Petitions and that they could
have applied for becoming a party, was also approved in the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
76
majority judgment. I do not subscribe to the view so taken
because it assumes that the applicants had a knowledge of what
is happening in this Court and that they ought to have had the
knowledge as to what was going to happen, concerning them. It is
a settled principle of law that any knowledge outside the Court
does not fall within the purview of knowledge. If the argument is
considered valid, it would mean that in proceedings in rem (as it is
called by the opposite side), the public at large, even if in
thousands, should themselves come to the Court and apply for
impleadment. This is neither advisable nor practicable. The simple
rule of justice is that, whosoever is likely to be affected, notice
should be issued to him or them by the Court itself. This was
precisely done by this Court qua General Pervez Musharraf, but
the applicants were ignored.
83.
Mr. Hamid Khan further contended that in our judgment
dated 31.7.2009, reliance is placed upon the case of Al-Jehad
Trust and Malik Asad Ali, supra and if the review petitions are
heard, the applicants might allege to set the aforesaid rulings
aside. I have already referred to Al-Jehad Trustâs case and firmly
believe that this Bench is not bound to follow every act taken in
that case as gospel. The fact that the Judges from the province of
Sindh and NWFP were not made party to the above referred case,
is not at all enviable aspect of Al-Jehad Trust case. This Bench
consisting of 14 Honourbale Judges could have avoided to follow
Al-Jehad Trust case, so far as the question of condemnation of
certain citizens was concerned, especially when such citizens
happened to be the judges of superior judiciary.
84.
It was further accepted in majority judgment that in our
judgment in question, the void actions of General Pervez
Musharraf and void declarations in Tikka Iqbal case were set
aside; that it was a national act, which cannot be set aside in
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
77
review. This argument is totally misplaced because it might be
advanced when the review petitions are heard. At the moment, we
are stuck up in the problem as to whether the review petitions
should at all be heard or not. Wittingly or unwittingly, the remarks
have come for the third time, concerning the merit of the review
petitions and such remarks have condemned the applicants for
the third time.
85.
The argument that the hearing of the review petitions
would be an exercise in futility, is also not valid because such
exercises are mostly undertaken by this Court regardless of what
the outcome of review petition would be. How the results of review
petitions could be assessed or visualized at the present moment.
The majority view has decided this aspect as well without the
applicants being heard in review petitions. At this juncture, Mr.
Muhammad Akram Sheikh, learned counsel for the caveator was
last to be heard. He stated that power of Court is not a charity,
but bound to be used for the benefit of the citizens. I agree with
the learned counsel that power of Court should always be used for
the benefit of citizens, and those citizens who were Judges of the
superior judiciary, if condemned unheard, must be heard in
review. Mr. Sheikh, while speaking from the deep recesses of his
mind and heart, at the end submitted that âhe was not in favour of
closing the door of justice to any oneâ. So do I.
86.
The matters alluded to above and the points yet to be
heard in the review petitions have already been decided in para
No.21 of majority judgment, pre-determining that if heard, a
contrary view cannot be taken. Whether a contrary view can be
taken or not, is possible to be judged only after when the review
petitions are heard. Does it require to be reaffirmed that this
aspect of Al-Jehad Trustâs case, if found violative of the principles
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
78
of natural justice, could not be set aside or differed from, by a
Bench of 14 Honourable Judges of this Court?
87.
In majority judgment (para-22), it is remarked that the
applicants, in their review petitions have not challenged the
declaration of this Court in main judgment that the actions of
General Pervez Musharraf were void ab initio and hence it be
presumed that the applicants accepted the fallout thereof. I
humbly disagree with this view as well because if that part of our
judgment is not challenged, it does not mean that the fallouts are
accepted. Had those been accepted by the applicants, there was
no sense in filing the review petitions. Such remarks in para-22
are also made with reference to the review petitions, which are
never heard as yet. In para-22, page-25, the merits of review are
rejected on the very basis of our own judgment which is under
review and which reviews we have not yet heard.
88.
A review, under the law, can be allowed if sufficient
grounds are established. Such grounds are dispelled in para 28
and 29 of the judgment without hearing the petitioners on merits.
I may recall that no technicalities of Order XLVII, CPC can be
brought under consideration, the order being not applicable to the
Supreme Court, except for the grounds mentioned therein.
Moreover, the grounds also could be adhered to only when review
petitions are heard. In para 32, with reference to the judgment of
Honourable Mr. Justice Ghulam Mujaddid Mirza, it was observed
that the Supreme Court had laid down a law (PLD 1969 SC 65),
regarding appeals and that there is a lot difference between
appellate and review jurisdiction. I remember having discussed
this matter in the earlier part of the judgment and have tried to
equate appellate jurisdiction with the review jurisdiction,
especially when the order under review is that of the Supreme
Court, against which no appeal lies, except to the God Almighty. I
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
79
have a firm faith and belief that the matter in hand should not be
left to Almighty Allah because His retribution and requital is, no
doubt delayed but certainly not outrageous.
89.
The applicants through the majority judgment are denied
hearing of review on the analogy that by doing so, the finality
attached to the judgment of the apex court would be eliminated. I
do not agree with this view as well because had it been so, there
would have been no justification for the legislature to provide
Article 188 in the Constitution and no occasion for the Supreme
Court to make a provision of Order XXVI in the Rules. Judgments
of the Supreme Court are occasionally reviewed. If the factum of
finality is of prime consideration, the judgment in review can,
rather, be the one which becomes final. In para 35 of the majority
judgment, it was after all mentioned that âany other view possibleâ
could not be taken even if the review petitions are heard. At the
cost of repetition, I may say that it is tantamount to rejecting the
review petitions without hearing them, whereas, the fact of the
matter is that if a judgment is reviewed, it is always the other view
which is taken. In para 38, it was observed that a rule making
authority cannot clothe itself with the power, which is not given to
it under the statute. I also believe in the same concept of law that
rule making power cannot step beyond the legislation and on the
same analogy, this Court under its rule making power, cannot
curtail its own power, widely given by Article 187 and 188 of the
Constitution.
90.
Repeatedly it was argued that the applicants have not
been issued notice in main Constitution Petitions No.8 & 9 of
2009, decided on 31.7.2009, because they happened to possess
the status of Judges. In this behalf, the majority seems to be of
the view, approved and taken from Al-Jehad Trustâs case as
follows:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
80
âIt must be borne in mind that Judges of superior
Courts by their tradition, maintain high degree of comity
amongst themselves. They are not expected to go public on
their differences over any issue. They are also not expected
to litigate in Courts like ordinary litigant in case of denial of
a right connected with their offices. Article VI of the Code of
Conduct signed by every Judge of the Superior Courts also
enjoins upon them to avoid as far as possible any litigation
on their behalf or on behalf of others. Therefore, in keeping
with the high tradition of their office and their exalted image
in the public eye, the Judges of superior Courts can only
express their disapproval, resentment or reservationsâ on an
issue either in their judgment or order if the opportunity so
arisesâĻ..â (Emphasis provided)
91.
The above view seems also to be prevailing all over
when, with reference to the review applications and present
applications of the Judges, it was seriously objected to as to
why, being Judges, they had mentioned that through our
judgment, they happened to loose their service. The use of
word âserviceâ regarding their assignments and status was
considered to be below their dignity. With utmost respect and
with utmost effort at my command, I could not reconcile with
this paradoxical logic that, on the one hand the Judges are
considered so honourbale and so exalted that even issuance
of notice to them in a very crucial matter is considered below
their dignity and, on the other hand, they are issued
contempt notices in utter disregard of their status as well as
the principle of comity among Judges. For a long time, they
have been hearing the cases of millions of litigant public; they
have been awarding decrees, recording convictions, imposing
sentences and redressing the grievances of the people (which
actions we have safeguarded in our judgment dated
31.7.2009) and for a long time they have been addressed by
the learned counsel and the litigant public as âmy lordâ, but
at the present, they are issued contempt notices, insulted and
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
81
humiliated in Court to such an extent that one of the
advocates among audience, uninvitedly and uninterruptedly
stands up, pointing out his finger at Mr. Justice Syed Zulfiqar
Ali Bukhari and proclaiming in the open Court, âisko saza do
â isko zaroor saza do â isko exemplary punishment doâ. This
act has shocked me so much as if that counsel was pointing
his finger at us. In view of the dignity attached to their high
offices and the exalted image that the public have about the
Judges of superior judiciary, I am of the firm opinion and
hold that the contempt proceedings against the Judges be not
initiated and if so, the notices be withdrawn.
92.
If heard in review petitions, it is not necessary that they
be able to persuade this Court to recall its judgment,
concerning the actions of General Pervez Musharraf, but
there is likelihood that they might persuade this Court to
take lenient view against them and to follow the principle of
condonation by keeping in view the centuries old principle of
comity among judges. But that too is subject to the hearing of
the cases. The majority judgment is of the view that even if we
hear the cases, we would not resort to any second opinion.
This is tantamount to condemning the applicants for the
third time and I am afraid, the theory of judgment in rem
might not turn out to be of condemnation in rem.
93.
Getting support from Monika Gandhiâs case (AIR 1978
SC 597), my honourable brother maintained the view that
where the right to prior notice and an opportunity to be heard
before an order is passed, would obstruct the taking of
prompt action, such a right can be excluded. The relevant
observation of the Supreme Court of India in the aforesaid
case is reproduced as follows:-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
82
âSince the audi alteram partem rule is intended to
inject justice into the law, it cannot be applied to defeat
the ends of justice, or to make the law lifeless, absurd,
stultifying, self-defeating or plainly contrary to the
common sense of the situation. âAudi alteram partemâ rule
as such is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications.â
Accordingly, it was observed that the principle of audi alteram
partem can be applied to achieve the ends of justice and not
to defeat them. I am spellbound to answer to such
reasonings. Being a member of the Bench in the original case,
I personally could not see any urgency involved for which a
drastic action of ignoring audi alteram partem be resorted to.
Do we mean to say that, had the applicants/Judges been
issued notice and had they been heard during the main case
and even if they are heard in review petitions, it would lead to
defeat the ends of justice, making the law lifeless, absurd,
stultifying,
self-defeating
or
plainly
contrary
to
the
commonsense of the situation. At least, I am not aware of any
commonsense of the situation that would have lead to
injustice, had the applicants been heard. If not heard earlier,
they must be heard now in the review petitions.
94.
An undeniable hard fact cannot be forgotten that every
word reduced into black and white by the Supreme Court is a
command of law. Consitutionally, such verdict is bound to be
followed by all the Courts and by generations of the people.
We should avoid holding a view of such nature that
tomorrow, even a Civil Judge might stand up and quote the
Apex Court in order to shun the concept of audi alteram
partem and resultantly commit injustice. I wish, we had
followed the quotations of Lord Denning, âJustice isnât
something temporal-it is eternal-and the nearest approach to a
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
83
definition that I can give is, Justice is what the right thinking
members of the community believe to be fairâ. If a just end is
to be achieved, it must be through just means.
95.
Numerous paragraphs of our judgment dated 31.7.2009
are referred to by my honourable brother in support of the
view that review petitions have no merit. This also, to my
mind, is not a fair approach because those very portions of
our judgment are sought to be reviewed and unless we hear
the applicants in review, we cannot justify our own views
under review. Again it was observed that the principle of
natural justice cannot be applied where âthe grant of relief
would amount to retention of ill-gotten gains or lead to
injustice or aiding the injusticeâ. At the cost of repetitions, I
am constrained to say that this again is a verdict given about
review
petitions,
which
are
never
heard.
Numerous
substantial points have already been answered in the
judgment, which could have only been answered after hearing
the applicants in review. The applicants are demanding no
better opportunity than the one given by notice to General
Pervez Musharraf. Any denial, therefore, to the applicants
would be a discrimination, violating the provisions of Article
25 of the Constitution.
96.
In paragraph 55, it was remarked that the one sought
to be reviewed, was a landmark judgment in impeding the
future path of any dictator. In relation to the aforesaid object
it was, no doubt, an important judgment in judicial history of
the country, but another equally important aspect thereof is
that it practically damaged none except the weakest of the
strata. The fallouts ought to have been equal. Such
discrimination can only be made amends for through the
hearing of review petitions filed by the applicants.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
84
97.
Consequent upon what has been discussed, I hold
that the Supreme Court has unfettered powers under Article
187-188 of the Constitution read with Order XXVI of the
Supreme Court Rules to do ultimate justice for which review
petitions are absolutely maintainable. The applications in
hand are hereby accepted and the review petitions
entertained for full hearing by the Court.
(Sardar Muhammad Raza)
Judge
Islamabad,
13th October, 2009.
APPROVED FOR REPORTING
Sadaqat
CH. IJAZ AHMED, J.- I have had the benefit and privilege of
going through the judgment recorded by my learned brother Mr. Justice
Javed Iqbal and generally agree therewith. In view of the importance of
the case, I deem it prudent to add few words in support thereto. The
petitioners, through instant petitions, have sought review of judgment
dated 31.7.2009 passed by this Court in Constitution Petition
No.9/2009 and Constitution Petition No.8/2009 and thereby seek
opportunity of being heard for modifying or recalling or setting aside
only the consequential order of the judgment which affects them. The
judgment has declared the imposition of emergency as illegal and
unconstitutional and as a consequence thereof its offsprings get
affected. The petitioners being offsprings concede that emergency was
unconstitutional but challenged the consequential order on the plea
that it was passed without granting opportunity of hearing to the
affectees. The argument in essence is that cutting of roots of
undesirable tree is valid but thereafter pruning of its branches is
invalid.
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
85
2.
The doctrine of natural justice is not only to secure justice
but to prevent miscarriage of justice. It is, therefore, for the courts to
articulate from case to case what is involved in the concept of natural
justice in a particular situation. The courts do not like the idea of
confining the rules of natural justice within any rigid formula.
3.
The reliefs claimed in Petitions Nos. 9 & 8 are of general
nature and are against the State and no particular relief is claimed
against any individual party, therefore, beneficiary of consequential
order is not entitled to any hearing before striking such order.
4.
The courts only insist on fair play in action. Fairness does
import an obligation to see that no body can take benefits of any acts
which were passed by the authorities beyond the parameters of the
Constitution. A ship and its sailors swim and sink together. Hence,
when the hazardous ship of emergency is drowned then its sailors
cannot claim immunity as the fair play demands equal treatment.
JUDGE
RAHMAT HUSSAIN JAFFERI, J-. I have had the privilege
of going through the judgment recorded by my learned brother Mr.
Justice Javed Iqbal and generally agree therewith. However, I like to
express my opinion with regard to the filing of review application by
stranger under Order XLVII Rule 1, CPC. The Lahore High Court in the
case of âQaim Hussain v. Anjuman Islamia (PLD 1974 Lahore 346)â
appearing at page 34 of the judgment observed that a stranger, who is
not a party to the suit cannot file such application. In order to
appreciate the point, the provisions of Section 114 and Order XLVII of
CPC are required to be examined. The Section 114, CPC reads as
under:-
âSec.114. - [Review. - (1) Subject as aforesaid, any person
considering himself aggrieved.â
(a) by a decree or order from which an appeal is
allowed by this Code, but from which no appeal has
been preferred,
(b) by a decree or order from which no appeal is
allowed by this Code, or
(c) by a decision on a reference from a Court of Small
Causes, may apply for a review of judgment to the
Court which passed the decree or made the order,
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
86
and the Court may make such order thereon as it
thinks fit.
(2)
Nothing contained in sub-section (1) shall apply to a
review of any judgment pronounced or any order made by the
Supreme Court].â
A bare reading of the Section reveals that right to apply for
review has been given to âany personâ but subject to condition that he
should be aggrieved by a decree or order of the Court. The phrase âany
personâ means a person, no matter who or a person of any kind. Words
âa personâ appearing in Section 12(2), CPC has been defined as a
person not party to the suit by this Court in the cases of âMuhammad
Yousaf v. Federal Government (1999 SCMR 1516) and Ghulam
Muhammad v. M. Ahmad Khan (1993 SCMR 662)â. Thus there is no
restriction placed under Section 114, CPC to debar any person other
than the parties to the suit to file review application.
2.
The rules contained in the First Schedule of Code of Civil
Procedure are enabling provisions for the advancement of justice,
therefore, they are required to be consistent with the provisions of the
enactment. The said rules cannot enlarge or reduce the scope of
relevant Sections of CPC. In the case of Qaim Hussain (supra) it appears
that scope of the Section has been reduced which in my humble view is
not permissible. A detailed and valuable discussion has been made in
the judgment of my learned brother on the consistency of rules with the
enactment and observed that statutory rules cannot enlarge the scope
of the Section under which it is framed and if a rule goes beyond what
the Section contemplates, the rule must yield to the statute.
3.
A perusal of Order XLVII which has already been
reproduced in the judgment would show that in sub-rule 1 the words
âany personâ have been used which are also appearing in Section 114,
CPC whereas in sub-rule 2 instead of using the words âany personâ the
Framers of rules have used the words âa partyâ. This departure is a
significant one which clearly demonstrates that the Lawmakers did not
intentionally use the words âa partyâ in sub-rule 1, so as to make it in
consonance with Section 114, CPC. In my humble view all the grounds
mentioned in sub-rule 1 of Order XLVII, CPC for review of the decree or
order would be available to the parties of the suit whereas the last two
grounds: (i) on account of mistake or error apparent on the face of
record or (ii) for any other sufficient reason would appear to be available
to the persons who are not parties to the suit. If the meaning of âany
personâ is restricted to the parties of the suit then it will negate the
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09
87
words âany personâ appearing in Section 114, CPC which in my humble
view would not be the intention of the Framers of rules. Therefore, I am
of the view that the words âany personâ would not only include the
parties to the suit but also other persons.
4.
It is further pointed out that under sub-section 2 of Section
114, CPC the sub-section 1 thereof has been excluded from application
before this Court. Therefore, Section 114(1), CPC would not be
applicable before this Court and so also the rules framed thereunder
viz. Order XLVII. Nevertheless, Order XXVI Rule 1 of Supreme Court
Rules, 1980 shows that only reference has been made to the grounds
mentioned in Order XLVII Rule 1, CPC. The said Rule reads as under:-
â1.
Subject to the law and the practice of the Court, the
Court may review its judgment or order in a Civil proceeding on
grounds similar to those mentioned in Order XLVII, rule I of the
Code and in a criminal proceeding on the ground of an error
apparent on the face of the record.â
5.
Thus for the purpose of review of judgment or order of this
Court, only the grounds mentioned in order XLVII Rule 1 of CPC can be
taken into consideration and not the Order itself or Section 114, CPC.
However, the grounds may be other than the grounds mentioned above
as the word âsimilarityâ has been used, which has enlarged the scope
from the above provisions of CPC.
Sub-rule 6 of Order XXVI of Supreme Court Rules, 1980
deals with entertaining and hearing of review application, which is as
under:-
â6.
Except with the special leave of the Court, no
application for review shall be entertained unless it is drawn
by the Advocate who appeared at the hearing of the case in
which the judgment or order, sought to be reviewed, was
made. Nor shall any other Advocate, except such Advocate, be
heard in support of the application for review, unless the Court
has dispensed with the requirement aforesaid.â
The above provision clearly shows that the Advocate, who
had appeared at the hearing can draw the review application and be
heard in support of the said application. Thus it refers to the party.
Reference is invited to âMuhammad Rafique v. Maryam Bibi (1996
SCMR 1867)â. However, the Court has also suo motu powers to review
the judgment or order on its own or on receipt of any information
through any source in any manner either written or oral. The person
supplying information can be treated as informer and if the Court finds
that the information is such where any of the grounds for review is
attracted then the matter can be heard to do complete justice.
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
C.M.A. NO. 2769 OF 2023
IN
C.M.A. 2600 OF 2023
IN
CONST. P. NO.5 OF 2023
(Representation on behalf of Election
Commission of Pakistan)
C.M.A. NO. 2770 OF 2023
IN
C.M.A. 2600 OF 2023
IN
CONST. P. NO.5 OF 2023
(Compliance Report on behalf of
Election Commission of Pakistan)
C.M.A. NO. 2771 OF 2023
IN
C.M.A. 2600 OF 2023
IN
CONST. P. NO.5 OF 2023
(Compliance Report on behalf of the
State Bank of Pakistan)
C.M.A. NO. 2772 OF 2023
IN
C.M.A. 2600 OF 2023
IN
CONST. P. NO.5 OF 2023
(Compliance Report on behalf of
Finance Division)
C.M.A. NO. 2773 OF 2023
IN
C.M.A. 2600 OF 2023
IN
CONST. P. NO.5 OF 2023
(Report by Attorney General on behalf of
Federation of Pakistan)
Mohammad Sibtain Khan and others
(in all cases)
âĻApplicant(s)
Versus
Election Commission of Pakistan
through Chief Election
Commissioner Islamabad and others
(in all cases)
âĻRespondent(s)
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
2
For the Applicant(s)
(In CMA 2769 of 2023 etc.)
: Mr. Mansoor Usman Awan, AGP
assisted by:
Barrister Maryam Ali Abbasi, Consultant
Mr. M. Arshad, DG Law ECP
Mr. Owais Sumra, Spl. Sec. Fin.
Mr. Omer Hamid Khan, Secretary ECP
Mr. Tanveer Butt, Addl. Secretary
(Budget)
Mr. Aamir Mehmood, Addl. Secretary
Mr. Habibullah, J.S. Lit (Fin)
Date of Hearing
: 19.04.2023
O R D E R
There are a number of miscellaneous matters before the
Court in the shape of various CMAs. We first take up CMA Nos.
2770-2772/2023 since they relate to the compliance required by
the order dated 14.04.2023 (âOrderâ), for the release of Rs. 21
Billion to the Election Commission of Pakistan (âCommissionâ) for
the holding of general elections to the Punjab and Khyber
Pakhtunkhwa Assemblies.
2.
CMA 2771/2023 is a report filed by the State Bank of
Pakistan stating that a sum of Rs. 21 Billion from Account No. I of
the Federal Consolidated Fund (âFundâ) has been allocated for
purposes of the aforementioned general elections. The Commission
has however filed a report (CMA 2770/2023) stating that the said
funds have not yet been made available to it. These CMAs are
taken on record.
3.
The Finance Division, Government of Pakistan has also filed
a report (CMA 2772/2023) in terms of the Order. The report seeks
to justify why the funds have not been made available. Briefly
stated, it is reported that the matter of providing the funds was
placed before the Federal Cabinet which, at its meeting held on
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
3
17.04.2023, decided that a demand for the authorization and
release thereof be sent to the National Assembly for its
consideration in terms of Article 82(2) read with Article 84 of the
Constitution. The following motion was tabled before the National
Assembly the same day (âDemand No. 64Aâ):
âThat a supplementary grant not exceeding Rs. 21
billion be granted to the Federal Government to meet
the expenditure (other than charged) during the
financial year ending 30th June, 2023 in respect of
Election Commission of Pakistan (Demand No. 64A)â
The Finance Division has reported that this motion was
rejected by the National Assembly and the necessary funds could
not therefore be made available to the Commission.
4.
The first point to note is that, as set out in the Order, it was
specifically queried from the team from the Finance Division and
confirmed by them, that Article 84 allows and enables the Federal
Government to make expenditures from the Fund for, inter alia,
âexpenditure upon some new service not included in the Annual
Budget Statementâ during any financial year. For such expenditure
the Federal Government obtains ex post facto authorization from
the National Assembly in the form of a Supplementary Budget
Statement. The team from Finance Division also stated that the
normal practice was for the Supplementary Budget Statement for
the current financial year (as also any previous years) to be laid
before the National Assembly along with the Annual Budget
Statement for the succeeding financial year, with both then to be
approved. There can therefore be no doubt, as noted in the Order,
that the Federal Cabinet all along itself had the authority and
power to authorize the expenditure of Rs. 21 Billion from the Fund
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
4
in order to enable the Federation to perform its constitutional
obligations in relation to the general elections.
5.
The learned Attorney General, in our view quite correctly
and properly, did not attempt to seriously dispute the position as
just stated. However, the reason why in the present case the
matter was first referred to the National Assembly was sought to be
explained. The learned Attorney General submitted that at an
earlier date, the National Assembly had passed a resolution
expressing its disapproval of the release of any funds for the
holding of the general elections. It was this resolution that created
a certain doubt and uncertainty, and so the Federal Cabinet
decided to first refer to the National Assembly. On a query from the
Court the learned Attorney General stated that the earlier
resolution was not in terms of a specific request for a grant of
funds for a financial measure. With respect, we were not satisfied
that the earlier resolution stood in the way of the Federal Cabinet
exercising its constitutional power under Article 84. The reasons
for this are set out below.
6.
To the extent therefore that the report of the Finance
Division concludes, or proceeds on the basis that, the Federal
Government did not itself have the requisite constitutional
authority and power at all times to authorize the expenditure of Rs.
21 Billion for the general elections, it cannot be accepted.
7.
The effect of the Federal Cabinetâs decision to refer the
matter to the National Assembly in terms as noted above, and for
Demand No. 64A to be rejected when voted upon by that House
may now be considered. In terms of the system of parliamentary
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
5
democracy envisaged by the Constitution the Government of the
day must command the confidence of the majority of the National
Assembly at all times. Furthermore, given that the office of Prime
Minister has primacy (who is declared by Article 91(1) to be the
chief executive of the Federation), this also means that the Prime
Minister must enjoy the confidence of the majority of the National
Assembly at all times. It follows from the foregoing (and this is an
important constitutional convention) that the Government of the
day must be able to secure the passage of all financial measures
that it submits before the National Assembly. This would be
certainly true for a financial measure of constitutional importance,
i.e., one that seeks the release of funds for the holding of general
elections to two Provincial Assemblies.
8.
When viewed from this perspective the rejection of Demand
No. 64A has serious constitutional implications. One possibility is
that the Government (and also, since the Federal Cabinet is
appointed on the advice of, and is headed by, him, the Prime
Minister) have lost the confidence of the majority of the members of
the National Assembly. The learned Attorney General categorically
stated that this was not so. The Federal Cabinet and the Prime
Minister have, and had, at all times the confidence of the majority
of the National Assembly. For present purposes, we accept this
statement made by the learned Attorney General. The other
possibility then is that the putative rejection of Demand No. 64A is
to be regarded as anomalous, and the resulting situation can be
rapidly rectified. The learned Attorney General fully appreciated
the serious constitutional consequences that would flow, were the
first possibility to reflect the correct position. Furthermore, any
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
6
future to and fro of this matter between the executive and
legislative branches would not advance or serve any constitutional
purpose. There would be a serious breach of constitutional duty
and obligation. It is also to be emphasized that the orders of this
Court seek only to enforce and effectuate binding constitutional
obligations. A disobedience and defiance of the orders of the Court
can itself have serious consequences. The learned Attorney General
was therefore directed to draw the attention of the Federal Cabinet
and the Prime Minister to the foregoing so that the matter is
remedied at the earliest. The Court requires that appropriate
remedial measures be taken in full measure not later than
27.04.2023 and, in particular, by that date the sum of Rs. 21
Billion be provided, in immediately available and realizable funds,
to the Commission for the holding of the general elections to the
Punjab and KPK Assemblies. CMA 2772/2023 is, for the time
being, dealt with in the foregoing terms.
9.
CMA 2773/2023 is filed by the Federal Government. It
seeks to place on record a report, prepared by the Ministry of
Defence, on the security situation in the country at the present
time and for the next few months This CMA is moved under Order
33, R. 6 SCR and the relief sought is for the order dated
04.04.2023, whereby CP 5/2023 was finally disposed of, be
recalled. It was pointed out to the learned Attorney General that
such an application could not be entertained nor relief granted, as
CP 5/2023 has been decided by final judgment. CMA 2773/2023
is therefore disposed of as not maintainable.
10.
The last matter is CMA 2769/2023 which purports to be a
representation filed by the Commission. It seeks, in essence, for
CMAs. 2769-2773 of 2023
In CMA No.2600 of 2023 in
Const.P.5 of 2023.
7
the Court to restore the date for the general elections to be
08.10.2023, which was impugned before the Court in CP 5/2023
and set aside by the order dated 04.04.2023. The Commission
seeks restoration of the said date on essentially security grounds,
which in large measure overlap the concerns expressed in the
report of the Ministry of Defence appended to CMA 2773/2023. In
our view the Commission seeks, in the guise of a representation, to
re-agitate matters that were before the Court when CP 5/2023 was
heard and decided, and in which two fully instructed learned
counsel were permitted to make submissions on its behalf. It is
impermissible to attempt to so reopen issues and questions that
already
stand
finally
decided.
The
representation
is
not
maintainable and CMA 2769/2023 is disposed of accordingly.
Sd/-
Chief Justice
Sd/-
Judge
Islamabad
19.04.2023
Sd/-
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam
CMA-2774/14 in Constitution Petition No.51 of 2010
(Application for revival of Const. Petition)
AND
Constitution Petition No.48 of 2014
(Under Article 184(3) of the Constitution)
Independent Media Corporation
âĻ
Applicant(s)
Versus
Federation of Pakistan, etc.
âĻ
Respondent(s)
For the applicant(s):
Mr. Muhammad Akram Sheikh, Sr. ASC
On Courtâs call:
Mr. Salman Aslam Butt, Attorney General for Pakistan
Mr. Khawaja Ahmed Hosain, DAG
Voluntarily appeared:
Mr. Sabir Shakir, Bureau Chief, ARY News Islamabad
For the PEMRA:
Mr. Zahid Malik, Legal Head.
Date of hearing:
22.05.2014
ORDER
Jawwad S. Khawaja, J. This case was taken up earlier in the day. Before learned
counsel for the applicant could state the facts of the case it was pointed out to him from the
Bench that apparently there was an objection from some quarters in respect of the
constitution/impartiality of the Bench. Therefore, the case was adjourned for hearing after
the break at 12 noon. After the break it was stated by the Bench that the respondent or any
other person having any objection against constitution of this Bench may come to Court
and the matter was adjourned to 1:00 p.m.
1:00 p.m:
2.
At 1:00 p.m. when the matter was taken up, the learned Attorney General appeared
and stated that the Federation has no objection to the hearing of this petition by this Bench
which includes (Jawwad S. Khawaja, J.). However, one Sabir Shakir, Bureau Chief, ARY,
Islamabad appeared and stated that Mubashar Luqman who is Anchor Person of ARY had
sent him to state that he would like to engage a counsel in this case. There may be
CMA 2774/14 in Const. 51 of 2010
2
justification for this request though, prima facie, it does not appear so but there appears to
be some TV talk show aired last evening which may need to be seen as it appears to be
relevant in this context. However, in order to ensure absolute transparency in these cases,
we are prepared to consider the objections which may appear from the aforesaid TV show
to be against one Member of this Bench (Jawwad S. Khawaja,J.). It may be that this
objection has something to do with the news programme Kharra Sach which was aired on
ARY yesterday i.e. 21.5.2014. Therefore, we direct the Registrar of the Court to obtain the
CD of the said programme which was aired yesterday and which needs to be seen as the
same may throw some light on the basis or otherwise of any objection as vehemently
urged by Sabir Shakir.
3.
The Court will re-assemble at 2 p.m. today for the viewing of the TV programme.
In the meanwhile, the office shall make arrangements for displaying relevant parts of the
programme âKharra Sachâ relayed yesterday on ARY News Channel, through multimedia
in Court at 2. p.m.
2:00 p.m:
4.
This case has been taken up for the third time today. Firstly the case was called at
12: 00 noon and at that time the order of 12 noon was passed which has been reproduced
above. The matter was then set for hearing for 1:00 p.m. The order which was passed at
1:00 p.m. is also reproduced above. The matter was then adjourned for hearing at 2:00
p.m. primarily for the purpose of viewing the programme Kharra Sach which was aired on
ARY TV last evening. We have seen two relevant clips of the aforesaid programme in
Court through multimedia. The transcript of the said two clips is reproduced below:-
CMA 2774/14 in Const. 51 of 2010
3
5.
It is not for the present necessary to make any determination as to the nature of the
above reproduced excerpts from the TV programme. If there is any cause or matter which
may require intervention in exercise of proceedings under any constitutional or statutory
provision, that matter, needless to say, will proceed separately because that has no direct
nexus with the matter at hand. The matter right now is as to whether one of us (Jawwad S.
Khawaja, J.) should sit on this Bench. The basis of the objection can be gathered from the
second excerpt of the TV programme reproduced above. It is in this excerpt that it has
been alleged that because of a relationship I (Jawwad S. Khawaja) have with Shakeel ur
Rehman I should recuse from the hearing of this case. This statement has been made by a
gentleman named Aqeel Karim Dhaidi aged 56 years. It is quite obvious that he is totally
unaware of the nature of the office of a judge and of the rules which have been laid down
to ensure transparency and impartiality of Benches hearing cases. Mr. Dhaidi appears to be
unaware that although Mir Shakeel ur Rehman happens to be the brother of the wife of my
brother, I do not recall the last time we met, it may have been 20 years ago, 16 years ago or
CMA 2774/14 in Const. 51 of 2010
4
perhaps at some shadi or ghami which I do not recall at present. It is always for the Judge
himself to make a determination as to whether or not his relationship with any other
person is such that he should not hear a particular case in which such person is a party.
6.
The Code of Conduct prescribed by the Supreme Judicial Council for Judges of the
Superior Courts includes Article 4 which states that a Judge should not âact in a case
involving his own interest, including those of persons whom he regards and treats as near relatives
or close friends.â From this it will be evident that only such persons can trigger recusal of a
Judge who are considered to be close by a Judge. The rationale of this stipulation is evident
from its content. It is clear that I have no basis for regarding or treating Shakeel ur Rehman
as a near relative.
7.
The Oath of Office of Judges of the Supreme Court is set out in the Schedule to the
Constitution as per Article 178. It is expressly stated therein that the Judge â will not allow
[his] personal interest to influence [his] official conduct or [his] official decisionâ. Judges also
swear under the Constitution to â do right to all manner of people according to law without fear
or favour, affection or ill-willâ. The Holy Quran in fact directs Judges to act fairly, justly and
impartially even if they are hearing cases involving their own relatives. The above
provisions of the Code of Conduct or Oath of Office or the verses from the Holy Quran do
not impose a bar on a Judge from hearing cases unless there is cause under Article 4 of the
Code of Conduct reproduced above. No such cause exists in this case.
8.
In a recent judgment in CRPs-328 & 329 of 2013 which had been filed by General
(Retd.) Parvaiz Musharraf it was held as under:-
â6.
Judges, it may be noted, do encounter allegations of bias and also receive
criticism some of which may be expressed in civil language while others may be
through hate speech or outright vilification based on malice. In either event, the Judge
by training does not allow such vilification to cloud his judgment in a judicial matter.
Even extremely derogatory language used against Judges does not, by itself create bias,
as is evident from the negligible number of contempt cases based on scandalisation of
Judges, (none leading to a sentence) cited in the case titled Baz Muhammad Kakar vs.
Federation of Pakistan (PLD 2012 SC 923). Courts, therefore, cannot decide questions
of perceived bias by accepting the individual and personal views of an aggrieved
petitioner and thus recuse from a case âĻ if a subjective perception of bias could be
made a basis for recusal of a Judge âĻ it would be very simple for any litigant not
CMA 2774/14 in Const. 51 of 2010
5
wanting his case to be heard by a particular Judge to start hurling abuses at such Judge
and thereafter to claim that the Judge was biased against him.â
9.
In the said judgment, we have also observed that it may become very easy for a
litigant to avoid appearing before any Bench which is not of his choice. He can speak
against a Judge or such Bench directly or through innuendo and thereafter claim that the
Judge is biased against him and should recuse from the hearing. In the present case, we
may assume that the comments made by Mr. Dhaidhi may be in good faith, however, such
comments before being aired on a TV channel licensed by PEMRA could have been vetted
or even in the case of a live telecast it should have been ascertained that the interviewee
was aware of Article 19 of the Constitution and the law. We, however, donot intend to
embark on any such inquiry as this will be a matter within the competence and jurisdiction
of PEMRA. It is for PEMRA to ensure that the constitutional provisions set out in Articles
19 and 19A of the Constitution are strictly adhered to. These provisions have also been
incorporated in the PEMRA Ordinance and the rules framed by PEMRA thereunder and
also in the provisions of the licences which are issued by PEMRA to various channels.
10.
In the above context, it may be useful to record that all litigants at times make
attempts to avoid hearing before certain Benches but at times such attempts are not well
intentioned. There may even be attempts to intimidate or malign judges or institutions of
the State and thereby, to undermine such individuals or institutions.
11.
It is in this context that two instances can be referred to by us. When I, (Jawwad S.
Khawaja, J.) was a Judge of the High Court, I received a letter stating therein that I had
illicit relations with women folk of the opposite party. The said letter was circulated by me
amongst the lawyers of the parties. The person who purportedly wrote this letter was
summoned in Court on the following day. She appeared in Court. Her demeanor in Court
depicted that she was a simple village woman. She admitted that she wrote the said letter.
When asked why she did so, she replied that she did not want the case to be heard by me
and was advised by a worldly-wise man in the village to write the letter to me and as a
consequence the case would be ordered to be placed before some other Bench. This
approach is unfortunate but is prevalent in our society. Judges cannot be tricked by such
CMA 2774/14 in Const. 51 of 2010
6
tactics. If they succumb to such tactics they will thereby empower litigants and enable
them to control fixation of cases and constitution of Benches.
12.
There is another instance relating to a commercial matter in which a letter was
received by me. This letter was purportedly from one of the parties to the case. In the letter
it was stated that I had been a lawyer for one of the parties and was, therefore, biased in
favour of the opposite side. This letter was also circulated amongst the lawyers of the
parties at which point the party who was purported to have written the letter stood up in
Court and stated that he had not written the letter and in fact he would want the same
Bench headed by me to hear the case.
13.
These instances show that there can be reasons, other than those that meet the eye,
which may motivate a remark or comment. If judges donot deal firmly with such remarks
(where unfounded) this may encourage unscrupulous or uninformed elements into saying
things which may erode the standing, respect and credibility of the Court. The hearings of
this case at intervals today is significant. Courts are not to succumb to any remark,
defamatory or otherwise. It is the conscience of the Judge himself which must determine
his decision to sit on a Bench or not.
14.
We are very conscious and careful in noting that Mr. Dhaidhi may genuinely have
felt the way he did when he said that one of us (Jawwad S. Khawaja, J.) should recuse from
this case. Therefore, it may be for some other person or some other proceedings to deal
with the utterances in the TV Programme as reproduced above. We have no intention to
comment on matters which are sub judice before this Court and before other Courts
including Accountability Courts which are part of the Judicial System of Pakistan wherein
Mr. Dhaidhi may be arrayed as a party or as an accused. We are deliberately and
consciously not recording any remarks or comment lest it causes prejudice to the trial or to
Mr. Dhaidhi in such pending matters.
15.
The upshot of the above is that I do not find any reason whatsoever not to sit on
this Bench.
16.
At this juncture, it is important to reproduce Article 19 of the Constitution which is
in the following terms:-
CMA 2774/14 in Const. 51 of 2010
7
â19.
Every citizen shall have the right to freedom of speech and
expression, and there shall be freedom of the press, subject to any reasonable
restrictions imposed by law in the interest of the glory or Islam or the
integrity, security or defence of Pakistan or any part thereof, friendly
relations with foreign States, public order, decency or morality, or in relation
to contempt of court, [commission of] or incitement to an offence.
17.
Thus barring the exclusions which have been mentioned in the said Article, there
can be no restriction imposed on the freedoms of speech and expression set out in Article
19 of the Constitution.
18.
To come up tomorrow i.e. 23.5.2014, for further proceedings.
Judge
Judge
Judge
ISLAMABAD,
22nd May, 2014
M. Azhar Malik
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE SYED MANSOOR ALI SHAH
CMA NO. 284 OF 2021
(For transfer of family suit from one Province to another)
Mst. Kulsoom Rasheed
...âĻ.Applicant(s)
Versus
Noman Aslam
âĻ.Respondent(s)
Applicant(s):
Kulsoom Rasheem (In person)
For the Respondent(s): N.R.
Date of hearing:
23.02.2021
ORDER
Mushir Alam, J.- It appears that the suit for recovery of
maintenance and dowry articles filed in the court of Judge Family
Court, Islamabad West was decreed ex-parte vide judgment dated
24.02.2020. From the record it appears that the respondent is
resident of Karachi and the decree could not possibly be executed at
Islamabad. The applicant in person through titled application prays
for transfer of the titled case from Judge Family Court Islamabad-
West to the court of competent jurisdiction/Judge Family Court,
Karachi (Sindh) in terms of Section 25-A (2-B) of the Family Courts
Act, 1964. For facility of reference the said provision is reproduced
below:-
â25A. Transfer of cases.-(1) Notwithstanding
anything contained in any law the High Court
may, either on the application of any party or of
its own accord, by an order in writing.
âĻ
(2a)âĻ
(2b) On the application of any of the parties and
after notice to the parties and after hearing such
of them as desire to be heard, or of its own
motion without such notice, the Supreme Court
may at any state transfer any suit, appeal or
other proceedings under this Act pending before a
Court in one Province to a Court in another
Province, competent to try or dispose of the
same.â (emphasis supplied)
CMA No.284/2021
2
2.
Bare perusal of the above provision reveals that this
Court may order the transfer of proceedings pending from one
jurisdiction to another more particularly from one Province to
another either at the motion of the parties or on its own motion
without notice.
3.
In view of the above stated legal position and looking
into the facts and circumstances of the case, it would be
cumbersome to issue notice to the respondent, who is resident of
Karachi. Even otherwise it will burden the respondent with heavy
cost on travelling or contesting the matter here. In order to protect
the rights and interest of the parties and to ensure that right as
conferred by Article 10A of the Constitution âfair trialâ is protected,
this Court can always make an order of transfer and the transferee
court may take further proceedings from where it is left by the Court
from which matter is transferred, only after due service of notice on
the respondent. In view of the fact that the matter in issue relates to
the execution of a decree passed in favour of the petitioner, who is
also the wife of the respondent, the execution proceedings, in order
to facilitate expeditious disposal, are ordered to be transferred from
the Family Court/Guardian Judge, Islamabad-West to the District
Judge, Karachi (concerned) who shall assign the matter to the
competent Family Court concerned for the purpose of the execution
of the judgment and decree noted above after due service on the
respondent.
4.
This CMA is accordingly disposed of in the above terms.
Islamabad,
23rd February, 2021.
Approved for reporting
Iqbal
Judge
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE AMIR HANI MUSLIM
CMA NO. 290 OF 2012 &
CONSTITUTION PETITIONS NO. 77 TO 85, 89 & 92 OF 2011
& CMA NO. 5505/2011 IN CONST. P. 79 OF 2011
[Constitution Petition under Article 184(3) of
the
Constitution
regarding
alleged
Memorandum to Admiral Mike Mullen by
Mr. Hussain Haqqani, former Ambassador of
Pakistan to the United States of America]
âĻ
Watan Party
âĻ
PETITIONER
[CP 77/2011]
M. Tariq Asad Advocate Supreme Court
âĻ
PETITIONER
[CP 78/2011]
Muhammad Nawaz Sharif
âĻ
PETITIONER
[CP 79/2011]
Senator Muhammad Ishaq Dar & another
âĻ
PETITIONERS
[CP 80/2011]
Iqbal Zafar Jhagra & another
âĻ
PETITIONERS
[CP 81/2011]
Lt. General ÂŽ Abdul Qadir Baloch & 2 others
âĻ
PETITIONERS
[CP 82/2011]
Raja Muhammad Farooq Haider Khan & anotherâĻ
PETITIONERS
[CP 83/2011]
Syed Ghous Ali Shah & 2 others
âĻ
PETITIONERS
[CP 84/2011]
Hafeez Ur Rahman
âĻ
PETITIONER
[CP 85/2011]
CONST P 77-2011/2010, etc.
2
Shafqatullah Sohail
âĻ
PETITIONER
[CP 89/2011]
Shahid Orakzai
âĻ
PETITIONER
[CP 92/2011]
VERSUS
Federation of Pakistan & others
âĻ
RESPONDENTS
For the petitioners:
Barrister Zafarullah Khan, ASC in person
Mr. Tariq Asad, ASC in person
Senator Muhammad Ishaq Dar &
Khawaja Muhammad Asif, MNA in person
Mr. Attique Shah, ASC
Dr. M. Salahuddin Mengal, ASC
Sardar Asmatullah Khan, ASC
Mr. Naseer Ahmad Bhutta, ASC
Mr. M.S. Khattak, AOR
Mr. Shahid Orakzai in person
For the President of Pakistan:
Nemo.
For the Prime Minister of Pakistan: Nemo.
For Chief of Army Staff,
Maulvi Anwar-ul-Haq
DG, ISI & M/O of Cabinet,
Attorney General for Pakistan
Defence, Foreign Affairs,
Interior & Law:
For Mr. Hussain Haqqani:
Ms. Asma Jahangir, ASC
Ch. Akhtar Ali, AOR
For Mr. Mansoor Ijaz:
Mr. Muhammad Akram Sheikh, Sr. ASC
Date of hearing:
30.01.2012
âĻ
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. â
CMA NO. 290 OF 2012
The Commission constituted to probe into the origin,
authenticity and purpose of the alleged Memo dated 11.05.2011 has
submitted a request through its Secretary for the enlargement of the
time. We have heard the learned Attorney General for Pakistan, who
CONST P 77-2011/2010, etc.
3
has briefed us about the proceedings so far undertaken by the
Commission. From the facts so narrated by him, it seems that the
Commission has not completed its proceedings to procure evidence,
and as it has been pointed out that Mr. Mansoor Ijaz has not appeared
before the Commission, therefore, some time is likely to be consumed
to complete this exercise. The learned Attorney General for Pakistan
and the learned counsel appearing for Mr. Hussain Haqqani have no
objection. However, Barrister Zafarullah Khan, ASC has stated that in
absence of the statement of Mr. Mansoor Ijaz, the statement of DG,
ISI who has already given his affidavit, be recorded. We do not want
to interfere in the proceedings, which are being undertaken by the
Commission. However, in the interest of justice, we extend the time
for completion of the proceedings for a period of two months
commencing from the passing of this order.
CMA NO. 331 OF 2012
2.
The learned counsel for Mr. Hussain Haqqani has
submitted an application, inter alia, stating therein that he has fully
cooperated with the Commission and will continue to do so and also
undertakes to return to Pakistan any time on four daysâ notice to join
the proceedings, if and when required to do so by the Commission,
therefore, the condition placed upon him of not leaving the country be
withdrawn and he be allowed to join his family abroad. The learned
Attorney General for Pakistan has no objection if permission as prayed
for is accorded and Mr. Hussain Haqqani is allowed to leave the
country in view of the undertaking given in the application to return
back on four daysâ notice whenever his attendance is required by the
Commission. It is to be noted that in the earlier orders dated
01.12.2011 & 30.12.2011, he was asked not to leave the country
CONST P 77-2011/2010, etc.
4
without prior permission of this Court and now such permission is
being sought and for the reasons disclosed hereinabove, he is allowed
to leave the country. However, he will provide his full particulars to the
Registrar of this Court and be also bound to return back on four daysâ
notice if his attendance is required by the Commission or by this Court.
CMA NO. 329 OF 2012
3.
Mr. Muhammad Akram Sheikh, Sr. ASC has submitted an
application for recording of evidence outside the country. He may
place this request before the Commission for passing of appropriate
order.
4.
Mr. Mansoor Ijaz has addressed a letter to the Chief
Justice of Pakistan under the caption âsecret letterâ wherein he has
disclosed certain information, but we are not aware of its authenticity.
It is a cardinal principle of law that whenever a person claims
confidentiality or requests the Court to treat any document as
confidential or classified, the Court may go through it, but its status to
be treated as confidential or classified document has to be decided
according to law. However, as he has engaged a counsel, we would
have appreciated if he had sent such a document to the Court through
his counsel. Be that as it may, at this stage, we would not be
considering this document for any purpose, but the same would be
kept in a sealed cover under lock by the Registrar of this Court.
Registrar present in Court is directed accordingly.
CONST. PETITION NO. 92 OF 2011
5.
Mr. Shahid Orakzai, petitioner has appeared in person and
stated that he has raised a different question in his petition, which are
not taken up in the petitions already entertained. Issue notice to the
CONST P 77-2011/2010, etc.
5
respondents to file comments before the next date of hearing. To be
fixed along with other petitions.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MIAN SHAKIRULLAH JAN, J.
TASSADUQ HUSSAIN JILLANI, J.
JAWWAD S. KHAWAJA, J.
ANWAR ZAHEER JAMALI, J.
KHILJI ARIF HUSSAIN, J.
TARIQ PARVEZ, J.
MIAN SAQIB NISAR, J.
AMIR HANI MUSLIM, J.
Islamabad, the
30th January, 2012
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE SH. AZMAT SAEED
CMA NO.2915 OF 2013 IN CMA NO.1262 OF 2012 IN
HRC NO.965 OF 2005
(Amina Masood Janjua v. the State thr M/o Interior
and others)
AND
CMA NO.2996 OF 2013 IN CMA NO.1262 OF 2012 IN
HRC NO.965 OF 2005
(Amina Masood Janjua v. the State thr M/o Interior
and others)
AND
CMA NO.4246 OF 2013 IN CMA NO.2996 OF 2013 IN
HRC NO.965 OF 2005
(Ziaullah v. The State through M/o Interior)
Amina Masood Janjua
âĻ Applicant
VERSUS
The State through M/o Interior etc
âĻ Respondents
For the applicant:
Mst. Amina Masood Janjua With Naseer
On Court Notice:
Mr. Tariq Mahmood Khokhar, Addl. AGP
Malik Faisal Rafique, Addl. A.G. Punjab
Mr. Siddique Khan Baloch, ASC
Mr. Shahidullah Khan, Addl. Secy, FATA
Mr. Abdul Qayyum, LO
Mr. Usman Khan, SO Home
Date of hearing:
26.7.2013
ORDER
The learned Additional Attorney General for
Pakistan has placed on record, a list of 64 persons supplied to
CMA No.2915-2013 etc-1.doc
- 2 -
him by the Secretary, FATA and stated that they are confined
in the different Internment Centers. However, the detail of
the cases in which they are involved, if any, has not been
mentioned. Similarly, he stated that about 504 persons, list of
which has been prepared by the Secretary PATA, are
confined in different Internment Centres.
2.
The learned Addl. Attorney General may file both
the lists in the office within three days alongwith the details,
if any, about their involvement in the criminal cases and in
the column of the remarks, it would also be mentioned as to
why they are not proceeding against them, if there are some
cases against them.
3.
The learned Addl. Attorney General has stated
that, as per the direction of the Court, some of the internees
have provided an opportunity to meet with their relatives.
However, we direct that they may prepare SOPs and a focal
person should be appointed preferably to be the District and
Sessions Judges in the area where Internment Centres are
situated and they are discharging their duties otherwise the
Political Agent or the Deputy Commissioner would himself
be a focal person and he (they) would be responsible to
CMA No.2915-2013 etc-1.doc
- 3 -
manage the meeting of the relatives according to rules
without causing any inconvenience to them.
4.
On the last date of hearing, we have also pointed
out about providing the medical treatment to the detenues, as
there was a complaint before us that for want of medical
facility and food their health is deteriorating day by day. The
report in this behalf may be called from both the Secretaries
FATA and PATA before the next date of hearing so that we
may pass an appropriate order, if need be. Although, we
have already observed that a human being, who is kept in
Internment Centre, is entitled for the food and medicines, as
per his fundamental rights.
5.
On receipt of the reports from both the agencies,
noted herein above, the matter shall be taken up further for
the purpose of passing an appropriate order.
Adjourned to a date in office after 10 days.
Chief Justice
Judge
Judge
Islamabad, the
26th July, 2013
Not approved for reporting
M. Safdar Mahmood/*
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
CMA NO.2916/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005
(Amina Masood Janjua Vs. The State through M/o Interior and others)
AND
CMA NO.2994/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005
(Amina Masood Janjua Vs. The State through M/o Interior and others)
For the Applicant
: Mrs. Amina Masood Janjua
On Courtâs Notice
: Mr. Tariq Mehmood Khokhar, Addl. A.G.
Malik Faisal Rafique, Addl. A.G.
Mr. Ihsan Elahi, I.O.
Qazi Muhammad Amin, ASC
Mr. Ghulam Shabbir, ASI
Date of Hearing
: 26.07.2013.
O R D E R
It is informed by the learned Additional Attorney General
for Pakistan that now he has been instructed by the Ministry of
Defence, Government of Pakistan, to cross-examine the witness,
namely, Ihsan Elahi in this case. It is to be noted that on the last date of
hearing, a request was made to engage another counsel for the purpose
of cross-examination. Before recording his statement during the hearing
of the case, SHO-Ihsan Elahi pointed out that he has conducted an
CMA.2916/2013, etc.
2
independent investigation and examined Malik Amir Farooq, owner of
Coal Mines where both the missing persons, namely, M/s. Umer Hayat
and Umer Bakhat were employed as labourers and the former SHO-
Badar Munir, SI-Khizer Hayat (Police Post Incharge, Basharat) and
ASI-Wajid Ali as well as ASI Shabbir Ahmad who accompanied the
persons to whom the officials went to the Coal Mines of Malik Amir
Farooq and there from both the above mentioned missing persons were
picked up and were taken away by the agencies.
2.
In such view of the matter instead of examining the
statement of Ihsan Elahi and others before the Supreme Court of
Pakistan, we send this case to the learned District and Sessions Judge,
Chakwal, for recording the statements of Ihsan Elahi, Badar Munir,
Khizar Hayat, Shabbir Ahmad and Wajid Ali as well as Malik Amir
Farooq, owner of the Coal Mines, subject to allowing an opportunity of
cross-examination. The Ministry of Defence, shall depute a counsel
after seeking necessary information from the learned Additional
Attorney General for Pakistan whereas Prosecutor shall appear on
behalf of State to assist the Court.
3.
The learned District and Sessions Judge, after recording the
evidence of the persons noted herein above and any other material
brought by the complainant or other persons interested in this case shall
record the finding as to whether M/s. Umer Hayat and Umer Bakhat
had been picked away by the agencies/persons as it is alleged by the
police and whether presently they are in custody of which agency.
CMA.2916/2013, etc.
3
4.
The requisite report shall be sent by the learned District &
Sessions Judge, Chakwal, before the next date of hearing.
5.
Put up on 05.08.2013.
Chief Justice
Islamabad
Judge
26.7.2013
Mahtab/*
Judge
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
CMA NO.2997/2013 IN CMA NO.1262/2012 IN HRC NO.965/2005
(For Recovery of Ghulam Sajjad Amjad)
(Amina Masood Janjua Vs. The State through M/o Interior and others)
For the Applicant
: Mrs. Amina Masood Janjua
On Courtâs Notice
: Mr. Tariq Mehmood Khokhar, Addl. AGP
Mr. Faisal Rafique, Addl. AG Pb
Mr. Muhammad Shoaib, DSP
Mr. Muhammad Akram, Inspector
Date of Hearing
: 26.07.2013.
O R D E R
Mrs. Amina Masood Janjua, has placed on record an
affidavit through CMA No.4910 of 2013 in view of our observation
made in the Order dated 25.07.2013. A perusal of the same suggests
that Ghulam Sajjad Amjad son of Basara, resident of Islamkot,
Kabeerwala along with other two persons, namely, Muhammad
Saleem, Alipur and Muhammad Saleem, Multan were present in Qasim
Bela, Multan Cantt.
2.
Copy of the same be handed over to the learned Additional
Attorney General for Pakistan and issue a notice to him to ensure the
production/recovery of Ghulam Sajjad Amjad on the next date of
CMA.2997/2013, etc.
2
hearing. He should also ensure to furnish the details of the other two
persons, named herein before who were confined in the said Camp
along with detailed reasons, if any, for which they were detained over
there.
2.
Adjourned to 2nd August, 2013.
Chief Justice
Islamabad
Judge
26.7.2013
Mahtab/*
Judge
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
CIVIL MISC. APPLICATION NO.3956 OF 2013
(For recovery of Muhammad Farhaj Waheed Butt)
IN
CIVIL MISC. APPLICATION NO.3762 OF 2012
IN
HUMAN RIGHTS CASE NO.965 OF 2005.
Amina Masood Janjua.
Applicant (s)
VERSUS
The State through M/o Interior and others.
Respondent (s)
For the Applicant
: Mrs. Amina Masood Janjua
On Courtâs Notice
: Mr. Tariq Mehmood Khokhar,
Additional Attorney General for Pakistan
Mr. Faisal Rafique, Additional A.G. Pb. with
Mr. Khan Baig, IGP and
Mr. Umar Virk, SSP (CTD)
Date of Hearing
: 26.07.2013.
O R D E R
Mr. Khan Baig, Provincial Police Officer (IGP), Punjab,
Lahore, has submitted a report (CMA No.4911 of 2013) in response to
our Order dated 23.07.2013. It has also been informed by Mr. Umer
Virk, SSP (CTD) that Farhaj Waheed Butt is presently confined in
Central Jail, Kot Lakhpat, Lahore, along with other three persons,
namely, Usman Basra, Rana Abdul Rehman and Nemat Ullah (under
police remand since 15th July, 2013), as they are involved in the
CMA.3956/2013, etc.
2
different FIRs bearing No.687/2008 of Police Station, Faisal Town,
Lahore, 899/2010 of Police Station Ghalib Market, Lahore and
1036/2011 of Police Station, Gulberg, Lahore. As far as the
involvement of Farhaj Waheed Butt along with others in criminal cases
is concerned, it needs no comments at this stage as Mrs. Maria wife of
Farhaj Waheed Butt has different version.
2.
According to her version noted in order dated 23.7.2013,
initially Abdul Waheed Butt father of Farhaj Waheed Butt was picked
up by the police in the month of September, 2011 and when Farhaj
Waheed Butt appeared before the police, the father was released.
Thereafter, Mr. Umar Virk, SSP, arranged the meeting of Abdul
Waheed Butt with his son Farhaj Waheed Butt. Now when we have
issued notice on 23.07.2013, directing the Inspector General of Police
to appear and produce him as he was in the police custody. Now it is
informed that he is in the Central Jail, Kot Lakhpat, Lahore, along with
others from the date as noted herein before. Thus, the question is that as
to whether previously he was kept in illegal detention and because of
present proceedings, he has been surfaced.
3.
Under the circumstances, the Inspector General of Police is
directed to conduct thorough probe into the matter personally after
having taken into consideration all the attending circumstances and
evidence, etc.
4.
At the same time, Mr. Nazir Ahmed Gujanah, learned
District & Sessions Judge, Chinot, is appointed to conduct an inquiry
CMA.3956/2013, etc.
3
to ascertain questions of detention of Farhaj Waheed Butt from the
month of September, 2011 to 15th July, 2013, if it is a true version
alongwith Role of Police and submit a report for our perusal. It is to be
pointed out that the learned District and Sessions Judge may examine
any witness, including Abdul Waheed Butt or Farhaj Waheed Butt who
along with others is presently confined in the Central Jail, Kot Lakhpat,
Lahore. The logistic arrangements shall be made by the Registrar of the
learned Lahore High Court to facilitate the learned District & Sessions
Judge in preparing the report. On receipt of the report from both the
functionaries, the matter shall be decided further.
5.
Petitioner-Mrs. Amina Masood Janjua, pointed out that
Mrs. Maria wife of Farhaj Waheed Butt has been threatened for
approaching this Court. The Inspector General of Police who is present
in Court is directed to provide proper protection to her and ensure her
safe appearance before this Court on the next date of hearing.
6.
Adjourned to 2nd August, 2013. This Order be
communicated to all concerned during course of the day.
Chief Justice
Islamabad
Judge
26.7.2013
Mahtab/*
Judge
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN
C. M. A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC.
Imran Ahmed Khan and others.
âĻApplicant(s)
Versus
Mian Muhammad Nawaz Sharif,
Prime Minister of Pakistan.
âĻRespondent(s)
In attendance :
Mr. Ashtar Ausaf Ali, A. G. for Pakistan.
Mr. Riaz Riazuddin, Governor State Bank of
Pakistan.
Mr. Zafar Hijazi, Chairman SECP.
Date of Hearing:
05.05.2017
O R D E R
On the last date of hearing we observed as under :-
âPursuant to our directions, names of the Officers have
been sent by all the Departments/Institutions but since
we have reservations about the names given by the
Governor State Bank of Pakistan and the Chairman
Security & Exchange Commission of Pakistan, let both
of them appear before us day after tomorrow i.e.
05.05.2017 at 11:00 a.m. with the lists of all the scale 18
and above Officers or equivalent so that we may
consider them for approval as Members of JIT.
2.
Today, the Governor State Bank of Pakistan and the
Chairman SECP appeared with the lists they were directed to
produce. We examined the lists and deliberated over our choice.
We from the list submitted by the Governor State Bank of Pakistan
select and nominate Mr. Amer Aziz, an Officer of (BS-21) who is on
deputation with NIBAF, as a Member JIT. We also examined the list
submitted by the Chairman SECP and deliberated over the names.
We from the said list select and nominate Mr. Bilal Rasool who is
C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC.
2
Executive Director, SECP, presently working at the Commissionâs
Secretariat, Media and Corporate Communication and Translation
Department as a Member JIT. We have also examined the lists
submitted by the Chairman NAB. We after due deliberation select
and nominate Mr. Irfan Naeem Mangi, Director (BS-20) as a Member
JIT. We also examined the list submitted by the Director General ISI.
We after due thought and deliberation select and nominate Brig.
Muhammad Nauman Saeed as a Member JIT. We have also
examined the list submitted by the Military Intelligence (M.I.). We
after due consideration select and nominate Brig. Kamran Khurshid
as a Member JIT. We also examined the list submitted by the Director
General,
FIA.
We
having
considered
the
background
and
antecedents of the Officers in the list decided to select and
nominate Mr. Wajid Zia, Additional Director General (Immigration),
FIA to head the JIT.
3.
We further direct as follows :-
i)
The Secretariat of the JIT shall be housed in the
Building of the Federal Judicial Academy,
Islamabad
where
they
shall
be
provided
adequate office accommodation and related
facilities.
The
requisite
approval
has
been
obtained from Honâble The Chief Justice of
Pakistan.
ii)
Since the JIT in connection with the investigation
would need funds, the Federal Government is
directed to provide them necessary funds. We
direct the Federal Government to initially provide
an amount to the tune of rupees twenty million
C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC.
3
forthwith
so
that
the
JIT
may
not
feel
handicapped in its movement in any direction.
The funds shall be placed at the disposal of the
Head of the JIT.
iii)
The Head and Members of the JIT shall arrange
secretarial staff of their choice from their
respective departments. The JIT would also be at
liberty to utilize the expertise available in their
departments and any other department of the
Federal or Provincial Governments as and when
required by it.
iv)
The boarding, lodging and transportation of the
Members of JIT shall also be provided by their
respective Departments in accordance with the
rules.
v)
The JIT shall have the power to engage and
associate
local
and/or
foreign
experts
to
facilitate the investigation and collection of
evidence in line with the letter and spirit of order
dated 20.04.2017 of this Court.
vi)
The JIT shall have all the powers given by the law
relating to investigation including those available
in the Code of Criminal Procedure, 1898,
National Accountability Bureau Ordinance, 1999
and the Federal Investigation Agency Act, 1975.
vii)
As the JIT, in essence and substance, is acting on
the direction of the Supreme Court of Pakistan,
C.M.A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC.
4
all the Executive Authorities throughout Pakistan
shall act in aid of the JIT.
viii)
If and when any person fails or refuses to
associate with or appear before the JIT or refuses
to cooperate or provide oral or documentary
information
required
by
it,
the
same
be
immediately brought to the notice of the Court
for taking appropriate action.
ix)
The Secretary Interior, Government of Pakistan is
directed
to
ensure
necessary
security
arrangements
for
the
Secretariat
and
the
Members of the JIT.
4.
The JIT is directed to commence and complete the
investigation and submit its final report in terms of the order dated
20.04.2017. It shall also submit fortnightly progress reports as stipulated
in the said order.
5.
For further proceedings to come up on 22.05.2017.
JUDGE
JUDGE
JUDGE
ISLAMABAD.
05.05.2017.
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Gulzar Ahmed
Mr. Justice Iqbal Hameedur Rahman
CMA No.2943/14 in CMA No.2774/14 in Const. Petition No.51/2010
(Miscellaneous matter regarding unwanted posters and banners in Islamabad)
Independent Media Corporation (Pvt.) Ltd.
Petitioner
Versus
Federation of Pakistan through
Ministry of Information and PEMRA
Respondents
Voluntarily Appeared:
Sheikh Ahsan-ud-Din, ASC
Mr. Taufeeq Asif, ASC
Mr. Yaqoob Butt,
On Courtâs Call:
Mr. Salman Aslam Butt, AGP
On Court Notice:
For the Federation:
Khawaja Ahmad Hussain, DAG
For M/o Interior:
Nemo
For I.B.:
Ms. Naveeda Noor, Director (Law)
For Islamabad Police:
Mr. Aftab Ahmad Cheema, I.G.
Mr. Jameel Hashmi, S.P.
Mr. Azhar Shah, DSP
Mr. Hakim Khan, SHO, PS. Aabpara
Mr. Azhar Mehmood, S.I./I.O
Date of Hearing:
2.07.2014
ORDER
We have repeatedly expressed our concern that the police has been
less than diligent in this case. We note that FIR No.234/14 was lodged by
Mr. Azhar Mehmood, S.I. at Police Station, Aabpara on 27.05.2014,
whereafter, the police file shows extreme lack of diligence in investigating
the case and bringing the culprits to book. Two accused were arrested on
27.05.2014. The main accused in the case namely Muhammad Rashid was
identified more than one month ago. It is unfortunate that due to a lack of
CMA No.2943/14 in CMA 2774/14 in Const.P.51/10
2
diligent efforts and investigation, the said Muhammad Rashid was arrested
only last night.
2.
The Inspector General of Police, Islamabad is present in person. He
was not in a position to explain as to why diligent effort in the case had not
been made by the police. He also conceded that there had been incompetence
(īēīģ§ ī¯Ŋīģ īŽ¨Ø§) in the investigation. He being head of the Police Force in Islamabad
shall within seven days submit an explanation firstly, as to the reasons
behind the incompetence and secondly, disciplinary action, if any, which he
has taken against those who have been incompetent. It may also be that there
may have been some attempt to cover-up/protect the accused. His
explanation should also comment on this aspect of the case.
3.
We may also add that we have seen the police file. From the same it
is evident that there have been long periods when no action at all appears to
have been taken in the investigation of the case. When questioned, the I.G.
also conceded that he had not seen all zimnees. This also reflects a sorry state
of affairs within the police. It needs to be emphasized again that whoever the
persons were involved, could as easily have come in the same way and
escaped undetected after planting 22 bombs or explosive devices instead of
banners. This must be a cause of concern to the citizens of Pakistan.
4.
Sheikh Ahsan-ud-Din and Mr. Taufeeq Asif, learned ASCs had
pointed out in Court more than one month ago the main accused was in fact
one Muhammad Rashid who could lead to those who were behind the anti-
state activity. Mr. Taufeeq Asif, learned ASC also states that although he had
passed on this information earlier, he will be happy to record his statement
with the police even today or tomorrow.
5.
The report of the I.G. shall be submitted before the next date of
hearing. Re-list on 8.07.2014. Mr. Yaqoob Butt brother of Shafiq Butt (one of
the accused) present in person states that his brother is in judicial custody.
CMA No.2943/14 in CMA 2774/14 in Const.P.51/10
3
He wishes to record his statement. The police shall ensure that his statement
is recorded at the earliest.
Judge
Judge
Judge
ISLAMABAD
2nd July, 2014
(Nasir Khan)
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IN THE SUPREME COURT OF PAKISTN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE JAVED IQBAL
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE RAJA FAYYAZ AHMED
MR. JUSTICE MUHAMMAD SAIR ALI
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE RAHMAT HUSSAIN JAFFERY
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE GHULAM RABBANI
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY
CMA NO. 2981 OF 2010
[REPORTS ALLEGING THAT GOVERNMENT IS
CONSIDERING
WITHDRAWAL
OF
THE
NOTIFICATION OF RESTORATION OF JUDGES
DATED 16.03.2009]
IN
CONSTITUTION PETITION NO. 9 OF 2009
Sindh High Court Bar Association v. Federation of Pakistan
âĻ âĻ
On Court notice:
Moulvi Anwarul Haq
Attorney General for Pakistan
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
2
Mr. Mushtaq Ahmed Malik
Chairman PEMRA
Voluntary appeared:
Qazi Muhammad Anwar, Sr. ASC
President, Supreme Court Bar
Association
Malik Manzoor Hussain, Vice President,
Supreme Court Bar Association
Mr.
Ahsanuddin
Sheikh,
Additional
Secretary,
Supreme
Court
Bar
Association
Mr. Sanaullah Zahid, Finance Secretary,
Supreme Court Bar Association
Mian Abdul Quddus, President
Lahore High Court Bar Association
Syed Zulfiqar Abbas Naqvi, President,
High
Court
Rawalpindi
Bench
Bar
Association
Khan
Afzal,
Member,
Executive
Committee, Pakistan Bar Council
Malik
Ghulam
Mustafa
Kandwal,
Member, Punjab Bar Council
Malik Waheed Anjum, President, District
Bar Association, Rawalpindi
Mr. Jan Muhammad, ASC
Date of hearing:
15.10.2010
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - Listed application
has been placed before this Bench in pursuance of office note put up
by Registrar on 14.10.2010. Necessity was felt for bringing into the
notice of the Court about the events going on for the last few days i.e.
the reports published in print media and also aired on electronic
media, thus the Government of Pakistan is contemplating to withdraw
notification/executive order dated 16.03.2009 restoring the Chief
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
3
Justice of Pakistan and other Judges of the Supreme Court of Pakistan
and Chief Justices and Judges of High Courts. In view of the
importance of the matter, it was considered to hear the Attorney
General for Pakistan and after knowing his viewpoint, matter should be
disposed of. It is not only in the recent past such information was
passed on to print and electronic media, but prior to it as well,
whenever judgment in some important case is pronounced by this
Court, or the Court is seized of an important matter and is likely to
decide the case, attempts are made to pressurize the judiciary by
spreading news that since the Chief Justice and the Judges were
restored in pursuance of an executive order, which has not yet been
sanctified by the Parliament, therefore, all the concerned members of
the judiciary must take note of it inasmuch as a similar statement was
made by a highest constitutional functionary in the Parliament.
2.
On 14.10.2010 when after 8.00 p.m. private TV channels
aired this news, a denial was also issued from the office of Prime
Minister, saying that there is no truth behind the said news and the
Government has no such intention to withdraw the notification of
restoration of Judges. But contrary to it, the news item flashed in
various private TV channels, including AAJ, GEO, ARY, etc., was to the
effect that the Government of Pakistan, in consultation with one of the
leading lawyers of the country and the Law Minister, had taken the
decision to withdraw the notification. As has been pointed out
hereinbefore, that it is not for the first time that such a news/rumour
has been spread, but it so happens whenever a high profile case is
being heard by the Court. It may not be out of context to note here
that before and after 13.10.2010, when the case pertaining to the
hearing of the review petition filed by the Federation of Pakistan in the
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
4
case of Dr. Mubashir Hasan, judgment of which was announced on
16.12.2009, such news items were being discussed everywhere all
around. Therefore, to impress upon the constitutional functionaries of
State in the country that what has already been decided on
31.07.2009 in the case of Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 SC 879), Moulvi Anwarul Haq,
Attorney General for Pakistan was served with a notice along with the
copy of CM Application under consideration, wherein the facts noted
hereinabove
have
been
mentioned
categorically.
The
relevant
paragraph from the judgment of this Court in Sindh High Court Bar
Association's case was also reproduced. Learned Attorney General for
Pakistan appeared in Court and when questioned by the Court that
after the judgment in the Sindh High Court Bar Association's case,
what authority is left with the Government or any of its functionaries
to withdraw the restoration order of the judiciary, he could not answer
it satisfactorily despite the fact that we called upon him to clarify his
position as well as the position of the Federation to whom he
represents as the Chief Law Officer. Anyhow, he sought time to obtain
a statement from the constitutional head of the Government, i.e. Chief
Executive (Prime Minister) to clarify the position. At his request, case
was postponed till 11.30 a.m. In the meanwhile, from his office a
message was communicated to the Registrar that the Prime Minister
was busy in some meeting, therefore, he would be in a position to
place a statement on record at 12.30 p.m.
3.
The Court again assembled at 12.45 p.m. and when the
learned Attorney General for Pakistan was clarifying his position, he
could not answer except saying that he has established a contact with
the Secretary to the Prime Minister who shall be informing him after
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
5
some time. Again, some time was consumed in further deliberation
with him and ultimately he came out with a statement that case be
postponed for tomorrow, i.e. 16.10.2010 (Saturday). Whatever has
been pointed hereinabove clearly indicates that the Government or any
of its constitutional heads is reluctant to make the statement and is
trying to find time for one or the other reason. The anxiety of the
Bench at this stage, underpins its constitutional mandate and resolve
to defend, protect and preserve the Constitution of Pakistan. The
judiciary, which is one of the most important organs of the State,
cannot be allowed to be throttled in such a manner.
4.
This is not for the first time that the judiciary has to pass
an order. Even in the month of November 2007, when a high profile
case (Wajihuddin Ahmed v. Chief Election Commissioner of Pakistan)
was under consideration on 02.11.2007, an application was submitted
by Mr. Aitzaz Ahsan, learned Sr. ASC appearing for the petitioner
wherein he had informed about the purported action, which the then
Government was contemplating to take to sack the judiciary, but his
application was kept on record because Malik Muhammad Qayyum, the
then Attorney General for Pakistan, who was appearing in the Court,
made a statement at the bar that there was no such thing as was
being apprehended by the learned counsel for the petitioner, but his
apprehension proved to be correct, as on 03.11.2007 (Saturday),
âemergency plusâ was imposed in pursuance whereof all the members
of the judiciary except few who agreed to take oath under the PCO,
were made dysfunctional, but such unconstitutional and illegal order
was nipped in the bud immediately through a restraint order passed by
a 7âMember Bench, which was circulated widely to all and sundry,
informing them that no action shall be taken nor any Judge shall take
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
6
oath under the PCO as Chief Justice or Judge of High Court, and
ultimately matter came to an end when the judiciary sacked by the
then Government was restored on 16.03.2009 by an executive
order/notification issued by the Government.
5.
It is equally important to note that all the actions taken by
the then President as Chief Executive commencing from 03.11.2007 to
15.12.2007, including the Proclamation of Emergency, issued by
General Pervez Musharraf, as Chief of Army Staff, as he then was on
03.11.2007, the Provisional Constitution Order No. I of 2007, issued
by him on the same date in his said capacity, the Oath of Office
(Judges) Order, 2007 issued by him also on the same day, and
Proclamation of Emergency and Provisional Constitutional Orders
issued by him subsequent thereto, etc., came up for consideration
before a 14 â Member Bench of this Court in the Sindh High Court Bar
Association's case. The Government of Pakistan was represented by
the Attorney General for Pakistan who made a categorical statement
not to support or endorse any of those actions of the then Chief of
Army Staff/President of Pakistan, inasmuch as after the elections,
which were held on 18.02.2008, the sitting Parliament had also not
confirmed/endorsed/authenticated
any
of
his
such
actions
or
instruments. Details of the same shall be reproduced hereinafter: -
â13.
The learned Attorney General stated that the
acts and instruments of 3rd November 2007 of General
Pervez
Musharraf,
which
were
obviously
extra-
constitutional, were not accepted, rather were objected to
by all the democratic political parties except Pakistan
Muslim League (Quaid-e-Azam), hereinafter referred to as
âPML (Q)â, which had tabled a resolution in the National
Assembly to endorse the said actions and got it passed. He
unequivocally declared that neither he was supporting
General Pervez Musharrafâs actions of 3rd November, 2007
nor he would defend him in the instant proceedings. He
made the following arguments: -
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
7
(1)
The present democratic government had never
accepted extra-constitutional promulgation of Orders
and/or any other repressive measures. The respect
for judiciary had always been hallmark of its ideology
and judicial process was resorted to by their leaders
even in the most trying circumstances. The verdict in
Tikka Iqbal Muhammad Khanâs case was affirmed in
review by a 13 â member Bench of the Supreme
Court whereby the acts of 3rd November 2007 were
validated on the principles of state necessity and
salus populi est suprema lex, which even otherwise
ceased to exist on revival of the Constitution on 15th
December 2007.â
6.
In the meanwhile, on the petitions filed by the Sindh High
Court Bar Association and others, the actions of imposing the
Emergency and sacking the Judges of the superior judiciary including
Chief Justice and Judges of the Supreme Court and Chief Justices and
Judges of High Courts, etc., were considered, and the Court in its
judgment dated 31.07.2009, pronounced a unanimous verdict, holding
therein that all the actions taken by the then Chief of Army
Staff/President were unconstitutional. It also included the sacking of
the members of the superior judiciary. A detailed discussion has been
made in the said judgment. For convenience, Paragraphs 21 and 22
with items (i) to (v) are reproduced below: -
â21. The Proclamation of Emergency issued by General
Pervez Musharraf as the Chief of Army Staff (as he then
was) on November 3, 2007; the Provisional Constitution
Order No.1 of 2007 issued by him on the same date in his
said capacity; the Oath of Office (Judges) Order of 2007
issued by him also on the same date though as the
President of Pakistan but in exercise of powers under the
aforesaid Proclamation of Emergency and the Provisional
Constitution
Order
No.1
of
2007;
The
Provisional
Constitution (Amendment) Order, 2007 issued by him like-
wise on 15.11.2007; the Constitution (Amendment) Order,
2007 being Presidentâs Order No.5 of 2007 issued on
November
20,
2007;
the
Constitution
(Second
Amendment) Order, 2007 being the Presidentâs Order No.6
of 2007 issued on 14th December, 2007; the Islamabad
High Court (Establishment) Order 2007 dated 14th
December 2007 being the Presidentâs Order No.7 of 2007;
the High Court Judges (Pensionary Benefits) Order, 2007
being Presidentâs Order No.8 of 2007; the Supreme Court
Judges (Pensionary Benefits) Order, 2007 being Presidentâs
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
8
Order No.9 of 2007 dated 14th December, 2007 are hereby
declared to be un-constitutional, ultra-vires of the
Constitution and consequently being illegal and of no legal
effect.
22.
As a consequence thereof: -
i)
the Chief Justice of Pakistan; the Judges of the
Supreme Court of Pakistan; any Chief Justice of any of the
High Courts and the Judges of the High Courts who were
declared to have ceased to hold their respective offices in
pursuance of the afore-mentioned alleged judgments or
any other such judgment and on account of the
instruments mentioned in Para 21 above, shall be deemed
never to have ceased to be such Judges, irrespective of
any notification issued regarding their reappointment or
restoration;
ii)
it is declared that the office of the Chief Justice of
Pakistan never fell vacant on November 3, 2007 and as a
consequence thereof it is further declared that the
appointment of Mr. Justice Abdul Hameed Dogar as the
Chief Justice of Pakistan was un-constitutional; void ab
initio and of no legal effect;
Provided that subject to whatever is contained
hereinafter, the said un-constitutional appointment of Mr.
Justice Abdul Hameed Dogar as the Chief Justice of
Pakistan shall not affect the validity of any administrative
or financial acts performed by him or of any oath made
before him in the ordinary course of the affairs of the said
office;
iii)
since Mr. Justice Abdul Hameed Dogar was never a
constitutional Chief Justice of Pakistan, therefore, all
appointments of Judges of the Supreme Court of Pakistan,
of the Chief Justices of the High Courts and of the Judges
of the High Courts made, in consultation with him, during
the period that he, un-constitutionally, held the said office
from 3.11.2007 to 22.3.2009 (both days inclusive) are
hereby declared to be un-constitutional, void ab initio and
of no legal effect and such appointees shall cease to hold
office forthwith;
Provided that the Judges so un-constitutionally
appointed to the Supreme Court while holding the offices
as Judges of any of the High Courts shall revert back as
Judges of the respective High Courts subject to their age of
superannuation and like-wise, the Judges of the High
Courts, who were District and Sessions Judges before their
said un-constitutional elevation to the High Courts shall
revert back as District and Sessions Judge subject to
limitation of superannuation;
iv)
the Judges of the Supreme Court of Pakistan, if any,
the Chief Justices of the High Court, if any, and the Judges
of any of the High Courts, if any, who stood appointed to
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
9
the said offices prior to 3.11.2007 but who made oath or
took oath of their respective offices in disobedience to the
order passed by a Seven Member Bench of the Supreme
Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007
in Constitution Petition No.73 of 2007, shall be proceeded
against under Article 209 of the Constitution. The
Secretary of the Law Division of the Government of
Pakistan shall take steps in the matter accordingly;
Provided that nothing hereinabove shall affect those
Judges who though had been appointed as Judges/Chief
Justices of any of the High Courts between 3.11.2007 to
22.3.2009 but had subsequently been appointed afresh to
other offices in consultation with or with the approval of or
with the consent of the Constitutional Chief Justice of
Pakistan;
v)
any judgments delivered or orders made or any
decrees passed by any Bench of the Supreme Court or of
any of the High Courts which comprised of or which
included the afore-described Judges whose appointments
had been declared void ab initio, are protected on the
principle laid down in MALIK ASAD ALIâS CASE (PLD 1998
SC 161).â
7.
On having gone through the above Paragraphs, there
should not be any ambiguity in the mind of anyone that the Judges of
the superior judiciary had never been sacked/deposed in pursuance of
the Proclamation of Emergency, the PCO and Oath of Office (Judges)
Order, 2007, as is evident from Paragraph 22 (i) above. Not only this,
the appointment of Mr. Justice Abdul Hameed Dogar as Chief Justice of
Pakistan was declared unconstitutional, holding that the office of Chief
Justice of Pakistan never fell vacant on 03.11.2007. Suffice to observe
that the executive order passed was an acknowledgement of the
factual and legal position, i.e. that the order passed by the then
President was unconstitutional and void ab initio. If now the said order
is attempted to be withdrawn, it will be tantamount to throttling one of
the important pillars of the State, namely, the judiciary, thereby
subverting the Constitution in terms of Article 6. As has been noted
hereinabove, particularly in view of the fact that when matter has
finally been clinched/decided in view of the judgment in Sindh High
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
10
Court Bar Association's case (supra), no functionaries of the
Government, including the head of the State or head of the
Government or any of their other functionaries can take any steps for
withdrawing the executive order/notification of restoration of Judges,
which otherwise is non-existent in view of the above judgment.
8.
In the light of the above, we direct: -
(i) All
the
constitutional
and
State
functionaries
and
administrative heads in the country to ensure that no
action qua initiation of proceedings concerning withdrawal
of the executive order (order of ârestoration of Judgesâ)
dated 16.03.2009, status whereof has already been
determined by this Court in its judgment in Sindh High
Court Bar Association's case (supra), is taken, intentionally
or otherwise, by any of the functionaries as noted
hereinabove, and all the constitutional and administrative
heads/ functionaries are restrained/refrained from doing
so;
(ii) The Government of Pakistan/Prime Minister to conduct an
inquiry through an appropriate responsible functionary that
if the statement of the former that no such action was
being contemplated was true, then how this news in the
print and electronic media was spread, and who was
responsible for it because we feel that it is the primary
duty of the Government to look into it and unearth such
persons who are taking such steps or spreading such
news, which are causing panic, sensation and anguish
throughout the country, since last night. The members of
the Bar Associations throughout the country have also
started agitating the matter. The senior representatives
have appeared in Court and have taken serious exception
to the steps, which the Government was reportedly
contemplating to take in this behalf;
(iii) The Attorney General for Pakistan, present in Court, to
communicate immediately this order to all concerned, and
send compliance report to the Registrar of this Court in the
course of the day.
CMA NO. 2981 OF 2010
IN CONST.P. 9 OF 2009
11
(iv) This report must be placed before the Court on the
next date of hearing. We may point out here that it is
already 1.37 p.m., when we are dictating this order in
the Court, but no statement from the office of the
Chief Executive/Prime Minister, denying the news
items published in the print media and aired on the
private TV channels has been placed before us.
9.
The case is adjourned for 18.10.2010, enabling the
authorities/functionaries to put up report and statements, if desired,
as has been pointed out by the learned Attorney General for Pakistan.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
JAVED IQBAL, J.
MIAN SHAKIRULLAH JAN, J.
TASSADUQ HUSSAIN JILLANI, J.
NASIR-UL-MULK, J.
RAJA FAYYAZ AHMED, J.
MUHAMMAD SAIR ALI, J.
MAHMOOD AKHTAR SHAHID SIDDIQUI, J.
JAWWAD S. KHAWAJA, J.
ANWAR ZAHEER JAMALI, J.
KHILJI ARIF HUSSAIN, J.
RAHMAT HUSSAIN JAFFERI, J.
TARIQ PARVEZ, J.
MIAN SAQIB NISAR, J.
ASIF SAEED KHAN KHOSA, J.
GHULAM RABBANI, J.
KHALIL-UR-REHMAN RAMDAY, J.
Islamabad,
15 October 2010
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAQBOOL BAQAR
C.M.A.No.3221/2012 in S.M.C.No.25/2009
(Suo Motu action regarding cutting of trees for
canal widening project Lahore)
AND
CRIMINAL ORIGINAL PETITION NO.96/2014
Lahore Bachao Tehrik
âĻPetitioner(s)
VERSUS
Dr. Iqbal Muhammad Chauhan etc.
âĻRespondent(s)
For the petitioner(s):
(in Crl.O.P.96/2014)
Mr. Aitzaz Ahsan, Senior ASC
Mr. M. S. Khattak, AOR
For L.D.A.:
Kh. Haris Ahmed, Senior ASC
Mr. Israr Saeed, Chief Engineer
Mr. M. Rashid, Director (Legal)
Mr. Raza Hassan Rana, Asstt. Director
For Lahore Bachao Tehrik:
Ms. Imrana Tiwana
For the applicant(s):
(in C.M.A.615/2015)
Ch. Munir Sadiq, ASC
For Environment Deptt:
Mr. Nawaz Manik, Director (Law)
Date of hearing:
14.05.2015
âĻ
JUDGMENT
MIAN SAQIB NISAR, J.- These two matters have genesis
and direct nexus with 14 km widening of the Lahore Canal Bank
Road (Canal Road) on both the sides thereof. The Government of Punjab
initiated a project for the above purpose and in the process had
already widened a part of the road when Lahore Bachao Tehrik (LBT)
submitted an application to the Honâble Chief Justice of Pakistan
primarily asserting therein that the said widening would entail the
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 2 :-
cutting of trees on both the sides of the canal and the greenbelt area
around the canal would be encroached which would result in
environmental hazard. This project, thus, is violative of the
fundamental rights set forth in the Constitution of the Islamic
Republic of Pakistan, 1973, particularly the right to life. This
application was treated as SMC No.25/2009 and vide judgment dated
15.9.2011 (Judgment) reported as Cutting of trees for canal widening
project, Lahore (2011 SCMR 1743) it was disposed of with certain
directions, which shall be mentioned in due course of this opinion.
2.
We may like to mention at this juncture that for the
purposes of ascertaining the effect of widening upon environment and
other related issues raised by LBT, a Mediation Committee
comprising of certain nobles of the city and experts was constituted
(Mediation Committee). Such Committee had given its report which was
accepted by the Government of Punjab, the applicant in toto while
some objections were expressed by LBT thereto but only to the extent
of permitting the Government to widen a part of the Canal Road.
These objections seemingly were not endorsed by the Court and thus
the afore-mentioned decision on the basis of the Mediation
Committee report primarily is in the nature of a consent order. In this
context this Court made certain directions in the said Judgment
(paragraph 60) which reads as under:-
â(i) The Bambawali-Ravi-Bedian (BRB) Canal and the
green belt on both sides of the Canal Road (from
Jallo Park till Thokar Niaz Beg) is a Public Trust.
It shall be treated as Heritage Urban Park
forthwith and declared so by an Act to be passed by
the Assembly as undertaken by the respondent-
Provincial Government;
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 3 :-
(ii) Widening of the road on both sides of the Canal
Bank shall be in accord with the report submitted
by the Mediation Committee;
(iii) Necessary corrections/modification of some of the
underpasses on the Canal Road shall be carried out
as suggested in the report of the Mediation
Committee;
(iv) Proper Traffic Management Program shall be
made and given effect to;
(v)
Further improvement in public transport system
shall be ensured;
(vi) Where needed and as recommended by the
Committee, re-engineering of the junctions along
the Canal Bank would be undertaken;
(vii) The service roads along certain part of the Canal
Road shall be constructed/improved;
(viii) Report of the Mediation Committee shall be
implemented as agreed by the respondent-
Provincial Government in letter and spirit;
(ix) Respondent-Provincial Government and TEPA
shall ensure that minimum damage is caused to
green belt and every tree cut would be replaced by
four trees of the height of 6/7 feet and this
replacement when commenced and completed shall
be notified through press releases for information
of general public, copies of which would be sent to
the Registrar of this Court for our perusal; and
(x)
Elaborate measures/steps be taken to ensure that
the Canal is kept clear and free of pollution. The
steps should inter alia include throwing of liter and
discharge of any pollutant in the Canal a penal
offence. The Chief Secretary, Government of
Punjab shall ensure that a comprehensive action
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 4 :-
plan is prepared in this regard by the concerned
department and report is submitted to the Registrar
of this Court within six weeks of the receipt of this
judgment.â
Through the instant CMA No.3221/2012 the Province of Punjab has
sought a permission from this Court to allow further widening of the
road, by utilizing some greenbelt and cutting of trees, whereas the
Crl.O.P.No.96/2014 seeks an action against certain officials of the
Province of Punjab who statedly have violated the above Judgment.
3.
It may be pertinent to mention here that for the purposes
of the factual backdrop and for the points which were raised, dilated
upon, discussed and resolved by this Court in the said Judgment, we
do not intend either to reiterate the factual background or in any
manner revisit the said Judgment on the basic points which were
settled therein, particularly that the canal area (in dispute) is a public
trust and that it cannot be used for any purpose other than public
purpose. Besides that the area around the canal should be declared
as a heritage park. These basically are the two salutary legal and
factual aspects which were settled and resolved in this matter.
4.
Anyhow, now through the present application, the
Government of Punjab claiming it to be a precautionary measure
(because the case of the Government of Punjab is that it has the requisite permission to
widen the Canal Road even within the letter and spirit of the Judgment) has sought
permission from this Court for widening the Canal Road at certain
points. The reason for the purposes of seeking permission is given in
CMA No.3221/2012 and also has been supplemented by various
documents submitted by the Government of Punjab in the course of
the proceedings which have been taken into account by this Court.
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 5 :-
5.
Learned counsel for the applicants, Khawaja Haris
Ahmed, Sr. ASC, has stated that the Project for the widening of the
Canal Road pertains to two sectors. One includes widening of road
and construction of a 1.3 km long underpass at Chaubucha
Interchange in the sector falling between Dharampura and
Harbanspura to bring it in alignment with the rest of the Canal Road
and for easy merger of traffic coming out from the underpass.
Whereas, the second limb of the project is addition of a third lane in
the sector falling between Doctorâs Hospital and Thokar Niaz Beg
because of the acute difficulty faced in the merging of traffic from an
already widened three-lane sector up to Doctorâs Hospital onto a
narrower two-lane sector from there onwards. In both the cases, it is
submitted, the need for widening/construction stems from the
inevitable slowing down and congestion of traffic flow in these sectors
and consequent emission of pollutants dangerous to the environment
on either side of the canal, and to minimize noise pollution because
of prolonged traffic jams or slowing down of traffic.
With respect to the first half of the project, it has been argued
that the same is in line with the recommendations of the Mediation
Committee and the Judgment in light of Recommendations No.18(1)
and 18(2) reproduced at pages 1771 and 1772 of the Judgment
respectively. It is contended that review/re-visiting of the scope of the
Judgment is not sought, rather a clarification to this effect is being
asked for.
With respect to the second segment of the project i.e. addition
of a third lane on the Canal Bank Road in the sector from Doctorâs
Hospital to Thokar Niaz Beg, it is submitted by the learned counsel
for the applicant that though the same was ânot recommendedâ by the
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 6 :-
Mediation Committee, it was also not categorically prohibited. Per the
report of the Mediation Committee, there was no need for addition of
a third lane because in its view, the traffic congestion problem could
be resolved through construction of service roads, improvement of
earthen shoulder and development of alternate routes. It is the case
of the applicant that consequent to the report of the Mediation
Committee and the Judgment, steps had been taken to implement
the aforementioned recommendations, however, none of these helped
in easing the traffic congestion in this sector necessitating addition of
a third lane to counter the grave bottlenecks and traffic congestions
faced by the commuters on account of sudden transition from three-
lane traffic to two-lane traffic from Doctorâs Hospital onwards. It is
submitted that since the rationale behind not recommending a third
lane in this sector was to ease the traffic issues through alternate
means, which (means) had proved futile, the addition of a third lane
was
in
essence
in
consonance
with
the
purport
of
the
recommendations made by the Mediation Committee and the letter
and spirit of the Judgment of this Court.
Learned Counsel for the appellant has further submitted that
the proposed project is neither violative of the provisions of the
Lahore Canal Heritage Park Act, 2013 (Act) nor the Doctrine of Public
Trust. Sub-sections (5) and (8) of section 3 of the Act imply that there
may be certain contingencies necessitating use of some portion of the
Heritage
Park
for
construction
or
any
other
infrastructure
development work which may be undertaken, subject however, to
prior written permission from Parks and Horticulture Authority (PHA)
which is to take into consideration the environment impact
assessment of the proposed activity and in the instant case a go-
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 7 :-
ahead has been given to the project by the PHA as also the
Environmental Protection Agency (EPA). With respect to the Doctrine
of Public Trust, it is contended that as was declared in the Judgment
of this Court, though the greenbelt on both sides of the Canal is a
public trust, the same may be used for a public purpose and in the
instant case easing traffic congestion for the benefit of the public
serves such a purpose.
Lastly, it is contended that since public interest litigation
proceedings under Article 184(3) are inquisitorial, rather than
adversarial in nature (PLD 2013 SC1; PLD 2013 SC 501; PLD 2012 SC 664; PLD 2011 SC
997) and the purport of exercise of powers under said Article is to
protect fundamental rights of the citizens, such a power is not limited
by any technicalities. Reliance has been placed on judgment reported
as PLD 2015 SC 50 to submit that a judgment that impacts the
fundamental rights of the citizens or public good may be re-visited
under
Article
184(3)
and
it
is
therefore
prayed
that
the
widening/construction as envisaged in the Project may be allowed
specifically when it also falls within the scheme of the report of the
Mediation Committee and the purport of the Judgment of this Court.
6.
The respondent, Lahore Bachao Tehrik, which was party
to the earlier matter has vehemently opposed the application. It is
submitted that the report of the Committee, referred to above, was
conclusive and was accepted by the Government of Punjab. Since the
Judgment in fact is a compromise judgment which has attained
finality, the applicant cannot withdraw such consent and is estopped
by its own conduct.
It is also argued that the canal area throughout has been
declared as Heritage Park and pursuant to the above, The Act came
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 8 :-
into force. Accordingly per the force of law, it is now impermissible for
the applicant to, in any way, widen the road, to encroach upon the
greenbelt or cut any trees, as there is/are a strict prohibition to that
effect in the said law. It is also argued that the extension/widening of
the road is no solution of the traffic problem as has been highlighted
in various documents produced before us rather the applicant should
come up with alternate means to overcome the traffic congestion in
the area.
It is further submitted that there is no justification for widening
of the road. There is no need or requirement to revisit the said
Judgment. The applicant in the garb of the present application
intends to undo the said judgment and is in fact seeking review of the
said judgment, but no case in this regard (for review) at all has been
made out. Besides, the review power of this Court has but a limited
scope and no appeal (review) is available against a consent order. In
making this submission the judgments reported as Muhammad
Tufail Vs. Abdul Ghafoor (PLD 1958 SC 201), Syed Arif Shah Vs.
Abdul Hakeen Qureshi (PLD 1991 SC 905), Amin Badshah Vs.
Nargis Saleem (2000 SCMR 1641), Rashida Vs. Aziz Begum (1998
SCMR 1340) and Sajjad Hussain Vs. Musrat Hussain (1989 SCMR
1826) have been relied upon by the learned counsel.
It is also stated that the Canal Park is a Public Trust and
cannot be encroached upon only for the benefit of 8% of the
population of Lahore which has vehicle ownership and fundamental
right to life of the public at large cannot be compromised by cutting
of age old trees (that are now part of the heritage park) as the same will have
serious ecological impact.
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 9 :-
Lahore Bachao Tehrik has also submitted through Criminal
Original
Petition
No.96/2014
that
as
the
respondents
in
disobedience/breach of the judgment of this Court ibid have already
cut certain trees, they are guilty of violating the Judgment, therefore,
criminal action be initiated against them.
7.
On account of the pleadings and hearing of both the
parties, the main propositions which emerged for our consideration
are:-
i)
Whether per the judgment of this Court reported as Cutting of
trees for canal widening project, Lahore (2011 SCMR 1743)
and the Act, the widening of the road, the cutting of the trees and
destruction of the greenbelt is not permissible and whether the
permission being sought by the applicant is violative of the
aforesaid Judgment and the Act;
ii)
Whether there is such acute need for widening of the road as has
been propounded by the applicant and whether the canal road
having been declared heritage park is protected by the doctrine of
public trust;
iii)
Whether the judgment in question being in the nature of a consent
order precludes the applicant from seeking permission of this
Court for carrying out the proposed project including widening of
the Canal Road by utilizing some part of the green belt deemed as
the Heritage Park and whether the application filed by the
applicant is one requiring review of the Judgment and Court while
exercising its jurisdiction in terms of Article 184(3), by itself can
permit the inclusion of the greenbelt for widening of the road and
cutting of trees upon some conditions;
iv)
Whether
on
account
of
the
allegations
leveled
in
Crl.O.P.No.96/2014,
the
applicants
have
committed
disobedience/violation of the judgment of this Court calling for
contempt proceedings against them.
PROPOSITION NO.1:
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 10 :-
8.
In order to cater to this proposition, we will follow a two
pronged process. Our first step will be to assess whether either limb
of the project infringes upon any of the recommendations of the
Mediation Committee as embodied in the Judgment of this Court and
whether the same prohibit construction/widening of the Canal Bank
Road in its totality. We will then proceed on to see whether any part
of the project is violative of the Act and whether there is room for
implementation of the project and if so, whether there are any
conditions/prerequisites.
COMPLIANCE OF THE PROJECT WITH THE RECOMMENDATIONS OF THE
MEDIATION COMMITTEE AND THE DIRECTIONS GIVEN IN THE JUDGMENT OF THIS
COURT
9.
For the purposes of resolving this contention, we find it
expedient to reproduce the relevant features of the consensus
Recommendations of the Mediation Committee (Recommendations), which
read as follows:-
ââĻâĻ
2. Correct the "Incorrect Underpasses" on the Canal Road
During the proceedings of the Committee, it became clear that
the design of the underpasses at Jail Road and Ferozepur
Road (the "Incorrect Underpasses"), âĻ.were not in
accordance with appropriate traffic engineering solutions and
that these Incorrect Underpasses constitute a serious traffic
safety hazard.
The Incorrect Underpasses are incorrectly situated in
the slower/left lanes. International design standards and
conventions stipulate that underpasses are to be located in the
fast lane. Due to this flaw, the through traffic movement
towards the Incorrect Underpasses is suddenly diverted to the
left lane instead of flowing straight in the right lane as is the
case with all the other underpasses later correctly constructed
along the Lahore Canal RoadâĻ.
(âĻ..)
the fast-moving traffic going through and coming out
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 11 :-
of the Incorrect Underpasses criss-crosses with slow moving
traffic and creates direct conflict points (red circles) instead
of smooth weaving and merging. This raises serious
road/traffic safety issues and destructs the smooth flow of
trafficâĻ.
(âĻ.)
The Incorrect Underpasses, therefore, need to be re-
aligned and reconstructed in accordance with internationally
accepted design standards and parameters.
Similarly, the Committee noted that the bypasses at
the Jinnah and Doctor's Hospital intersections required
geometric improvements as the fast and slow-moving traffic
do not smoothly weave and merge. This causes traffic conflict
points and creates traffic safety hazards. A representation of
the problem is given below:
3. Re-engineer the Junctions along the Canal Road
There are, broadly, two (2) categories of intersections along
the Canal. These are:
(1)
Roads traversing through the Canal Road
With respect to these types of intersections,
the Committee noted the fact that, in all, there were
twelve (12) such intersections over the Lahore Canal
and that several of these intersections carried
significantly higher traffic volumes across the Canal
Road than the traffic that flowed on the Canal Road.
The straight and turning traffic movement
along the Canal Road that does not go through the
underpasses also uses these intersections. It was
observed by the Committee that the designed capacity
of these intersections is not sufficient to accommodate
the large traffic volumes and that as a result, there
are
bottlenecks
on
these
intersections.
It
is
recommended that these intersections are re-modelled
after a traffic capacity analysis and designed in
accordance with standard geometric design. This will
help to have a smooth flow of traffic at these
intersections and will reduce congestion. In addition,
signals along the corridor and at intersections over
the Canal Road should be gully actuated and traffic
signage should be of international standard.
(2)
Roads and streets connecting to the Canal
Road
These roads and streets connect the Canal
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 12 :-
Road and predominantly emanate from housing
schemes and individual houses. The Committee noted
that these were unplanned access routes built for a
variety of reasons, which provide connectivity to the
housing schemes or private residences along the
Canal Road. The traffic entering and exiting from
these intersections slows traffic movement along the
Canal Road. This leads to undue stoppages and
causes congestion.
The Committee is of the opinion that there
should not be direct connections of the Canal Road to
housing schemes and private residences. Traffic
generated and attracted by these housing schemes and
residences requires the construction of a network of
service roads, preferably in a one-way loop system,
with proper geometries to enable smooth weaving and
merging of traffic from and onto the Canal Road.
Also, bus bays constructed along the length of
the Canal Road require redesigning in order to
facilitate the smooth entry and exit of vehicles and to
minimize traffic turbulence.
4. Construct Service Roads along Certain Parts of the Canal
Road
(âĻ)
The Committee is of the opinion that there is an
immediate requirement to provide a one-way loop service
road system along the entire length of the Canal Road (except
the Punjab University premises between the Campus
underpass and the Jinnah Hospital underpass) with
appropriately designed smooth entry and exit points to avoid
traffic turbulence and congestionâĻ.
12. Cleaning and Improving Water Quality of Canal
The sources of effluent, sewage and waste into the Lahore
Canal should be identified. Civil society as well as
government agencies should team up to clean the Lahore
Canal so that exposure to its water is not harmful or
dangerous to health and with an aim of bringing the quality of
the water of the Lahore Canal to the minimum guidelines
determined by the World Health Organization for recreational
water useâĻ
13. People-Centric Planning
âĻ.The Committee would like to recommend a change in the
urban agenda to include a more people friendly and people-
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 13 :-
centric development. Pedestrians and cyclists are routinely
ignored in road planning. This orientation needs to be
balanced.
16. Ambulance/Medical Emergencies
The officials of Rescue 1122 emergency services repeatedly
stressed the importance of removing encroachments along the
Canal Road and ensuring a smooth flow of traffic at all times
for the purpose of facilitating emergency vehicles taking
patients to hospitals. The officials were of the view that while
it was acceptable that alternative routes to hospital and
healthcare facilities should be identified and developed in the
long term, there was a strong need for a short term solution to
the congestion along the Canal Road such as selected
widening of the Road.
17. Limited Widening of Road
The total distance on one side of the Canal Road from
Dharampura to Thokar Niaz Beg is 14.5 km. Out of these
different sections, 6.59 km road has already been widened
before the reference of this matter to mediation.
The congestion on the remaining about 8 km is
particularly acute in certain locations, leading not only to
prolonged delays but also causing safety hazards because
ambulances and rescue vehicles are caught up in traffic and
unable to move swiftly.
The Committee, after a detailed site visit to these stretches of
the Canal Road and discussion with the concerned officials,
recommends that this short-term congestion can be relieved to
some extent if the third lane is allowed to be added at the
following locations on both sides of the Canal:
âĸ
Mall Road
to
Jail
Road ...
525 M
(Eastern)
460 M
(Western)
âĸ
Jail Road
to
F.C.
College...
550 M
(Eastern)
550 M
(Western)
âĸ
University
Campus to
Jinnah
Hospital...
1,700M
(Eastern)
1,700M
(Western)
âĸ
Jinnah
Hospital
to Doctors
Hospital...
700 M
(Eastern)
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 14 :-
750 M
(Western)
These stretches totalling a maximum of 3.525 km on
each side, as shown in Annexure J/1 to J/4, have 642 trees.
And 60% (about 385) of these trees are of eucalyptus specie.
Every effort should be made to build the third lane in these
stretches on the edges of the existing road to reduce to a
minimum the area taken from the green belt on both sides of
the Canal Road. The last stretch from Doctors Hospital to
Thokar Niaz Beg (2.6 KM) is getting increasingly congested
because of the volume of traffic generated from housing
colonies like M.A. Johar Town and a large number of other
colonies beyond Thokar Niaz Beg and areas on and around
Raiwind Road. However, with the construction of service
roads, as per Recommendation No. 4, the flow on the Canal
Road can be reduced. In addition, some improvement can be
achieved without encroaching on the green belt, if the trees on
the edges of the road causing bottlenecks (about 460 trees
including about 310 eucalyptus) (Annexure K), are removed
to improve earthen shoulders and bus bays are provided at
suitable points. The Committee does not recommend the
widening of the Canal Road through a third lane in this
stretch.
For each tree felled in any sector of the Lahore Canal
Road, the Punjab Government will plant at least a hundred
(100) mature trees in replacement.
18. Sector-Specific Recommendations
Although the mandate of the Committee from the Supreme
Court was only for the Canal Bank Road from Dharampura to
Thokar Niaz Beg, our recommendations cover, because of the
interdependence of urban planning issues, the area upstream
of Dharampura as well as downstream from Thokar Niaz Beg
in the following, sector-specific recommendations:
(1)
Jallo Mor to Dharampura Underpass
The Committee recommends a moratorium on
all new commercial activity and draws attention to the
ongoing unplanned development and encroachment
(of green belt) activity in this sector. Service roads in
this sector deserve special attention.
The Punjab Government has no proposal for
the Canal Bank Road or an underpass in this sector
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 15 :-
but its future planning should be guided by the
Recommendations of the Committee.
(2)
Dharampura
Underpass
to
Mall
Road
Underpass
The Committee is of the opinion that this
sector is working well but indicates that the
encroachments and restrictions along the service road
should be removed in order to facilitate a smooth flow
of traffic.
The Punjab Government has no proposal for
the Canal Bank Road or an underpass in this sector
but its future planning should be guided by the
Recommendations of the Committee.
(3)
Mall Road Underpass to Jail Road Underpass
The Committee is of the opinion that entry and
exit points along this sector may be streamlined to
promote smooth entry and exit from the Canal Road
and to minimize traffic turbulence.
(4)
Jail
Road
Underpass
to
F.C.
College
Underpass
In addition to its Recommendation No. 2
above, the Committee recommends the enforcement of
land-use and zoning laws in the areas adjacent to the
Lahore Canal in this sector.
(5)
Campus Underpass to Jinnah Underpass
As per the recommendation of the Committee,
this sector of the Canal will be subject to traffic
diversions to Multan Road on the north of the Canal
and Usmani Road on the South of Canal. Appropriate
signage will also be necessary to announce these
diversions. These diversions will also benefit from the
signal free corridor being constructed at Kalma
Chowk for traffic flowing from Garden Town to
Liberty Market.
(6)
Jinnah Underpass to Thokar Niaz Beg
The Committee reiterates its Recommendation
No. 7 above, namely that traffic to the Old CBD and
New CBD should be diverted from the Canal Road
and onto the Multan Road and the Southern Bypass
respectively. The Committee also recommends the
construction
of
radial/arterial
roads
along
a
northwest-southeast axis as proposed by the 1991
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 16 :-
JICA Lahore Urban Transport Master Plan. These
radial/arterial roads will also assist in diverting
traffic from the Canal Road as envisaged in
Recommendation No. 4 above.
The Committee is also of the view that the
results of the current Lahore Urban Transport Master
Plan study being conducted by the Transport
Department of the Government of the Punjab will be
instructive in this regard.
(7)
Beyond Thokar Niaz Beg
The Committee recommends a moratorium on
new commercial development as well a check on
unplanned development along this sector of the
Lahore Canal just as it recommended in No.(1) above.
10.
Whereas, the Project (construction of underpass and widening of
road in the sector falling between Dharampura Underpass and HarbanspuraInterchange
and addition of a third lane in the sector falling between Doctorâs Hospital and Thokar Niaz
Begfeatures) for which permission has been sought by the applicant vide
CMA No.3221/2014 includes the following construction/widening
activities (project features):-
i.
U-turn Bridges and remodeling of underpasses through the entirety of
the Canal Road;
ii.
Storm water/draining chutes and walkways along the whole of Canal
Road;
iii.
Realignment of Jail Road Underpass;
iv.
Provision of service roads for the stretch between ThokarNiaz Beg to
Doctorâs Hospital.
v.
Construction/widening of road by 6 metres for the stretch between
Mall Road to Harbanspura Interchange;
vi.
Construction/widening of road by 6 metres by way of adding a third
lane on either side of the Canal for the stretch between ThokarNiaz
Beg to Doctorâs Hospital;
11.
Having perused the basic Project features as also the
Recommendations, it is clear to our mind that there can be no doubt
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 17 :-
that the project features mentioned above are compliant with rather
pursuant to the Recommendations and directions issued by this
Court vide the Judgment in question and not in derogation thereto.
Our view is based on the analysis provided below.
12.
As regards, Project feature (i) (U-turn bridges and re-
modeling of underpasses, Recommendation No. 3 supra clearly
stipulates the need for re-engineering of Junctions/intersections
along the Canal Road so as to ensure removal of bottlenecks leading
to traffic congestion on these intersections whereas directions no. (iii)
and (iv) by this Court in the Judgment supra require necessary
corrections/modifications of underpasses and re-engineering of
junctions.
13.
Project feature (ii) (Storm water/draining chutes and
walkways) is pursuant to Recommendations No. 12 and 13 supra.
Recommendation No. 12 identifies the need to implement a plan for
the cleaning up of the Lahore Canal and improving the water quality
of the Canal which is also in line with direction No. (ix) supra whereas
Recommendation No. 13 mandates a people-centric development of
the Canal Road which takes into account the needs of pedestrians
and cyclists.
14.
With regards to Project Feature (iii) (Jail Road Underpass),
there can be no cavil that it is in furtherance to the agenda laid out
in Recommendation No. 2 supra which is to correct to the design of
the underpass at Jail Road as currently this incorrect underpass
poses a serious traffic safety hazard. This project feature is also in
line with direction No. (iii) supra.
15.
Project feature (iv) (provision of service roads) is clearly in
accordance with Recommendation No. 4, i.e. construction of service
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 18 :-
roads with appropriately designed smooth entry and exit points to
avoid traffic turbulence and congestion. Direction No. (vii), on the
other hand, also supports this project feature.
16.
Project feature (v) (Construction/widening of road by 6 metres for the
stretch between Mall Road to Harbanspura Interchange) entails actual widening by
adding a third lane from Dharampura to Harbanspura and 1.3 KM
underpass
that
covers
the
railway
crossings
at
Chabucha
Interchange and Griffin Park.
It is the case of the applicants that this widening and
construction of underpass is envisaged and tacitly allowed
throughout the length of the Canal Road from Mall Road Underpass
right up to Jallo More vide Recommendations No. 18(1) and 18(2).
Widening of road and construction of underpass in the sector falling
between Dharampura to Harbanspura falls within the sector
considered by the Mediation Committee under Recommendation
18(1) i.e. the heading âJallo Mor to Dharampura Underpassâ which
states that a moratorium on all new commercial activity be placed
and draws attention to the ongoing unplanned development and
encroachment activity in this sector. It also, however, adds that the
Punjab Government has no proposal for the Canal Bank Road or an
underpass in this sector but its future planning should be guided by
the Recommendation of the Committee.
It is submitted that the widening of the Canal Road between
âJallo-Mor to Dharampura Underpassâ and âDharampura Underpass
to Mall Road Underpassâ was not specifically discussed in the
Recommendations as at that time, the Punjab Government did not
have any plans for construction or widening in the said sectors. In
light of the above and the overall scheme of the Recommendations
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 19 :-
and Judgment of this Court, we are of the view that, from the
wording used in Recommendations No. 18(1) and 18(2), it is clear
that the Mediation Committee was fully conscious of the traffic
problems along these sectors and envisioned works in these sectors
in the future and therefore since this project feature is in line with
the overall Recommendations and directions of this Court, it is
allowed provided there is minimal environmental intrusion.
17.
Coming now to project feature (vi) (Construction/widening of
road by 6 metres by way of adding a third lane on either side of the Canal for the stretch
between ThokarNiaz Beg to Doctorâs Hospital), Recommendation No. 17 supra is
of importance. Though it is acknowledged by the Mediation
Committee in its Recommendations that the stretch from Doctorâs
Hospital to Thokar Niaz Beg is getting increasingly congested because
of various housing colonies surrounding this stretch, widening of the
Canal Road through addition of a third lane in this stretch was not
recommended. Instead, this problem was recommended to be tackled
through construction of service roads and by removing trees on the
edge of the road for improving earthen shoulders and by providing
bus bays at suitable points.
It is however clear from the submissions made by the learned
counsel for the applicants (and documents/information brought on the record)
during the course of hearing regarding this last stretch that the
alternatives proposed by the Mediation Committee have been tried
and tested and it has become clear that these solutions were not
sufficient for relieving the traffic congestion problems in this stretch.
From a reading of Recommendation No. 17, it is also clear that there
in fact persisted a serious traffic issue in this sector and the only
reason why addition of a third lane was not allowed was because at
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 20 :-
that time, it was the view of the Mediation Committee that alternative
solutions for countering this problem could be successfully employed.
Owing to the sudden transition from three-lane traffic to two-
lane traffic from Doctorâs Hospital onwards, however, the traffic
problems have persisted and addition of a third lane at this point is
the only solution to the problem at hand as alternative solutions have
also proved futile. On account of the above we are of the view that
provided there is minimum environmental intrusion and the Heritage
Park is duly protected, addition of a third lane will significantly
benefit the people of Lahore by enabling smooth flow of traffic in this
stretch which is the purport of the Recommendations of the
Mediation Committee and the Judgment of this Court.
18.
Having said that, leaving apart the prohibitions and
permissions granted in the Judgment, we are making it clear that
other than the construction/widening activities for which permission
has expressly been granted herein, the applicant shall not in the
future engage in any construction/widening activities along the
Canal Road without first applying to this Court and seeking its
permission. All activities other than those specified in this opinion
are prohibited and barred; no activities shall be construed as being
tacitly allowed by the applicant which (activities) have not expressly
been permitted. The applicant may, however, carry out repair and
maintenance works of the Canal Road.
COMPLIANCE OF THE PROJECT WITH THE PROVISIONS OF THE LAHORE CANAL HERITAGE
PARK ACT, 2013
19.
While making their submissions regarding whether the
Project is violative of the Act, learned counsel for the parties have
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 21 :-
referred to various provisions of the Act. The relevant Sections
whereof are as follows:-
2.
Definitions.â In this Actâ
(d)
âcanal treeâ means a tree in the
Heritage Park
3(5)
Subject to subsection (8) and except with prior
permission in writing from the Authority, the
following acts shall be wholly prohibited in the
Heritage Parkâ
(a)
construction or any other infrastructure
development work, clearing or breaking up any
land for cultivation, mining or for any other
purpose;
(b)
felling, tapping, burning or in any way
damaging or destroying, taking, collecting or
removing any plant or canal tree;
(c)
polluting water flowing in and through
the Heritage Park;
(d)
hunting, shooting, trapping, killing or
capturing of any animal or bird;
(e)
using firearm or doing any other act which
may disturb any animal or bird or acting in a
manner which is likely to interfere with the
breeding places; and
(f)
such other prohibitions as the Government
may notify in the official Gazette.
3(8)
The permission mentioned in subsection (5) shall
be subject to such conditions and in such manner
as may be prescribed and while granting such
permission, the Authority shall, among other
things, take into consideration the following:-
(a)
amenity value of the canal tree;
(b)
character of the area;
(c)
necessity of the action;
(d)
possibility of an affordable alternative;
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 22 :-
(e)
mitigation measures to reduce the
impact of reducing canal tree cover;
(f)
expediency of the proposal or work
requiring the felling, lopping, trimming or
otherwise cutting of the canal tree; and
(g)
environmental impact assessment of the
proposed activity.
6(2)
The Advisory Committee may also advise the
Authority on any other matter ancillary to the
discharge of its functions under the Act.
6(3)
In the performance of its functions under this Act,
the Authority shall take into consideration any
advice of the Advisory Committee.
7.
Action by the Authority.â (1) The Authority shall
take appropriate action on the recommendations
of the Advisory Committee within reasonable time
and shall communicate to the Advisory Committee
the reasons for not accepting any of its
recommendations, and the Advisory Committee
may, in the prescribed manner, submit a
representation to the Government for appropriate
orders.
From the sections reproduced above, it may be seen that per Sub-
section (5) of Section 3, construction or any other infrastructure
development work in the Heritage Park is wholly prohibited. This
prohibition, however, is not absolute and definitive, rather the Sub-
section itself clarifies that it (Sub-section 3(5)) is applicable only where
permission from PHA has not been sought and that further it is
subject to the provisions of Sub-section (8) of Section 3 and has to be
read in accordance.
Sub-section 3(8) lays down the factors that have to be taken
into account by PHA before it grants permission for any construction
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 23 :-
activity in the Heritage Park. Sub-section 3(8) read with Sub-sections
6(2), 6(3) and 7(1) read together mandate that permission may only
be granted under Sub-section 3(8) after Environmental Impact
Assessment and requisite approval from EPA and once Advisory
Committee constituted under Section 5 has been consulted.
In the instant matter, through the documents/information
produced before us and brought on the record, we have been
apprised that Environmental Impact Assessment of the proposed
project was conducted and the EPA accorded its approval vide
Approval Letter dated 15.12.2014 subject to certain conditions.
Consequent to such approval, the matter was raised before the
Advisory Committee which too approved the project in principle with
the condition that a sub-committee would be constituted to formulate
the Master Plan for Canal Trees Management which is evident from
the Minutes of the 6th Meeting of Lahore Canal Advisory Committee
held on 27.1.2015. Finally, after seeking approval of EPA as also the
Advisory Committee, the matter was put before and approved by the
Board of Directors of PHA in its 6th Meeting held on 6.2.2015.
In view of the above we find no merit in the proposition that the
Project infringes upon the protections accorded to the Heritage Park
vide the Act and find that the applicant is fully compliant with the
mandate of the Act.
Before parting with this proposition, we would also comment
upon another submission made by the learned counsel for the
respondent that per Section 2(d) of the Act, canal tree means any tree
in the Heritage Park and therefore each and every tree which falls
within the Heritage Park has to be protected and substitutionary
approach cannot be taken; trees in the Heritage Park may be felled
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 24 :-
provided their replacements are planted elsewhere is not the mandate
or purport of the law. As regards the above, suffice it to say that
Section 2(d) is a definition clause and it cannot be read in isolation
and has read to be read in conjunction with the substantive clauses
of the Act; Section 2(d) is subservient to, dependent upon and must
be interpreted/construed in line with Sub-sections 3(5) and 3(8) and
therefore we do not find any merit in this submission either.
PROPOSITION NO. 2:
20.
We have considered the arguments as mentioned earlier
and without in any manner, as has been stated, affecting the ratio of
the judgment noted above, we find that the extension and widening of
the road partly has provided a proper flow to the transport passing by
but at the places where the road is narrowed, traffic congestion takes
place. This congestion is undoubtedly against the public good as
considerable residential localities have been made across Thokar Niaz
Baig and also the main connection to the Motorway is also through
the canal bank road.
It is, therefore, the canal bank road which has attained
considerable importance and most of the time it has been noticed
that the traffic congestion has been experienced not only by the
people who have to bring their children to the main city for
education, rather as the main hospitals are also in the main city,
ambulances also cannot pass through when there is a congestion at
the places where the road is narrowed.
The concern of the respondents is only that some trees will be
cut and on account of the above, the green areas would be reduced
and shrunk significantly impacting the ecology of the area and since
the Canal Road is a public trust, the same cannot be tampered with.
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 25 :-
We have been apprised that for each tree cut, the government is
going to plant ten trees. Not only the above, it is a matter of public
knowledge that in the city of Lahore, number of trees have been
planted in different parts and on account of such, the environment
has improved. Therefore, the cutting of trees would in no way be a
hazard to the environment but to disallow such widening in fact is
causing great trouble and inconvenience to the public at large and on
account of congestions it has become in fact hazardous for the
movers/commuters on this very important road; their life quality is
being affected. Therefore, there is no reason as to why the applicant
should not be allowed to execute the work and to correct the crooked
part of the road i.e. skewed which in fact has become a traffic hazard.
Moreover, with regards to the application of the doctrine of
public trust, suffice it to say that as had been settled in the earlier
Judgment of this court (see paras 32 to 35 thereof), a public trust resource
cannot be converted into private use or any other use other than a
public purpose and in the instant case the widening of the road to
ease traffic congestion and facilitate the commuters was/is a public
good. Specifically when a limited area is being affected by the
proposed widening/construction to ease the greater problem of
bottlenecks and traffic blockages and when the applicant has also
undertaken to replace trees, as mentioned above, which are felled as
a consequence of the proposed widening to ensure that no adverse
ecological impacts are faced, we do not find a reason to deny the
request of the applicant.
PROPOSITION NO. 3:
21.
We now turn to the argument propounded by the learned
counsel for the respondents that the noted Judgment is a consent
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 26 :-
judgment and, therefore, the applicant is estopped from asking for
the widening of the road which was not permitted per the report of
the Mediation Committee or Judgment and, therefore, the application
should be dismissed on this score alone.
We have pondered over the objection/plea but are of the
considered view that the present is not an adversarial litigation
between the parties, rather it has genesis in a social action litigation
initiated by LBT and this Court in exercise of its powers under Article
184(3) accepted the report of the Mediation Committee and made it
part of its Judgment with the consent of the parties. But such
consent or judgment does not in any way denude this Court of its
jurisdiction in social action litigation to subsequently pass
appropriate orders where it becomes imperative and expedient and
where information has been provided to the Court which necessitates
appropriate orders. From the facts which have come on the record
and as has been held by us, we find that on account of limited
widening of road, further complications have emerged and in order to
cater for those, this Court, leaving apart the consent, does have
ample and absolute power and jurisdiction to permit widening for
appropriate and justified reasons and for the cutting of 1372 number
of trees and use of green belt to the extent of 30.85 acres needed for
the Project, therefore, this consent part would not come in the way of
the courtâs empowerment.
Moreover it may be pertinent to mention here that in the facts
and circumstances the rules of acquiescence, waiver, estoppel, past
and closed transaction or any other rule having nexus to these
concept and theory would not at all be relevant when we are
exercising jurisdiction under Article 184(3).
C.M.A.3221 of 2012 in S.M.C.25 of 2009 & Cr.O.P.96/2014
-: 27 :-
With regards to the contention of the learned counsel for the
appellant that since the Judgment was a result of consent reached
between the parties, it cannot be reviewed, suffice it to say that we in
no way are considering the application before us to be one requiring
review of the earlier Judgment of this Court. It is at best a case of re-
visiting for the purposes of clarification of the Judgment. Even
otherwise, in such public interest litigation, we, having been provided
with requisite information, have the inherent power to re-visit out
orders/decisions. In such a case, therefore, the rigors of review
jurisdiction shall stricto sensu not be attracted.
PROPOSITION NO.4:
22.
In light of what has been discussed above, we do not find
that the Judgment of this Court has been violated warranting
criminal action against the applicant. Even otherwise permission for
widening/construction to the extent aforementioned has been
granted vide this judgment and since contempt is a matter between
contemnor and Court, we do not find it necessary or expedient to
take any action against the respondents of Crl.O.P.No.96/2014.
In view of the above, C.M.A.No.3221/2012 is allowed, while
Crl.O.P.No.96/2014 is dismissed.
JUDGE
JUDGE
Announced in open Court
JUDGE
on 5.8.2015 at Lahore
Approved For Reporting
Waqas Naseer/*
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
CIVIL MISC. APPLICATION NO. 3258 OF 2013
(For extension of time)
IN
CONSTITUTION PETITION NO. 65 OF 2009
Raja Rab Nawaz
âĻ
PETITIONER
Versus
Federation of Pakistan through Secretary, Defence & others
âĻ.
RESPONDENTS
Petitioner
:
In person
On Court notice :
Mr. Muneer A. Malik
Attorney General for Pakistan
with Maj. General Tahir Masood, D.G.
Dr. Naeem Chaudhry, Director
Mr. Kaleemullah, L.O.
Date of hearing :
02.07.2013
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- This
Civil Misc. Application has been filed on behalf of the respondent
Federation through Secretary, Ministry of Defence, Government of
Pakistan for seeking extension of time in the holding of
Cantonment Elections in respect whereof, this Court, vide
judgment dated 03.01.2013 had directed to complete the process
of elections up to 05.05.2013.
2.
Brief facts of the case are that the petitioner
approached this Court by filing a petition under Article 184(3) of
the Constitution of Islamic Republic of Pakistan, inter alia, with
the following prayer: -
CMA No.3258/2013
2
âIt is, therefore, respectfully prayed that keeping in
view the above submissions, the respondent No.1
may kindly be directed to issue Notification for the
purpose of de-limitation of the wards in Cantonments
and further be directed to prepare electoral roll of the
wards in Cantonment and further be directed to hold
election of the Cantonment Board forthwith in
accordance with law.â
The petitionerâs case was that under Article 32 read with Article
140A of the Constitution, it is incumbent upon the State to
encourage Local Government Institutions comprising elected
representatives of the area concerned with special representation
of peasants, workers and women. It was not disputed that the
elections to the Cantonment Boards, as required under section
14(1)(b) of the Cantonment Act, 1924 [Act, 1924] were not
conducted for about last 14 year on one pretext or the other.
3.
During hearing of the matter, it was stated on behalf
of the respondent Federation that in pursuance of provisions of
section 14(1)(b) of Act, 1924, a summary had been moved to the
Chief Executive/Prime Minister of Pakistan on 05.05.2012 with the
proposal that it was necessary to vary the composition of 31
Cantonment Boards for a period of one year commencing from
05.05.2012, which was about to expire on 04.05.2013. It was
also stated that as soon as approval was accorded by the Prime
Minister allowing the Election Commission of Pakistan to hold
elections to the Cantonment Boards, necessary administrative
arrangements would be made in that behalf. Furthermore, by
means of CMA No.5232/2012 it was, inter alia, stated that in
compliance of order of the Apex Court dated 17.12.2012, it is
submitted that this Ministry has no intention to seek further
CMA No.3258/2013
3
extension (which is still 04.05.2013), in the existing Boards
sought earlier vide section 14(1) of Cantonment Act, 1924. This
Court vide order dated 03.01.2013 disposed of the petition with
the direction that the Federal Government may not allow further
extension in variation of composition of Cantonment Boards in
terms of section 14(1)(b) of the Act, 1924 after 05.05.2013
unless conditions noted therein were required to be pressed into
service compulsorily and in the meanwhile steps would be taken
to ensure that the elections of Cantonment Boards were held after
completing the process of the limitations of wards, etc., as per the
Cantonment Ordinance, 2002 read with the Cantonments Local
Government (Elections) Rule, 2012 as the Election Commission
was also willing and ready to under the process of election.
4.
By this Misc. Application for extension of time in the
holding of Cantonment Boards Elections is being sought, inter
alia, stating therein that a request for holding elections for the
local government in the Cantonment areas was sent to the ECP
vide letter dated 21.12.2012, but the ECP vide its letter dated
18.03.2013 raised certain legal questions/observations and advice
of Law & Justice Division was sought thereon. It is stated that
pending the clarification of the said legal issues and the fact that
the ECP was busy in holding general elections in the country, it
was not possible to hold the Cantonment Boards elections by the
target date fixed by this Court.
5.
A written statement signed by the Secretary, Ministry
of Defence was filed in Court, wherein he had requested for
extension of time for holding of elections of the Cantonment
Boards and undertaken that the entire process of elections in all
CMA No.3258/2013
4
the Cantonment Boards would be completed on or before
15.09.2013.
6.
Learned Attorney General appeared and explained
that the Government is contemplating essential amendments in
the relevant laws for the purpose of holding Cantonment Boards
elections and since the process is likely to consume some time,
therefore, extension of time in holding the elections be allowed.
7.
It may be observed that prior to the Partition of the
Subcontinent, the territory of Indo-Pak remained under the
foreign domination for a long period, during which its traditional
institutions were badly mutilated if they escaped extinction. The
vast majority of people in the country lived in villages and small
towns; therefore, it was required to evolve a system that would
increasingly associate them with the ordering of their affairs. This
could only be achieved through decentralization of the authority
which had been vested in the District Officer under the British
rule. In that scenario, a system was required to be evolved which
has its roots in the public and after building a strong base goes on
to construct the structure above. It had to be different from the
system which had beautifully trimmed structure with all the frills
of parliamentary democracy but hollow from within and without
any base below. For a real democracy, it is necessary that all the
inhabitants must have a say in their affairs. With the prevailing
level of political consciousness, they can fully understand their
immediate problems and requirements and evaluate what is of
immediate good and what is not. There is little reason, therefore,
why advantage of this should not be taken by involving them in
the management of their affairs through directly chosen
CMA No.3258/2013
5
representatives. For a villager it is, perhaps, not possible to
assess with any degree of accuracy the qualities and disabilities of
rival candidates from distant cities who may make periodic
appearances at the time of elections, but he is surely a good
judge of a fellow villager who may canvass for his vote for a local
council.
8.
After long time a solution was provided in the year
1979 in the shape of respective Local Government Ordinances for
each province. The procedure for conduct of election of the Local
Government was provided. However, by means of respective
Local Government Elections Ordinance, 2000, new mechanism
was provided for conducting the elections. Later, the local
government laws were repealed through fresh Local Government
Ordinance, 2001. The said Local Government Ordinances contain
the procedure for the conduct of elections for each local area. For
reference, the relevant provisions of Punjab Local Government
Ordinance, 2001 are reproduced hereinbelow: -
12.
Local governments for local areas.â (1) For
each local area, there shall be a local government
comprisingâ
(a)
District Government and Zila Council in a
district or a City District;
(b)
Tehsil Municipal Administration and Tehsil
Council in a tehsil;
(c)
Town Municipal Administration and Town
Council in a town; and
(d)
Union Administration and Union Council in
a union.
(2)
In case of a district consisting of a single
Tehsil, the Government may dispense with setting up of
Tehsil Council and holding of election of Tehsil Nazim
and Naib Tehsil Nazim in such Tehsil and in that case
the Tehsil Municipal Administration shall function
directly under Zila Nazim and the functions of Tehsil
Council shall be performed by the Zila Council.
(3)
In case of a Tehsil consisting of a single
Union, the Government may dispense with setting up
CMA No.3258/2013
6
of Tehsil Council and holding of election of Tehsil
Nazim and Tehsil Naib Nazim in such Tehsil and in
that case the functions of the Tehsil Municipal
Administration shall be performed by the Union
Administration and the functions of Tehsil Council
shall be performed by the Union Council.
148. Franchise.â (1) Members of a Union Council,
including Union Nazim and Naib Union Nazim shall be
elected through direct elections based on adult
franchise and on the basis of joint electorate.
(2)
The Electoral College for the election of
Zila Nazim and reserved seats of women, peasants
and workers, and minorities in the Zila Council shall
be all the members of Union Councils in the District,
including Union Nazims and Naib Union Nazims.
(3)
The electoral college for the election of a
Tehsil Nazim, Town Nazim and reserved seats of
women, peasants and workers, and minorities in the
Tehsil Council and Town Council, shall be all the
members of the Union Councils in the Tehsil or, as the
case may be, Town, including Union Nazims and Naib
Union Nazims:
Provided that for the election for reserved seats
for women in Zila Council proportionately divided
among Tehsils or Towns, shall be all members of the
Union Councils in a Tehsil or, as the case may be,
Town.
Explanation.â For the purpose of this section, all
members of Union Councils, notified as returned
candidates in the elections held under this Ordinance,
shall be deemed to be members of the Electoral
College.
150. Election
Commission
to
conduct
local
government elections.â (1) The Election Commission
shall conduct the local government elections.
(2)
In this Ordinance, âElection Commissionâ
means the Election Commission constituted under
Article 218 of the Constitution of the Islamic Republic
of Pakistan.
151. Delimitation of electoral wards.â (1) The
electoral ward for the election of a Zila Nazim, shall be a
District, for a Tehsil Nazim, a Tehsil, for a Town Nazim, a
Town, and for a Union Nazim and a Naib Union Nazim, a
Union.
(2)
The electoral ward for the election of a
Naib Zila Nazim, Naib Tehsil Nazim and Naib Town
Nazim shall be the respective Council.
(3)
The Union shall be a multi-member ward
for election of members of a Union Council.
154. Elections of Nazims, etc.â (1) A candidate for
the office of Zila Nazim and a Tehsil Nazim or a Town
Nazim securing highest number of votes in their
CMA No.3258/2013
7
respective wards against other candidates, shall be
declared elected.
(2)
A Union Nazim and Naib Union Nazim as
joint candidates, securing highest number of votes in
their electoral ward against other joint candidates,
shall be declared elected.
9.
It may be observed that initially, the Cantonment Act,
1924 was promulgated to consolidate and amend the law relating to
the administration of cantonments. Later on, the said Act was
superseded by the Cantonment Ordinance, 2002. As per definition of
Cantonment provided in section 3 of the Ordinance, 2002, the
Government may, by notification in the official Gazette, declare any
place or places in which any part of the armed forces of Pakistan is
quartered or where defence installation or defence production units
are located or which, being in the vicinity of any such place or places,
is or are required for the service of such forces to be a cantonment
for the purposes of the Ordinance and of all other enactments for the
time being in force, and may, by a like notification, declare that any
cantonment shall cease to be a cantonment. The Government may,
by a like notification, define the limits of any cantonment for the
aforesaid purposes. When any place is declared a cantonment for the
first time, the Government may, until a local government is
constituted in accordance with the provisions of the Ordinance, by
order make any provision which appears necessary to it either for the
administration of the Cantonment or for the constitution of the local
government. The Government may, by notification in the official
Gazette, direct that in any place declared a cantonment under sub-
section (1) the provisions of any enactment relating to local
government other than the Ordinance shall have effect only to such
extent or subject to such modifications, or that any authority
constituted under any such enactment shall exercise authority
CMA No.3258/2013
8
only to such extent, as may be specified in the notification. Section
57 of the Ordinance provides that members of union councils,
including union Nazims and Naib Union Nazims, shall be elected
through elections based on adult franchise and on the basis of a joint
electorate. The Electoral College for elections of Vice-President and
reserved seats for women, peasants, workers and minorities in the
Board shall, be all members of Union Councils in the cantonment
including Union Nazims and Naib Nazims. For reference relevant
provisions of the Ordinance are reproduced hereinbelow: -
57. Franchise.-(1) Members of Union Councils
including Union Nazims and Naib Union Nazims shall
be elected through elections based on adult franchise
and on the basis of joint electorate.
(2) The Electoral College for election of Vice-President
and reserved seats of women, peasants and workers
and minorities in the Board shall, be all members of
the Union Councils in the cantonment including Union
Nazims and Naib Nazims.
Explanation.-For the purpose of this section, all
members of Union Counsels notified as returned
candidates in the elections held under this Ordinance,
shall be deemed to be members of the Electoral
College.
58. Authority for local government elections.-(1)
All elections to the Union Council and the Board shall
be
organized
and
conducted
by the
President
according to the rules made under this Ordinance and
such rules may provide for all matters connected
therewith or incidental thereto, including the time of
holding the elections by-elections, corrupt or illegal
practices
and
other
election
offences
and
the
submission, trial and disposal of election petitions.
Provided that in a cantonment where no Board has
been constituted, the function of President under this
sub-section
shall
be
performed
by
the
Officer
Commanding the station.
(3) [sic.] The Government may authorize any of its
officers to exercise any of its powers and to perform
any of its functions under this Ordinance.
61.
Non-party
elections.--Local
government
elections in the cantonment shall be held on non-party
basis.
CMA No.3258/2013
9
62. Joint candidacy and elections. - (1) A Union
Nazim and Naib Union Nazim shall contest elections in
their respective wards as joint candidates:
Provided that on occurrence of a casual vacancy a
candidate for the office of a Union Nazim or Naib
Union Nazim shall contest the election for such office
in his individual capacity;
(2) Union Nazim and Naib Union Nazim securing the
highest number of votes, as joint candidates shall be
declared elected.
10.
It is to be noted that under the Cantonment laws,
total number of 43 Cantonments have been created in Pakistan,
which are as under: -
Balochistan
(1)
Khuzdar Cantonment
(2)
Loralai Cantonment
(3)
Ormara Cantonment
(4)
Quetta Cantonment
(5)
Zhob Cantonment
Khyber Pakhtunkhwa
(6)
Abbottabad Cantonment
(7)
Bannu Cantonment
(8)
Dera Ismail Khan Cantonment
(9)
Kohat Cantonment
(10) Mardan Cantonment
(11) Nowshera Cantonment
(12) Peshawar Cantonment
(13) Risalpur Cantonment
(14) Havelian Cantonment
(15) Kala Bagh/Murree Galies Cantonment
Punjab
(16) Attock Cantonment
(17) Sanjwal Cantonment (adjacent to Attock Cantt)
(18) Bhawalpur Cantonment
(19) Chaklala Cantonment
(20) Gujranwala Cantonment
(21) Jhelum Cantonment
(22) Kamra Cantonment
(23) Kharian Cantonment
(24) Mangla Cantonment
(25) Multan Cantonment
(26) Murree Hills Cantonment
(27) Okara Cantonment
(28) Rawalpindi Cantonment
(29) Sargodha Cantonment
(30) Shorkot Cantonment (PAF Rafiqui)
(31) Sialkot Cantonment
(32) Taxila Cantonment
CMA No.3258/2013
10
(33) Lahore Cantonment
(34) Wah Cantonment
(35) Walton Cantonment (Created out of the
southern parts of the original Lahore Cantt.)
Sindh
(36) Clifton Cantonment, Karachi
(37) Faisal Cantonment, Karachi
(38) Hyderabad Cantonment
(39) Karachi Cantonment
(40) Korangi Creek Cantonment, Karachi
(41) Malir Cantonment, Karachi
(42) Manora Cantonment, Karachi
(43) Pano Aqil Cantonment
11.
It is pertinent to mention here that despite a clear
mandate of law, elections of the Cantonment Local Government,
i.e. Members of Union Councils including Union Nazims and Naib
Nazims, have not been held for the last 14 years. Similarly,
Federal and Provincial Governments have also failed to hold
elections of the Local Governments in all the Provinces and
Islamabad Capital Territory through election Commission of
Pakistan.
12.
It may be observed that the life of a community is
essentially the creation of its particular environment. It is difficult
to establish an organization that would effectively look after the
well being of all the social groups in a country. Only such political
system can succeed which is essentially indigenous. Therefore,
establishment of democratic institutions at the grass root level is
basic requirement for the welfare of the society. The Local Self-
Government institutions lay the foundation of such a system.
They are based upon the recognition that the only way to respond
to the needs of the individuals is to associate them with the
process of authority. In this regard, it would be appropriate to
quote Sydney Webbâs remarks who said that any system of
CMA No.3258/2013
11
government, however mechanically perfect, would fail to take
roots in the midst of the masses of people, unless it was in some
way grafted on to the spontaneous grouping of the people
themselves. As such, the broad masses of people are to be
genuinely associated with the management of their affairs and
encouraged to work for their own welfare. Essentially, the
institutions at local/grass root levels protect the human dignity of
common man to which he is entitled.
13.
Local Government or Municipal Government is a form
of public administration, which in a majority of contexts, exists as
the lowest tier of administration within a given state or district. In
many countries, it usually comprises the third tier of government,
often with greater powers than higher-level administrative
divisions. The question of municipal autonomy is a key question of
public administration and governance. It is noteworthy that Local
Governments generally act within powers delegated to them by
legislation or directives of the higher level of government. The
political analysts have always emphasized on the importance of
local self-government. There are two principles underlining the
establishment of Local bodies. Firstly, local bodies enjoy extensive
powers to act in a way they like for the betterment of the
community unless restricted by law in any sphere of activity.
Secondly, local bodies cannot go beyond the specific functions
delineated to them in various acts and statutes.
14.
The concept of participation of ordinary people in the
conduct of public affairs was advanced by the liberal philosopher
John Stuart Mill as early as the mid 19th century. He considered
the broad involvement of citizens to be the most effective
CMA No.3258/2013
12
guarantee
of
a
well-functioning
democratic
polity,
counterbalancing the threats posed by an over-powerful and
interventionist state. In his view, the citizenâs opportunity to
articulate his views and assert his rights afforded him the best
protection against any abuse of these rights by the state.
15.
In general, this tier of government is responsible for
decision-making in those policy areas which have a direct impact
on the lives of local citizens, e.g. urban regeneration, housing,
schools, employment and social security, health, arts, culture and
sport, local public transport, water and energy, and regional
planning. These are the areas where the local citizens must have
the opportunity to exert direct influence on policy-makers and
thus participate in the decision-making process. Thus, local self-
government not only has a legal and a political dimension, but it
also has sociological connotations, namely, it directly affects
community life within a demarcated locality. It is pertinent to
mention here that in the developed democracies, local self-
government has contributed substantially to social and economic
development and the emergence of a civil society and its
importance for democratic development has been recognized
consistently all over the world.
16.
It is important to bear in mind that local government
is the most vital element in a democracy, though not generally
recognized as such. Existence of local bodies is important for
strengthening the process of democracy. In the recent years, local
self-government has been playing a vital role in the establishment
of good governance and community development. The local
bodies, at one end, provide services to the local community and,
CMA No.3258/2013
13
on the other, act as an instrument of democratic self-government.
The existence of local self-government provides mechanism for
the enforcement of Fundamental Rights of the people. Such
government bodies are helpful for development including
education, health, social services as well as in improving law and
order situation. In short, the local self-government is necessary
not only for strengthening democracy in country but also for
securing good governance, which is essential to ensure the
welfare of the citizens. This tier of government is always
appreciated by the general public because it remains within their
approach, as such they get involved in the decision making
process.
17.
All modern states have developed a system of self-
governing local authorities. In many countries, the basic unit of
local self-government is the municipality. Over the course of
history, two types of self-governing units, namely, cities and
municipalities have evolved at local level. The territorial
boundaries of units of local self-government are defined by law.
local self-government is presumed to be in existence where a
local government is established as a legal, corporate and political
institution with decision-making powers. One of the main traits of
local self-government is that there must be a representative body,
a council or an assembly, directly elected by local citizens through
elections, with budgetary autonomy and power to make
legislation at local level. The brief of local government structure in
various countries is given hereinbelow: -
INDIA
In India the local government is the third level of
government apart from the State and Central
CMA No.3258/2013
14
governments.
There
are
two
types
of
Local
Government in operation; firstly, Panchayats in rural
areas
and
Municipalities
in
urban
areas.
The
Panchayats are a linked-system of local bodies with
village panchayats (average population about 5,000),
panchayat samities at the intermediate level (average
population about 100,000), and district panchaytas
(average population about 1,000,000). The local
government bodies are the democratic institutions at
the basic level.
FRANCE
In France there are three main tiers of local
administration; namely, the commune, department
and region. These are both districts in which
administrative decisions made at national level are
carried out and local authorities with powers of their
own. A local authority is a public-law corporation with
its own name, territory, budget, employees, etc. and
has specific powers and a certain degree of autonomy
vis-Ã -vis central government. In addition, there are
France's overseas territories and regional bodies
(collectivitÊs territoriales) with special status (Paris,
Marseille, Lyon, Corsica, Mayotte and Saint-Pierre-et-
Miquelon).
JAPAN
Since the Meiji restoration, Japan has had a local
government
system
based
on
prefectures.
The
national government oversees much of the country.
Municipal governments were historical villages. There
are
47
prefectures.
They
have
two
main
responsibilities; one is mediation between national
and municipal governments, and the other is area
wide administration. Now mergers are common for
cost effective administration.
TURKEY
CMA No.3258/2013
15
Turkey has two levels of local government; provinces
(iller) and districts (ilçeler). The territory of Turkey is
subdivided into 81 provinces for administrative
purposes. The provinces are organized into 7 regions
for census purposes; however, they do not represent
an administrative structure. Each province is divided
into districts, for a total of 923 districts.
SOUTH AFRICA
South Africa has a two tiered local government
system comprising local municipalities which fall into
district municipalities, and metropolitan municipalities
which span both tiers of local government.
PAKISTAN
Local government is the third tier of government in
Pakistan, after Federal Government and Provincial
Government. There are three types of administrative
unit of local government in Pakistan; namely, District
Government
Administrations,
Town
Municipal
Administrations and Union Council Administrations.
There are over five thousand local governments in
Pakistan. After the promulgation of Local Government
Ordinance, 2001, there established democratically
elected local councils, each headed by a Nazim
(Supervisor
or
Mayor).
Some
of
the
districts
consisting of large metropolitan areas are called City
Districts. A City District often contains subdivisions
called Towns and Union Councils. As per local
government laws, elections of union councils are to be
held after every four years. District Governments also
include a District Coordination Officer (DCO), who is a
civil servant in-charge of all devolved departments.
Currently, the Powers of Nazim are also held by the
DCO.
18.
Thus, in the light of the above, it is imperative upon
the Government to ensure that the local government bodies
CMA No.3258/2013
16
elections as envisaged under the law must be held from time to
time so that the representatives of the people are enabled to
participate in managing their affairs at the gross root levels and
the Fundamental Rights guaranteed under the Constitution are
protected and enforced.
19.
Hereinabove are the detailed reasons of our order of
even
date,
relevant
paras
therefrom
are
reproduced
hereinbelow:-
â2.
After discussing the issue at length in
presence
of
Secretary
Defence
and
also
seeking
instructions
from
the
Election
Commission,
who
is
responsible to hold elections, following statement has been
placed on record:-
âSTATEMENT OF SECRTARY DEFENCE/ RESPONDENT
NO.1
I, the Secretary Defence, respectfully request
for extension in time during which elections are to
be completed in the Cantonments boards and
undertake that the entire process of the elections in
all the Cantonment Boards shall be completed on or
before the 15th September, 2013.
Sd/-
Lt. Gen (Retd)
Asif Yasin Malik
Secretary Defence/Respondent No.1â
The petitioner also expresses his satisfaction on the above
statement.
3.
Thus, in view of commitment made on behalf
of the Executive, we allow this application and extend the
period of holding the elections in the Cantonment Boards
up to 15th September, 2013. Copy of this order be also
sent to the Election Commission of Pakistan to ensure
holding of the elections in terms of Constitutional
provisions (Article 32 read with Article 140-A) on or before
the 15th September, 2013.
4.
We extend our gratitude and place on record
our thanks to learned Attorney General for Pakistan as on
account of his intervention the Executive has agreed to
CMA No.3258/2013
17
hold the elections of Cantonment Boards, after a period of
about 14 years.
5.
We may point out that in view of the
constitutional provisions and the principles of good
governance, local bodies have to play an important role to
achieve the welfare and good governance for the citizens
of the country. At the same time we are also hopeful that
the provincial governments as well as the administration of
Islamabad shall also make arrangements as early as could
be possible to hold local bodies elections in accordance
with law.â
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
2nd July, 2013
Nisar/*
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
Mr. Justice Maqbool Baqar
CMA No.3305 of 2014 in Civil Petition No.740 of 2013
(Show cause notice to the petitioner in CP-740/13 issued in compliance of the
order of this Court dt. 21.5.2014)
AND
CRP No.295 of 2014 in Civil Petition No.740 of 2013
(Review against this Courtâs order dated 21.5.2014 passed in CP-740 of 2013)
Ameer Rehman, etc.
âĻ
Applicant(s)
Versus
Ameer Mumtaz, etc.
âĻ
Respondent(s)
For the petitioner(s):
Syed Rafaqat Hussain Shah, AOR (in CRP-295/14)
On Courtâs notice:
Dr. Babar Awan, Sr. ASC (CMA-3305/14)
For Ameer Mumtaz, etc.:
Mr. Sher Muhammad, ASC
Mr. M. S. Khattak, AOR
Date of hearing:
01.07.2015
ORDER
Jawwad S. Khawaja, J.- CMA-3305/14:- On 21.5.2014 while deciding CP No.740
of 2013 we had passed an order dismissing the said petition with costs. However, while
dismissing the petition, we had also observed as under:-
â8.
In the foregoing circumstances, we hold that the title of the private
respondents stood established and there is no necessity for reopening the issue
of title considering the circumstances which have been narrated above. We
have, however, considered the possibility of taking action against the
petitioners under para 12 of Presidentâs Order No.12 of 1980, which provides
as under:-
âPunishment,---Whoever obstructs any person in enforcing
or giving effect to any decision or order made under this
Order shall be punishable with rigorous imprisonment for a
term which may extend to three years, or with fine, or with
both.â
9.
In the alternate, we may also consider initiating proceedings inter
alia, under Section 476 of the Code of Criminal Procedure, 1898. We cannot
allow abuse of process of the Court as it undermines the credibility of the
Court.
10.
Let notice issue to the petitioners to show cause as to why such action
should not be initiated. Notice shall also issue to the respondents. Mr. Sher
Muhammad Khan, learned ASC accepts notice on behalf of the private
respondents. The office shall create a separate file and list this matter for
hearing after thirty days. The petition stands dismissed with costs.â
CMA-3305/14 in CP-740/13 &
CRP-295/14 in CP-740/13
2
Pursuant to the notice which was issued to Ameer Rehman, Rehm Dad, Muhammad
Nawab and Pir Jamal petitioners in CP-740/2013, a separate file was created which is
before us. We have heard learned counsel for the aforesaid Ameer Rehman, etc. He has
taken us through the order passed by us on 21.5.2014. His main plea is that the aforesaid
persons namely Ameer Rehman, etc. are not highly educated, and therefore, there was
absence of mens rea and as a consequence the notice issued to them should be
discharged. In the present proceedings, it is not for us to make a factual determination of
the existence or otherwise of mens rea, this being an issue of fact. Learned counsel for
respondents Ameer Mumtaz, etc. has, however, drawn our attention to an application
filed on 3.11.2012 by Ameer Rehman, etc. This application is written in Urdu and is
signed by Ameer Rehman, etc. and makes mention of the order dated 18.02.1976. We,
however, would not like to make any further comment as it may cause prejudice to the
trial which we now propose to order.
2.
In the foregoing circumstances, we send the matter to the learned Sessions Judge,
Swat who shall entrust it to a competent Court for proceedings in accordance with law
against Ameer Rehman, etc. For the reasons which we have given for taking notice of
this matter, it is expected that the trial shall be concluded expeditiously. A report shall
be submitted in Court within six months from today for our perusal in Chambers.
3.
We would like to add that perjury and fabrication of documentary evidence are
to be taken very seriously by Courts. This is necessary for ensuring that the
administration of justice is not undermined and that baseless and false litigation is also
deterred. The listed matters stand disposed of.
CRP-295/2014:- No valid ground for review is made out. The review petition is,
therefore, dismissed.
Judge
Judge
Judge
Islamabad,
1st July, 2015
M. Azhar Malik/*
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
C.M.A. No. 3325/2012 in CRP No. 270/2011
In Const. P. No. 42 of 2011 a/w Crl.M.A No. 547/2012
& Crl. M.A. No. 565/2012 in Crl.Org.P.No. 63 of 2012
& C.R.P 9/2013 in CMA No.3325/2012
(Progress report of NAB in OGRA case)
For the NAB:
Rana Zahid Mehmood, Additional PG, NAB
Mr. Mazhar Ali Chohan, Deputy PG, NAB
Mirza Irfan Baig, Director (FCIW)
Mr. Waqas Ahmed Khan, Deputy Dir. NAB
Col (r) Shahzad Anwar Bhatti, DG(O) NAB
Mr. Mehmood Raza, Addl. DPG, NAB
For FIA:
Mr. Muhammd Azam Khan, Director (Law)
For Motorway Police:
Mr. Ali Akbar, SP( Legal)
In Crl. MA No. 547-565/12: Mr. Arshad Ali Chaudhry, AOR
For Govt. of Punjab:
Mr. Jawwad Hassan, Addl.AG, Punjab
a/w Rana Shahid Pervaiz (SP)
(CID) Rawalpindi,
For the Petitioner:
Mr. K.K.Agha, PG NAB
(in C.R.P. 9/2013)
Date of Hearing
:
31.01.2013
ORDER
Jawwad S. Khawaja, J:-
On 25.11.2011 the Supreme Court vide judgment in
Constitution Petition No. 42/2011 directed the National Accountability Bureau (NAB) to
probe into a number of matters. These matters were listed in para 57 of our judgment of
25.11.2011 and are reproduced as under:-
â(5) that the National Accountability Bureau (âNABâ) shall probe into
and prepare a report on the following matters:-
(a) the serious allegations enumerated in the Constitution
Petition including those enumerated in paragraph 15 thereof;
(b) the conduct of state functionaries who were engaged in the
process of selection of the respondent as Chairman, OGRA and
their possible culpability for mal feasance, non feasance and
other wrong doing;
(c) the misuse of public office and the involvement of holders of
public office in corruption or corrupt practices in terms of the
National Accountability Ordinance;
(6) the Chairman, NAB shall proceed in the matter with the promptness
and diligence required in the matter;
CMA 3325/12 in CRP 270/11
2
(7) the report of NAB shall be submitted in Court within 45 days from
today;
(8) the matter be placed before us after 45 days for such further orders as
may be considered appropriate,
The events which followed the above judgment, as appearing from the record and from
reports submitted by NAB show prima facie, that there may have been interference in
proceedings before this Court and possible culpability of some persons in terms inter alia of
Chapters XI and IX, PPC and other statutes relating to Public Justice. This, prima facie,
undermines the rule of law and the legal imperative of stamping out corruption and corrupt
practices. It thus, raises a concern which requires serious consideration.
2.
On 01.02.2012 i.e. more than 2 months after our judgment and our direction that a
report be submitted in 45 days, the Chairman NAB authorized an investigation in the
matter. Our record presently does not show as to why our order directing the filing of a
report within 45 days, was not compiled with. The Chairman NAB appears to have
authorized an investigation but the name of any investigation officer (I.O) was not
indicated. On 28.02.2012 Mr. Ilyas Qamar and Lt. Col (r) Ikramullah were jointly appointed
for the purpose. On 16.03.2012 the case was transferred to Mr. Waqas Ahmed Khan,
Investigating Officer (I.O.) Deputy Director NAB who began his investigation and has since
been pursuing this case.
3.
On 09.04.2012, Mr. Waqas Ahmed Khan submitted for the Chairmanâs approval,
grounds of arrest and draft warrants for the arrest of Tauqir Sadiq and Mansoor Muzafar
Ali. The next day i.e. on 10.04.2012 the Director General (SOD) of NAB namely Col. (r)
Shahzad Anwar Bhatti returned the file to Mr. Waqas Ahmed Khan with the direction âas
discussed please prepare grounds of arrest and put up againâ. This prima facie appears unusual as
we have not been able to find any explanation on record for this conduct. According to the
available record, the grounds for arrest and draft warrants had already been prepared and
it was after such preparation that the file had been sent to the Director General in the first
place. Since Col (r) Shahzad Anwar Bhatti is present in Court he shall file his explanation
for this circumstance which, prima facie, appears unusual and may also be culpable.
4.
The next day i.e. on 11.04.2012 Mr. Waqas Ahmed Khan again submitted the
grounds of arrest and draft warrants a second time. 5 days later i.e. on 16.04.2012, the DG
CMA 3325/12 in CRP 270/11
3
(SOD) returned the file yet again directing that it be âput up after examining witnesses/accused
personsâ. This also prima facie seems highly unusual since Mr. Waqas Ahmed Khan had
already examined Mr. Muhammad Yasin, Registrar OGRA, who was petitioner in Const.
Petition No. 42/2011 and Jawad Jamil an accused in the case. This was done on 02.04.2012
and their statements had also been incorporated in the case diary. Nevertheless, Mr. Waqas
Ahmed Khan went on to examine both Tauqir Sadiq and Mansoor Muzaffar on the same
day i.e. 16.04.2012.
5.
The next day i.e. on 17.04.2012 he resubmitted grounds of arrest and draft warrants
for a third time. The DG (SOD) returned the file to Mr. Waqas Ahmed Khan yet again
asking âhave we got any bank accounts to be analyzed?â. Mr. Waqas Ahmed Khan wrote back
that all steps have been taken for scrutiny of the bank accounts and other requisite details
have been taken for the scrutiny of the bank accounts. This time around, the DG (SOD)
moved the file to the Chairman NAB with the observation dated 18.04.2012 that âwe must
discuss case progress pleaseâ. On 19.04.2012 the Chairman NAB received the file and
approved the arrest warrants and grounds for arrest. However, this approval and the file
did not get back to Mr. Waqas Ahmed Khan for another twelve( 12) days. This also prima
facie appears to be a serious omission. The DG (SOD) shall explain this aspect of the case
also. It has been noted by Mr. Waqas Ahmed Khan that during this period Tauqir Sadiq
and Mansoor Muzafar accused were frequently visiting NAB Headquarters for
interrogation. The signed warrants finally got back to Mr. Waqas Ahmed Khan on
02.05.2012, which can be termed as a very eventful day in the NAB Headquarters in
Islamabad.
6.
It is stated in the NAB Report (CMA 134/2013) that Tauqir Sadiq was within the
NAB Headquarters building at the time when Mr. Waqas Ahmed Khan received the
warrants. So he immediately called the guards at the reception through intercom and
directed them to detain Tauqir Sadiq. It appears that the guards did detain Tauqir Sadiq. In
the meanwhile, Mr. Waqas Ahmed Khan went to DG (SOD)âs office for numbering of the
warrants of arrest. It is stated in the aforesaid report that the DG (SOD) immediately took
the warrants from Mr. Waqas Ahmed Khan and stepped out of the room. A short while
later he returned and explained to Mr. Waqas Ahmed Khan that the warrants had been
CMA 3325/12 in CRP 270/11
4
signed by the Chairman only as a result of confusion and that it was a mistake. Then, right
in front of Mr. Waqas Ahmed Khan, the DG (SOD) âdestroyed the signed arrest warrantsâ.
Tauqir Sadiq thereafter managed to escape from the NAB Headquarters prima facie on
account of this most unusual sequence of event. The Chairman, NAB may explain these
events.
7.
On 07.05.2012 Mr. Waqas Ahmed Khan, I.O submitted fresh warrants and grounds
of arrest for the Chairmanâs approval. It may be noted that this was the 4th time that
grounds for warrants and arrest had been prepared by the said IO. The following day i.e.
on 08.05.2012 the Chairman signed the same. However, it took another one week before the
signed warrants were sent and handed over to Mr. Waqas Ahmed Khan on 15.05.2012. This
omission also requires to be explained. It was only on 15.05.2012 i.e. more than one month
after arrest warrants for Tauqir Sadiq had first been sought, that a search could be initiated
to arrest him.
8.
On 03.08.2012, Mr. Waqas Ahmed Khan prepared a reference and sent it to the
Prosecutor General NAB (PGA). The Additional PGA endorsed the reference on 08.08.2012.
The PGA however, marked the file to one Mr. Ahmed Hayat Lak, General Manager, Legal
Affairs of OGDCL and also Legal Advisor to Attock Petroleum. It is not clear from the
record if Mr. Ahmed Hayat Lak had any nexus or concern with NAB or the matter which
was being investigated by Mr. Waqas Ahmed Khan pursuant to our judgment dated
25.11.2011. We have noted that NAB has its own high powered legal team headed by a
Prosecutor General who under Section 8 of the National Accountability Ordinance has the
qualifications for being appointed a Judge of the apex Court. Even today, we have three
legal persons namely Rana Zahid, Additional Prosecutor General NAB, Mr. Mazhar Ali
Chohan, Deputy Prosecutor General NAB and Mr. Mehmood Raza, Additional Deputy
Prosecutor General NAB who are present in Court. NAB may, therefore, explain as to what
extraordinary qualifications were possessed by Mr. Ahmed Hayat Lak which made his
examination of matters indispensable for NAB and why it was that such senior
functionaries in the legal department of NAB were considered either incompetent or
unqualified to examine this matter? It may also be explained as to why a person potentially
having a conflict of interest was considered for this purpose and what special qualifications
CMA 3325/12 in CRP 270/11
5
are possessed by him which prompted a reference to him. Mr. Waqas Ahmed Khan is
present in Court and has been questioned. He states that a four page note was prepared by
Mr. Ahmed Hayat Lak in which he indicated that a reference was made out only in respect
of CNG and the other references were not justified. The I.O. Mr. Waqas Ahmed Khan
responded by making some detailed noting on file. The matters noted above which have
been taken from the NAB report (CMA 134/2012) shall be made part of a report along with
notings mentioned above and the same shall be submitted in Court by NAB. According to
Mr. Waqas Ahmed Khan, he decided that it would be highly improper for him to meet Mr.
Ahmed Hayat Lak because there was a serious conflict of interest which in the opinion of
Mr. Waqas Ahmed Khan was enough to disqualify Mr. Ahmed Hayat Lak. Since there
appears to be no explanation on record, prima facie, there seems to be some dubious and
improper conduct which needs to be explained by NAB as the investigating agency in the
case.
9.
On 27.09.2012 i.e. almost two months after Mr. Waqas Ahmed Khan had initially
submitted the reference and more than ten months after the judgment dated 25.11.2011,
Chairman NAB finally approved a reference but this reference was confined to those
aspects of the case only which have been highlighted in paragraph 15 of Constitution
Petition No.42/2011. It is stated by the IO that only 5 persons have been named in the
reference although this number is likely to increase once the investigation progresses
further and the trail leading up to the other accused is substantiated through some
oral/documentary evidence. The other aspects of para 57 of our judgment and the persons
identified as per sub-para 5(6) were not subjected to any probe or questioning.
10.
Today we have heard Mr. Azam Khan, Director (Law) FIA, Mr. Waqas Ahmed
Khan, Deputy Director NAB and Rana Shahid Pervaiz, SP Punjab Police. From their
statements made in Court, it appears that after escaping undetected from Pakistan, Tauqir
Sadiq was apprehended by CID of UAE and was thereafter given in the custody of Interpol
in UAE. It also appears from the statements made by these three persons that some steps
may be in the contemplation of their organizations which may actually result in delaying or
frustrating the return of Tauqir Sadiq to Pakistan. Specifically, it has been stated by all three
officers that because the two passports which had been issued to Tauqir Sadiq by the
CMA 3325/12 in CRP 270/11
6
Pakistan passport office have been cancelled, the said individual has to be deported from
UAE. This recourse has not been adopted and instead a long, unnecessary and protracted
process is being contemplated for extraditing Tauqir Sadiq from UAE to Pakistan.
Responding to the Courtâs query, Mr. Waqas Ahmed Khan estimated that deporting would
take 6-7 days. SP Rana Shahid estimated that this could be achieved in around three days.
Both averred that the extradition proceeding, on the other hand, would definitely take
much longer, possibly months. Prima facie extradition would not be required in this case
because the very basis on which Tauqir Sadiq entered UAE i.e. the Pakistan passport issued
to him, stands cancelled. According to the I.O. the residence/work visa of Tauqir Sadiq has
already been cancelled by the UAE authorities.
11.
Mr. Azam Khan, Director (Law) FIA, Mr. Waqas Ahmed Khan, Deputy Director
NAB and Rana Shahid Pervaiz, SP Punjab Police shall submit their detailed reports in this
behalf. We may note that Mr. Waqas Ahmed Khan, Deputy Director NAB and Rana Shahid
Pervaiz, SP Punjab Police were in UAE since 15.01.2013 with the object of bringing Tauqir
Sadiq back to Pakistan. The Foreign Office, Director General Passports and other relevant
authorities are directed to provide all possible assistance to NAB, FIA and other authorities
pursuing the arrest of the accused and his deportation to Pakistan. These authorities shall
ensure that Tauqir Sadiq is brought to Pakistan before the next date of hearing.
12.
Mr. Waqas Ahmed Khan, has informed us that on 30.01.2013 a reference against
twelve individuals was prepared as per para 57(5)(b) of our judgment dated 25.11.2011 and
the same has been forwarded through proper channel and is likely to be signed by
Chairman NAB. This reference relates to the selection process whereby Tauqir Sadiq was
first vetted, interviewed and then finally appointed as Chairman OGRA. A 3rd reference
under section 31 (a) of the NAO has also been prepared by the Deputy Director and has
been forwarded on 28.01.2013 through proper channel for signing by the Chairman NAB.
We have also been informed that the Executive Board Meetings (EMBs) have been held in
NAB Rawalpindi for the purpose of forwarding the aforesaid two references. However,
EBMs at NAB Headquartes have still not taken place. NAB shall explain the reasons as to
why this is so, considering the background which has been noted above and the fact that
more than 14 months have elapsed since our order of 25.11.2011, wherein the Chairman,
CMA 3325/12 in CRP 270/11
7
NAB was directed to âproceed in the matter with the promptness and diligence required in the
matterâ.
13.
On a question put to him by the Court, the I.O/Deputy Director NAB stated that 41
bank accounts in different branches of various banks in the name of Tauqir Sadiq or his
family members had been detected. In addition to the aforesaid accounts, three other
accounts in the name of benami account holders were also detected. These accounts
contained a sum of around rupees three billion (Rs.3,000,000,000) but through an unusual
occurrence, all 44 accounts were emptied and the amounts therein were siphoned off just
before a caution was placed on the said accounts by NAB. As a result the amount of rupees
3 billion was withdrawn and there are no funds left in the said 44 accounts. NAB shall
explain as to how and why this was allowed to happen.
14.
The evidence on record before us gives rise to questions relating to
deportation/extradition. We may also require assistance on the ambit and parameters of
the provisions of chapters XI and IX PPC and Section 31(a) of the NAO read together with
section 476 and 476A of Cr.P.C. Further progress on the matter my require the assistance of
amicus curiae. Kh. Haris Ahmad, Sr. ASC may be asked to assist the Court in the case.
15.
To come up on 07.02.2013 for consideration of the reports sought above and for
passing appropriate orders.
Civil Review Petition No.9/2013. Civil Review Petition No. 9/2013 has been filed on behalf
of NAB. The petitioner seeks review of our order dated 24.01.2013. The learned Prosecutor
General NAB, Mr. K.K. Agha is busy before Bench No. 1 of this Court. He is not likely to be
free any time soon and has requested to be accommodated. It is already 03:50 p.m. The
Review Petition and the case (CMA 3325/2012) is adjourned to 07.02.2013.
Judge
Judge
Islamabad
31.01.2013
īŗīī īī§ īĒī´
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C.M.A No. 3325/2012īžCRNP No. 270/2011
In Const. P. no. 42 of 2011 a/w Crl. M.A. No. 547/2012
& Crl. M. A. No. 565/2012 in Crl.Org.P.No. 63 of 2012
& C.R.P 9/2013 in CMA No. 3325/2012
ī
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| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Gulzar Ahmed
Civil Miscellaneous Application No.3393/2013
(Application by Syed Adil Gilani against appointment of Federal Ombudsman)
In
Constitution Petition No.30 of 2013
Khawaja Muhammad Asif
Petitioner (s)
VERSUS
Federation of Pakistan & others
Respondent(s)
Applicant (s)
:
Nemo.
ON COURT NOTICE
:
Mr. Munir A.Malik,
Attorney General for Pakistan
For the Wafaqi Mohtasib Sectt:
:
Mr. Imtiaz Kazi, Secretary
For M/o Law
:
Nemo.
:
For Establishment Division
:
Nemo.
For PSPM
:
Nemo.
For Mr. Salman Faruqui
:
Mr. Wasim Sajjad, Sr.ASC
Date of Hearing
:
10.06.2013
ORDER
The Secretary Ombudsman has filed a report through CMA
No.3644 of 2013. Notification dated 01.03.2013, issued by Imtiaz
Kazi, Secretary, Wafaqi Mohtasib (Ombudsman) Secretariat has been
filed, perusal whereof indicates that Mr. Salman Faruqui has been
appointed as Wafaqi Mohtasib (Ombudsman). The said notification is
reproduced as under: -
C.M.A.No.3393/13 in Const.P.no.30 of 2013
- 2 -
âWAFAQI MOHTASIB (OMBUDSMAN)âS SECRETARIAT,
ISLAMABAD
Islamabad, 1st March, 2013
NOTIFICATION
No.F.1(632)/A-II/2012. In exercise of powers conferred on him
by Articles 3 and 4 of the Establishment of the office of Wafaqi
Mohtasib (Ombudsman) Order 1983 (P.O.1 of 1983) and all other
powers enabling him in that behalf, the President, Islamabad Republic
of Pakistan is pleased to appoint Mr. M. Salman Faruqui, as Wafaqi
Mohtasib (Ombudsman).
2.
Mr. M. Salman Faruqui assumed the charge of the Office
of the Wafaqi Mohtasib (Ombudsman), today, the 1st March, 2013.
Sd/-
(IMTIAZ KAZI)
Secretaryâ
The Secretary Ombudsman was asked to explain as to whether in
all cases whenever Ombudsman is appointed a separate Notification as
in the case of Mr. Salman Faruqui reproduced hereinabove is issued by
the Ombudsman Office. He stated that on assumption of the charge
such Notifications are issued, which are also treated as charge
assumption report. Be that as it may, all the Notifications of the
Ombudsman from 1983 onward be filed by him by tomorrow with the
Registrar of this Court to ascertain the procedure being followed in the
office of the Ombudsman for the appointment of the Ombudsman. He
further stated that a separate charge report is also prepared by the
Ombudsman on assumption of the charge. He also explained that copy
of the above reproduced Notification, issued by the office of the Wafaqi
Mohtasib
(Ombudsman)âs
Secretariat,
Islamabad
was
endorsed/forwarded to the Manager, Printing Corporation of Pakistan
Press, Karachi for its publication in the Gazette of Pakistan and it was
accordingly published on the same day. Further, the oath taking
ceremony of the Ombudsman had also taken place on the same day i.e
01.03.2013. We inquired from him as to whether any request from the
C.M.A.No.3393/13 in Const.P.no.30 of 2013
- 3 -
office of Wafaqi Mohtasib (Ombudsman)âs Secretariat, Islamabad was
sent for seeking time from the Worthy President to administer oath, he
stated that no such request was sent as at that time Mr. Salman
Faruqui was working in the Presidency, therefore, the oath was
administered there. We fail to understand that in such like situation
when the copy of the Notification was also forwarded/endorsed to the
Secretary to the President, Presidentâs Secretariat (Public), Aiwan-e-
Sadr, Islamabad the process and procedure of witnessing of oath
taking ceremony must have been followed. Inasmuch as Mr. Imtiaz
Kazi is concerned, he stated that he has not attended the oath taking
ceremony of Ombudsman held on 01.03.2013 in the Presidency. He
further stated that Mr. Salman Faruqui is at present in United States
for the treatment of his lady wife, however when we inquired from him
whether leave for any specified period has been sanctioned, he stated
that neither he knows about the sanctioning of leave nor he has
received any Notification in this regard from the Ministry of Law. He
stated that no case for sanctioning of leave was referred by Wafaqi
Mohtasib (Ombudsman)âs Secretariat. It is to be noted that such
applications like leave etc., under the Rules of the Business have to be
routed from the Administration Department, Prime Minster Secretariat
for formal approval, the same is to be placed before the President of
Pakistan. In the instant case no such procedure seems to have been
followed by him. It is also to be noted that in view of the Section 4 of
the Federal Ombudsmen Institutional Reforms Ordinance, 2013 in
absence of the Federal Ombudsman, the Federal Tax Ombudsman
shall act as Wafaqi Mohtasib (Ombudsman), in addition to his own
C.M.A.No.3393/13 in Const.P.no.30 of 2013
- 4 -
duties. We inquired from Mr. Imtiaz Kazi as to whether he has
intimated to the Federal Tax Ombudsman to discharge his functions in
accordance with Section 4 to which his reply was in negative.
2.
Registrar of this Court may send a letter to the Federal Tax
Ombudsman, seeking information from him as to whether in
pursuance of Section 4 of the Ordinance, appointment of the Acting
Ombudsman was made and whether he has assumed duties/functions
as an Acting Ombudsman. In this behalf the Registrar may also
procure the statement from him.
3.
Mr. Imtiaz Kazi, Secretary further stated that copy of the
Notification dated 01.03.2013 was forwarded by the Ombudsman
Office to 14 functionaries, list of which is available at the bottom
thereof including the AGPR, Islamabad. Surprisingly a Certificate dated
08.06.2013 under the title âTO WHOM IT MAY CONCERNâ has been
placed on record at page 18 in CMA No.3644/13. A perusal whereof
indicates that Mr. Salman Faruqui has drawn pay and allowances as
Wafaqi Mohtasib from 1st March, 2013. He was issued Cheque
No.4304413 and 4304414 for his pay and allowances for the month of
March and April, 2013 respectively. From perusal of the certificate
impression can be gathered that no intimation was sent to the AGPR.
As according to the practice if a person is already functioning in office
on his appointment he relinquishes the charge of the same and since
Notification either himself or through the Department to AGPR, who is
required to appoint the Officer and monthly amount of the salary is
credited to his account and at the same time monthly pay slip is also
issued by the AGPR but it seems that as per the certificate referred
C.M.A.No.3393/13 in Const.P.no.30 of 2013
- 5 -
hereinabove he has received his salary through the cheques
mentioned in the certificate. It is necessary to look into the travelling
history of the Notification dated 01.03.2013, maintained in the
dispatch register by the office of the Ombudsman to ascertain as to
when the intimation was sent to the AGPR. Similarly, the Secretary is
directed to highlight the entries in the original dispatch register of
Ombudsman Secretariat from where the copies endorsed to other
functionaries were sent and the same be deposited in the office of the
Registrar of this Court for further probe into the matter. It is also to be
observed that stately on 25.02.2013, the Ministry of Law and Justice
had issued a Notification a copy of which is available in the file, which
has been deposited. Contents of the Notification dated 25.02.2013 is
as under: -
Government of Pakistan
Ministry of Law and Justice
***
Islamabad, the 25th February, 2013
NOTIFICATION
No.F.1(8)/2012-A.I. In exercise of powers conferred
by Article 3 and 4 of the Establishment of the office of
Wafaqi Mohtasib (Ombudsman) Order 1983 (P.O.1 of
1983), the President is pleased to appoint Mr. M. Salman
Faruqui, as Wafaqi Mohtasib (Ombudsman) for a period of
four years from the date he assumes the charge of the
said office.
Sd/-
Justice (R)
Yasmin Abbasi
Secretaryâ
4.
Interestingly
the
copy
of
this
Notification
was
not
dispatched to anyone of the offices as it has been endorsed in the
Notification dated 01.03.2013. Let the Secretary, Ministry of Law and
Justice Division explain the traveling history of the Notification dated
C.M.A.No.3393/13 in Const.P.no.30 of 2013
- 6 -
25.02.2013 before 11.06.2013, by depositing the dispatch register etc.
with Registrar of this Court. The office is directed to intimate this order
today positively to the Secretaries, Law and Justice and Ombudsman.
5.
Mr. Wasim Sajjad, learned Sr.ASC requested for time to file
Power of Attorney on behalf of Mr. Salman Faruqui. At his request the
matter is adjourned to 20.06.2013.
Chief Justice
Islamabad
Judge
10.06.2013
*Rabbani*
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE SH. AZMAT SAEED
C.M.A. NO.3470 OF 2013 IN CMA 1536/2013
IN CIVIL APPEAL NO. 191-L & 409 OF 2010
(Action taken on News Clipping dated 4.6.2013 published
in Daily Jang, against the Parliamentarians having
fake/bogus degrees)
AND
CIVIL MISC. APPLICATION NO.3723 OF 2013
(Application by Nawazada Ghazanfar Ali Gull for taking
action against Ch. Wajahat Hussain, MNA on account of
fake degree)
AND
CIVIL MISC. APPLICATION NO.4275 OF 2013
(Application on behalf of Ch. Ghulam Qamar for taking
action against Ghulam Sarwar Khan, MNA, on account of
having fake degree)
AND
CIVIL MISC. APPLICATION NO.4295 OF 2013
(Application on behalf of Muhammad Atta Shah and
others against Mr. Faisal Zaman, MPA, on account of
having fake degree)
AND
CIVIL MISC. APPLICATION NO.4337 OF 2013
(Application on behalf of Faisal Javed against Rana
Munawar Hussain, MPA, on account of having fake
degree)
For the Applicants:
Nawabzada Ghazanfar Ali Gul, Adv.
(in CMA.3723/2013)
Sh. Ahsan-ud-Din, ASC
(in CMA.4275/2013)
Syed Attique Shah, ASC
(in CMA.4295/2013)
Raja Amir Abbas, ASC
(in CMA.4337/2013)
On Court Notice:
For the HEC:
Mian Muhammad Hanif, ASC
Raja Abdul Ghafoor, AOR
Mr. Raza Chohan, DG(A&A)
Mr. Azizullah, AD (A&A)
2
Mr. Umar Hanif Khichi, Legal Counsel
For ECP
Mr. Abdul Rehman Khan, DG (Law)
For the Parliamentarians:
Mr. Waseem Sajjad, Sr. ASC
(On behalf of Faisal Zaman, MPA)
Mr. Tariq Mahmood, Sr. ASC
(On behalf of Ms. Samina Khawar Hayat)
Syed Nayyab Hassan Gardezi, ASC
(On behalf of Ch. Wajahat Hussain)
Mr. Zulfiqar Khalid Maluka, ASC
(On behalf of Malik Muhammad Nawaz, MPA)
Mr. Ghulam Mustafa Kandwal, ASC
(On behalf of Makhdoom Syed Ali Raza, MNA)
Raja Shoukat Aziz Bhatti, MPA, In person
Mr. Karam Dad Wahla, MPA In person
Mr. Muhammad Ahmad, In person
(brother of Kh. Muhammad Islam, MPA)
Ms. Maiza Hameed, MPA (In person)
Date of hearing
8.7.2013
O R D E R
Ms. Samina Khawar Hayat:
The Election Commission of Pakistan (ECP) vide CMA
No.3470 of 2013 had stated that Higher Education Commission
(HEC) declared the degree of Ms. Samina Khawar Hayat as
fake/bogus whereas the ECP in CMA No.4055/2013 had filed the
following statement, which has been reproduced herein below:-
â7)
That it is brought to the notice of this Honâble Court
that overall outcome of the verification process was
communicated to the Election Commission of Pakistan dated
06.04.2013. However as far as the case of the Samina
Khawar Hayat is concerned, she has made an application
stating that in fact her degree issued by the PIMSAT dated
3
25.09.2006 is genuine which had been verified by the Higher
Education Commission on 23.12.2010 whereafter, it was
found, it is most humbly submitted, that earlier a degree in
the name of Samina Saleem of BBA shown to have been
issued by the Riphah International University was declared
fake to which she had disowned before the Election
Commission of Pakistan and favourable order was passed in
her favour on 13.03.2012 by ECP as she had produced a
degree from PIMSAT issued on September 25, 2006 which
was attested and verified by HEC on 23.12.2010 and now
she has been allowed to participate in the recent election by
the Election Tribunal, Lahore High Court, Lahore vide order
dated 15.04.2013. (Annexure âGâ).â
It is to be noted that along with CMA No.4336/2013, which
has been filed by the ECP, the Nomination Papers to all other
persons whose degrees have been verified are available but the
Nomination Papers of Ms. Samina Khawar Hayat has not been
filed. In such view of the matter, a precise question for
consideration would be as to whether she relied upon a degree
dated 25.9.2006 which was considered to be a fake on
23.12.2010. Subsequent thereto, it appears that this degree was in
the name of one Samina Aslam, therefore, she disowned it and
stated that she has passed BBA from the Preston University and
degree was issued in her favour on 25.9.2008, which was attested
and verified by the HEC on 23.2.2012. In such view of the
matter, we direct the Election Commission of Pakistan to place
on record her nomination papers which she submitted during the
4
Election of 2008 as well as 2013 on the basis of which she has
been returned as a successful candidate. Let the Election
Commission of Pakistan do the needful by tomorrow i.e.
9.7.2013. Similarly, the HEC is directed to place on record the
original record so as to verify the genuineness or otherwise of the
degree.
Sardar Mir Badshah Qaisrani
No one has appeared on behalf of Sardar Mir Badshah
Qaisrani whose degree has been found fake. Issue notice for his
appearance through the Election Commission as according to the
Director General (Law), ECP, he has been declared successful in
the Elections held on 11th May, 2013.
Adjourned to 18.7.2013.
Raja Shoukat Aziz Bhatti
As far as the case of Raja Shoukat Aziz Bhatti is
concerned, according to the HEC, the degree relied upon by him
is genuine but pertains to Mr. Shoukat Aziz Sheikh. He stated
that the ECP has filed Criminal Petition No.111/2013 against him
in respect of the same issue, which is pending before this Court.
The office is directed to club the said case with this case. He has
also requested for some time to engage a counsel.
Adjourned for tomorrow i.e. 9.7.2013.
5
Nawabzada Mir Nadir Magsi
Issue notice to Nawabzada Mir Nadir Magsi through the
Election Commission of Pakistan, as according to the Director
General (Law), ECP, he has been declared a successful candidate
in the Elections held on 11th May, 2013. In the meanwhile, the
HEC to put up a comprehensive report about the genuineness of
his degree.
Adjourned to 18.7.2013.
Maulvi Agha Muhammad
Maulvi Agha Muhammad is not in attendance. Office has
reported that Civil Appeal No.427/2013 filed by him stands fixed
before this Court on 11.7.2013. Let this matter be fixed along
with the said appeal.
Kh. Muhammad Islam
A request for adjournment has been made by his brother
(Muhammad Ahmed). Kh. Muhammad Islam is directed to
appear before this Court on tomorrow i.e. 9.7.2013.
Mr. Karam Dad Wahla
He appeared and stated that in fact he had lost the original
educational testimonials and he has now obtained the duplicate of
the same. He has submitted the same for their verification on
6
3.7.2013 before the HEC. The HEC is directed to expedite the
verification process before the next date of hearing.
Adjourned to 18.7.2013.
Makhdoom Syed Ali Raza Shah
As far as the case of Syed Ali Raza Shah is
concerned, his BA degree has not been verified because it has
been reported that in his absence in the year 1972 his
Matriculation Certificate was cancelled and against the said order
a Writ Petition No.7220/2013 has been filed before the Lahore
High Court, Lahore. It is contended that the learned High Court
may decide the case in view of the fact that he is not responsible
for giving incorrect date, on the basis of which the certificate has
been cancelled. According to him, he has passed Matriculation
and FA from the Atchison College, Lahore. In view of the fact
that the matter is pending, in the meanwhile, the HEC is directed
to collect all the documents and verify the same. However, we
may also observe that let the learned High Court may dispose of
the matter expeditiously as early as possible within a period of 7
days after receipt of this Order, enabling this Court to proceed
with his case.
Adjourned to 18.7.2013.
7
Malik Muhammad Nawaz
So far as the case of Malik Muhammad Nawaz is
concerned, his degrees have not been verified so far. The learned
counsel for the HEC is directed to submit a report in this behalf
by tomorrow i.e. 9.7.2013.
Ms. Zaib Jaffar:
According to the learned counsel for the HEC, the
documents of Ms. Zaib Jaffar have been received on 5th of July,
2013 and report from the concerned authority is awaited and the
report in this regard shall be filed before the next date of hearing.
Adjourned to 18.7.2013.
Ms. Maiza Hameed:
Ms. Maiza Hameed appeared and stated that she has
handed over all the educational documents in original to the
HEC. The learned counsel for the HEC stated that the according
to the documents which have been received, she is not qualified
to be holder of the degree equivalent BA Degree. In such view of
the matter, we direct the HEC to pronounce the decision as to
whatever the documents have been received are equivalent to the
BA or not?
Adjourned to 18.7.2013.
8
Mr. Iftikhar Hussain Gillani:
Mr. Iftikhar Hussain Gillani is not in attendance.
According to the HEC, his documents were unverified. Issue
notice to him for his appearance before this Court through the
Election Commission of Pakistan, on the next date of hearing i.e.
18.7.2013.
Mr. Bilal Rehman:
According to the learned counsel appearing for HEC,
his documents had been verified, therefore, no further action is
called for. Notice to his extent is discharged.
CMA No.3723/2013:
It has been informed that Ch. Wajahat Hussain had
contested the Election for the year 2013 but could not succeed. In
such view of the matter, the listed CMA is disposed of. If the
applicant has any grievance he may agitate the same before a
Competent Forum, as presently we have taken up the issue in
respect of the implementation of our earlier judgment in respect
of those persons who have been returned as successful.
CMA No.4275/2013:
Notice to the Election Commission of Pakistan and
the Higher Education Commission, to explain as to whether
respondent Ghulam Sarwar contested the Election of 2008 by
declaring himself to be a holder of BA degree; and the said
9
degree was a genuine or otherwise. In the meanwhile, notice to
the Election Commission of Pakistan be also issued as to whether
he contested the Election in the year 2008. The learned counsel
further stated that for possessing a bogus degree as complaint was
filed against him vide FIR No.67/2012 at Police Station ACE,
Lahore and the matter is still pending before the learned Anti
Corruption Court and bail before arrest (Crl. M. No.16724-
B/2012) is pending before the Lahore High Court. In the
meanwhile, the HEC shall call for documents from the
respondent and verify the same and submit a report on the next
date of hearing. The Registrar shall also obtain the report from
the learned Lahore High Court in respect of the pendency of the
bail matter.
Adjourned to 18.7.2013.
CMA No.4295/2013:
Mr. Waseem Sajjad, learned Sr. ASC has pointed out
that in respect of the verification of the degrees, the matter is
also pending before the Election Commission and the judgment
has been reserved. The Secretary, Election Commission may
inform the outcome on the next date of hearing. In the
meanwhile, the HEC is directed to verify the degree before the
next date of hearing.
Adjourned for 18.7.2013.
10
CMA No.4337/2013:
Notice to the HEC to verify the degree. In the meanwhile,
notice to the Election Commission and respondent Rana
Munawar, MPA (PP-36) through the Election Commission of
Pakistan as he has been reportedly declared as successful from
the said constituency.
Adjourned to 18.7.2013.
Chief Justice
Judge
Judge
Islamabad, the
8th July, 2013.
*M. Safdar Mahmood*
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
CMAs Nos.3685-3686/12
(6th and 7th progress report by the NAB in RPPs Case)
IN
Human Rights Case No.7734-G/2009
On Courtâs Notice:
Mr. Fauzi Kazmi, ADPGA
Mr. Raza Khan, Director
Mr. Kamran Faisal, Astt. Director/I.O.
Date of hearing :
14.09.2012.
O R D E R
Iftikhar Muhammad Chaudhry, CJ. In this case judgment was
passed as back as on 30th March, 2012 wherein alleged corruption in
rental power plants contracts was highlighted in its different paras. In
paragraphs 25 and 27 as well as in the concluding paragraph of the
impugned judgment dated 30th March, 2012 corruption and corrupt
practices has been specifically mentioned as well as criminal actions on
the part of the persons who had taken the benefits. In fact, the judgment
itself speaks about the misappropriation made by the concerned
authorities. Despite specific directions for implementing the judgment
in letter and spirit the NAB authorities had intentionally avoided to
implement
the
same
which
is
a
clear
violation
of
directions/observations of this Court and thereby prima facie
committed contempt of Court as envisaged under Article 204 of the
Constitution read with Section 3 of the Contempt of Court Ordinance,
2003. Mr. Fauzi Kazmi, ADPG NAB when questioned, stated that
Muhammad Rafi, Amir Shahid, Ashgar Khan and presently Kamran
Faisal is the I.O. in the case. Mr. Raza Khan, Zahir Shah were also
supervising the investigation. One Col. Shahzad Anwar Bhatti, D.G.
was also heading the investigation team. Show Cause notice be issued
to the Chairman NAB as well as the above named officers to appear
and show cause as to why the contempt proceedings may not be
initiated against them for non-implementing the Court judgment. We
may note that the Chairman NAB shall be responsible if the officers
responsible for delaying the implementation of this Courtâs judgment
are gone out of country or take any other evasive measures. The reply
to the show cause notice shall be submitted within seven days. The case
shall be relisted on 25th September, 2012.
CJ.
J.
J.
Islamabad,
14.09.2012.
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE FAISAL ARAB
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
Application against the illegal adjustment in Revenue Record Land is
being
given to Bahria Foundation, filed by Syed Mehmood Akhtar Naqvi
AND
CIVIL MISC. APPLICATION NO.450-K OF 2014 IN
S.M.C. NO.16 OF 2011.
Objection in C.M.A.408-K/2014 filed by Syed Mehmood Akhtar Naqvi
AND
CRIMINAL ORIGINAL PETITION NOS.20-K TO 23-K OF 2014 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
Syed Mehmood Akhtar Naqvi
âĻ Petitioner(s)
VERSUS
Malik Israr, Sr. Member Board of Revenue Sindh
(in Crl.O.P.20-K/14)
Muhammad Ali Shah, Deputy Commissioner District West Karachi
(in Crl.O.P.21-K/14)
Jan Muhammad Qazi, Deputy Commissioner District Malir, Karachi
(in Crl.O.P.22-
K/14)
Muhammad Suhail, D.G. Malir, Development Authority
(in Crl.O.P.23-K/14)
âĻ Respondent(s)
AND
CIVIL MISC. APPLICATION NO.275-K OF 2015 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
Written Arguments on behalf of the Senior Member Board of
Revenue, Sindh
AND
CIVIL REVIEW PETITION NO.32-K OF 2015 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
Muhammad Sohail
âĻ Petitioner(s)
VERSUS
S.M. Akhter Naqvi and another
âĻ Respondent(s)
AND
CIVIL MISC. APPLICATION NO.261-K OF 2016 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
2
Application for Intervenor filed by Mr. Anees Ahmed for taking action
Ex-DG, MDA (Mr.M.Suhail for illegal allotment and recruitment in the
Authority
AND
CIVIL REVIEW PETITION NOs.51-K OF 2016 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
Waqas Riffat and others
âĻ Petitioner(s)
VERSUS
Mehmood Akhtar Naqvi and others
âĻ Respondent(s)
AND
CIVIL REVIEW PETITION NO.57-K OF 2016 IN
CRIMINAL ORIGINAL PETITION NO.6-K OF 2016
Director General Malir Development Authority
âĻ Petitioner(s)
VERSUS
Anees Ahmed others
âĻ Respondent(s)
AND
CIVIL REVIEW PETITION NO.59-K OF 2016 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
The Province of Sindh and another
AND
CIVIL REVIEW PETITION NO.62-K AND 63-K OF 2016 IN
CIVIL MISC. APPLICATION NO.6-K OF 2016
M/s Bahria Town (Pvt.) Ltd.
(in C.R.P.62-K/16)
Secy: Local Govt. (HTP), Govt. of Sindh.
(in C.R.P.63-K/16)
âĻ Petitioner(s)
VERSUS
Syed Mehmood Akhtar Naqvi and others âĻ Respondent(s)
AND
CRIMINAL MISC. APPLICATION NO.1699 OF 2016 IN
CRIMINAL ORIGINAL PETITION NO.6-K OF 2016
Application on behalf of Muhammad Irfan & 16 others for setting
aside the notification dated 21.09.2016 issued by the respondent
AND
CRIMINAL MISC. APPLICATION NO.1816 OF 2017
Application on behalf of M Irfan and 16 others
AND
CIVIL MISC. APPLICATION NO.1497 OF 2017 IN
CIVIL MISC. APPLICATION NO.376-K OF 2014
Application for impleadment by Qamar Bhatti
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
3
AND
CRIMINAL ORIGINAL PETITION NO. 211 OF 2017
Akhtar Ali vs Javid Iqbal and others.
AND
CRIMINAL ORIGINAL PETITION NO. 216 OF 2017
Anees Ahmed vs Province of Sindh.
AND
CRIMINAL ORIGINAL PETITION NO. 240 OF 2017
Dr. Muhammad Shafiq-ur-Rahman vs Absar Alam, Chairman, PEMRA,
Islamabad etc.
AND
CRIMINAL ORIGINAL PETITION NO. 16 OF 2018
Mian Ghulam Rasul vs Mr. Muhammad Sohail Khan and others
In Attendance:
For petitioners/applicants
and respondents:
Syed Mehmood Akhtar Naqvi, In person.
(in CMA.376-K/14, 450-K/14,
Crl.O.Ps.20-23-K/14)
Mr. Farooq H. Naek, Sr. ASC.
(in CMA.275-K/15 & CMA.376-K/14).
Mr. Rasheed A. Rizvi, Sr. ASC (For MDA)
a/w M. Irfan (Law Officer MDA).
Mr. Munir-ur-Rehman, ASC.
(in CRP.32-K/15, CMA. 376-K/14 &
CRP.57-K/16)
Nemo. (in CMA. 261-K/16)
Mr. Aitzaz Ahsan, Sr. ASC (For Bahria Town)
Mr. Gohar Ali Khan, ASC.
Mr. M. S. Khattak, AOR.
M. Asif (Law Officer Bahria Town).
(in CRP. 51-K/16 & CMA. 376-K/14).
Barrister Zamir Hussain Ghumro, AG, Sindh.
Mr. Shehryar Qazi, Addl. A. G. Sindh.
(in CRP.59-K/16 and CMA.376-K/14).
Syed Ali Zafar, ASC (For Bahria Town).
(in CRP.62-K/16 and CMA. 376-K/14).
Mr. Munir-ur-Rehman, ASC.
(in CRP. 63-K/16).
Mr. Zakir Hussain Khaskheli, ASC.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
4
Syed Rifaqat Hussain Shah, AOR.
(in Crl.M.As.1699/16, 1816/17 &
Crl. O. P.211/17).
Nemo. (in CMA.1497/17 and
Crl. O. P. 216/17).
Dr. M. Shafiq-ur-Rehman, In person.
(in Crl. O. P. 240/17).
Mian Ghulam Rasool, In person.
(in Crl. O. P. 16/2018.
Nasir Mehmood Mughal Sp. Prosecutor
Along with Qamar Abbasi, IO (NAB)
Date of hearing:
07, 20 to 22.02.2018, 28.02.2018, 06.03.2018,
14.03.2018, 21 to 22.03.2018 and 27.03.2018.
(Judgment Reserved).
.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
J U D G M E N T
EJAZ AFZAL KHAN, J.- C.M.A 376-K of 2014 was filed
alleging that Malir Development Authority (hereinafter called âMDAâ)
is adjusting the government land pursuant to the notifications issued
by the Board of Revenue, Sindh. It was alleged that the value of the
government land was far higher than the value of the private land it
was exchanged for. The exchange thus effected was looked at with
raised eyebrows. A series of orders was passed by this Court in this
behalf. The order passed on 23.07.2015 is quite significant for the
purposes of this case. The relevant part of the order deserves a look
and thus runs as under:
âThe Deputy Commissioner, Malir admits to have signed the
plan defining the boundaries of controlled area. According
to him the master plan is comprised of 43 dehs. He states
that he has merely forwarded the plan to the Senior
Member, Board of Revenue. He further states that all the
layout plans are routed through him and the schemes of the
layout plans whether private or otherwise are signed by him
after verifying their title. He is directed to place before us all
the schemes whether public or private with their layout
plans, which he has forwarded or verified since the day he
assumed the office of Deputy Commissioner, Malir before
the next date of hearing.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
5
Mr. Rasheed A. Rizvi, Senior Advocate Supreme Court
for MDA, when confronted as to how the MDA has acquired
the title of the land, states that the land is owned by the
Provincial Government and there is no notification by the
Board of Revenue allowing the MDA to utilize this land. He
however, relies upon sections 8 and 14 of MDA Act, 1993,
which has been amended in the year 2013 for the purposes
of acquiring power of allotment. We with respect disagree
with this contention of the learned Counsel. The Board of
Revenue under law, with the approval of competent
authority has the authority to allot land under the
Colonization Act and no other procedure provided in law,
for allotment of land.
Another order having meaningful bearing on this case was passed
on 09.03.2016. The relevant part of the order reads as under:
"We are informed by the Chief Secretary, Sindh that the Sr.
Member, Board of Revenue has proceeded to Islamabad
on account of some family emergency and will be back
by today evening. Since the matter relates to the Board of
Revenue, therefore, we deem it necessary that he should
appear before the Court tomorrow before any Order is
passed in this matter. We are further informed that in
compliance with the Order passed yesterday, Mr.
Muhammad Sohail who was assigned the look after as
D.C. MDA has been de-notified. The Sindh Government is
directed to appoint any officer of their choice, eligible for
the post of D.G. MDA, within one week in the intervening
period, the Secretary, Local Government will have the
additional charge.
3.
We restrained the MDA from allotting and/or dealing
with the land in any manner whatsoever till further orders.
The Sr. Member, Board of Revenue yesterday, while
present in Court, has disputed the authority of the MDA to
allot or otherwise deal with the land with anyone as,
according to him, the land was neither allotted nor given
possession to the MDA. According to the Sr. Member,
Board of Revenue, the land within MDA is fully owned by
Sindh Government. Besides the aforesaid reason, this
Court on 28.11.2012 has passed restraining order restricting
the powers of authority from allotting state land to
anyone. This restraining order also applies to all the
authorities under Sindh Government who claimed their
title from the state/Board of Revenue.â
On 24.05.2016, this Court apprehending that things are not done in
an open, fair and transparent manner, proceeded to pass the order
dated 24.05.2016 by observing as under:
âWe have heard Mr. Waqas Qadeer Dar, Prosecutor
General NAB, Mr. Qamar Abbas Abbasi, Investigating
Officer, Mr.Farooq H. Naek, learned Sr. ASC, Mr. Zia-ud-Din
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
6
Sabir, Director Town Planning, MDA and Mr. Rizwan Memon,
Sr. Member, Board of Revenue.
2.
NAB has so far not been able to complete the inquiry
as directed by this Court on the last date of hearing.
However it has filed an interim inquiry report. We have gone
through this report and from a cursory glance find that
whatever probe that has so far been made is not sufficient
to address the issues raised by this Court with regard to
allotment of land by Government of Sindh to MDA and its
subsequent disposal by MDA. Mr. Waqas Qadeer Dar,
Prosecutor General NAB seeks a further period of two
months to finalize the inquiry. Time for filing final report is
extended by two months, From what has been addressed at
the bar today by the learned counsel, we are of the view
that inquiry must contain answers to the following questions
in order to adequately address the issue which is subject
matter of these proceedings.
i) Whether the Sindh Government allotted the state land,
which is subject matter of these proceedings to MDA under
any legal instrument?
Whether the possession of allotted land was handed over by
the Sindh Government to MDA in terms of Section 10(4) of
the Colonization & Disposal of Government Lands (Sindh)
Act, 1912?
iii) Whether the issuance of the notification dated 26.12.2013
by which 43 dehs were declared as controlled area of MDA
created any title in its favour in the land of such dehs?
iv) Whether MDA prepared and issued its master plan after
43 dehs were declared to be its controlled area and if so
whether such plan was approved by the competent
authority?
v) Under what authority MDA can exchange private land
within its controlled area with the state land?
vi) Whether MDA handed over possession of 11000 acres of
state land to private land developers and builders which
was neither leased out nor handed over by the Sindh
Government to MDA?
vii) In what manner MDA transferred the land to Bahria Town
or its directors or promoters or to any other private land
developer or builder?
viii) Whether MDA was competent to put private persons
and land developers and builders in possession of the state
land, which the MDA claims to have been transferred to it,
on the basis of exchange and or consolidation scheme?
ix) Whether the exchange/ consolidation of the private land
with the state land by MDA is permissible under the law and
that too beyond the area earmarked by MDA for planning
purposes?
x) Whether exchange of approximately 11000 acres of the
valuable state land located on the superhighway by the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
7
MDA with the land of the private person/private developers
on the periphery under the garb of exchange and or
consolidation scheme was in the interest of the state?
xi) Whether Bahria Town or its directors or its promoters or any
private developers or private parties lawfully owned and
possessed land within the limits of district Malir on the date of
inviting applications for allotment from public at large for the
Housing Schemes through electronic and print media?
xii) Whether before inviting applications for allotments from
public at large, Bahria Town, its promoters, directors or other
private developers got their Housing Schemes approved
from the MDA through Deputy Commissioner Malir? and
xiii) Whether Bahria Town or its directors or promoters or any
private land developer or builder are in physical possession
of land in excess of the land given to them by MDA?
3. The NAB shall proceed with the inquiry in an independent
manner without being influenced from any quarter. The
inquiry in addition to other factors shall probe into the
questions formulated hereinabove. For such purpose it shall
examine entire record, including the revenue record, which
shall be provided by the relevant authority (Senior Member
Board of Revenue) to the officers of NAB who are entrusted
with the inquiry in the matter. To come up after two months.â
Another order which was passed on 01.08.2016 is also quite
comprehensive as it not only deals with the controversy emerging
before this Court but also refers to other orders which are relevant for
understanding the instant case in its correct perspective, therefore, its
reproduction is necessary which reads as under:
âThe Prosecutor General, NAB, has filed interim report dated
25.07.2016 (confidential), along with a copy of the survey
report dated 20.07.2015, prepared by the Ministry of 'Defense
Directorate of Survey of Pakistan. It is contended by the
learned Prosecutor General, NAB, that after the order dated
24.05.2016, passed by this Court, the Survey of Pakistan, was
approached by the NAB, for demarcation of the land in
actual possession of the Bahria Town.
2.
The Director of Survey of Pakistan responded to the
request of the NAB and after notices to the Board of Revenue
Sindh, Survey and Settlement Department, Sindh, Malir
Development Authority (MDA), Deputy Commissioner, Malir,
and the Bahria Town Karachi, conducted joint survey in
presence of the representatives of the aforesaid organizations
and compiled report, copy of which was supplied to the NAB
authorities and has been placed before us. The Senior
Member, Board of Revenue, states that they have not
received any copy of the said report. We direct the NAB
authorities to supply copies of the survey report to the Senior
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
8
Member, Board of Revenue, Mr. Aitzaz Ahsan, learned Sr.ASC,
for officials of Bahria Town, Mr. K.A. Wahab, AOR for the Bahria
Town and Syed Mehmood Akhtar Naqvi, the Applicant, who
request to file their objections if they deem it appropriate. The
confidential report dated 25.07.2016 submitted by the NAB,
shall be kept in sealed envelopes by the office.
3.
According to the survey report, the M.D.A has
exchanged! consolidated 9140.260 Acres of land to Bahria
Town. The survey report contains a portion of green colour with
black lines, reflecting that M.D.A has consolidated a piece of
land measuring 244.925 Acres which the Bahria Town has not
yet developed. The survey report further shows that the total
land consolidated by the M.D.A and handed over to the
Bahria Town is 93 85.185 Acres. The portion marked with pink
colour as "A" reflects that the Bahira Town has developed
386.276 Acres of land which has not yet been consolidated by
the M.D.A. The portion of survey report in pink colour marked
as "B" reflects that Bahria Town has developed an area of
1975.059 Acres which though developed by the Bahria Town
has not been consolidated by the M.D.A. Another portion of
the survey report marked as "C" in pink colour shows that the
land measuring 410.444 Acres has been developed by the
Bahria Town, but has not been consolidated by the M.D.A. The
survey
report
shows
that
total
land
developed/under
development but not consolidated by the M.D.A comes to
2771.79 Acres. In this respect, total area of land of Bahria Town
reflected in the survey report comes to 12156.964 Acres.
4.
We have inquired from the Chief Secretary, Senior
Member, Board of Revenue, and the Advocate General,
Sindh, to satisfy us under which law the M.D.A is competent to
exchange private lands with the lands falling in the area which
is reserved as corridor area, they could not offer any
explanation and submit that no such powers are available
with the M.D.A to allot or exchange the private land with the
State land. It has come on record that no portion of the land
pertaining to the subject matter has ever been allotted and or
part in possession under Section 10(4) of the Colonization of
Government Lands Act, 1894, by the Sindh Government to the
M.D.A, which fact was confirmed by the Senior Member,
Board of Revenue and incorporated in the order of this Court
dated 09.03 .2016, which has already been reproduced
above.
This Court after going through the survey report dated 20.07.2016
observed as under:
5. After going through the survey report dated 20.07.2016, we,
in order to safeguard the public interest and to avoid multitude
of proceedings, are constrained to pass the following interim
order:-
(i) the Bahria Town is restrained from undertaking any
development activity in the area demarcated with
green colour with black lines on it measuring 244.925
Acres and or to deal with this portion of land with any
person or organization in any manner whatsoever;
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
9
(ii)
the
Bahria
Town
is
further
restrained
from
undertaking any development activity on the portion
marked as "A" with. pink colour measuring 386.276
Acres, which is not consolidated by the M.D.A, with
further restriction to deal with this portion of the land in
any manner whatsoever;
(iii) the Bahria Town is restrained from undertaking any
development activity on the area marked as "B" with
pink colour measuring 1975.059 Acres, which as per
survey report has not been consolidated by the M.D.A
and to deal with the land in any manner whatsoever;
(iv) the Bahria Town is further restrained from
undertaking any further development activity on
the area marked as 'C" with pink colour measuring
410.444 acres and or to deal with the
land in any manner whatsoever;
(v) the Bahria Town is further restrained from raising any
further development
activity in
area measuring
2771.779 Acres, which has not been consolidated by
the M.D.A and to deal with the land in question in any
manner whatsoever;
(vi) the M.D.A is restrained from consolidating any
further portion of the private land of the Bahria Town or
any other private enterprise under the garb of
exchange of land in exercise of their powers conferred
on them under the M.D.A Act or the Rules framed
thereunder;
(vii) We further restrict the Board of Revenue,
Government of Sindh, from dealing with the land of
M.D.A or any other Authority which is subject matter of
these proceedings in any manner whatsoever in
defiance of the order of this Court passed by a five
Member Bench of this Court on 28.11.2012;
(viii) the MD.A is restrained from dealing with the land
which are subject-matter of survey report either with
Bahria Town or with any other organization in any
manner whatsoever;
(ix) defiance of the interim orders passed hereinabove
by any of the organization whether public or private
shall expose them to contempt
proceedings.
6. In order to ensure that no further construction or
development activity is carried out on the land specified
hereinabove, we direct the NAB authorities through the
Prosecutor General that they should immediately if possible by
tomorrow obtain google earth maps/images of the entire land
stated to be in possession of the Bahria Town as per the survey
report and submit the same for record.
What the orders reproduced above prima facie point to is that the
provisions of Colonization of Government Land Act 1912 (hereinafter
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
10
called âCOGLA 1912â) and Malir Development Authority Act 1993
(hereinafter called âthe MDA Actâ) were flouted by the Board of
Revenue, the Malir Development Authority and Bahria Town. But all
the three stated to have stayed within the purview and periphery of
the enactments mentioned above.
2.
Mr. Farooq H. Naek, the learned Sr. ASC appearing on
behalf of the Board of Revenue, contended that the entire process
underlying exchange conforms to the relevant dispensation; that
Malir Development Authority Ordinance, 1993 was promulgated
which was replaced by the Malir Development Authority Act, 1993
(Act XI of 1994); that Malir Development Authority has been
established under Section 3 of the MDA Act; that the Authority has
been constituted under Section 4 of the MDA Act which is consisting
of a Chairman and other members as described in the said provision;
what is controlled area, what is a Master Programme and what is a
scheme have been defined in Section 2 of the MDA Act, what are
the functions of the Authority and how schemes for development of
an area are prepared and how the improvement in the socio-
economic conditions of the people is brought about, what measures
are taken by the Authority for carrying out the purposes of the MDA
Act and how the land vested in it can be disposed of by sale, lease,
exchange or otherwise have been provided in Section 8 of the MDA
Act; that the Authority under Section 14 of the MDA Act has the
power to declare an area to be a controlled area if it becomes
necessary for the prevention of haphazard growth, encroachment
and unauthorized construction, etc. and that the Authority has also
power
to
prepare
Master
Programme
for
development,
improvement, expansion and beautification of such area or such
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
11
sectors of economy if it is necessary in the opinion of the Authority or
the Government. The Authority, the learned Sr. ASC added, may and
if directed by the Government shall prepare specific scheme or
schemes for controlled areas or part thereof in such form and
manner as may be prescribed by Section 17 of the MDA Act; that all
the schemes prepared under the MDA Act and operated by or on
behalf of the Authority shall be deemed to be schemes for public
purpose under Section 25 of the MDA Act and that the Authority has
the power to acquire by purchase, lease or exchange any
moveable or immovable property or any interest therein by entering
into an agreement with the party concerned under Section 31 of the
MDA Act and that if that cannot be done under the aforesaid
section, the Authority can acquire land in accordance with the
provisions of Hyderabad Development Authority Act as is provided
by section 32 of the MDA Act. The provisions of the COGLA 1912, the
learned Sr. ASC maintained, do not have much bearing on the
provisions contained in the Malir Development Authority Act. The
learned Sr. ASC next contended that even COGLA 1912 provides for
incremental housing which means a housing scheme sponsored by
the government, authority, autonomous body or a company for
providing residential land to a family not exceeding 120 yards.
Section 10 of COGLA 1912, the learned Sr. ASC maintained, provides
for grant of land to any person in a colony; that sub-section 10 (2A)
of COGLA 1912 starting with non-obstante clause provides that the
land granted under section 10 shall not be exchangeable with
private or kabuli land but it would not be of much significance when
the provisions of the MDA Act, rules and regulations framed
thereunder, in view of section 47 of the MDA Act, would have effect
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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notwithstanding anything contained in any other law, rules or
regulations. Section 10-A of COGLA 1912, the learned Sr. ASC
argued, also provides that no land shall be disposed of except by
the government in accordance with the provisions of COGLA 1912 to
an autonomous body, authority, company, a person or group of
persons save as otherwise provided under section 10-A (2). The
learned ASC next contended that the MDA being a purchaser
having paid the entire amount of purchase money could not be
deemed to be a tenant in terms of section 15 of COGLA 1912,
therefore it could exchange the land so granted to it with private or
kabuli land notwithstanding the provision contained in section 10
(2A) and proviso to section 17 of COGLA. The learned Sr. ASC next
contended that after the insertion of (ff) in Section 2 of the MDA Act
through an Amending Act of 2013 the expression âconsolidationâ
means adjustment by way of exchange or otherwise for the purpose
of the scheme, therefore, it has to be taken as such while dealing
with the controversy raised in this case. The learned Sr. ASC next
contended that nothing in the Transfer of the Property Act 1882
would apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein by or on behalf of the
Government to or in favour of any person, therefore, any transfer or
adjustment in violation of the said Act cannot be held to be illegal or
against law. Malir Development Authority, the learned Sr. ASC stated
at the bar is carrying out various schemes such as Shah Latif Town,
New Malir Housing Project and Taiser Town by exchanging the
government land granted under section 10 of COGLA 1912 with
private or kabuli land, therefore, exchange of land granted to the
MDA with private or kabuli land is not something unusual or
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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unprecedented. Another objective underlying such schemes, the
learned Sr. ASC added, is to ensure planned development and
avoid mushroom growth of housing schemes or at random
construction of houses. The learned Sr. ASC next contended that how
land is to be disposed of and what are the restrictions on its disposal
have been provided in paragraph 4 of the notification No. 09-294-03-
SO-I/336, dated 25.02.2006 issued by the Government of Sindh under
Section 10(2) of the COGLA, 1912; what is the procedure for
determination of market price has been highlighted in paragraph
8(1)(a)(b) and 8(2)(i)(ii)(iii) and how the Price Committee submits its
recommendations to the Scrutiny Committee has been provided by
paragraph 8(3) of the statement of conditions issued in 2006. The
learned Sr. ASC next contended that the notification mentioned
above was modified vide notification No.09-294-03/SO-I/719 dated
10.11.2010, whereunder constitution of the Land Reservation and
Allotment Committee was provided as is evident from paragraph 3
of the notification. The learned Sr. ASC next contended that the
Board of Revenue also has the power to reserve and grant the land
and that reservation and grant are regulated by law. The process of
reservation, grant, consolidation, exchange and disposal of land is
not unprecedented and that all the decisions taken in this behalf are
reflected in the summary of the Chief Minister; that a meeting was
convened on 24.01.2014 wherein the Authority was requested to
accord approval regarding the work already done and prepare
schemes for execution of Master Programme of 32 out of 43 villages;
that the Authority accordingly approved a proposal as described in
item No. 1; that the Authority also approved item No. 2 for
consolidation, exchange and adjustment of private ownership with
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
14
state land; that the Director General, MDA in his note dated
01.01.2015 highlighted the approval of the competent authority i.e.
the Chief Minister, Sindh regarding the reservation of 14617 acres of
State Land in favour of MDA for public purpose on price; that the
land so reserved for MDA was mutated in favour of the MDA as was
communicated by the Deputy Commissioner, Malir vide letter dated
28.01.2014 with the request to approach Member Utilization
Department, Board of Revenue, Sindh for payment of price as per
procedure
agreed
upon
in
the
meeting
held
under
the
Chairmanship of the Chief Secretary, Sindh on 23.01.2014. The
request, learned Sr. ASC stated, for fixation of price amounting to
Rs.1,25,000/- per acre was also forwarded. The learned Sr. ASC next
contended that summary for the Chief Minister would also show the
name of the village, area in acres N.C.No., category, market price
per acre notified in the years 2011 and 2012, total market price and
final approval of the Chief Minister. The learned Sr. ASC next
contended that MDA has made payment of Rs. 1.66 Billion to the
Board of Revenue for the land measuring 11068 acres in five villages
namely, Karkharo, Langheji, Konkar, Kathore and Bolhari at the rate
of 25% of market price out of the nine villages measuring 14617 acres.
The learned Sr. ASC went on to argue that the entire process of the
land adjustment has been transparent as it was made after due
publication in various newspapers and that the rights of MDA and
the interest of government have been fully protected at every step.
The learned Sr. ASC lastly contended that where price of the land
has been paid, mere fact that conveyance deed has not been
executed would not affect the sale. Learned ASC by referring to the
chart describing the categories of the land and their prices fixed in
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
15
2006 and then in 2011 contended that the latter are on lower side
but they were perfectly justified by the ground realities as no town
builder in view of the prices fixed in 2006 came forward to invest in
the building project. The learned Sr. ASC by elaborating his
arguments contended that the aforesaid rationalization being in
conformity with the prices of similar land in the market has been
rightly accepted by the Chief Minister Sindh.
3.
Mr. Ali Zafar, the learned ASC for the Bahria Town
highlighted the necessity of adjustment of property, the quality and
quantity of the land owned by the government and the quality and
quantity of the land exchanged therefor and the purpose behind
such exchange. The learned ASC by referring to the provisions
already referred to by the learned Sr. ASC for the Board of Revenue
sought to canvass at the bar that the adjustment of the property has
been made strictly in accordance with the provisions of MDA Act
and in accordance with law and policy as notified in the year 2006
and modified in 2010 and that the complaints against the Board
being frivolous be dismissed; The learned ASC maintained that it is
the discretion of the government to give any property to any
development authority gratis or for a price fixed in accordance with
law; that an area of 7068 acres has already been exchanged while
an area of 2339 acres is in process of being exchanged and that this
is not something unprecedented as New Malir Housing Scheme, Shah
Latif Housing Scheme and Taiser Town have mainly been built up by
following a similar pattern. Preamble of the MDA Act, the learned
ASC contended provides for the development of certain areas of
Karachi Division and improvement of the socio-economic conditions
of the people and this is what the provisions of the Act aim at and
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
16
this is what the Bahria Town strives for. The learned ASC next
contended that an apple for an apple and an orange for an orange
have been exchanged and that in case the property owned by the
government is found to have a better status, differential could be
paid by the respondent. The learned ASC lastly contended that the
process of consolidation which includes adjustment and exchange
has been resorted to because the MDA did not have sufficient funds
to start with the project and that it has been ensured that everything
be done transparently which can well be gathered from the fee
paid in billion by the Bahria Town to the Government and the MDA.
4.
Mr. Aitzaz Ahsan, learned Sr. ASC appearing on behalf of
the persons exchanging private land with MDA supported the
arguments of Mr. Ali Zafar, learned ASC for the Bahria Town, by
adding that after the insertion of (ff) in Section 2 of the Malir
Development Authority Act through an Amending Act of 2013, the
expression consolidation has been given wider ring and connotation,
therefore, it has to be read accordingly. The learned Sr. ASC
contended that the enterprise of the Bahria Town consisting in
building planned towns with ideal surroundings, green areas,
stadium, five star hotels, etc. is perfectly in accordance with law; that
entire property for building the town has been acquired in conformity
with the modes recognized by law; that even if the Court at any
stage gathers the impression that the price charged from the
respondent is on the lower side that could be ignored. The learned Sr.
ASC to support his contention placed reliance on the cases of
Government of Punjab. Vs. M/s Crescent Textile Mills (PLD 2004 SC
108) and Dr. Akhtar Hassan Khan and others. Vs. Federation of
Pakistan and others (2012 SCMR 455). The learned Sr. ASC next
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
17
contended that if by any means the Court comes to the conclusion
that price of the property acquired by the respondent is less than the
price then prevailing in the market, the respondent is willing to make
up the deficiency.
5.
We have gone through the record carefully and
considered the submissions of learned ASCs for the parties.
6.
The main issue raised in this case is that enormous tracts
of government land were granted by the Board of Revenue to the
MDA for launching incremental housing scheme. The MDA instead of
launching the scheme on the land thus granted, exchanged it with
the Bahria Town through its henchmen. Having thus placed, the
Bahria Town proceeded to launch a scheme of its own. MDA
defended the grant as well as exchange mentioned above. Bahria
Town also defended the grant of the land and its exchange with the
private land by seeking refuge under the provisions of the MDA Act
providing for declaration of controlled area, preparation of Master
Programme and scheme for a controlled area or part thereof. It also
defended its scheme by referring to section 17(2) of the MDA Act as
the Authority under the aforesaid provision has been given discretion
to assist in the preparation of any scheme on the request of any local
council, government agency, society, any person or body of persons
on such terms and conditions which may be settled between them.
While considering the issues raised before us and analyzing the
viability of the defence, we have to see how the things originated,
progressed and reached the desired culmination. The first step in this
behalf is the declaration of controlled area. The relevant provision
dealing with declaration of an area to be a controlled area is section
14 of the MDA Act which deserves a look and thus reads as under:
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
18
â14. The Authority may, by notification, declare any area under
jurisdiction of Authority to be controlled area and issue such
directions and do such things as may be necessary for the
prevention
of
haphazard
growth,
encroachments,
unauthorized constructions or operations in such area and for
planned growth of the area.â
What does the Authority consist of has been provided in section 4 of
the MDA Act which reads as under: -
â4. 1[â(1) The Authority shall consist ofâ
(a) Minister for Local Government, Public
Health Engineering, Rural Development
and Housing Town Planning, Sindh
Chairman
(b) One Local Member of the Provincial
Assembly to be nominated by
Government
Member
(c) Secretary, Local Government, Public
Health Engineering, Rural Development
and Housing Town Planning
Department
Member
(d) Commissioner, Karachi
Member
(e) Managing Director, Karachi Water and
Sewerage Board
Member
(f) Director General Malir Development
Authority
Member/
Secretary
(g) Two Person to be nominated by
Government (one Technocrat and one
from the Civil Society)â]
Member
(2) The Chairman shall be appointed by Government who
shall hold office of a period of three years unless he resigns or is
removed earlier.
(3) A non-official member shall hold office for a period of
three years unless he resigns or is removed earlier.
(4) A non-official member may, at any time, by wiring
under his hand addressed to Government resign his membership
and the resignation shall take effect from the date on which it is
accepted.
(5) A casual vacancy in the office of non-official member
shall be filed in accordance with sub-section (1) and the
member so appointed shall hold office for the un-expired portion
of the term of such vacancy.â
A bare reading of the provisions reproduced above shows that the
power to declare an area to be a controlled area lies with the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
19
Authority. The Authority is consisting of a Chairman, members of the
Provincial Assembly of the area and many others as listed above.
How a matter required to be decided by the Authority would be
decided by the Authority has been provided in section 9 of the MDA
Act which reads as under:
â9. (1) Any matter required to be decided by the Authority shall
be decided in a meeting of the Authority presided over by the
Chairman, by vote of majority of the members present in such
meeting.
(2) Each member shall have one vote; provided that in case of
a tie, the Chairman shall exercise a casting vote.
(3) One-third of the total members shall form a quorum for a
meeting of the Authority.
(4) The Authority shall meet at such place and time and in such
manner as it may prescribe.â
Who issued the notification dated 26.12.2013 declaring 43 villages as
a controlled area is evident from the notification which reads as
under:
âBOARD OF
REVENUE, SINDH
GOVERNMENT OF SINDH
NOTIFICATION
No.PS/SMBR/BOR/KAR/430, Karachi dated 26th December 2013.
In exercise of the powers conferred under section 16(1) of the
Malir Development Authority Act, 1993, the Government of
Sindh has been pleased to allow Malir Development Authority
to get physical survey and preparation of Road Network / Land
used plan of the following notified dehs under its jurisdiction as
controlled area for adjustment of affected private / acquired
state land for development purpose through consultant so that
proper planning and development scenario of the area is
generated.
1. Lohar Kolang.
2. Mitha Ghar.
3. Katore
4. Ghaghar.
5. Dhabeji.
6. Khadeji.
7. Allah Phal.
8. Shah Mureed.
9. Dhando.
10. Narathar.
11. Konkar.
12. Darsano Channa
13. Tore
14. Mahyo.
15. Bazar
16. Shahi Chib.
17. Langheji.
18. Bolhari
19. Chuhar.
20. Amilano
21. Bayal
22. Karamtani-Lat
23. Bhad
24. Abdar
25. Mandro.
26. Moidan
27. Gadap
28. Khar
29. Sundi
30. Kharkharo
31. Tarari.
32. Jhunjhar
33. Malh
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
20
34. Lusar
35. Shoring
36. Hidarwah
37. Mehar Jabol.
38. Kund
39. Jung Khund
40. Shore Kundi.
41. Wan Kund
42. Sanharo.
43. Koteiro.
The authority shall prepare specific, scheme or schemes for
execution of the Master Programme in accordance with
M.D.A. Act, 1993 amended Act, 2013, specified in Chapter-III
and IV of the Act ibid, provided all codal formalities are
completed as per law and policy.
The Malir Development Authority and Revenue Authorities
shall update the record of rights and keep entries in the
computerized registers in the future, and so also safeguard the
interest of the Government of Sindh.
The concerned Deputy Commissioners and MDA shall
update and sign the notification plan maps provided by MDA
in light of the provisions of the Sindh Land Revenue Act, 1967.
The signed copies of the maps and master plan may be sent to
Board of Revenue, Sindh, as and when this exercise is
completed.
The Malir Development Authority shall abide by all enforced
laws of the Provincial Government, directions and policies from
time to time given by Government of Sindh.
Sd/-
Senior Member
Board of Revenue, Sindh.
No.PS/SMBR/BOR/KAR/430- Karachi dated: 26th December, 2013.
A copy is forwarded for information and necessary action to :
1. The Chief Secretary, Government of Sindh, Karachi.
2. The Principal Secretary, to Governor of Sindh, Karachi.
3. The Principal Secretary to Chief Minister, Sindh, Karachi.
4. The Administrative Secretaries to G.O.S, âĻâĻâĻâĻ.. (All in Sindh).
5. The Chairman, CMITE and IT, Karachi.
6. The Chairman Anti-Corruption and Enquiries, Sindh, Karachi.
7. The Director General, Malir Development Authority, Karachi.
8. The Inspector General of Registration, Sindh, Karachi with
directions to bound down the Sub-Registrars to follow the
above direction, while executing the documents.
9. The Commissioner. âĻâĻâĻâĻâĻâĻâĻâĻâĻ. (All in Sindh).
10. The Deputy Commissioner âĻâĻâĻâĻâĻâĻ( All in Sindh).
11. The P.S. to Minister, Local Govt. Karachi.
12. The Section Officer (L&C), Local Govt. Deptt: Karachi, with
reference to his letter No.SO(L&C), HTP/MDA/9-37/2013, Dated:
24 December, 2013.
13. The Superintendent Govt. Printing Press, Karachi for publication
in next gazette.
14. The P.S. to Secretary, Local Govt. Deptt: Karachi.
Sd/-
Section Officer (Admn)
Board of Revenue, Sindh.â
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
21
The notification reproduced above shows that it was issued by the
Senior Member Board of Revenue who does not figure anywhere in
the entire scheme in general and section 14 of the MDA Act in
particular. What canons of law and jurisprudence would justify an
out-right departure from the provisions of the MDA Act has not been
explained anywhere. What would be the value of such notification
and what effect such declaration would have when it stemmed from
a person who has no power and authority to issue it has been rather
glossed over. What has stunned and startled us is that the notification
thus issued has heavily been banked upon. A corrigendum at a later
stage has been issued showing that the notification dated 26.12.2013
was indeed issued by the Secretary Local Government and Housing
Town Planning Department, Government of Sindh but he too being a
nonentity in the MDA Act neither has the power to declare an area
to be a controlled area nor issue a corrigendum. When the basic
notification has not been issued by the Authority in terms of section 4,
9 and 14 of the MDA Act, any structure raised thereon would
automatically collapse. Reference could well be made to the
judgement rendered in the case of Yousaf Ali v. Muhammad Aslam
Zia and 2 others (PLD 1958 SC 104).
7.
What is a Master Programme; how and when it was
prepared; what is its tangible form; what is its description in words
and who approved it; what is a scheme, how has it been prepared,
what does it consist of in terms of section 17(3), where has it been
described in words and figures within the framework of the MDA Act
have been asked time and again but none of the learned ASCs
representing the parties bothered to answer the questions with
reference to documents on the record. Land was reserved for MDA
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
22
as is apparent from the summary moved in this behalf. It was
approved by the Chief Minister on 24.1.2014 but preparation of the
Master Programme and schemes conforming thereto never saw the
light of the day. A map at page 380 of CMA 1691/2018 was referred
to with the marginal notes. We with the assistance of the learned
ASCs for the parties tried to decipher the Master Programmes and
the schemes therefrom but we could not find any. Learned ASC
appearing on behalf of the Bahria Town contended that the Master
Programmes or for that matter the schemes may not be palpable on
the map but this Court while examining the entire spectrum
projected in the case could suggest ways and means by stepping
into the shoes of the Authority. Such approach, the learned ASC
added, has to be adopted when this Court intervenes through an
inquisitorial proceeding under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan to ensure proper development of the
area and betterment of the people. This argument of the Learned
ASC for the Bahria Town is quite tempting but what we have to see
at the moment is whether the provisions of law providing for the
preparation of the Master Programme and schemes were adhered
to? Our answer to the question is in the negative as the MDA, without
preparing the Master Programme and scheme worth the name, let
the Bahria Town initiate and embark upon an adventure of its own.
8.
Let us now see the tenability of the defence set up by
the Bahria Town in terms of section 17(2) of the MDA Act. Before we
discuss this aspect of the case it is worthwhile to refer to section 17(2)
which reads as under:
âSection 17(2)âThe Authority may, on the request of any
Local Council, Government agency, society or any person
or body of persons, assist in preparation of, or caused to be
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
23
prepared, any scheme on such terms and conditions as
may be settled between them.â
This provision, so to say, provides for the assistance of the Authority on
the request of any Local Council, government agency, society or
any person or body of persons in the preparation of schemes on such
terms and conditions as may be settled between them. But when did
the managers of the Bahria Town request the Authority for assistance
in the preparation of scheme and what terms and conditions have
been settled in between them in this behalf has not been adverted
to in the concise statement or during the course of the arguments
nor their existence has been substantiated at any stage. How could
the Authority own or espouse a scheme of the Bahria Town, which
was prepared by the latter on its own without the assistance of the
former in terms of Section 17(2) of MDA Act and how could this
scheme be held to have been prepared, undertaken or executed
under this Act in terms of Section 2(p) of the MDA Act are the
questions which went uncommented. All this points to the conclusion
as if the Bahria Town is the Authority and the Authority is just a pawn
or a plaything in its hands.
9.
Next comes the grant of land to MDA by the Board of
Revenue and its exchange with private or kabuli land. What is the
mode of grant of government land, what are the provisions
regulating it and who are the persons such land could be granted to
are pivotal questions whose answers can well be found in section 10
of COGLA 1912 which reads as under:
â10. Issue of statements of conditions of tenancies. â (1)
The Board of Revenue subject to the general approval of the
Government may grant land in a colony to any person on such
conditions as it thinks fit.
(2) The Provincial Government may issue a statement or
statements of the conditions on which it is willing to grant land in
a colony to tenants.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
24
(2A) Notwithstanding anything contained in sub-section (1) or
sub-section (2), such land shall, not be exchangeable with
private or kabuli land.
(3) Where such statements of conditions have been issued,
the Collector may, subject to the control of the [Board of
Revenue], allot land to any person, to be held subject to such
statement or conditions issued under sub-section (2) of this
section, as the Collector may by written order declare to be
applicable to the case.
(4) No person shall be deemed to be a tenant or to have any
right or title in the land allotted to him until such a written order
has been passed and he has taken possession of the land with
the permission of the Collector. After possession has been so
taken, the grant shall be held subject to the conditions declared
applicable thereto.
(5) If a person who has been granted, allotted or leased out,
land after applicability of this Act to the Province of Sindh, or a
person who may be granted land under this Act hereinafter for
specific purpose has â
(a) failed to deposit the occupancy price within a period of six
months after the issuance of offer letter or allotment letter
regarding grant, allotment or lease of land, such offer letter or
allotment letter shall automatically stand withdrawn and shall
not be restored; provided that the grantee, allotee or leasee
may apply afresh for grant, allotment or lease of the land and
the Competent Authority may make a fresh grant, allotment or
lease as the case may be; and
(b) failed to use the land for the purpose for which it was
granted or allotted or converted or leased out and the period of
five years from the date of grant, allotment, conversion or lease
has expired, the grant, allotment conversion or lease of the land
shall automatically stand cancelled and the amount deposited
shall stand forfeited:
Provided that the competent authority may extend the
period for one year more in the justified cases on payment of ten
percent (10%) of the occupancy prices
Provided further that the Chief Minister may extend the
period of completion of projects in respect of land granted for
education and health purposes in the cases where the delay in
completion of project is not on account of any negligence of
part of grantee.â
A careful examination of the section reproduced above shows that
the government land could be granted to any person or tenant
subject to the statement of conditions issued under section 10(2) of
the said Act. Statement of conditions were purportedly issued under
section 10(2) of COGLA 1912 by Government of Sindh, Land
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
25
Utilization Department vide notification no. 09-294-03-SO-I/336,
Karachi dated 25th February 2006 and notification no. 09-294-03/SO-
I/719, Karachi dated 10th November 2010. Land in this case has been
granted to MDA under section 10 of COGLA 1912. It in its essence
and substance is tenancy and not proprietary on any account as
proprietary rights to a tenant or any other person could be granted
under section 30 of COGLA 1912 but since section 30 has been
omitted from the said Act by Sindh Repealing and Amending Act
1975 (Sindh Act XVII of1975) such rights cannot be granted to any.
10.
Now the question arises whether a land granted under
section 10 of COGLA 1912 could be exchanged with a private or
kabuli land. Our answer to the question is a pointblank no, because
section 10(2A) which has been given overriding effect over section
10(1) and 10(2) of COGLA 1912 provides in unequivocal terms that a
land granted to any person under section 10 of COGLA 1912 is not
exchangeable with a private or kabuli land. Section 17 of COGLA
1912, however, permits the exchange of tenancy for tenancy but
does not permit the exchange of tenancy with private or kabuli land.
The rationale behind this provision is that a land comprised in
tenancy cannot be equal to the one comprised in proprietary. When
the land comprised in tenancy is not equal to private or kabuli land,
it cannot be exchanged with the other. Where a land granted under
section 10 of the Act cannot be exchanged with private or kabuli
land, its exchange being against law would be void ab initio. The
learned Sr. ASC for the Board, in his effort to extricate the MDA and
even the Bahria Town from the clutches of this prohibition referred to
section 8(2)(iii), section 31 and 32 of the MDA Act and thereby
sought to canvass at the bar that the aforesaid provisions in view of
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
26
section 47 of the MDA Act shall have effect notwithstanding anything
contained in any other law, rules or regulation. Before we deal with
this argument it would be imperative to refer to the aforesaid
provisions:
âSection 8 (2) The Authority mayâ
(ii) acquire permanently or requisition temporarily property
movable or immovable;
(iii) dispose any land or other property vested in it by sale,
lease exchange or otherwise.
Section 31 â The Authority may, by purchase, lease or
exchange, acquire any movable or immovable property or
any interest therein by entering into an agreement with the
party concerned.
Section 32 â Where the Authority is of the opinion that nay land
needed for any scheme or other public purpose cannot be
acquired under section 31, such land may be acquired in
accordance with the Hyderabad Development Authority Act,
1976 and any reference in that Act to the Hyderabad
Development Authority shall be deemed to be a reference to
the Authorityâ
A look at section 8(2)(ii), section 31 and section 32 of the MDA Act
reveals that the Authority has the power to acquire permanently any
moveable or immoveable property by purchase, lease or exchange
by entering into an agreement with the party concerned or in
accordance with the provisions of the Hyderabad Development
Authority Act 1976. Any property thus acquired would vest in the
Authority which shall be free to dispose it of by sale, lease, exchange
or otherwise in terms of section 8(2)(iii) of the MDA Act. But since the
land granted to the Authority under section 10 of the COGLA 1912 is
comprised in tenancy and not proprietary it cannot be said to have
vested in the Authority. Since it cannot be said to have vested in the
Authority, it could not dispose of such land by sale, lease, exchange
or otherwise. Therefore, any disposal in any of the modes mentioned
above would be void ab initio. In the case of Abdul Haq and others v
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
27
Province of Punjab and others (2007 SMCR 1525) this Court while
dealing with a similar situation held as under:
âA careful scrutiny of record would reveal that the said order
had been passed by the learned Commissioner Sargodha
Division in a casual and cursory manner without diligent
application of mind by ignoring the fact that the State land
could not have been exchanged with private land situated in
Chak No. 40-A/M.B., proprietary rights whereof were obtained
by the appellants about thirteen years back and mutations
were also attested in their favour and duly registered in the
Register Haqdaran Zamin. The closed and past transaction
could not have been reopened by the Commissioner
Sargodha Division having no locus standi whatsoever which
amounts to misuse and abuse of authority never conferred
upon him. The Commissioner Sargodha Division has violated
the Government instructions contained in letter No. 1841-C
dated 28-4-1932 which makes it abundantly clear that once
the proprietary rights have been acquired in a grant no
application for exchange could be entertained. For the sake of
argument if it is conceded that the allocation of land in favour
of appellants was not âby way of grantâ even then State land
pertained to Agriculture Department could not have been
transferred with private land, proprietary rights whereof had
been conferred upon the appellants. Besides that the
Commissioner Sargodha Division has ignored the provision
enumerated in section 17 of Colonization of Government Lands
Act 1912 whereby only the State land can be exchanged for
State
land
and
therefore,
the
order
passed
by
the
Commissioner Sargodha Division was in utter violation of
section 17 of Colonization of Government Lands Act, 1912.â
The argument of the learned Sr. ASC for the Board that MDA being a
purchaser having paid the entire amount of the purchase money
cannot be deemed to be a tenant, therefore, it could exchange the
land granted with private or kabuli land notwithstanding the
provision contained in section 10(2A) and proviso to section 17 of
COGLA, would have been tenable had the proprietary rights been
granted to it. But since the provision providing for the grant of
proprietary rights has been omitted by virtue of the amendment
mentioned above, this argument being shorn of force cannot be
accepted. The argument that MDA is carrying out various schemes
such as Shah Latif Town, New Malir Housing Project and Taiser Town
by exchanging the government land granted under section 10 of
COGLA 1912 with private or kabuli land, therefore, exchange of land
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
28
granted to the MDA with private or kabuli land is not something
unusual or unprecedented has not moved us because nothing has
been brought on the record to show that land granted under section
10 of COGLA 1912 was ever exchanged with private or kabuli land.
In case it is correct, two or any number of wrongs cannot justify
another wrong or make it right. The argument that nothing in the
Transfer of the Property Act would apply or be deemed ever to have
applied to any grant or other transfer of land or of any interest
therein by or on behalf of the Government to or in favour of any
person, therefore, any transfer or adjustment in violation of the said
Act cannot be held to be illegal or against law has no perceptible
relevance to the controversy raised in this case as exchange in this
case is illegal in view of the provisions contained in COGLA 1912 and
not in view of the provisions contained in Transfer of Property Act.
11.
Now let us see what was the purpose behind the grant
of this land? We have been told time and again that the purpose
behind the grant of this land to MDA is to launch an incremental
housing scheme. Where does the âincremental housing schemeâ
come from and what does it stand for? This scheme, so to speak, was
introduced by substituting section 3 and adding section 10-A to
section 10-F in COGLA through The Colonization of Government
Lands (Sindh Amendment) Ordinance, 2005, Sindh Ordinance No. XIII
of 2005. But it being promulgated by the Governor of Sindh under
Article 128 of the Constitution of the Islamic Republic of Pakistan, was
not a permanent legislation. Nor was it made an Act of the Provincial
Assembly. It, therefore, stood repealed after the expiration of 90
days. With the repeal of the Ordinance, the Act was restored to its
original position as it stood before the promulgation of the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
29
Ordinance. The incremental housing scheme and whatever was
provided in section 3 and Section10-A to Section 10-F of the
Ordinance disappeared altogether. However, in the statement of
conditions
many
other
terms
with
their
meanings
besides
âincremental housing schemeâ have again been introduced in
paragraph 2 of the statement of conditions which being relevant for
the purposes of this case are reproduced as under:
2. In this statement of conditions, unless there is anything
repugnant in the subject or context: -
(a) "Act" means the Colonization of Government Lands Act,
1912;
(b) âamenity purposeâ means a use of plot of land for park,
garden playground, graveyard, educational institution, health
institution, reading rood, library, community centre and place
for religious worship;
(c) âauthorityâ means a development authority established by
Government under any law for the time being in force;
(d) âautonomous bodyâ means an autonomous body under
the control of Government established under a law and
includes an authority but does not include a council;
(e) âcommercial purposeâ means a plot of land used or to be
used for the Government;
(f) âcompanyâ means a company registered under Companies
Ordinance 1984;
(g) âcouncilâ means a council constituted under the Sindh
Local Government Ordinance, 2001;
(h)âDistrict Officer Revenueâ means the District Officer
(Revenue) as described in the Sindh Land Revenue Act, 1967
and includes:-
(i)
any officer appointed by the Board of Revenue
to perform all or any of the functions and exercise all
or any of the powers of the District Officer (revenue)
under this Act; and
(ii)
any
Colonization
Officer
or
Assistant
Colonization Officer appointed as such before the
commencement of this Act, whether or not such
officer was by notification appointed to perform all or
any of the functions of a Deputy Commissioner under
the Act hereby repealed;
(i) âExecutive District Officer (Revenue)â includes any officer
appointed by the Board of Revenue to perform all or any of
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
30
the functions and exercise all or any of the powers of a
Executive District Officer (Revenue) under this Act;
(j) âflat siteâ means any plot of land used or to be used for
constructing residential flats;
(k) âGovernmentâ means the Government of Sindh;
(l) âincremental housingâ means a housing scheme sponsored
by the Government, or an authority, or an autonomous body or
a company for providing residential land to a family not
exceeding 120 square yards;
(m) âindustrial purposeâ means use of a plot of land as:-
a)
a cottage, small, medium and large industry or
b)
an Industrial Estate or
c)
an Information Technology Park or
d)
tourism including hotels that offer lodgings;
(n) âlandâ means lands vesting in Government, authority or
autonomous body and includes lands is used and may be used
for agricultural, commercial, residential, residential cum
commercial, industrial and amenity purposes;
(o) âmarket priceâ means market price and includes
occupancy value of the land prevailing at the time of disposal
of the land by the Government under this Act;
(p) âoccupancy priceâ means the price paid by the occupant
of Govt. land granted for non-agricultural purpose or a period
not exceeding ninety nine years;
(q)
âprojectâ
means
commercial,
incremental
housing,
residential, flat site, residential-cum commercial industrial and
amenity projects for which land is granted;
(r) âresidential cum commercial landâ means use of land for
construction of flats, shops and or private or public offices;
(s) âresidential landâ means use of a plot of land for
constructing residential houses;
(t) âgrantâ means lease of land made under these conditions;
(u) âprice committeeâ means the District Price Committee
appointed under condition No.8(1)(a);
(v) âscrutiny
committeeâ
means
by
Scrutiny
Committee
appointed under condition 8(1) (b).â
Addition of the expression amenity purpose, commercial purpose,
incremental housing, industrial purpose etc and their meanings in
paragraph 2 shows that the framers of the statement of conditions in
their wisdom also decided to grant the land for the purposes
mentioned above. But they instead of using the word âgrantâ used
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
31
the word âdisposeâ in paragraph 3 of the notification. The word
âdisposeâ has not been defined anywhere in the notification,
therefore, its ordinary dictionary meanings are to be looked into. This
word according to the Oxford Dictionary means to sell something to
someone or get rid of it. But this meaning would tend to change the
meaning of word grant as used in section 10 (2) of COGLA 1912, the
parent statute which is restricted to grant of tenancy and not sale of
proprietary. It becomes all the more clearer when the word âgrantâ
has also been used in the statement of conditions issued in 2006 and
has been defined to mean âlease of land under these conditionsâ.
The word âdisposeâ, therefore, has to be interpreted in harmony with
the parent statue or read down as being an addition alien to the
parent statute. For it is axiomatic and an extensively known principle
of interpretation of statute that a subordinate legislation has to be
interpreted in a way which conforms to and stays within the
parameters of the parent statute. Such interpretation would be in
harmony with the letter and spirit of section 10 of COGLA 1912
particularly after the omission of section 30 therefrom as held above.
We, therefore, hold that the word âdisposeâ or the word âgrantâ would
mean grant of tenancy and not proprietary right.
12.
Alright with the addition of the expression incremental
housing scheme to the statement of conditions issued in 2006 the
land under section 10(2) of the COGLA could be granted for
launching an incremental housing scheme. The Board, pursuant to
the aforesaid conditions, granted land to Malir Development
Authority for launching an incremental housing scheme. The
Authority after the grant of land should have proceeded to launch
the scheme itself. But to our regret and surprise, the Authority for the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
32
reason best known to it rather opted to exchange the land thus
granted with private or kabuli land purchased by the dummies of the
Bahria Town before fulfilling the legal formalities and even before
taking its possession under section 10(4) of COGLA and thereby
abdicated its authority in favour of the Bahria Town in violation of the
provisions contained in sections 10(2A) and proviso to section 17 of
COGLA. Whereas the Bahria Town with all its magical and
mesmerizing prowess and paraphernalia dropped in the land and
started the work with goebbelsian fanfare a day after the summary
reserving the land for MDA was signed which can well be seen from
the aggressive publicity in the newspapers of the following days. The
Malir Development Authority which is all in all for the purposes of the
MDA Act became a conduit to facilitate the designs of the Bahria
Town. At times the MDA appears to have acted as a property dealer
and even as a go-between in the deal. Likewise, the government of
Sindh which is all in all for the purposes of COGLA acted as more of a
collaborator than a protector of the government land. Grant of land
to MDA for an incremental housing scheme proved to be a gimmick
to accomplish the agenda of Malik Riaz aiming at his personal
enrichment at the cost of the state and the people. It is, thus, a
brazen betrayal of the trust of the state and the people and a
blatant fraud on the statute. A business adventure of this type
cannot be said to have any meaning for the poor people and as
such cannot be held to have any of the trappings of a public
purpose.
13.
We have no doubt in our mind as held above that the
land granted under section 10 of COGLA 1912 cannot be
exchanged with private or kabuli land. But even if we assume by
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
33
ignoring the law that the Authority has the power to exchange the
land granted under section 10 of COGLA 1912 with private or kabuli
land, what mode was adopted for determining the status and price
of the government land and that of the one it was exchanged for
has not been explained by the learned ASCs appearing for the
Board, MDA and Bahria Town. Nor has anything been brought on the
record to show that the nature, character, location, potential of the
land and those of the land it was exchanged for, stand on equal
footing. There is also nothing on the record to explain why did the
MDA exchange its compact and well-located blocks of land for
scattered strips of land situated in far-off areas. What utility such strips
of land could possibly have for MDA also went unanswered. It was
stated that MDA paid Rs. 1.66 billion at the rate of 25% of the market
price for 11068 acres in five villages to the Board and that MDA
exchanged land measuring 7068 acres in 4 villages namely Bolhari,
Langheji, Konkar and Kharkharo with henchmen of the Bahria Town
in 39 villages. The value of the land of MDA in four villages has been
worked out as Rs. 6.12 Billion (Rs. 6120 million) while the value of the
land exchanged therefor has been worked out as Rs. 5.859 Billion (Rs.
5859 Million). The differential between the two has been worked out
as Rs. 0.26 Billion (Rs. 260 million) out of which Rs. 0.24 Billion (Rs. 240
Million) has been paid, whereas only Rs. 0.02 billion (Rs. 20 Million) is
outstanding. But nothing authentic has been brought before us to
show as to what was the per acre price of the land in the 4 villages
and what was the per acre price of the land situated in 39 villages.
When the price of the land in any of the 39 villages has not been
determined nor has any basis been provided for its determination,
the differential being worked out at random cannot be given any
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
34
weight. All this shows that neither the Board nor the MDA cared a fig
while dealing with this aspect. Everything appears to have been
done mechanically without examining what has been poured in and
what has been poured out as a result of exchange. How far the MDA
was guided by its sense of proportion when it exchanged 68-30-19
acres situated in Langheji for 68-30-19 acres situated in village
Mandaro, an area bordering Balochistan? What equation the MDA
saw between 56-36 acres situated in Langheji and an area of 56-36
acres situated in Ghaghar which is bordering district Thatta to justify
their exchange? Exchange of the property at Ghaghar for that in
Langheji would bring the private owner windfall benefits but what
would it bring the Authority when the area at Ghaghar being far off
and bordering district Thatta is of no use when viewed in the light of
the provisions of the MDA Act. An area of 10 acres situated in
Langheji was exchanged for an area of 10 acres in village Shahi Chip
which being situated in a far-flung area does not admit of a
comparison with the area situated in Langheji. What parity did the
Authority find between an area of 75 acres situated in Langheji and
an area of 75 acres in Deh Jang Kund, a village situated in an area
bordering Balochistan? What was common in between an area of 73
acres situated in Langheji and an area of 73 acres situated in Deh
Darsano Chano in terms of their nature and location has been left to
speculation. Likewise, no visible similarity is seen between an area of
44 acres situated in Langheji and an area of 44 acres situated in
Dhabheji. An area of 68 acres situated in Bolhari was exchanged for
an area of 68 acres situated in Deh Tore without ascertaining its
surrounding and connectivity â the features which always matter in
determining the status of the land. These are a few examples which
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
35
go a long way to prove that no homework was done by anybody at
any level to strike a balance between the input and the output of
exchange. Determination of differential in the absence of such
homework would, therefore, be conjectural. A transaction thus
settled cannot be held to be transparent.
14.
An effort was made to protect the exchange of tenancy
with private or kabuli land under the panoply of section 2(ff) of the
MDA Act without appreciating what does the aforesaid provision
precisely say. It would, therefore, be worthwhile to refer to the said
provision which reads as under:
â2(ff) â consolidation of land means adjustment of plots in
a scheme by way of exchange or otherwise for the
purpose of the schemeâ
Even a cursory glance at the aforesaid provision would show that it
does not deal with the exchange of a land for a land. It indeed deals
with adjustment of plots in a scheme by way of exchange or
otherwise. Plot according to the definition as given in Rule 2(j) of the
Malir Development Authority Disposal of Plot Rules 2006 means:
âj).
âPlotâ includes a residential plot, residential cum
commercial plot, industrial plot, commercial plot, or flat
site in any schemeâ.
The word âadjustmentâ if seen in the light of the definition as given
above, by no means covers the exchange of a land for a land in a
set-up where no scheme has been prepared even in terms of
conception. Granted,
that
The
Malir
Development
Authority
(Consolidation, Adjustment, Exchange of private survey lands and
state land) Regulations 2013 provides procedure for exchange of a
land for a land but it being against the provisions of the parent
statute cannot be sneaked in when according to the latter the
expression adjustment means adjustment of plots in a scheme for the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
36
purposes of the scheme. Reference to section 2(ff) being an attempt
to clutch at a straw cannot help justify the exchange of a land for a
land.
15.
What was the occasion calling for the reduction of the
prices which were fixed in 2006 notwithstanding the passage of time
in between 2006 and 2011 brought an exponential increase therein.
What business the secretariat of the President had in the fixation of
the prices of the land when the matter relating to land lay within the
domain of the province? What weighed and proved to be the
catalyst can well be gathered from the summary which is
reproduced as under:
âGOVERNMENT OF SINDH
LAND UTILIZATION DEPARTMENT
SUMMARY FOR THE CHIEF MINISTER, SINDH
SUBJECT:
FIXATION OF RATES OF LAND UNDER CONDITION NO.8(1)(b) OF THE
STATEMENT OF CONDITIONS FOR GRANT OF STATE LAND FOR NON-
AGRICULTURAL
PURPOSE
AND
RECOMMENDED
THE
CATEGORIZATION OF GOVERNMENT LAND FOR ALLOTMENT OF
VARIOUS PURPOSE.
The facts of the case are that Chairman Association of Builders and
Developers of Pakistan (ABAD) has made an application to the Honourable
President, Republic of Pakistan to rationalize the rates of different Dehs (Annexure-
A). The Deputy Director (HD), Presidentâs Secretariat (Public Aiwan-e-Sadr
Islamabad has forwarded the same to the Chief Secretary Government of Sindh
Karachi for such action as deem appropriate as per rule in the matter vide
Presidentâs Secretariat U.O. No. 10(106)Dir(HD)/2010(11), dated 21.04.2011
(Annexure-B).
2.
Scrutiny Committee was constituted under Condition No.8(1)(b) under
Statement of Conditions and in its meeting held on 18.05.2011 (Annexure-C), the
Karachi and Association of Builders and Developers of Pakistan (ABAD). After
thorough deliberations, the Committee has recommended the following
categorization of land and market price for next three years as provided under the
said condition:-
i)
Categorization of Government land for allotment of various
purposes was recommended as under:-
Category A-
1:
Area upto 200 meters falling along with both sides of National, Super
and Provincial Highways and other roads having widths of 30 feet
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
37
metaled area.
Note: This category will not be applicable for the allotment of
industrial purpose.
Category A:
Area upto one kilometer beyond the area of Category-A-1.
Note: Industrial plot falling on Highway/Super Highway shall be
charged rates of Category âAâ. The definition of industrial sites may
include amusement parks, tourist resorts, hotels and cold storage
etc which have commercial potential.
Category B:
Area upto one kilometer beyond the area of Category-A.
Category C:
Area upto one kilometer beyond the area of Category-B.
ii)
Keeping in view the current market prices, the prices for the
different dehs were recommended by the Committee as under :-
âGADAP TOWNâ
Sr.
No
.
Name
of Deh
Description
Categ
ory
A-I
Categ
ory
A
Categ
ory
B
Categ
ory
C
1.
Bund
Murad
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
36 Lac
25 Lac
25.2
Lac
24 Lac
18 Lac
18 Lac
14 Lac
12 Lac
12 Lac
8 Lac
6 Lac
6 Lac
2.
Allah
Phihai
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
25 Lac
25 Lac
20 Lac
18 Lac
18 Lac
12 Lac
12 Lac
12 Lac
6 Lac
6 Lac
6 Lac
3.
Khadej
i
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
25 Lac
15 Lac
18 Lac
15 Lac
10 Lac
15 Lac
12 Lac
7.5 Lac
8 Lac
NIL
-
NIL
4.
Abdar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
10 Lac
15 Lac
15 Lac
7.5 Lac
10 Lac
10 Lac
5 Lac
8 Lac
NIL
-
NIL
5.
Chuha
r
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
20 Lac
20 Lac
20 Lac
25 Lac
15 Lac
15 Lac
15 Lac
10 Lac
10 Lac
NIL
-
NIL
6.
Jam
Chakr
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
30 Lac
25 Lac
20 Lac
15 Lac
15 Lac
10 Lac
NIL
NIL
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
38
2011
Rates
recommended
by
Scrutiny Committee in 2011.
25 Lac
15 Lac
10 Lac
-
7.
Boil
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
15 Lac
15 Lac
15 Lac
10 Lac
10 Lac
10 Lac
8 Lac
8 Lac
NIL
NIL
8.
Narath
ar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
20 Lac
20 Lac
20 Lac
12 Lac
12 Lac
NIL
10 Lac
10 Lac
NIL
NIL
-
9.
Mitha
Ghar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
10 Lac
15 Lac
15 Lac
5 Lac
10 Lac
10 Lac
4 Lac
7 Lac
7 Lac
NIL
NIL
-
10.
Mai
Garhi
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
25 Lac
25 Lac
20 Lac
15 Lac
15 Lac
15 Lac
8 Lac
8 Lac
NIL
NIL
-
11.
Tore
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
50 Lac
50 Lac
75 Lac
40 Lac
40 Lac
60 Lac
30 Lac
30 Lac
NIL
NIL
-
12.
Konker
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
50 Lac
20 Lac
se Lac
40 Lac
15 Lac
20 Lac
30 Lac
10 Lac
15 Lac
NIL
NIL
-
13.
Kharkh
aro
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
70 Lac
35 Lac
35 Lac
50 Lac
25 Lac
25 Lac
40 Lac
20 Lac
20 Lac
NIL
NIL
NIL
14.
Mandr
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
10 Lac
8 Lac
8 Lac
8 Lac
5 Lac
6 Lac
6 Lac
4 Lac
4 Lac
NIL
NIL
NIL
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
39
Rates
recommended
by
Scrutiny Committee in 2011.
15.
Surjani
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
60 Lac
60 Lac
60 Lac
50 Lac
50 Lac
50 Lac
30 Lac
30 Lac
30 Lac
NIL
NIL
NIL
16.
Metan
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
20 Lac
25 Lac
20 Lac
12 Lac
15 Lac
15 Lac
8 Lac
10 Lac
NIL
NIL
NIL
17.
Gada
p
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
8 Lac
8 Lac
-
5 Lac
5 Lac
-
3 Lac
4 Lac
-
NIL
2 Lac
18.
Karmat
iani
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
8 Lac
8 Lac
-
6 Lac
6 Lac
-
4 Lac
4 Lac
-
2 Lac
NIL
19.
Shahi
Chip
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
20 Lac
20 Lac
-
10 Lac
10 Lac
-
8 Lac
6 Lac
-
3 Lac
Nil
20.
Huder
wah
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
15 Lac
15 Lac
-
10 Lac
10 Lac
-
7 Lac
7 Lac
-
NIL
NIL
21.
Bolhari
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
8 Lac
8 Lac
-
6 Lac
6 Lac
-
4 Lac
4 Lac
-
2 Lac
Nil
22.
Langh
eji
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
10 Lac
10 Lac
-
6 Lac
6 Lac
-
4 Lac
4 Lac
-
2 Lac
Nil
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
40
23.
Malh
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
40 Lac
50 Lac
-
30 Lac
40 Lac
-
20 Lac
20 Lac
-
Nil
Nil
24.
Bazar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
30 Lac
30 Lac
-
15 Lac
15 Lac
-
10 Lac
10 Lac
-
Nil
Nil
25.
Darsan
o
Chano
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
20 Lac
25 Lac
-
15 Lac
20 Lac
-
10 Lac
10 Lac
-
-
Nil
26.
Taiser
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
70 Lac
80 Lac
70 Lac
50 Lac
70 Lac
50 Lac
40 Lac
60 Lac
40 Lac
Nil
Nil
Nil
27.
Bijar
Buthi
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
60 Lac
70 Lac
70 Lac
50 Lac
50 Lac
50 Lac
40 Lac
40 Lac
40 Lac
Nil
Nil
Nil
28.
Nagan
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
60 Lac
60 Lac
-
50 Lac
50 Lac
-
40 Lac
40 Lac
-
Nil
Nil
29.
Mokhi
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
7.475
million
70 Lac
70 Lac
6.25
million
50 Lac
50 Lac
5.175
million
40 Lac
40 Lac
Nil
Nil
Nil
30.
Mangh
opir
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
50 Lac
50 Lac
-
40 Lac
40 Lac
-
30 Lac
30 Lac
-
Nil
-
31.
Halkan
i
Rates Notified by Govt. in
2006
50 Lac
40 Lac
20 Lac
Nil
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
41
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
25 Lac
35 Lac
17 Lac
25 Lac
12 Lac
15 Lac
Nil
-
32.
Thadh
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
35 Lac
35 Lac
-
25 Lac
25 Lac
-
15 Lac
15 Lac
-
Nil
-
33.
Kathor
e
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
50 Lac
60 Lac
-
40 Lac
40 Lac
-
20 Lac
20 Lac
-
10 Lac
10 Lac
34.
Amilan
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
5.75
million
40 Lac
45 Lac
4.6
million
30 Lac
35 Lac
3.45
million
25 Lac
25 Lac
1.15
million
-
Nil
35.
Shah
Muree
d
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
25 Lac
25 Lac
-
15 Lac
17 Lac
-
10 Lac
10 Lac
-
Nil
Nil
36.
Mahyo
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
30 Lac
25 Lac
25 Lac
20 Lac
20 Lac
20 Lac
12 Lac
15 Lac
15 Lac
6 Lac
10 Lac
10 Lac
37.
Lohark
o
Langh
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
8 Lac
8 Lac
8 Lac
6 Lac
6 Lac
6 Lac
4 Lac
4 Lac
4 Lac
Nil
Nil
Nil
âBIN QASIM TOWNâ
Sr.
No
.
Name
of Deh
Description
Categ
ory
A-I
Categ
ory
A
Categ
ory
B
Categ
ory
C
1.
Khanto Rates Notified by Govt. in
2006
Rates proposed by ABAD in
1 Crore
90 Lac
70 Lac
60 Lac
50 Lac
30 Lac
Nil
Nil
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
42
2011
Rates
recommended
by
Scrutiny Committee in 2011.
90 Lac
60 Lac
40 Lac
Nil
2.
Pipri
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
60 Lac
60 Lac
70 Lac
40 Lac
40 Lac
Nil
30 Lac
30 Lac
Nil
Nil
Nil
3.
Dhabe
ji
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
10 Lac
20 Lac
-
6 Lac
15 Lac
5 Lac
4 Lac
10 Lac
-
Nil
6 Lac
4.
Bakra
m
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
55 Lac
60 Lac
70 Lac
45 Lac
50 Lac
Nil
25 Lac
30 Lac
Nil
Nil
Nil
5.
Joreji
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
80 Lac
80 Lac
70 Lac
50 Lac
60 Lac
50 Lac
30 Lac
40 Lac
Nil
Nil
Nil
6.
Landhi
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
80 Lac
90 Lac
70 Lac
40 Lac
70 Lac
40 Lac
25 Lac
40 Lac
Nil
Nil
Nil
7.
Ghagh
ar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
Nil
Nil
20 Lac
15 Lac
15 Lac
15 Lac
10 Lac
10 Lac
10 Lac
Nil
5 Lac
6 Lac
8.
Koterir
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
50 Lac
40 Lac
40 Lac
40 Lac
30 Lac
30 Lac
Nil
20 Lac
20 Lac
Nil
Nil
Nil
9.
Ibrahi
m
Hyderi
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
1 Crore
70 Lac
70 Lac
Nil
50 Lac
50 Lac
Nil
25 Lac
25 Lac
Nil
15 Lac
15 Lac
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
43
Rates
recommended
by
Scrutiny Committee in 2011.
10.
Rehri
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
1 Crore
70 Lac
70 Lac
70 Lac
50 Lac
50 Lac
50 Lac
25 Lac
25 Lac
Nil
15 Lac
15 Lac
11.
Gangi
aro
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
80 Lac
70 Lac
70 Lac
60 Lac
50 Lac
50 Lac
Nil
40 Lac
40 Lac
Nil
30 Lac
30 Lac
12.
Dhand
ho
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
Nil
Nil
15 Lac
10 Lac
10 Lac
10 Lac
Nil
8 Lac
6 Lac
Nil
Nil
Nil
13.
Khakh
ar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
15 Lac
15 Lac
-
8 Lac
8 Lac
-
5 Lac
5 Lac
-
4 Lac
4 Lac
14.
Sanehr
o
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
20 Lac
20 Lac
-
15 Lac
15 Lac
-
8 Lac
10 Lac
-
Nil
Nil
âKEAMARI TOWNâ
Sr.
No
.
Name
of Deh
Description
Categ
ory
A-I
Categ
ory
A
Categ
ory
B
Categ
ory
C
1.
Allah
Bano
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
Nil
10 Lac
12 Lac
8 Lac
8 Lac
8 Lac
6 Lac
6 Lac
6 Lac
4 Lac
4 Lac
2.
Lal
Bakhar
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
40 Lac
30 Lac
30 Lac
30 Lac
25 Lac
25 Lac
10 Lac
15 Lac
15 Lac
7 Lac
5 Lac
10 Lac
3.
Maindi
Rates Notified by Govt. in Nil
12 Lac
8 Lac
6 Lac
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
44
ary
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
Nil
10 Lac
8 Lac
8 Lac
6 Lac
6 Lac
4 Lac
4 Lac
4.
Moach
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
40 Lac
40 Lac
40 Lac
30 Lac
30 Lac
30 Lac
20 Lac
20 Lac
20 Lac
Nil
Nil
Nil
5.
Gabo
Pat
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
Nil
Nil
20 Lac
15 Lac
12 Lac
15 Lac
10 Lac
8 Lac
10 Lac
-
Nil
Nil
6.
Moach
ko
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
40 Lac
40 Lac
40 Lac
30 Lac
30 Lac
30 Lac
20 Lac
20 Lac
20 Lac
Nil
Nil
Nil
7.
Gundp
ass
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
40 Lac
30 Lac
35 Lac
30 Lac
20 Lac
25 Lac
20 Lac
15 Lac
15 Lac
Nil
Nil
Nil
8.
Chath
ara
Rates Notified by Govt. in
2006
Rates proposed by ABAD in
2011
Rates
recommended
by
Scrutiny Committee in 2011.
-
10 Lac
10 Lac
-
5 Lac
8 Lac
-
3 Lac
6 Lac
-
2 Lac
4 Lac
3.
It is proposed that the market price of the land as recommended by the
Scrutiny Committee in respect of above Dehs may be approved, so that the same
may be notified as per Condition No. 8(3) of the Statement of Conditions and
Categorization of state land
4.
It is further proposed that permission may also be accorded to apply
revised rates for the cases processed and cleared by Scrutiny Committee from 1st
April, 2011.
5.
The Honourable Chief Minister Sindh, may like to pass orders on Para 2, 3
and 4.
Sd/-
SECRETARY TO GOVERNMENT OF SINDH
LAND UTILIZATION DEPARTMENT.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
45
6.
Sd/-
SENIOR MEMBER.
7.
Sd/-
SECRETARY FINANCE.
8.
Sd/-
MINISTER FINANCE.
9.
Sd/-
CHIEF SECRETARY.
10.
Sd/-
CHIEF MINISTER SINDH.â
The table reproduced above shows that the prices in 2006 were
much higher than those fixed in 2011. They, in certain cases, are not
even half of what they were in 2006. This phenomenon is amazing
and even intriguing because every passing day brings a manifold
increase in the prices of the land, but here in this case the clock
rolled back and prices witnessed a marked decline in 2011. The
learned ASC for the Board of Revenue explained the aforesaid
phenomenon by stating that no Town Builder in view of the prices
fixed in 2006 came forward to invest in this enterprise but this
statement is against the inexorable current trend of the market which
admits of no exception. The in no case stay static or step down. They,
as a matter of fact, get multiplied in days let alone weeks, months
and years. What procedure has been prescribed for determination
of market price has been highlighted in paragraph 8 of the
notification No. 09-294-03-SO-I/336 dated 25.2.2006 reproduced as
under:
â8. Procedure of determination of market price. â(1) There shall
be appointed â
(a) a price committee consisting of the Executive District
Officer (Revenue) to be the convener, Executive District Officer
Finance, District Officer (Revenue), District Registrar, Deputy
District Officer (Revenue) and two nominees of the local
Chamber of Commerce and Industries, one of them shall be
from the real estate business shall propose the market price;
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
46
(b) a scrutiny committee consisting of the Senior Member
Board of Revenue as convener, Secretaries of the Land
Utilization, Finance and concerned Department of the
Government, Chairman Investment Cell Chief Ministerâs
Secretariat and two representatives of Karachi Chamber of
Commerce and Industry, one of them shall be from the real
estate business, to process the market price proposed by the
Price
Committee
and
make
recommendations to the
Government in this behalf.
(2) The Price Committee shall propose the market price in the
District after taking into consideration:-
(i) the price of land transferred in the same area for similar use
during the past twelve months;
(ii) the valuation table notified by the Board of Revenue, Sindh
under the Stamp Act, 1899 for the purpose of levy of stamp
duty at the time of registration of a sale-deed in respect of sale
of similar land; and
(iii) such other modes as deemed fit provide a fair basis for
assessment of such price.
(3) The Price Committee shall submit its recommendation to the
Scrutiny Committee which shall after such further enquiry as
deemed fit submit its recommendation to Government for
determination of the market price.
(4) The market price determination under section 8(3) may be
reviewed at least after every three years.â
Reduction in prices, thus, cannot be said to have been based on any
reliable, rational or realistic data. It rather appears to have been
contrived and conjured to the advantage of the builders and
disadvantage of the government. Even the committee constituted in
this behalf has not cited any tenable reason to justify reduction in
prices. What mode was adopted for determining market price under
paragraph 8(2)(i)(ii)&(iii), reproduced above, is a question which
went unanswered. Why the land was not granted through an open
auction in view of para 4(a) of statement of condition issued in 2006
notwithstanding the Board and the MDA knew all along that it would
be used for commercial purposes at the end of the day is a riddle
which went unsolved. We, therefore, do not agree with the aforesaid
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
47
reduction nor do we tend to accept it as rationalization of price in
any sense of the word.
16.
This Court anticipated all this when it passed the order
on 28.11.2012 restraining the Sindh Government from dealing with the
State land. The relevant part of the order is reproduced as under:
"7. Under these circumstances, we are constrained to
direct that the Deputy Commissioner/District Coordination
Officers of Sindh, to ensure that immediately the entire
revenue record of all the district is kept in the custody of
Muthtiarkar in terms of the directives contained in the
aforesaid judgment of the High Court and shall not be
removed from the office of the Mukhtiarkar to any other
place. Moreover mindful of rampant corruption and
organized crime of land grabbing, particularly, regarding
prime state land, and mismanagement/forgeries in the
revenue record, we hereby, until further orders restrain the
Government/Revenue
Department
from
mutation,
allotment, transfer and or conversion of any state land
and or keeping any transaction or entry in the record of
rights in this regard in revenue record of Sindh or till the
entire revenue record in Sindh is reconstructed. The
conversion of lease for 30 years or of any term up to 99
years shall also be stopped immediately as by this mode
the state land is being sold out at a throwaway price
without participation of public at large, which the law
does not permit. Any further conversion or mutation of
state land in the record of rights from today onwards
would be deemed nullity and would expose the Deputy
Commissioner/DCO of the relevant districts/dehs besides
others to contempt proceedings.
A statement was made by the learned Sr. ASC representing the
Senior Member Board of Revenue and Ch. Aitzaz Ahsan, learned Sr.
ASC representing the Bahria Town that the aforesaid restraining order
was modified by a three-member bench of this Court but it sounds
strange because a three-member bench could not modify an order
passed by a five-member bench. Even otherwise, this contention
was repelled by this Court in its order dated 01.08.2016 by observing
as under:
â8. Today, the learned Counsel representing the Senior
Member, Board of Revenue, and Ch. Aitzaz Ahsan, learned
Sr.ASC, have
submitted that the aforesaid restraining order
was modified, by order dated 23.06.2014, passed by a three-
member Bench, relevant portion of the said order is also
reproduced hereunder:-
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
48
Learned Advocate General, Sindh, submits that the
order of this Court regarding stay of allotments,
mutations, transfer and conversion of any state land
is being complied with in letter and spirit.
6. We may at this stage clarify that this order staying
the allotment/grant of leases was meant to ensure
that the land is not either leased out or allotted for
reasons other than bona fide and to land grabbers
and this would not prevent the competent authority
in the Federal or Government of Sindh to allot or
lease out land for a project approved by the
concerned authority which is directed towards
establishment of any industry or automotive plant or
power generating plant or any other initiative in
public interest and in accordance with law and the
relevant rules.
The learned Advocate General, Sindh, shall convey
this order to the Chief Secretary and all the
provincial secretaries to ensure that the earlier order
is not misconstrued and no such project is held up
on that account.
9.
We may clarify that the aforesaid order dated
23.06.2014 was obtained by misleading the Court on the
pretext that re-writing/reconstruction of the record has been
completed by the Sindh Government. Today, the Senior
Member, Board of Revenue, concedes that the reconstruction
and rewriting of the record has not been completed till date.
We hold that the order dated 28.11.2012, passed by a five
Member Bench of this Court, was never modified and holds the
field
10.
This Application is allowed, subject to all just
exceptions.
11.
Copy of this order be faxed to the Chief Secretary,
Government of Sindh, D.G, MDA, the Prosecutor General, NAB,
Ch. Aitzaz Ahsan, learned Sr. ASC and Mr. K.A Wahab, AOR
(C.M.No.502-K of 2016).To come up after two months.â
When the order restraining the Sindh Government from dealing with
the state land in any manner till the reconstruction of the entire
revenue record was passed no property could be exchanged,
adjusted or alienated but the Board, the MDA and Bahria Town
having shown scant regard to the orders of the Court exchanged the
land, took possession of a great deal of property and raised
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
49
construction thereon. Anything thus done cannot be allowed to
endure even for a while. It even on this score cannot be granted any
legitimacy.
17.
A detailed analysis of the case irresistibly drives us to the
conclusion that nothing has been done in accordance with the
policy, plan and pattern projected by the relevant enactments.
Everything appears to have been justified on the ground that it is a
fait accompli. Damage done to the people and loss caused to the
coffers of the state is sought to be offset by offering to pay the
differential between the price of the government land and that of
the private land it was exchanged for, but the things having gone
irrevocably too far leave no scope for acceptance of such an offer.
It is rather a case of its own specie where the Board bypassed the
command of law and chose to dance at the drumbeats of a
business tycoon without caring what the law provided and what the
Supreme Court asked of it. The Malir Development Authority too
chose to follow the dictates of the business tycoon without caring
what the dictates of the MDA Act were. How the project can be said
to have been carried under the umbrella of Malir Development
Authority when the entire government land has been sold to the
Bahria Town for a paltry sum or exchanged for a land lying scattered
in far-off areas? What was the magic, the marvel and the miracle
that dazed and dazzled the Board and the Authority to bypass the
law and the rules? What was the impetus, the incentive and the
inciting force that lent a lightning speed to the Board and the
Authority to cover the distances of years in days, hours and minutes?
Such rapidity may have been seen in movies but not in the real life.
How the builders like the Bahria Town could cater for incremental
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
50
housing schemes when the project it launched attracted the people
rolling in billions? We do not understand how the Chief Minister, the
Chief Secretary and persons at the perch of the Board of Revenue
became privy to an individual project where public purpose, public
betterment and public welfare cannot be seen even through a
microscopic eye. The argument of the learned Sr. ASC for the
respondent addressed on the strength of the judgements rendered
in the cases of Government of Punjab. Vs. M/s Crescent Textile Mills
(supra) and Dr. Akhtar Hassan Khan and others. Vs. Federation of
Pakistan and others (supra) would
thus
sound
inane
and
unconscionable. We needed to be assisted and enlightened by the
Learned Senior ASCs for the Board, the MDA and the learned
Advocate General Sindh with an element of independence but all
the three have rather projected the case of the Bahria Town than
that of the Board and the Authority. Provisions of Colonization of
Government Lands Act and Malir Development Authority Act have
been designedly interpreted as if they were enacted for the project
launched by the Bahria Town. The mode and manner of doing the
things prima facie show that the entire hierarchy of the Executive,
the Board of Revenue and the Malir Development Authority
conspired to cede valuable public property to an individual for a
handful gain. We have been witnessing such nefarious activities in
the past at a small level, but we have not even dreamt of such
activities at such a huge, massive and colossal level. We, thus,
cannot sit with our eyes shut, hands folded and legs crossed. Inaction
would be disastrous and devastating for the state when the
watchdogs of the public property allow the grabbers to grab it for a
bone or a piece of flesh.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
51
18.
Having thus considered, we are constrained to declare
that the grant of the land to the MDA, its exchange with the land of
the Bahria Town and anything done pursuant thereto being against
the provisions of COGLA 1912 and statement of conditions are void
ab initio and as such have no existence. The government land would
go back to the government and the land of the Bahria Town
exchanged for the government land would go back to the Bahria
Town. Since a great deal of work has been done by the Bahria Town
and a third-party interest has been created in favour of hundreds of
allotees, the land could be granted to the Bahria Town afresh by the
Board of Revenue under the provisions of COGLA 1912. What would
be the terms and conditions of grant, what would be the price of the
land, whether it would be the one at which the Bahria Town sold the
land to the people by and large, how much of government land and
how much of the private land has been utilized by the Bahria Town,
and what Bahria Town is entitled to receive in terms of money on
account of development of the land are the questions to be
determined by the implementation bench of this Court. We,
therefore, request the Honorable Chief Justice of Pakistan to
constitute a bench for the implementation of this judgement in its
letter and spirit. Bahria Town shall not sell any plot, built-up unit,
apartment etc after the announcement of this judgement. Any
allotment made after the announcement of this judgement shall be
void. As a huge amount on account of allotment of plots, built-up
units and commercial buildings is still outstanding against the
allottees, some makeshift arrangement has to be made to facilitate
the recovery and secure it. We, therefore, direct the Additional
Registrar of the Karachi Registry to open a special account where
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
52
the outstanding amount against the allotments be deposited. All the
outstanding amount against allotment of plots, built-up units and
commercial buildings shall henceforth be deposited by the allottees
with the Additional Registrar of the Karachi Registry of this Court
through pay orders, demand drafts or cross-cheques. The NAB shall
pick up the thread from where it left and take its investigation to its
logical end. The investigation report which was submitted in the
Court and sealed under its order may now be collected for further
action. The investigation be completed within a period of three
months from the date of announcement of this judgement and a
reference be filed in the Accountability Court against all those who
are found responsible for causing loss to the state exchequer. We
have been told that government land has also been allotted to DHA
and many other societies on cheaper rates as compared to the rates
in this case. If so, we would request the Honourable Chief Justice of
Pakistan to take Suo Moto action in this behalf so that like be treated
alike.
19.
While parting with the judgement, we would thank
Barrister Sohaib Shahid, the Law Clerk who rendered valuable
assistance in this case.
JUDGE
I had the privilege of going through the judgement authored by
my learned brother Justice Ejaz Afzal Khan, but have not able
to persuade myself to agree with the same and would
therefore respectfully add my dissenting note annexed
herewith.
JUDGE
JUDGE
Announced in open court at Islamabad on ______________________
JUDGE
Approved for reporting
Barrister Sohaib Shahid
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
53
MAQBOOL BAQAR, J.- The question that is to be
addressed in the present proceedings is as to whether the
lands granted to Malir Development Authority (âMDAâ) by the
Board of Revenue (âBORâ), Government of Sindh (âGoSâ), were
exchanged by MDA with privately owned lands, lawfully or
otherwise.
2.
In order to address the above issue properly, we
firstly need to examine the powers, authority and functions of
MDA and its relationship with the subject lands. MDA was
created by Malir Development Authority Act, 1993 (âthe Actâ),
for the purpose of development of certain areas of Karachi
Division as enumerated in its schedule. Amongst its various
functions, as specified through section 8 of the Act, are âto
consolidate any land in such manner as may be prescribed by
rulesâ. [Section 8(1)(iii-a)]. To âdispose of any land or other
property vested in it by sale, lease, exchange or otherwiseâ.
[Section 8(2)(iii)]. To âperform such other function as may be
considered necessary for achieving the objective of the authority
or as assigned to it by the governmentâ. (Section 8(1)(xxi).
Chapter-III of the Act deals with the power of MDA regarding
declaration
of
controlled
area,
preparation
of
master
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
54
programmes, and schemes, and their execution. In terms of
section 14 of the Act, MDA may by notification, declare any
area under its jurisdiction to be a controlled area, and to
proceed
to
prevent
haphazard
growth,
encroachments,
unauthorized constructions or operations in such area, and
take steps for the planned growth therein. As per section 15 of
the Act, neither can any building be erected, nor can any
material external alteration in, or addition to, be affected in
any building without the permission of the authority. MDA, in
terms of section 16 of the Act, is obliged to prepare Master
programme(s) for the development, improvement, expansion
and beatification of such area, or such sectors of economy, as
in its opinion, or in the opinion of Government need to be
developed, improved, expanded and beautified, and submit
such programme for approval of Government. MDA, as laid
down by section 17(1) of the Act, may also prepare specific
scheme or schemes for a controlled area, or a part thereof,
either on its own accord or when so directed by the
government. In terms of sub-section 2 of section 17 of the Act,
MDA also may, on the request of any local council, government
agency, society, person or body of persons, assist in
preparation of, or caused to be prepared, any scheme on such
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
55
terms and conditions as may be settled between them. The
scheme prepared by MDA, in terms of clause (d) of sub-section
4 of section 17 of the Act, may, among other things, contain
âpublic or private property or such interest affected by the
scheme and the proposal to deal with such property or interestâ.
As provided by section 31 of the Act, MDA âmay by purchase,
lease or exchange, acquire any moveable or immovable property
or any interest therein by entering into agreement with the party
concernedâ.
3.
As regard the legality and propriety of the subject
transaction, the learned counsel appearing for the various
parties argued the case almost on similar lines. They thus
submitted that MDA in order to carry out its statutory
functions, to prepare and execute scheme(s) within its
jurisdiction of authority, required a vast stretch of land, clear
of all physical and legal obstructions, and encumbrances. In
this regard it was imperative for MDA to declare such area to
be its controlled area, so that it may prevent haphazard
growth, encroachments or unauthorized construction therein
(section 14). MDA thus in its meeting held on 12.1.2008,
unanimously resolved to declare two areas falling within its
jurisdiction, one compromising of two dehs, namely, Ghaghar,
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
56
Dhabeji, and the other comprising of seven Dehs, namely,
Allah Phihai, Shah Mureed, Narathar, Konkar, Tore Mohyo and
Shahi chib, as controlled areas for its development schemes, by
the name of, new Malir Housing Project, MDA Scheme-I,
Phase-II, and Taiser Town Phase-II. The above nine dehs were
thus, through a notification dated 25.2.2008, declared as
controlled area. MDA in its meeting held on 4.2.2013, resolved
to expand its controlled area by including thirty seven (37)
more Dehs within such area, to enable it to âprepare a master
programme for development of planning infrastructure and land
use planâ. Through notification dated 20.5.2013, the aforesaid
thirty seven (37) dehs also were thus declared as controlled
area. On 23.7.2013, MDA floated a summary for the Chief
Minister Sindh seeking his permission for âsurvey and
preparation of road network/land use planâ of the notified Dehs
and for the âadjustment of affected private survey landsâ to
enable MDA to develop the area and launch its new housing
scheme(s). The summary was routed through proper channel,
and was, after scrutiny, allowed by the Chief Minister on
05.11.2013. A notification in pursuance of the above, granting
permission to MDA for physical survey and preparation of
âroad network/land use planâ of the controlled area âand
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
57
adjustment of affected private/acquired state land required for
development purposeâ was issued on 26.12.2013. A detailed
master programme, titled, âMaster Programme Scheme-1
(Phase-I- comprising of 32 dehs out of 43 dehs), (MPS-I), and
preparation of PC-I of schemes, or schemes for execution of the
master programmeâ, was unanimously approved by MDA in its
meeting held on dated 24.1.2014. The authority in its said
meeting also approved âthe proposal for consolidation/
adjustment/exchange of the affected private/acquired state
landâ in the controlled area. The approval was duly notified by
MDA through notification dated 28.1.2014.
4.
The learned counsel further submitted that, since
throughout the controlled area there were stumbling blocks in
the way of the execution of the MPS-I, by way of private land
holdings, which holdings were essentially required by MDA for
implementation/execution of the scheme, and for acquiring
such lands MDA was required, either to pay to the private
owners, the price of the lands, or to give to the owners some
lands in exchange thereof, but MDA was under severe financial
crunch, and had no funds to pay for the purchase of the land,
nor was the Government in a position to finance the
purchases. In fact as noted by the consultant in their MPS-I
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
58
Report, the scheme so prepared was a self-financing scheme
and was not included in the than five years plan, or the
provincial annual development plan. However, as noted earlier,
MDA, in terms of the various provisions of the Act, also have
had the option of acquiring such land(s) by way of exchange,
but though the land comprising the aforesaid 43 Dehs fell
within its jurisdiction, and was also declared its controlled
area in terms of section 14 of the Act, still, for MDA to give any
land in exchange, such land was required to be transferred in
its name. MDA therefore, through letter dated 01.1.2014,
requested the Board of Revenue Sindh (BOR) to reserve some
land(s), to enable MDA to exchange the same with the private
land holding coming in the way of implementation of its
development scheme(s). The matter was ultimately placed
before the Chief Minister Sindh and was then referred to a
scrutiny committee. The scrutiny committee, which was
headed by the Chief Secretary Sindh, with the Secretaries, law,
Land Utilization, Finance, Local Government, Government of
Sindh (GoS), Senior Member BOR, Commissioner Karachi, and
Deputy Commissioner, Malir, amongst others, as its members,
in its meeting held on 23.1.2014, recommended reservation of
14617 acres of land in favour of MDA at the market price to be
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
59
determined in accordance with law. The Chief Minister Sindh
allowed the recommended reservation in favour of MDA, such
is evident from the endorsement on the relevant summary, and
also from the letter dated 24.1.2014, addressed by Secretary,
Land
Utilization
Department
(âLUDâ),
GoS,
to
Deputy
Commissioner Malir, Karachi.
5.
The LUD, accordingly reserved 14617 acres of land
in favour of MDA. Through letter dated 28.1.2014, DC, Malir
asked MDA to approach the LUD âfor payment of the market
priceâ, market price, it may be noted had already been notified
for various categories of land in the controlled area through
notification dated 29.6.2011. However, at the request of MDA
for reduction in the price, the Chief Minister Sindh, in view of
the fact that the land was granted for public purpose, and also
keeping in view the financial health of MDA, allowed MDA to
pay the price of the land at 25% of the market price. By
07.3.2015, MDA deposited a total of Rs.1.668 Billion, being the
price of 11068 acres of the reserved land, and thus secured
such land with entries in the revenue record in its favour as a
âtransferee/new ownerâ thereof. Having become the owner of
the land, MDA through public notices in various daily
newspapers, including the daily âJangâ, invited all those who
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
60
held lands in the controlled area, to exchange their lands with
MDA for the purpose of consolidation. In response five
individuals,
namely,
Waqas
Riffat,
Shahid
Mehmood,
Mohammad Awais and Wasim Riffat, (the private owners), who
owned an aggregate 9407 acres of land in the controlled area,
came forward for exchange and consolidation offered by MDA.
In order to verify the veracity and genuineness of the said
respondentsâ title to the land, MDA referred their documents to
DC, Malir/Revenue Department, and also invited public
objection as required by regulation 5(2) of the Malir
Development Authority (Consolidation/Adjustment/Exchange
of private survey lands and state regulation 2, 3), thus MDA
upon satisfactory verification, and there being no objection,
proceeded to undertake the exchange(s). However since not all
the lands exchanged with each other were equal in
value/market price, the private owners paid to the MDA the
differential amount, such was done on the basis of the market
price of the subject lands prescribed in terms of section 10-
B(1) of the COGLA through a notification dated 29.6.2011. As
per the learned counsel the total market value of the land
given by MDA in exchange for the land it acquired from the
private owners was Rs.6.12 billion, whereas the total value of
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
61
the lands received from the private owners in exchange, was
Rupees 5.589 billion, and thus the difference in value between
the two comes to Rs. 2.60 billion, out of which MDA had
already received Rs.2.40 billion, whereas .20 billion are to be
paid.
6.
The learned counsel contended that from the
foregoing narrations of facts and in view of the relevant
provisions of law as discussed earlier, it can clearly be seen
that there has not been any illegality in the subject exchanges
and the transactions were/are absolutely lawful. They
submitted that in addition to receiving the enormous amount
by way of differential in the market price of the land
exchanged, MDA has also earned an amount of Rs. 8889.064
million on account of consolidation/adjustment/exchange
charges, scrutiny fee, publication/advertisement charges, town
planning fee, and outer development charges, etc. Out of which
it has received an amount of Rs. 3754.136 million, and the
balance of amount of Rs. 4134.928 million is outstanding to be
paid.
7.
M/s Aitzaz Ahsan and Ali Zafar, learned counsel for
the private owners, with whom MDA has exchanged the land,
and the Bahria Town (Pvt.) Ltd (âBahria Townâ), respectively,
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
62
submitted that MDA and the GoS have not only benefited from
the subject exchanges in terms of cash receipts, as noted
above, but on account of the high quality conceptualization,
planning, designing, and development of the Bahria Town,
which undoubtedly can be ranked as one of the best town
developments, at least in Asia, has, apart from providing
employment to thousands of skilled and unskilled labourers,
Engineers, designers, planners and several other categories of
professionals, has also provided business to a large number of
contractors, manufacturers, suppliers, vendors, transporters
and service providers. The project according to the learned
counsel has given a heavy boost to the building/construction
related industry, and has also generated massive business and
commercial activities in the town itself. The learned counsel
submitted that the project development work and its ancillary
activities are also a major source of revenue for the Local,
Provincial and Federal Governments, and above all the
successful and impressive development in the Bahria town has
also attracted and incentivized others to come forward and
invest in the area, and develop it at a compatible level, which
has resulted in exponential appreciation in the value of land at
least within fifteen (15) kilometers of the scheme all around,
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
63
which runs into hundreds of billions of rupees. According to
the learned counsel the value of the land in the area, since
after the commencement of the Bahria Town has appreciated
at least eight to ten times. According to the learned counsel,
Bahria has set a bench mark for the others, in terms of
planning, designing, execution and implementation of town
planning and development, and in respect of various amenities
and sustainable facilities, that a full-fledged and self-contained
modern town should offer for pleasant, safe, healthy and
convenient modern living. Highlighting, some important
features of the Bahria town, the learned counsel submitted
that the infrastructure built in the town is of such a nature
and strength that it shall last for about 200 years. The town
has a theme park which is second of its kind in Asia, the
earlier being in Singapore. No developer has built or developed
a night safari park like the one in Bahria town. State of the art
hospital of European standard, with transplant facilities, is
now fully functional in Bahria town. Apart from, a top
standard school fully functioning, a university by the name of
Abdul Sattar Edhi shall soon be inaugurated. The town has its
own cinemas open to public. A dancing foundation has been
built in the town at a cost of 39 Million euros. The town
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
64
contains a 37 hole golf course constructed by a British
company at a cost of US Dollar forty million. A cricket stadium
with a capacity of forty eight thousands spectators shall soon
be completed. A world class five star hotel is under
construction. Garbage collection and management is fully
functional. Water treatment plants have been installed and are
operational. Internal clear water plants also are operational.
According to learned counsel Bahria town has invested Rs. five
billion to develop and construct an access /approach from
express way to the Bahria town and has already paid an
amount of Rs. one billion to the Frontier Work Organization for
necessary permission. They submitted that more than 150,000
people, who earlier had no job, are now engaged in property
related jobs on account of Bahria town and further that 3,000
families have already settled in the town and are living therein,
the learned counsel further submitted that more than 90,000
people have invested with Bahria. As per the learned counsel
percent 1,2,4,5,6,7-20,24,25 and 35 of the town have already
been delivered to the owners.
8.
The learned counsel contended that there was no
legal impediment in the way of exchange of the land and
referred to the various provisions of the law discussed in the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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earlier part of the judgment. They further submitted that for
the purposes of implementation and execution of their
schemes, namely, (1) Shah Latif Town, Scheme 25-A, (2) New
Malir Housing Project and (3) Taiser Town, Scheme 45, also,
MDA has undertaken exchange/adjustment/consolidation as
in the present case and that even Karachi Development
Authority (âKDAâ), the predecessor of MDA has in respect of its
various housing schemes such as, (i) Gulshan-e-Iqbal, Scheme
24, (ii) Surjani Township, Scheme-43 and (iii) Hawksbay,
Scheme-42 exchanged state land with privately owned land.
They claimed it is not only for its schemes that MDA has
exchanged lands but it has also exchanged lands with private
individuals/ entities for the latterâs projects like, (a) Roti
Corporation,
(b)
Sindh
Employees
CHS,
(c)
Omema
Construction Co. (Pvt.) Ltd., (d) Wedfry (Pvt.) Ltd., (e) Institute
of Engineers Housing Society, (f) Garden City, (g) Muslim City,
(h) Model City. Learned counsel further submitted that in fact
huge parcels of land have been allotted to entities like, Defense
Housing Authority (DHA), Fazaia, in close proximity, with the
Bahria town by the LUD, at rates far cheaper than the market
price as determined under the law. As per the learned counsel
LUD has allotted 19,640 acres of land to DHA at a rate as low
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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as Rs.1000/- per acre. Such land they emphasized lies within
the controlled area of MDA.
9.
Indeed in terms of subsection (2A) of section 10 of
the Colonization and Disposal of Government Land Act, 1912
(âthe COGLAâ), land granted under section 10 by the LUD, is
not exchangeable with private or Kabuli land, however such
restriction, as evident from the provisions of section 17 of the
COGLA, is applicable only where the land is held by the
grantee as a tenant, whereas the status of a tenant, in terms of
section 15 of the COGLA, persists with the grantee only till the
time the entire amount of purchase money is paid by him and
other conditions set forth in the statement of conditions are
fulfilled. The granteeâs status of a tenant is thus converted into
that of an owner upon his paying the purchase money, and
fulfilling the relevant conditions, thereby removing the
impediment/ restriction imposed by section 10(2A) of COGLA.
In any view of the matter, MDA being a statutory body, is
governed by its Act, which act and the Rules and Regulations
framed thereunder, as ordained by section 47 of the Act,
overrides all other laws, rules and regulations, and thus, as
rightly emphasized by M/s. Farooq H. Naek and Rasheed A.
Rizvi, Advocates, the above said restriction does not apply to
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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MDA, more so in the facts and circumstances of the case. The
Act, it may be noted, fully empowers, authorizes and enables
MDA to exchange land for the purpose of consolidation.
Section 8(1)(iii-a), thus specifically provides that, âsubject to the
general or special directions of Governmentâ, MDA shall
âconsolidate any land in such manner as may be prescribed by
rulesâ.
Whereas
the
MDA
(Consolidation/Adjustment/
Exchange of private survey lands and state lands) Regulation
2013, through its regulation No.3 and 5, prescribes an
elaborate procedure for such consolidation/ adjustment/
exchange, including for calling public objection, and for
mutation of the consequential transfer, which have been duly
complied with in the present case.
10.
The act of âconsolidation of landâ has been
described by clause (ff) of section 2 of the Act, as âadjustment
of plots in a scheme by way of exchange or otherwise for the
purposes of the schemeâ. The above definition/description does
not give way to any confusion regarding the fact that exchange
and consolidation takes place before the implementation and
execution of a scheme, it is rather a step towards such
implementation.
However,
in
order
to
have
a
clearer
perception, it may be noted that the word âplotâ used in section
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
68
2(ff) of the Act, has not been defined by the Act, and is
therefore to be read, understood, and construed in its ordinary
literary sense. The word has been defined by the Blackâs Law
Dictionary, as a measured piece of land, a lot, a track of land
especially one having specific boundaries, or being used for a
given purpose. The meanings assigned to this word by Merriam
Webster dictionary are, a small area of planted ground; a
vegetable plot; a small piece of land in a cemetery, a measured
piece of land. Whereas Chambers 21st Century Dictionary has
defined the word âplotâ as a piece of ground for any of various
uses. It can therefore be seen that the literary/dictionary
meanings of this word also fully reconciles, and are in
harmony with the purpose and spirit of the concept
âConsolidation/Adjustment/ Exchangeâ as envisaged by the
Act, and goes well with the scheme of law, being the
consolidation of land for the purpose of a scheme. It hardly
needs to be mentioned that it is only after the consolidation of
land, by way of exchange and adjustment, that various
residential, commercial, amenity and/or industrial plots are
carved out, created and demarcated through a layout plan/site
plan,
according
to
the
scheme,
and
not
before
the
consolidation, and therefore, the word âplotâ as employed by
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
69
section 2(ff) of the Act, cannot be said to mean, âa residential
plot, residential cum commercial plot, industrial plot, or a flat
site in any schemeâ, which meaning has been assigned to the
word by Rule 2 (j) of the MDA Disposal of plot Rules 2006,
which definition, as is patently clear, even from the
nomenclature of the said Rules, has been given to the word, in
the limited context of disposal of plots and is also not
exhaustive. The definition does not exclude the ordinary/
literary meanings of the word, it merely specifies the kinds of
plots that can possibly be created and allotted in a scheme,
and cannot be borrowed to be read into the definition of
consolidation under section 2(ff) of the Act. It may also be
relevant
to
recall
here
that
the
subject
exchange/
adjustment/consolidation, has in fact been permitted by the
Government for the purposes of implementation and execution
of the scheme proposed through the master programme.
Whereas the Master Programme provides for the subject
exchange/ adjustment/ consolidation, accordingly, which plan
also has been approved by the government, a voluminous
report of which programme (titled, the Master Program
Scheme-I, Phase-I, in respect of 32 dehs, within the controlled
area where exchanges have taken place), contains all the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
70
necessary information and details regarding the essential
features of the Master programme and matters ancillaries
thereto. Whereas section 17(4) (d) says that the scheme(s)
prepared by MDA, shall among other things contain, inter alia,
public and private property or such interest affected by the
scheme and the proposal to deal with such properties or
interest. In other words, while preparing a scheme MDA is
required to suggest and provide for the ways, means and
manner in which it propose to deal with any property, which
may be affected by the scheme, and has in the present case
accordingly provided for the exchange and consolidation of
such property/land, which was duly approved by GoS, and has
accordingly been implemented in consonance with the relevant
provision of law.
11.
MDAâs power to exchange land(s) is further
reinforced and fortified through clause (iii) of sub-section (2) of
Section 8 of the Act, which says that âthe authority may
dispose of any land or other property vested in it by sale, lease,
exchange or otherwiseâ, which provision is fully applicable to
the present case, as upon making payment of the market price
and execution of lease deeds of the subject lands in favour of
MDA by LUD, GoS, for ninety nine (99) years, the title of the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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land vested in MDA, enabling it to exchange the land as
mandated by the government.
12.
It may be relevant to note here that the subject
reservation/transfer/grant of land was not a transfer or a
grant in favour of a private individual, or a private or
commercial entity, but was in favour of a statutory body,
discharging functions of the State under the control of the
Government. The land was so granted for carrying out the
mandate of law by development of a housing scheme, and
thereby uplifting the entire area consisting of thirty two (32),
dehs, measuring about 406071.16 acres, (mostly barren),
which certainly is a public purpose. In fact by reserving and
transferring the subject lands, GoS has in fact put the land to
a use for carrying a public purpose, through MDA. The grant of
land under discussion was/is immune from the restriction
contained in section 10(1) (2-A) for this reason also.
13.
As to how and why Bahria is undertaking the
development work within the controlled area, it may be
observed that firstly, the lands wherein Bahria is developing its
town has not been granted or allotted to it by GoS or MDA,
but the same have been acquired by it by way of exchange
through the five private owners who originally also owned
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
72
lands within the controlled area and gave away the same for
the present lands to achieve mutual/reciprocal consolidation,
secondly, the Act does not necessarily require even a master
programme, or the Scheme(s) thereunder to be executed by
MDA itself, on the contrary the various clauses of section 8 (1)
& (2), more particularly clauses (xii) to (xv) of sub-section (2),
envisages the development/ execution of the scheme(s), being
undertaken by parties other than MDA also, in fact the Malir
Development Authority (Consolidation/ Adjustment/ Exchange
of private survey lands and state lands) Regulation, 2013,
through
its
regulation
4(4),
provides
for
issuance
of
development permits within the notified development scheme
and controlled areas. The said regulation also prescribes a
procedure therefor. Thirdly, the approved master programme
itself provides for development by private housing societies and
land(s) have been reserved for such purpose accordingly.
Fourthly, the development being carried by Bahria is in
consonance with the purpose and mandate behind the creation
of MDA. Bahria is thus promoting a public purpose. It is now
well settled that acquisition of land for developing a township
or residential or commercial plots is a public purpose. Such an
undertaking by a non-governmental concern is a norm rather
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
73
than an anomaly, and according to the learned counsel for
Bahria even in the controlled area, and the area notified for the
Master Programme, various concerns, developers, builders and
housing
societies
have,
and
are
undertaking
such
development, and to some of them like DHA and Fazaia, BOR
itself has granted lands within the controlled area. As per
learned counsel such allotment to DHA is made at a rate(s) far
less than those applied in case of Bahria.
14.
It is indeed true that the market price(s) notified on
29.6.2011, on the basis whereof the differential amount in the
value of the subject exchanges were calculated were mostly
lower than those fixed in the year 2006. However, the said
prices of the year 2011 which were applicable at the relevant
time, were fixed, approved and notified on the recommendation
of a Scrutiny Committee constituted under condition No.8
(1)(b) of the relevant statement of conditions. The scrutiny
committee was headed by the Senior Member BOR, with
Secretary LUD, two representatives of Karachi Chambers of
Commerce and Industry (KCCI), Executive District Officers of
Karachi, Hyderabad and Jamshoro, as its members, and as
evident from the minutes of its meeting dated 18.5.2011, the
committee
made
such
recommendations,
after
lengthy
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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deliberations in a series of meetings, wherein the proposal of
the district price fixation committee were analyzed, thoroughly
and the representative of KCCI apprised the committee that
the rates of the government lands fixed in the year 2006 were
three to four times higher than the real market price, which
excessive rates discouraged investment in the industrial
sector, hampered its growth, and diverted investment towards
other venues, causing a heavy dent to the economy. According
to him, due to recession, the market rate of lands had dropped
to almost 50%. The KCCI representative supported the
rationalization of rate done by ABAD and the District Price
Committee, which were found to be in consonance with the
than prevailing market prices. Similarly, the Chairman ABAD,
apprised the committee that private owned lands were
available for sale at rates below the rates notified in the year
2006, and suggested 35% to 50% reduction in such rates. The
EDO
(Revenue),
Karachi
also
informed
that
prices
recommended by the District Price Committee were in
consonance with the prevalent market rates, which rates
according to him, were mostly lower than the rates notified in
the year 2006. He apprised the scrutiny committee that the
bench marks recommended through condition No.2 of the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
75
relevant statement of conditions notified on 25.2.2006, being,
(i) the prices of lands transferred in the relevant locality for
similar use during the past twelve months and (ii) the
valuation table notified by the BOR, Sindh, in respect of
similar lands, under the stamps Act, 1899, were kept in view,
and all other appropriate means and method were employed by
the district price fixation committee while assessing and
recommending the market price. The scrutiny committee, in
view of the foregoing and after taking into consideration the
other relevant parameters, and collecting market intelligence,
recommended four different categories of lands being category
A-1, A, B, C, and also recommended fixation of per acre price
of each such category of lands in different dehs, as per the
than prevalent market price, which recommendations were
duly approved and were notified on 29.6.2011. It may be
noted here that before recommending the categories of lands
as noted above, the scrutiny committee considered the
recommendation of a sub-committee constituted under the
members LUD, for the purpose, in that regard.
15.
From the forgoing it is now abundantly clear that
the subject exchanges have been affected in accordance with
the law and that there has been no illegality in the process.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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The exchanges were made to promote and facilitate the cause,
purpose and intent behind the creation of MDA, being the
development, improvement and beautification of the area. The
development of a town that was made possible by the subject
exchanges/consolidation of lands, has not only brought huge
revenue and created opportunity for such generation with a
much greater proportion in future also but has given to the
port city of Pakistan, a new town with massive infrastructure,
utilities and amenities and has also resulted in creation of jobs
and business opportunities for good number of people. This
development of the project has also largely contributed to the
enormous appreciation in the value of the land in the area,
which land is mainly owned by GoS and has given boost to the
development activities around it. It is also likely to contribute
to the economic and social wellbeing of the people who have
been living in the area of the town and around it since before
its development, which area until only a few years before was a
desolate barren place.
16.
Indeed it is one of the prime obligation of the State,
the Government and the MDA, to provide for housing for lower
and middle income group, however, looking at the level of
capacity, capability, competence, conviction and commitment
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
77
of our public sector organization, and the lack of resources
they suffer from, it cannot be said with any degree certainty
that the controlled area would have been better-of without the
subject exchanges and development that has taken place on
the lands consolidated in consequence thereof, more so
keeping in view the fact that MDA which was created in the
year 1993 has till date not been able to make any substantial
or significant development and has not been able to initiate
any housing scheme since after its three schemes mentioned
earlier, which too cannot be taken as example to emulate.
17.
As regards the fact that many of the lands in
exchange whereof the five private owners/Bahria were given
the present lands were far away from the highway, it may be
noted that in the first place it was only the owners of the said
land who came forward for the offered exchange/consolidation
and
further
that
in
the
area
where
these
private
individual/Bahria have been given land in exchange, they in
fact also own lands other than those they obtained in exchange
and thus this area also was not free from private holdings, to
enable MDA to develop its own scheme there. Furthermore the
exchange and consolidation has been done for the mutual
benefit of both the parties, by way of compaction and
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
78
consolidation of their lands. In fact the value and utility of the
lands which were far away may also have improved
substantially for the reason that the development and growth
in the area in the shape of Bahria town and the development
that has followed it, the said distant lands have become closer
to the well developed and well grown areas, which has
prompted further growth and development around it.
18.
The above does not at all mean that the
State/Government and the authorities and organizations
working under it should abdicate their legal and constitutional
role to develop, construct, and provide for housing and other
amenities for the lower and middle income group. The GoS and
MDA should therefore work towards enhancing their capability
by employing/engaging competent and committed personnel
with sincerity of purpose. They should provide funds for
developing townships for lower and middle income group,
keeping in view their welfare and betterment, and for self-
contained, comfortable, sustainable, environmental friendly
living with fast, convenient, economical and sustainable access
and mobility, and with all other necessary facilities and
amenities like, water, gas, electricity, parks, playgrounds,
educational institutions and complete health care system.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
79
19.
It may be noted that Malir District which is under
the jurisdiction of MDA comprises of 631848 acres of land and
therefore there is no dearth of space or land for the planning
and development of such schemes as envisaged above, and if
done with proper planning, prudence, honesty, sincerity, and
with professional approach some land can also be used for
lawful commercial exploitation for generating funds for the
proposed development.
20.
However, since as noted above, the subject
exchanges have been done lawfully and did not suffer from any
blemish and there is not even a prima facie evidence of any
malafide in that regards, nor has it been alleged that any
officer involved in the exercise, made any personal gain out of
it, the matter therefore does not call for any interference. Minor
deviation of rules and regulations, if any, would not justify the
judicial review of the subject decision made by the competent
authority. It is now well laid down that where a competent
authority makes a lawful decision, it would not be just and
proper to interfere therewith as the decision made in
accordance with the mandate of law falls within the domain of
the executive. It is not for the courts to determine as to
whether a certain policy or a particular decision in pursuance
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
80
of such policy is fair or appropriate. The power of judicial
review should be exercised by the Courts in furtherance of
public interest and it is only in cases where it would be in the
larger public interest.
21
However, since some of the lands received by MDA
in exchange from the private owners are distantly located, and
though it is claimed that the differential amount charged is
based on the market price lawfully determined, by keeping in
view all relevant factors, but, since not much material in
respect of such claim has been placed before us and the
learned counsel for Bahria has himself offered reevaluation of
the lands involved and to pay any further amount thus found
due and payable, we therefore find it appropriate to constitute
a Committee comprising of the following persons:-
Mr.
Nasir
Mahmood
Khan
Khosa,
Ex-Chief
Secretary,
Punjab, Lahore
Chairman
Mr. Shabbar Zaidi, Managing
Partner, AF Ferguson & Co.,
Chartered Accountant, Karachi
Member
Secretary, LUD, GoS
Member
Secretary, Finance, GoS
Member
Mr.
Arif
Hassan,
Architect,
Visiting
Professor,
NED
University, Karachi, Chairman
Orangi Pilot Project, Research
and Training Institute, Karachi
Member
Mr. Kaiser Bengali, a prominent
economist, Karachi
Member
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
81
Mr. Jamil Yousef, Chainman
TPL Corporation Ltd., former
Chairman CPLC, Karachi
Member
Mr.
Karamat
Ali,
Executive
Director, Pakistan Institute of
Environmental
and
Labour
Research, Karachi
Member
One (01) member from KCCI, to
be nominated by the Chairman
in
consultation
with
the
president
KCCI
who
should
preferably be from real estate
business.
Member
The Committee shall assess and evaluate the market price(s) of
the lands exchanged between MDA and the five private
owners/Bahria that prevailed at the time of the exchange(s), by
first bifurcating the lands into different categories, keeping in
view the relevant characteristics of the various parcels of the
lands in terms of their distance from super highway and those
other approaches that were available at the relevant time. The
other factors that shall be kept in mind in effecting the above
categorization shall be the distance of each portion of the land
from the general post office, Karachi, or from any other land-
mark
found
appropriate,
its
contiguity,
contours
and
topography, and may be its geology, if and where relevant. The
exercise shall be carried out with the assistance of the senior
most officer from the Survey of Pakistan and also with
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
82
assistance of such officer from the Survey Department of
Government of Sindh, qualified and competent to conduct
and/or supervise the same. The committee shall on the
recommendation of Mr.Arif Hassan, Architect, Member of the
Committee, also engage independent experts/professionals
from amongst the best in the field, in terms of qualification,
experience and integrity, to be part of the survey and
demarcation Team. Upon the above categorization the
Committee shall proceed to assess and evaluate the market
price of each of the said categories for a development project
with reference to the relevant time. In doing so the Committee
shall keep in view the location of each category, its contiguity,
its distance from the super highway, and also from all other
approaches that existed during the relevant time and also the
quality, width and motorability thereof. The other determining
factors should also include the availability, nature and
distance of potable water, gas and electricity, the estimated
cost of providing basic amenities to the said categories/zones
with reference to the relevant time and the price at which
similar category/nature and sizes of lands were sold in the
vicinity, or similar vicinities during one year of the relevant
time. Information regarding the relevant market price shall
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
83
also be gathered from independent Estate dealers of high
repute and integrity, who have been operating in the area since
before 2014 and had worked as such at least upto the year
2015.
Such
information
should
be
duly
verified
and
authenticated in the safest possible manner. The Committee
shall also seek assistance from some highly reputable property
evaluators/assessor, from amongst the panel nominated by
the State Bank of Pakistan and the scheduled banks in the
country. The future potential that the land promised at the
relevant time shall also be kept in mind. The Committee shall
also adhere to the other recognized principles and practices in
vogue for the requisite assessment/evaluation. All material
containing the relevant information, and/or on the basis
whereof the Committee and/or any of its member rely, for its
analysis and evaluation, shall form part of the report. Before
submitting its report the Committee shall also hear an
accredited representative of Bahria Town. Since the
Committee comprise of Economists, Chartered Accountants,
Architects, businessmen, Government Officials and other
persons of eminence from different fields, they also may, on
their own, or with the assistance of such professionals/experts
whom
they
find
suitable,
prescribe
the
evaluation
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
84
criteria/formula, and the ways and means for conducting and
carrying out the above exercise. The Malir Development
Authority,
Karachi
Development
Authority
and
all
the
departments/functionaries of the GoS particularly, the Local
Government Department, Commissioner Karachi, Board of
Revenue,
Land
Utilization
Department,
The
Municipal
Commissioner, Karachi, Secretary Finance, Government of
Sindh, Home Secretary, Government of Sindh, who may be
called upon by the Committee to facilitate and to provide
assistance to the Committee in carrying out the above
mandate, shall readily and promptly meet the requisition. The
IGP, Sindh as well as DG Rangers shall provide adequate
security to the Committee Members during the conduct of the
above task, as and when required by them. Bahria Town shall
bear all expenses incurred in the above exercise, including the
remuneration of the professionals/ staff/field staff engaged by
the Committee for the task, and shall also provide to the
Committee and its field staff the required transport. The fee of
the Members of the Committee shall be determined by the
Court keeping in view the volume of work done and the time
consumed. Bahria Town shall within four days from today
deposit with the Nazir of the High Court of Sindh an amount of
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
85
Rs.20,00,000/- (rupees Two hundred thousand only) towards
the expense that may be incurred by the Committee and shall,
deposit such further amount as and when may be required by
the Committee. The amount so deposited shall be released by
the Nazir as and when requested by the Chairman of the
Committee to enable the committee to meet its expenses
towards its task. The committee shall conclude the above
assigned task within two (02) months from today and submit
its report to the Court so that appropriate order be made by
this Court accordingly. The Registrar of this Court shall
instantly inform the Chairman and Members of the Committee
about the instant order and send to them copies of the order
so that a preliminary meeting of the committee be convened by
the Chairman at the earliest and the committee may proceed
to comply with the orders at a fast pace.
(Justice Maqbool Baqar)
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
86
Faisal Arab, J.- I have had the privilege of going through the
judgment proposed by my learned brother, Ejaz Afzal Khan, J and
am in respectful agreement with his opinion. However, I wish to
discuss certain aspects of the case as I look at them.
2.
The record produced on behalf of Malir Development
Authority (MDA) reflects that in the meeting held on 30.01.2013, a
decision was taken to provide 2500 low-cost housing units in all MDA
schemes in line with the Prime Ministerâs Housing Program. On that
very day thirty-seven Dehs of Karachi were notified as controlled
area of MDA. The number of notified Dehs was later raised to forty-
three on 20.05.2013. Minutes of MDAâs meeting held on 23.07.2013
show that Director General, MDA has sent a summary to the then
Chief Minister seeking approval of MDAâs own housing schemes
described as Schemes No. 2 to 4. This summary was followed by
another summary for revival of Malir Development Authority Act,
1993 which at that time was not in force. On 27.11.2013, Malir
Development Authority (Revival & Amending) Ordinance, 2013 was
promulgated reviving Malir Development Authority Act, 1993 with
retrospective effect. After such revival, the then Chief Minister of
Sindh on 26.12.2013 approved the proposals made in the summary
dated 23.07.2013 for launching MDAâs schemes No.2 to 4 and for this
purpose MDAâs governing body i.e. the Board needed to be
constituted which was accordingly done on 20.01.2014 and on the
very next day i.e. 21.01.2014, the newly constituted Board convened
its meeting and sent a summary to the Government of Sindh to
reserve nine out of forty-three Dehs for its housing schemes.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
87
3.
The record of this case also reflects that while all this was
being done, Bahria had already emerged on the scene on
25.09.2013 and through extensive publicity invited applications from
the general public for grant of membership against payment of
Rs.15,000/- as only members were to become eligible for making
bookings in its three schemes namely âBahria Icon Towerâ in Clifton,
âBahria Towerâ on Tariq Road and âBahria Town, Karachi. The location
of the last mentioned scheme, which is the subject matter of these
proceedings, was however not disclosed at that point in time. On
26.01.2014, through another cycle of advertisements, Bahria for the
first time disclosed to the public the approximate location of its
scheme âBahria Town Karachiâ as 9 KM from Karachi Toll Plaza on the
Super Highway and a 25-minute drive from Jinnah International
Airport. The advertisement offered for sale (i) residential plots
measuring 2000, 1000, 500, 250 and 125 square yards, (ii) commercial
plots measuring 250, 200 and 125 square yards, (iii) built-up houses on
plot sizes 125 and 200 square yards and (iv) apartments having 2, 3
and 4 bedrooms. Residential plots were priced between Rs. 8,600/-
per square yard to 14,250 square yards. Commercial plots were
priced between Rs.99,600 to Rs,100,000/- per square yard. In
February, 2014 an overseas block of the scheme was also launched
offering plots to non-resident Pakistanis at rates charged in US dollars,
which were relatively higher than what were offered to the general
public. Bahria then started developing its scheme in Dehs that were
part of MDAâs notified area and that too in absence of any lawful
agreement to launch its scheme with MDA. Thus Bahria expanded its
scheme in five Dehs falling within MDAâs controlled area namely Deh
Bolhari, Deh Langhaji, Deh Konkar, Deh Kharkharo and Deh Kathore.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
88
Several copies of the minutes of MDAâs Board meetings of 2013 and
2014 have been filed but none of them reflect that Bahria was
granted permission to launch its scheme on the land falling within
MDAâs controlled area. On the contrary at that point in time MDA
had sent another summary dated 21.01.2014 to the then Chief
Minister wherein nine Dehs of controlled area were identified for
launch of MDAâs own housing schemes. In the said summary there
was no mention of allowing Bahria to launch its own scheme in any
Deh falling in MDAâs controlled area.
4.
While the work on Bahria Town scheme was underway
on the land on which MDA on papers was planning to launch its own
schemes, Bahria set out four of its agents on a shopping spree to
purchase whatever land they could find in other Dehs falling in
MDAâs controlled area with the sole intention to exchange the same
for the land in Dehs on which Bahria had already launched its
scheme. These four agents then claimed to have succeeded in
âpurchasingâ 7068 acres of small and medium sized scattered parcels
of land located at scores of far flung locations of thirty-nine notified
Dehs. It has come on the record that in many cases, title of owners
who had sold their land to the agents of Bahria was either not
complete as their co-owners had not agreed to sell their share or the
title of certain lands was not duly verified. However, Bahriaâs agents
very conveniently and in no time succeeded in exchanging the land
they claimed to have lawfully purchased with the land which Bahria
had already occupied and commenced work on its scheme since
January, 2014. Thus, it is apparent that the Bahria Town Scheme was
launched at a time when Bahriaâs agents had not even completed
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
89
their task of purchasing lands, which could be exchanged with MDA.
Satellite imageries of the township also confirm that Bahria had
started development work on the ground by constructing roads and
carving out plots soon after inviting applications from the general
public in January, 2014 i.e. much before the agents of Bahria had
completed their task to purchase land in far flung areas which were
to be offered in exchange. Thus, it has become quite apparent that
Bahria entered upon MDAâs controlled area for launching of its own
scheme without any written authorization in this behalf from MDA. It is
for this reason that no demarcation of the land that was to be
assigned for Bahriaâs scheme was ever carried out. One cannot
imagine that MDA would allow Bahria to invite applications from the
general public and enter upon a very vast expanse of land falling
within its controlled area starting right from main Super Highway
without any backdoor understanding.
5.
From the minutes of several meetings held by MDAâs
Board and the summaries sent to the then Chief Minister in the years
2013 and 2014, it is evident that Malir Development Authority Act,
1993 was revived in November, 2013 and its Board constituted to
facilitate launching of its own schemes in eleven out of forty-three
Dehs falling within its controlled area. For such purpose, MDA also
hired services of Logix Private Limited on 03.09.2014 for a hefty fee of
Rs.280 million to act as its consultant in the preparation of master
program Scheme No. 2 to 4. It is also astonishing to note that MDA
hired services of yet another consultant namely ECIL in the same year
i.e. 2014 for another hefty fee of Rs.280 million to act as its consultant
in the preparation of master program No.1, Scheme 1 on the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
90
remaining thirty-two Dehs falling within its controlled area. The entire
paperwork of MDAâs intentions to launch its own schemes after
engaging two consultants for a hefty consultation fees of Rs.560
Million as is evident from several minutes of the meetings and
summaries sent to the then Chief Minister seems to be was just a
hoax, an eye wash. The quiet understanding was to allow Bahria to
launch its own housing scheme in five Dehs and derive whatever
benefits it can. Thus most prized piece of land in MDAâs entire
controlled area located near the developed area of Karachi was
quietly allowed to go into the hands of Bahria merely on the pretext
of exchange for scores of scattered parcels of lands located in the
remote parts of thirty-nine Dehs, title of which too was not entirely
free form doubt.
6.
Malir Development Authority (MDA) as the name
suggests, is an entity entrusted with the obligation to plan, develop
and execute housing schemes in its controlled area. It was argued
that MDA allowed Bahria to launch its scheme on account of its
financial constraints. The MDAâs record show that the main reason
that prompted MDA to launch its housing schemes in the year 2013
was to generate funds to ameliorate its precarious financial
condition. This object could have only been achieved had MDA itself
sold plots to the general public and not by giving up land in its prized
five Dehs to Bahria, which then went on to occupy 12157 acres of
land. What a pity that MDA with the largest government land
available at its disposal in the city of Karachi which would have
made it the most financially viable public sector development
authority of the province, squandered the opportunity in favour of
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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Bahria at a stage when it was a cash strapped entity. Record also
reflects that MDA has benevolently worked out the value of 7068
acres of most priced land in MDAâs controlled area at Rs.6.12 Billion.
This value for land located in the city which is commercial hub of the
country is ridiculously low. This reminds me of the value of land having
the potential to be utilized for housing that was prevalent at about
the same time i.e. four or five years ago in Matli, District Badin, Sindh
where I am from. There the value of land on the outskirts of Matli
Town for its utilization for housing at that time was around
Rs.5,000,000/- (five million rupees) per acre. Matli is only a town, it is
not even a district. 95% of the readers of this opinion would not even
know whether any town by this name exists. Here we are dealing
with land located in Sindhâs largest city which is not only a port city
but the commercial hub of the entire country.
7.
It is also surprising to note that in the written arguments
counsel for Bahria has claimed that apart from the price of 7068
acres of land, Rs.8889.064 Million, in other words Rs.8.89 Billion are also
payable to MDA towards various charges, scrutiny fee, advertising
charges, town planning fee etc. out of which 3754.136 Million have
been paid and the balance Rs.5134.928 Million is outstanding. This
canât be correct. It is unimaginable that above referred charges
could be to the extent of Rs.8889.064 Million or Rs.8.89 Billion
exceeding even the value assessed by MDA for 7068 acres of its
land. The quantum of such charges appear to be misleading.
Considering the stature of the counsel who have stated so in his
written submissions, hopefully such misleading figures may not have
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
92
been deliberately stated and could be on account of some
typographical mistake.
8.
It is claimed that Bahria is presently in occupation of
12156 acres of land, well beyond 7068 acres occupied in exchange
for scattered parcels of lands located in the thirty-nine Dehs. Let us as
an example work out an approximate financial worth of atleast these
7068 acres only, which can be done on the basis of facts and figures
that have come on the record. When 40% of 7068 acres i.e. 2,827
acres are excluded on account of its utilization for amenities such as
roads, pathways, mosques, parks and other public places etc., the
remaining 60% area i.e. 4241 acres could safely be presumed as
marketable land, having the potential of being offered for sale as
residential and commercial plots, built-up houses and apartment
buildings or put to other revenue generating enterprises of Bahria
Town itself. The area of 60% of marketable land translates into i.e.
20,525,472 square yards. 7% of this marketable area could safely be
said to come under commercial use and the remaining 93% under
residential. The average price for commercial plot fixed by Bahria
itself in its advertisements in the year 2014 was Rs.99,600/- per square
yard. This commercial rate for 7% of marketable land (1,436,783
square
yards)
at
the
advertised
rate
translates
into
Rs.143,103,591,000/-.
The
remaining
93%
of
marketable
land
(19,088,689 square yards) at an average rate at which Bahria sold
residential plots to the general public i.e. Rs.10,000/- per square yard
translates into Rs.190,886,890,000/-. Both these estimates of residential
and commercial use are for 60% of 7068 acres only. The value of the
remaining 40% land has not been taken into consideration as the
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
93
same is allocated for various public amenities such as roads,
pathways, mosques, parks and other public places etc. It may be
clarified here that Bahriaâs financial gains from constructed built-up
residential houses, apartment buildings as well as other revenue
generating facilities in the scheme have not been taken into
consideration in the above estimates as profits made therefrom does
not relate to estimating the financial worth of the marketable land
out of 7068 acres of land. This value on the basis of above
computation can be summed up as follows: -
Value of commercial utilization of land:
Rs.143,103,591,000/ -
Value of residential utilization of land: Rs.190,886,890,000/-
Total value of both the above:
Rs.333,990,481,000/-
From the above revenue estimate of approximately 334 billion rupees
following estimated expenses can safely be deducted to arrive at
the net gain which Bahria would have eventually made from
marketable land only.
In Billions Rupees
Estimated revenue as worked out above:
334
Less: planning and consultancy charges etc.:
2
20% of revenue for infrastructure/ amenities:
67
Management, admin expense:
7
10% of total revenue for Bahria as its role of
property developer:
33
Total deductions from gross earnings from land only: 109
109
Net estimated gain from marketable land:
225
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
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9.
From the above estimate of net gain it is quite apparent
that Bahria could exclusively make a whopping 225 Billion Rupee
from 7068 acres of land at the cost of MDA surrendering its role as a
real estate development authority. Had MDA launched its own
schemes on the land in question with all sincerity and honesty and
had hired services of experienced and reputable real-estate
consultants and land developers or for that matter even entrusted
the development and planning works to Bahria for a hefty fee even
then notwithstanding the incompetency and lack of vision of its
management, the net gain for MDA would have atleast been
somewhere around 150 Billion Rupees as against the 225 Billion
Rupees of net estimated earnings which Bahria was going to make
from 7068 acres of land. What a charity on the part of MDA at the
state expense to say the least whose own job is to plan, develop and
execute such schemes and not to barter away land which it
obtained from the Board of Revenue at concessional rates for
launching its own schemes. What a pity that MDA, with the largest
government land available at its disposal in the city of Karachi and
with it came the opportunity of becoming the most financially viable
public sector development authority of the province threw the
opportunity out of the window and continue to remain a cash-
strapped entity not having sufficient funds even to pay for the
salaries of its employees in time.
10.
MDA had the chance to generate a huge amount of
money which would have been used for developing other areas
falling under its controlled areas but it squandered the opportunity.
The functionaries of MDA and Government of Sindh very graciously
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
95
allowed its most prized land located in its controlled area near the
developed area of Karachi to be occupied by Bahria and to justify
such occupation got it exchanged for scattered parcels of lands
located in the most remote parts of thirty-nine Dehs was used in
defence. Even if it is presumed that wrong decision on the part of
MDA and the Government of Sindh was on account of their
inefficiency and incompetency, if not for anything else, all this has
caused a colossal financial loss to MDA which cannot be ignored
and must be probed into. The exchange in question even otherwise
is prohibited under Section 17 of the Colonization of Government
Lands Act, 1912 and there is a sound reason for that. The status of
Qabooli land is that of a freehold property. Its ownership is in
perpetuity, hence vests in the person who owns it in absolute terms.
The reason behind imposing prohibition on exchange of Qabooli
land with the land granted by government on lease is that land
granted on lease, be it for 30 years, 99 years or any other term,
becomes a source of income for the government. Upon expiry of
lease period the same becomes renewable only on payment of
lease money. If such land is exchanged with Qabooli land then the
person who has surrendered Qabooli land for leased land may claim
that his title to the exchanged land be also treated the same i.e. in
perpetuity as was held by him in the Qabooli land which he gave in
exchange. The legislature did not intend to allow such a claim to
arise as it would close a perpetual source of income for the
government upon expiry of lease period, which is necessary to
augment financial resources to runs its affairs. It is for this reason that
prohibition on exchange with Qabooli land has remained in force on
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
96
land that is granted under the provisions of Section 10 of the
Colonization of Government Lands Act, 1912.
11.
Bahria Town Scheme no doubt has a dynamic modern
design and its layout gives a spectacular look and is also being well
organized by its management but does that mean that this should
be one of the considerations in overlooking the illegality committed
in the transfer of MDAâs land in its favour. From the voluminous record
of MDA placed on record it is established that no Board meeting of
MDA was held in which decision was taken as to what land from its
controlled area was to be handed over to Bahria for its scheme,
what to speak of settling the terms and conditions on which it was to
be handed over. It is for this reason that no site plan was prepared to
show on what date, how much land, from which Dehs and with what
boundaries is being handed over by MDA to Bahria. Presently Bahria
is in occupation of 12157 acres in the above referred five notified
Dehs which MDA had acquired from Board of Revenue at
concessional rates for launching its own schemes. It is really
astounding that Bahria first occupied most valuable land available in
MDAâs controlled area without any legal process and straight away
launched its scheme and later requested MDA to exchange the land
under its occupation for several parcels of land which Bahria at its
own convenience had purchased through its agents in far off
scattered locations of thirty-nine Dehs and MDA and Government of
Sindh bent backwards in obliging it and quietly abandoned the
launch of MDAâs housing schemes on such land. Bahria may have
the reputation of being one of the leading property developers of
Asia but then it should do its business on legitimately acquired land.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
97
Bahriaâs remarkable reputation as property developer cannot weigh
in when the validity and legality of the state land that it had
occupied is examined. I, therefore, entirely agree with the
comprehensive and well-reasoned opinion of my learned brother,
Ejaz Afzal Khan, J declaring the whole transaction between MDA
and Bahria to be nullity in the eyes of law.
JUDGE
Dated: 4th of May, 2018.
CIVIL MISC. APPLICATION NO.376-K OF 2014 IN S.M.C. NO.16 OF 2011.
98
ORDER OF THE COURT
With the majority of two by one, the final order of this Court is
recorded in paragraph 18 above of the majority judgement.
JUDGE
JUDGE
JUDGE
Islamabad
04 May 2018
Barrister Sohaib Shahid
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Amir Hani Muslim
Mr. Justice Mushir Alam
C.M.A No.376-K OF 2014 IN SMC No.16 OF 2011
(Application against the illegal adjustment in Revenue Record Land is being
given to Bahria Foundation, filed by Syed Mehmmod Akhter Naqvi)
C.M.A No.450-K OF 2014 IN SMC No.16 OF 2011
(Objection in CMA no.408-K/2014 filed by Syed Mehmood Akhtar Naqvi)
C.M.A No.275-K OF 2014 IN C.M.A No.376-K OF 2014
(Written arguments on behalf of the Senior Member Board of Revenue, Sindh)
CRL.O.P. No.20-K OF 2014 IN C.M.A No.376-K OF 2014
(Syed Mehmood Akhtar Naqvi Vs. Malik Israr, Sr. Member Board of Revenue Sindh)
CRL.O.P. No.21-K OF 2014 IN C.M.A No.405-K OF 2014
(Syed Mehmood Akhtar Naqvi Vs. M. Ali Shah, Dy. Commissioner, West Karachi)
CRL.O.P. No.22-K OF 2014 IN C.M.A No.406-K OF 2014
(Syed Mehmood Akhtar Naqvi Vs. Muhammad Qazi, Dy. Commissioner, Malir)
CRL.O.P. No.23-K OF 2014 IN C.M.A No.408-K OF 2014
(Syed Mehmood Akhtar Naqvi Vs. Muhammad Sohail, DG, MDA. Karachi)
C.R.P. No.32-K OF 2015 IN C.M.A.376-K OF 2014
(Muhammad Sohail Vs. Syed Mehmood Akhtar Naqvi and another)
For the Petitioner :
Syed Mehmood Akhter Naqvi (in-person)
For Respondents :
Mr. Farooq H. Naek, Sr.ASC. for BOR.
Ch. Aitzaz Ahsan, Sr.ASC, for Private
Respondents.
Mr. K.A Wahab, AOR. (C.M.A.502-K/16)
Dr. Raana Khan, AOR, (Crl.O.P.6-K/16).
Mr. Zameer Ghumro, A.G, Sindh.
Mr. M. Siddiq Memon, Chief Secretary,
Sindh.
Mr. Rizwan Memon, Sr.Member, BOR.
Mr. Waqas Qadeer Dar, P.G, NAB.
Mr. Imtiaz Tajwar, Acting Chairman, NAB.
Mr. Naeem Siraj, DG, NAB Sindh.
Syed Amjad Ali Shah, DPG, NAB.
Mr. Qamar Abbasi, Deputy Director, NAB.
Dr. Muhammad Usman Chachar, Secretary,
Services, Sindh.
Mr. Baqaullah Unnar, Secretary, Local Govt
CMA.376-K/2014 etc
2
Mr. Imran Atta Soomro, D.G, M.D.A.
Mr. M. Irfan, Law Officer, M.D.A.
Date of hearing
:
01-08-2016.
O R D E R
The Prosecutor General, NAB, has filed interim report
dated 25.07.2016 (confidential), alongwith a copy of the survey report
dated 20.07.2016, prepared by the Ministry of Defence, Directorate of
Survey of Pakistan. It is contended by the learned Prosecutor General,
NAB, that after the order dated 24.05.2016, passed by this Court, the
Survey of Pakistan, was approached by the NAB, for demarcation of
the land in actual possession of the Bahria Town.
2.
The Director of Survey of Pakistan responded to the
request of the NAB and after notices to the Board of Revenue Sindh,
Survey and Settlement Department, Sindh, Malir Development
Authority (M.DA.), Deputy Commissioner, Malir, and the Bahria
Town Karachi, conducted joint survey in presence of the
representatives of the aforesaid organizations and compiled report,
copy of which was supplied to the NAB authorities and has been placed
before us. The Senior Member, Board of Revenue, states that they have
not received any copy of the said report. We direct the NAB authorities
to supply copies of the survey report to the Senior Member, Board of
Revenue, Mr. Aitzaz Ahsan, learned Sr.ASC, for officials of Bahria
Town, Mr. K.A Wahab, AOR for the Bahria Town and Syed Mehmood
Akhter Naqvi, the Applicant, who request to file their objections if they
CMA.376-K/2014 etc
3
deem it appropriate. The confidential report dated 25.07.2016
submitted by the NAB, shall be kept in sealed envelopes by the office.
3.
According to the survey report, the M.D.A has exchanged/
consolidated 9140.260 Acres of land to Bahria Town. The survey report
contains a portion of green colour with black lines, reflecting that
M.D.A has consolidated a piece of land measuring 244.925 Acres
which the Bahria Town has not yet developed. The survey report further
shows that the total land consolidated by the M.D.A and handedover to
the Bahria Town is 9385.185 Acres. The portion marked with pink
colour as âAâ reflects that the Bahira Town has developed 386.276
Acres of land which has not yet been consolidated by the M.D.A. The
portion of survey report in pink colour marked as âBâ reflects that
Bahria Town has developed an area of 1975.059 Acres which though
developed by the Bahria Town has not been consolidated by the M.D.A.
Another portion of the survey report marked as âCâ in pink colour
shows that the land measuring 410.444 Acres has been developed by
the Bahria Town, but has not been consolidated by the M.D.A. The
survey report shows that total land developed/under development but
not consolidated by the M.D.A comes to 2771.79 Acres. In this respect,
total area of land of Bahria Town reflected in the survey report comes
to 12156.964 Acres.
4.
We have inquired from the Chief Secretary, Senior
Member, Board of Revenue, and the Advocate General, Sindh, to
satisfy us under which law the M.D.A is competent to exchange private
CMA.376-K/2014 etc
4
lands with the lands falling in the area which is reserved as corridor
area, they could not offer any explanation and submit that no such
powers are available with the M.D.A to allot or exchange the private
land with the State land. It has come on record that no portion of the
land pertaining to the subject matter has ever been allotted and or part
in possession under Section 10(4) of the Colonization of Government
Lands Act, 1894, by the Sindh Government to the M.D.A, which fact
was confirmed by the Senior Member, Board of Revenue and
incorporated in the order of this Court dated 09.03.2016, which reads
as under: -
âWe are informed by the Chief Secretary, Sindh that the Sr. Member,
Board of Revenue has proceeded to Islamabad on account of some
family emergency and will be back by today evening. Since the matter
relates to the Board of Revenue, therefore, we deem it necessary that he
should appear before the Court tomorrow before any Order is passed in
this matter. We are further informed that in compliance with the Order
passed yesterday, Mr. Muhammad Sohail who was assigned the look
after as D.G. MDA has been de-notified. The Sindh Government is
directed to appoint any officer of their choice, eligible for the post of
D.G. MDA, within one week. In the intervening period, the Secretary,
Local Government will have the additional charge.
3.
We restrained the MDA from allotting and/or dealing with the
land in any manner whatsoever till further orders. The Sr. Member,
Board of Revenue yesterday, while present in Court, has disputed the
authority of the MDA to allot or otherwise deal with the land with anyone
as, according to him, the land was neither allotted nor given possession
to the MDA. According to the Sr. Member, Board of Revenue, the land
within MDA is fully owned by Sindh Government. Beside the aforesaid
reason, this Court on 28.11.2012 has passed restraining order restricting
the powers of authority from allotting state land to anyone. This
restraining order also applies to all the authorities under Sindh
Government who claimed their title from the state/Board of Revenue.â
5.
After going through the survey report dated 20.07.2016,
we, in order to safeguard the public interest and to avoid multitude of
proceedings, are constrained to pass the following interim order:-
CMA.376-K/2014 etc
5
(i)
the Bahria Town is restrained from undertaking
any development activity in the area demarcated
with green colour with black lines on it measuring
244.925 Acres and or to deal with this portion of
land with any person or organization in any
manner whatsoever;
(ii)
the Bahria Town is further restrained from
undertaking any development activity on the
portion marked as âAâ with pink colour measuring
386.276 Acres, which is not consolidated by the
M.D.A, with further restriction to deal with this
portion of the land in any manner whatsoever;
(iii)
the Bahria Town is restrained from undertaking
any development activity on the area marked as
âBâ with pink colour measuring 1975.059 Acres,
which as per survey report has not been
consolidated by the M.D.A and to deal with the
land in any manner whatsoever;
(iv)
the Bahria Town is further restrained from
undertaking any further development activity on
the area marked as âCâ with pink colour
measuring 410.444 acres and or to deal with the
land in any manner whatsoever;
(v)
the Bahria Town is further restrained from raising
any further development activity in area
measuring 2771.779 Acres, which has not been
consolidated by the M.D.A and to deal with the
land in question in any manner whatsoever;
(vi)
the M.D.A is restrained from consolidating any
further portion of the private land of the Bahria
Town or any other private enterprise under the
CMA.376-K/2014 etc
6
garb of exchange of land in exercise of their
powers conferred on them under the M.D.A Act
or the Rules framed thereunder;
(vii)
We further restrict the Board of Revenue,
Government of Sindh, from dealing with the land
of M.D.A or any other Authority which is subject-
matter of these proceedings in any manner
whatsoever in defiance of the order of this Court
passed by a five Member Bench of this Court on
28.11.2012;
(viii)
the M.D.A is restrained from dealing with the land
which are subject-matter of survey report either
with Bahria Town or with any other organization
in any manner whatsoever;
(ix)
defiance of the interim orders passed hereinabove
by any of the organization whether public or
private
shall
expose
them
to
contempt
proceedings.
6.
In order to ensure that no further construction or
development activity is carried out on the land specified hereinabove,
we direct the NAB authorities through the Prosecutor General that they
should immediately if possible by tomorrow obtain google earth
maps/images of the entire land stated to be in possession of the Bahria
Town as per the survey report and submit the same for record
7.
In fact on 28.11.2012, a five member Bench of this Court,
has initially passed an order restraining the Sindh Government from
dealing with the State land, relevant portion of which is reproduced
hereunder:-
CMA.376-K/2014 etc
7
â7.
Under these circumstances, we are constrained to
direct that the Deputy Commissioners/District Coordination
Officers of Sindh, to ensure that immediately the entire
revenue record of all the district is kept in the custody of
Mukhtiarkar in terms of the directives contained in the
aforesaid judgment of the High Court and shall not be
removed from the office of the Mukhtiarkar to any other
place. Moreover, mindful of rampant corruption and
organized crime of land grabbing, particularly, regarding
prime state land, and mismanagement/forgeries in the
revenue record, we hereby, until further orders restrain the
Government/Revenue Department from mutation, allotment,
transfer and or conversion of any state land and or keeping
any transaction or entry in the record of rights in this regard
in revenue record of Sindh or till the entire revenue record
in Sindh is reconstructed. The conversion of lease for 30
years or of any term upto 99 years shall also be stopped
immediately as by this mode the state land is being sold out
at a throwaway price without participation of public at
large, which the law does not permit. Any further conversion
or mutation of state land in the record of rights from today
onwards would be deemed nullity and would expose the
Deputy Commissioner/DCO of the relevant districts/dehs
besides others to contempt proceedings.
8.
Today, the learned Counsel representing the Senior
Member, Board of Revenue, and Ch. Aitzaz Ahsan, learned Sr.ASC,
have submitted that the aforesaid restraining order was modified, by
order dated 23.06.2014, passed by a three Member Bench, relevant
portion of the said order is also reproduced hereunder:-
Learned Advocate General, Sindh, submits that the order of
this Court regarding stay of allotments, mutations, transfer
and conversion of any state land is being complied with in
letter and spirit.
CMA.376-K/2014 etc
8
6.
We may at this stage clarify that this order staying
the allotment/grant of leases was meant to ensure that the
land is not either leased out or allotted for reasons other
than bona fide and to land grabbers and this would not
prevent the competent authority in the Federal or
Government of Sindh to allot or lease out land for a project
approved by the concerned authority which is directed
towards establishment of any industry or automotive plant
or power generating plant or any other initiative in public
interest and in accordance with law and the relevant rules.
The learned Advocate General, Sindh, shall convey this
order to the Chief Secretary and all the provincial
secretaries to ensure that the earlier order is not
misconstrued and no such project is held up on that account.
9.
We may clarify that the aforesaid order dated 23.06.2014
was obtained by misleading the Court on the pretext that re-writing/re-
construction of the record has been completed by the Sindh
Government. Today, the Senior Member, Board of Revenue, concedes
that the reconstruction and rewriting of the record has not been
completed till date. We hold that the order dated 28.11.2012, passed by
a five Member Bench of this Court, was never modified and holds the
field.
C.M.A.No.502-K of 2016.
10.
This Application is allowed, subject to all just exceptions.
Crl. Original Petition No.6-K of 2016.
11.
The Secretary, Local Government, Sindh, states that
Sohail Ahmed Khan, who was previously D.G, M.D.A, was appointed
initially in BS-16 in the Sindh Local Government Department. This fact
has been confirmed by the Secretary, Services, Government of Sindh,
CMA.376-K/2014 etc
9
therefore, in terms of judgments of this Court reported as Contempt
proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali
Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), he shall
be denotified and shall report back to his parent department. He,
however, shall be entitled to the seniority with his batch-mates as
determined by the judgments of this Court referred to hereinabove.
Likewise, any other official/officer working on deputation or otherwise
absorbed in the M.D.A shall immediately report back to his parent
department, failing which the D.G, M.D.A, and the Secretary, Local
Government, who is the administrative head of the M.D.A, shall be
exposed to contempt proceedings besides the beneficiary, who is still
continuing in the M.D.A.
12.
Copy of this order be faxed to the Chief Secretary,
Government of Sindh, D.G, M.D.A, the Prosecutor General, NAB, Ch.
Aitzaz Ahsan, learned Sr.ASC and Mr. K.A Wahab, AOR
(C.M.No.502-K of 2016).
To come up after two months.
Judge
Judge
Islamabad the,
01-08-2016
Not approved for reporting.
Sohail/**
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Iqbal Hameedur Rahman
Constitution Petition No.33 & 34 of 2005
(Regarding sudden increase in petroleum products on
13.06.2013 due to increase in sales tax)
And Civil Misc. Application No.3821 of 2013
Engineer Iqbal Zafar Jhagra
Senator Rukhsana Zuberi
âĻPetitioners
Versus
Federation of Pakistan and others
âĻRespondents
For the petitioners:
Mr. M. Ikram Ch. ASC
(in Constitution Petition No.33/05)
Nemo (in Cons.P.34/05)
For the Federation:
Mr. Munir A Malik,
Attorney General for Pakistan
Assisted by:
Mr. Faisal Siddiqui, Adv.
Mr. Dil Mohammad Alizai, DAG
Raja Abdul Ghafoor, AOR
For FBR:
Dr. Rana M. Shamim, ASC
Mr. Arshad Ali Chaudhry, AOR
Mr. Muhammad Aaqil, Member (Legal)
Mr. Raza Baqir, Member
Mr. Ashfaq Tunio, Chief Sale Tax
For OGRA:
Mr. Salman Akram Raja, ASC
Const.P.33-34/05
2
Mr. Saeed Ahmad Khan, Chairman
Mr. Abdul Basit, Law Officer
Ms. Misbah Yaqoob, JED(F)
For M/o Petroleum:
Ch. Akhtar Ali, AOR
For M/o Finance:
Nemo
For M/o Climate Change:
Mr. Dilawar Khan, Dy. Director
For OCAC:
Nemo
Date of hearing:
19/20/21.06.2013
ORDER
Iftikhar Muhammad Chaudhry, CJ.â For the reasons to be
recorded later, it is declared and held as under: -
(i)
The Government is not authorized to impose or increase
Sales Tax from 16% to 17% on the value of taxable
supplies, i.e. by inserting in the Finance Bill (Money Bill)
2013-14 a declaration under section 3 of the Provisional
Collection of Taxes Act, 1931 [hereinafter referred to as
âthe Act, 1931â] as such declaration neither has the status
of legislation nor sub-legislation, therefore, it has no force
of law.
AND
Immediate recovery of Sales Tax from 16% to 17% on the
value
of
taxable
supplies
w.e.f.
13.06.2013
is
unconstitutional being contrary to Articles 3, 9, 24 and 77
of the Constitution;
(ii)
Under proviso to rule 20(2)(c) of the Sales Tax Special
Procedures Rules, 2007, 9% in addition to the Sales Tax
Const.P.33-34/05
3
prescribed under section 3 of the Sales Tax Act, 1990
imposed or recovered from the consumers on CNG is
unconstitutional and contrary to Articles 3, 9, 24 and 77 of
the Constitution as well as section 3 of the Sales Tax Act;
(iii)
Section 4 of the Act, 1931 as a whole is declared
unconstitutional being contrary to Article 70 of the
Constitution,
which
lays
down
the
procedure
for
legislation;
(iv)
Section 5 of the Act, 1931 does not lay down parameters
for the purpose of refund of the recovered taxes to the
consumers,
as
such, in
absence of
any
workable
mechanism, it is not enforceable in its present form;
(v)
As a consequence of above declaration, the Federal
Government has no lawful authority to levy, impose and
recover Sales Tax @ 17% from 13.06.2013 on the value of
taxable supplies made in course or furtherance of any
taxable activity until passing of the Finance Bill (Money
Bill) 2013-14, which has already been tabled before the
Majlis-e-Shoora;
(vi)
The excess amount equal to 1% (17%-16%) of the Sales
Tax recovered on the petroleum products/CNG or any
other taxable supplies w.e.f. 13.06.2013 onwards, thus is
refundable
to
consumers
and
concerned
authorities
accordingly are directed to deposit it with the Registrar of
this Court subject to passing of the Finance Bill (Money
Const.P.33-34/05
4
Bill) 2013-14 by or under the authority of the Majlis-e-
Shoora;
If the Sales Tax is imposed by the Majlis-e-Shoora to be
recovered with retrospective effect, same shall be paid to
the Government, otherwise appropriate orders will be
passed for its disbursement;
(vii)
The Government is also directed to deposit 9% out of 26%
of the Sale Tax on CNG as per notification dated
13.06.2013 in the same manner as it has been noted
above;
(viii)
A statement shall also be filed by the Government showing
the amount of Sales Tax recovered @ 9% under proviso to
rule 20(2)(c) of the aforesaid rules 2007 on value of the
CNG from the consumers in addition to declared Sales Tax
of 16% imposed under section 3 of the Act, 1990 as this
amount is also to be refunded to the consumers, for which
appropriate order shall be passed subsequently;
(ix)
As prices of essential commodities mentioned in the Sixth
Schedule to the Act, 1990 have exorbitantly increased
according to the media reports, therefore, Federal
Government and the Provincial Governments are directed
to take action under sections 6 and 7 of the Price Control
and Profiteering and Hoarding Act, 1977 to keep the prices
consistent as per the Sixth Schedule under section 13(1)
of the Act, 1990 (Essential Commodities);
Const.P.33-34/05
5
(x)
Pending passing of the Finance Bill (Money Bill) 2013-14,
Sales Tax shall be recovered from consumers on the
taxable supplies including petroleum products and CNG at
the rate prescribed under section 3 of the Sales Tax Act;
and
(xi)
The OGRA shall issue revised notification fixing prices of
CNG as per above observations forthwith recovering Sales
Tax @16% on
taxable supplies till passing of Finance Bill
(Money Bill) 2013-14 by the Majlis-e-Shoora.
The titled Civil Miscellaneous Application is disposed of in the above
terms.
Chief Justice
Judge
Judge
Islamabad, the
21st June, 2013
Nisar/*
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Iqbal Hameedur Rahman
C.M.A.No.3854/14 in SMC No.3/09
(Implementation of the order dated 5.06.2013 passed in SMC 3/09)
AND
C.M.A. No.4341/14 in CMA No.3854/14 in SMC No.3/09
(Concise statement on behalf of respondent-Bahrai Town ()
Voluntary Appeared:
Malik Muhammad Shafi, In person
Dr. Shafiq ur Rehman, In person
On Courtâs Notice:
Mr. Razzaq A. Mirza, Addl.A.G.
Mr. Nadee, Ashraf, Sr. Member, BOR
Mr. Muzaffar Mehmood, Member, BOR
Mr. Sajid Zafar, DCO, Rwp.
Mr. Arif Raheem, ADC, Rwp.
Mr. Tasneem Ahmad Khan, A.C. Rwp.
Cap. (R) Jahanzeb Khan, Secy. Forests
Mr. Iftikhar Ahmed, Conservator, Rwp.
Mr. Ejaz Ahmed, DFO, Rwp. South
Mr. M. Maqsood, Gardawar
Mr. Kala Khan, Gardawar
Mr. M. Ishfaq, Gardawar
Malik Noor Zaman, Tehsildar
Mr. Mustansar Ali Gill, Tehsildar
Malik Mumtaz Ahmad, Naib Tehsildar
Malik Nisar, Naib Tehsildar
Mr. Waqar Ahmad, Naib Tehsildar
Mr. M. Safdar, Naib Tehsildar
Mr. Sajid Mahmood, Naib Tehsildar
Mr. Abdul Shakoor, Naib Tehsildar
Mr. Ameer Anwar, Patwari
Mr. Tariq Mehmood, Patwari
Mr. Mehmood Ahmad, Patwari
Mr. Abdul Aziz, Patwari
For Bahria Town:
Ch. Aitzaz Ahsan, Sr. ASC
Mr. Gohar Ali Khan, ASC
(on behalf of Syed Ali Zafar, ASC)
Raja Zafar Khaliq, ASC
(on Court call)
Raja Abdul Ghafoor, AOR
Date of Hearing:
31.03.2015
ORDER
Jawwad S. Khawaja, J. The case has been called in the supplementary cause list at
Sr. No.1. Mr. Aitzaz Ahsan, learned Sr. ASC has informed us that Syed Ali Zafar, learned
ASC who is out of country has told him firstly, that he is on general adjournment and
CMA No.3854/14 in SMC 3/09
2
secondly, that he has moved an application to Honâble the Chief Justice of Pakistan. Our
Office shows that presently there is no such application pending with the Office, although
there appears to be some application which has been provided to the press which has
reported in respect of such application in todayâs newspapers. An inquiry from the Office
has revealed that an application was filed but was returned to Raja Abdul Ghafoor AOR for
Bahria Town on 28.3.2015 with Office objections and has not been refilled after removal of
objections. A copy of the application has now been supplied to us in Court by Mr. Aitzaz
Ahsan Sr. ASC.
2.
Let the matter come up after 11:30 am.
3.
It is now 1:30 p.m. when the matter is again being taken up. On 25.03.2015, this
matter i.e. CMA No.3854/14 & 4341/14 in CMA No.3854/14 came up for hearing and an
order was passed wherein we noted that almost two years ago, on 5.06.2013 we had
directed that the Collector, Rawalpindi being the competent functionary of the Punjab
Province shall proceed promptly in accordance with law to assert/secure such rights as
according to him are vested in the Province. We also noted that proceedings which were
pending before the civil and revenue forums shall be decided by the competent forums
expeditiously. A report was also sought within thirty days from 5.06.2013. Thereafter
through a chamber order we were constrained to note that our order of 5.06.2013 had not
been complied with and as a result the report sought had not been submitted. An order
dated 18.12.2013 was then passed in chambers by Mr. Justice Ejaz Afzal Khan wherein it
was recorded that âwe do not understand why demarcation of property is procrastinated [sic] on
one pretext or another. Issuance of stay order or its refusal will not have much bearing on the
determination of demarcation of boundaries. We are also at a loss to understand as to why the spade
work facilitating the resolution of the dispute, is avoided. Let show cause notices to all concerned be
issued requiring them to explain their position in this behalf. â A period of more than 16 months
has elapsed since the aforesaid chamber order. It is for this reason that when we had
ascertained that action had not been taken in compliance with our order of 5.06.2013 we
directed that the matter be fixed in Court.
4.
On the last date of hearing i.e. 25.03.2015 we were informed by Mr. Gohar Ali Khan,
ASC that Syed Ali Zafar, learned ASC for M/s Bahria Town was unavailable because he
was on general adjournment. We noted that no request for general adjournment was before
CMA No.3854/14 in SMC 3/09
3
us but nonetheless, we extended courtesy to Mr. Gohar Ali Khan, ASC although he was not
counsel in this mater, and adjourned the case for today in order not to cause any prejudice
to Syed Ali Zafarâs client. We may record that because the request for general adjournment
was not before us and we were not even informed that the general adjournment had been
granted, that we directed that this matter be listed for hearing today i.e. 31.03.2015. Today
Raja Abdul Ghafoor, who is AOR and has instructed Syed Ali Zafar, learned ASC in the
matter, is present. He was not present on 25.03.2015 but stated that he was in the Court
room but could not hear when the case was called. We accept this submission as a
statement made at the Bar but what is still not understandable is as to why the application
for general adjournment had not been placed before us. This aspect of the case is being
dealt with in some detail because Ch. Aitzaz Ahsan, learned Sr. ASC has appeared on
behalf of Syed Ali Zafar, learned ASC and informed the Court that he had received
telephonic instructions from Syed Ali Zafar, ASC in which he stated firstly, that he was on
general adjournment and secondly, that an application had been filed by him addressed to
Honâble the Chief Justice.
5.
At this point we have to take note of the fact that reference to the said application
addressed to the Chief Justice had appeared in various newspapers and was noticed by
some functionaries of the Supreme Court this morning. We find this to be somewhat
surprising because firstly, Rule 164 of the Legal Practitioner and Bar Councils Rules, 1976
states that âpublications in newspapers by an advocate as to pending or anticipated litigation may
interfere with a fair trial in the courts and otherwise prejudice the due administration of justice.
Generally they are to be condemnedâ. We, however, will not comment further on this aspect of
the case because Syed Ali Zafar, ASC is not present today and only he may be able to
explain this circumstance. Let him submit his explanation.
6.
We also inquired and were informed by the Office that no such application is
pending as it was returned to the AOR on 28.3.2015. Something may now be said about the
aforesaid application itself. Para-8 of the said application being relevant is reproduced as
under:-
â8.
That it is an established principle of law that âjustice must not only be
done but seen to be doneâ. The CM of the M/s Bahria Town in which
the M/s Bahria Town is challenging the very jurisdictional basis in law
CMA No.3854/14 in SMC 3/09
4
under which the court is conducting these post decision proceedings and
wherein the M/s Bahria Town is submitting that this honourable court
does not have any jurisdiction in law to direct the respondent to take
action against the M/s Bahria Town without a fair trial which is pending
and has to be first decided, yet the honourable judge Justice Jawad S.
Khawja again and again directed and threatened the officer concerned of
the Government to take action against the M/s Bahria Town otherwise
his service may be harmed. This has created reasonably in the mind of the
M/s Bahria Town as a litigant that the learned judge has already made
up his mind to dismiss/has effectively negated the CM filed by the M/s
Bahria Town and is proceeding with the case regardless. This coupled
with the fact that the Honâble Judge Mr. Justice Jawad S. Khawaja
refused to accept the general adjournment of undersigned and has passed
various observations and even passed order and also fixed the next date
of hearing as 31st knowing that undersigned is not available, all of which
has serious impact on the final decision. The M/s Bahria Town has
serious apprehension that the Honâble Judge has already made up his
mind to decide the case against the M/s Bahria Town in the absence of
the its counsel and hence it is in the interest of justice if the case is put
up before another Bench. The learned judge even at one stage remarked
that he will not record the order of direction to the government officials
and the oral observations should be sufficient.â (emphasis supplied)
7.
We find it extremely disconcerting that so many wrong assertions have been made
in the application, probably on the basis of some hearsay which someone or the other may
have conveyed to Syed Ali Zafar, ASC who is abroad. The first thing which we need to
comment on is the statement that the Judge has already made up his mind. On what basis
this assertion has been made is noted in the excerpt of the application reproduced above
but it is quite baseless as it does not even remotely mean that the Court has made up its
mind to dismiss the CMA filed by the M/s Bahria Town. The second patently false
assertion is that Justice Jawwad S. Khawaja refused to accept the general adjournment of
the undersigned (Syed Ali Zafar) and that the hearing was adjourned to 31.03.2015
CMA No.3854/14 in SMC 3/09
5
knowing that Syed Ali Zafar is not available. This is a patently false assertion causing
aspersion not only on the Judge but the entire Court and judiciary of this Country. The
order passed on 25.03.2015 shows that neither Syed Ali Zafar, ASC was present nor was the
learned AOR Raja Abdul Ghafoor and there was definitely no application for general
adjournment placed before the Court on that date. It is only as a matter of courtesy which
the Court extended to a member of our Bar that information given by Mr. Gohar Ali Khan
was noted in our order of 25.03.2015 to the effect that Syed Ali Zafar, ASC was on general
adjournment. Mr. Gohar Ali Khan, ASC did not give any indication as to when the general
adjournment of Syed Ali Zafar would end. We, therefore, directed that in order not to
prejudice the client of Syed Ali Zafar, ASC the case be adjourned to 31.03.2015 (today). It is
only today that we have been informed that Syed Ali Zafar, ASC will not be available till
1.04.2015. Ch. Aitzaz Ahsan, Sr. ASC stated that the Court should have extended a further
courtesy to the absent advocate and should on its own initiative have inquired from the
office if there indeed was an adjournment application and the date upto which
adjournment had been allowed. With great respect to the learned Sr. ASC, this is wholly
untenable and unjustified and is also not in conformity with the Rules and practice of the
Court. Courtesy is always extended to the members of the Bar, as it was extended in this
case to Mr. Gohar Ali Khan, ASC. However, it is always for the party or the ASC to ensure
presence of the AOR at the hearing and it is for the AOR to inform the Court that the
learned counsel is on adjournment or at the very least to file an application giving
intimation of the general adjournment. Ch. Aitzaz Ahsan, learned Sr. ASC then pointed out
that in the order of 25.03.2015 it had been recorded that State land be recovered although
the report itself relating to demarcation was inconclusive. He also stated that the order of
25.03.2015 was prejudicial to M/s Bahria Town client of Syed Ali Zafar, ASC. Syed Ali
Zafar, ASC shall have the opportunity to explain the patently false and scurrilous assertion
made in his application. Let him do so. We may however, reiterate that in our order of
5.06.2013, we had stated as under:-
âSince, we are not to record evidence and make a determination in these proceedings
as to the respective rights/title of the parties in the land in question or as to the
criminal liability of delinquent individuals, the Collector, Rawalpindi who, as noted
above, is the competent functionary of the Punjab Province shall proceed promptly in
accordance with law to assert/secure such rights as according to him are vested in the
CMA No.3854/14 in SMC 3/09
6
Province. The pending proceedings before the Civil and Revenue forums shall be
decided by the competent forums expeditiously and a report of the status of these
proceedings be submitted for our perusal within 30 days. SMC No. 3 of 2009 stands
disposed of.â
The third allegation in the application of Mr. Ali Zafar is the most egregious and
scandalous. When the Court comes to the conclusion that its order which was passed
almost two years ago and which had directed that the Collector, Rawalpindi shall proceed
promptly in accordance with law has not been compiled with, it becomes incumbent upon
the Court to take action as has been done in the present case. Ensuring compliance of our
order of 5.6.2013, two years after the same was passed or our chamber order of 18.12.2014
after the lapse of almost 16 months is necessary for the effective enforcement and execution
of Court orders. No person can feel threatened by the efforts made by the Court to ensure
compliance of its orders. We may also add that the government functionaries, in particular
Mr. Sajid Zafar, Collector Rawalpindi was directed to comply with our orders. Referring to
this effort on the part of the Court as a threat to the officer concerned, is wholly uncalled
for.
8.
On the last date of hearing also, we had directed that the Collector shall make sure
that action according to law is taken and our orders are complied with. We may also at this
point note that it was as far back as 5th June, 2013 almost 22 months ago that we had passed
our order and it is only because of non-compliance thereof that we had passed the chamber
order of 18.12.2013 and had also directed the issuance of show cause notices to all
concerned requiring them to explain their conduct in this behalf. Only one of the persons
has filed a reply to the show cause notice i.e. respondent No.2 namely, Sher Alam
Mehsood. It is for this reason that in Crl. P. No.110/14 notices were issued to the
respondents other than respondents Nos.2,5,6 &23. Ch. Aitzaz Ahsan, learned Sr. ASC then
emphasized that according to Syed Ali Zafar, ASC the application addressed to Honâble the
Chief Justice has been received in the office. In this behalf we have already ascertained from
the Office as noted above.
9.
Coming back to the aforesaid application addressed to Honâble the Chief Justice and
the extract therefrom which has been reproduced above, it has been stated by Syed Ali
Zafar, ASC that the action of Justice Jawwad S. Khawaja âhas created reasonably in the mind of
CMA No.3854/14 in SMC 3/09
7
the M/s Bahria Town as a litigant that the learned judge has already made up his mind to
dismiss/has effectively negated the CM filed by the M/s Bahria Town and is proceeding with the case
regardless.â. This apprehension on the part of the M/s Bahria Town has been repeated
further in the extract of the application reproduced above. We may note that the M/s
Bahria Town is merely a corporate entity and it has no mind of its own and can have no
apprehension of its own. It only acts through natural persons such as its directors, chief
executive etc. Syed Ali Zafar, ASC may therefore, explain to the Court as to who has the
apprehension and on what basis. In any event prima facie, there appear to be some
significant breaches of the Supreme Court Rules, 1980 and of the Code of Conduct
prescribed for Advocates under the Legal Practitioners and Bar Councils Act, 1973. These
apparent violations include violation by an Advocate âto uphold at all times the dignity and
high standing of his profession as well as his own dignity and high standing as a member thereofâ.
10.
It may be added that an Advocate is not a tool or a puppet in the hands of his client,
obliged to pander to the desires of the client, right or wrong. Rule 156 of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976 states that ânothing operates, more certainly to
create or foster popular prejudice against Advocates as a class, and to deprive the profession of [the]
public esteem âĻ which belongs to the proper discharge of its dutiesâ. The Rule further stipulates
that âthe Office of an Advocate does not permit, much less does it demand of him âĻ the violation of
any law or any manner of fraud or chicanery. In doing his professional duty to his client he must
obey the voice of his own conscience and not that of his clientâ. An honest, upright and ethical
Bar is absolutely essential for the just dispensation of justice, particularly in our adversarial
legal system. This has to be ensured at all cost if an independent Bench and Bar are to be
maintained.
11.
We may also point out at this stage that this Court has been hearing a number of
cases involving M/s Bahria Town or its directors. It can be recalled that 4, 5 or even more
cases were filed against the M/s Bahria Town by various individuals. Syed Ali Zafar, ASC
was representing the M/s Bahria Town in those cases also. A number of those cases were
decided in favour of the M/s Bahria Town and no apprehension was ever expressed at that
time although some cases were decided in a manner not strictly in accordance with the
wishes of the M/s Bahria Town. The office shall trace those cases also and place the same
on record.
CMA No.3854/14 in SMC 3/09
8
12.
Since Syed Ali Zafar, ASC is on general adjournment till 01.04.2015, let this matter
be listed for hearing on 2.04.2015. Syed Ali Zafar, ASC will be given full opportunity to give
his explanation in respect of the matters noted above so that appropriate orders can be
passed.
Judge
Judge
ISLAMABAD
31st March, 2015
(Nasir Khan)
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Shahid Waheed
C.M.A. NO. 3932 OF 2023
IN
CONSTITUTION PETITION NO. 14 OF 2023
AND CONSTITUTION PETITION NOS. 14 to 17 OF 2023
(Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe
into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973)
Abid Shahid Zuberi, Advocate Supreme
Court of Pakistan
(in Const. P. 14 & CMA 3663/2023)
Muqtedir Akhtar Shabbir
(in Const. P. 15 of 2023)
Imran Ahmad Khan
(in Const. P. 16 of 2023)
Riaz Hanif Rahi, Advocate Supreme Court
of Pakistan
(in Const. P. 17 of 2023)
âĻPetitioner(s)
Versus
Federation of Pakistan through Secretary,
Cabinet Division, Islamabad and others
(in Const. P. 14/23 & CMA 3663/23 & Const.P.15 of 2023)
Federation
of
Pakistan
through
its
Secretary
Cabinet,
Pak
Secretariat,
Islamabad and others
(in Const. P. 16 of 2023)
Government
of
Pakistan
through
Secretary Cabinet Division, Islamabad
and another
(in Const. P. 17 of 2023)
âĻRespondent(s)
For the petitioner(s) : Mr. M. Shoaib Shaheen, ASC
Mr. Abid Shahid Zuberi, ASC
Mr. M. Umer Lakhani, ASC
assisted by:
Agha Ali Durrani, Adv.
Ms. Minahil Malik, Adv.
Ms. Amna Khalili, Adv.
(in Const. P. 14/23)
CMA No.3932/2023
2
Mr. Shakeel-ur-Rehman, ASC
Mr. Muqtedir Akhtar Shabbir, ASC
(in Const. P. 15/23)
Nemo
(in Const. P. 16/23)
In-person
(in Const. P. 17/23)
For the Federation
: Mr. Mansoor Usman Awan, Attorney
General for Pakistan
Ch. Aamir Rehman, Addl. AG
Raja M. Shafat Abbasi, DAG
Assisted by:
Barrister Maryam Ali Abbasi, Adv.
Mr. Saad Javaid Satti, Adv.
Ms. Maryam Rasheed, Adv.
Ms. Mehwish Batool, Adv.
Mr. Rashdeen Nawaz Kasuri, Addl.
AG
For PEMRA
: Mr. Amanullah Kanrani, ASC
For PTA
: Mr. Afzal Khan, ASC
Date of hearing
: 06.06.2023
J U D G M E N T
UMAR ATA BANDIAL, CJ: This judgment shall
decide the Federal Governmentâs CMA No.3932 of 2023
(ârecusal applicationâ), filed in Constitution Petition No.14 of
2023, which seeks the recusal of three learned Members of
the Bench, namely, Chief Justice Umar Ata Bandial (âCJâ);
Justice Ijaz ul Ahsan; and Justice Munib Akhtar. However, as
will be explained later in the judgment the prayer in the
recusal application was ultimately confined only to the extent
of the CJ.
Factual Background
2.
The events leading up to the recusal application
are that on 14.01.2023 and 18.01.2023 respectively the
CMA No.3932/2023
3
Provincial Assemblies of Punjab and Khyber Pakhtunkhwa
were dissolved. Article 224(2) of the Constitution of the
Islamic
Republic
of
Pakistan,
1973
(âConstitutionâ)
mandates:
â224. Time of Election and bye-election.
âĻ
(2) When the National Assembly or a
Provincial Assembly is dissolved, a general
election to the Assembly shall be held within
a period of ninety days after the dissolution,
and the results of the election shall be
declared not later than fourteen days after
the conclusion of the polls.â
(emphasis supplied)
Under the said constitutional direction it was imperative for
the General Elections to the Punjab Assembly to be held on or
before 14.04.2023 and to the Khyber Pakhtunkhwa Assembly
on or before 18.04.2023. However, despite the strict deadline
no progress was made by the authorities responsible for
holding the General Elections to announce the date of the
same. As a result, writ petitions were filed in the Lahore High
Court and the Peshawar High Court for a direction to these
authorities to announce the date of General Elections to the
Punjab and Khyber Pakhtunkhwa Assemblies. The Lahore
High Court vide its judgment dated 10.02.2023 declared the
Election Commission of Pakistan (âECPâ) as the competent
authority to give the date of election. This judgment was
immediately challenged by the Governor, Punjab and the ECP
through Intra Court Appeals. The writ petition filed in the
Peshawar High Court, however, remained pending.
3.
Taking stock of the 90 day constitutional deadline
expiring in mid-April for holding the General Elections and
CMA No.3932/2023
4
the indifference of the concerned authorities to fix the date for
such election, a two Member Bench of the Court comprising
Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar
Naqvi on 16.02.2023 recommended the CJ to take Suo Motu
notice of the delay in the holding of the General Elections to
the Provincial Assembly of Punjab.1 The CJ was collecting
relevant information on the subject from the respective High
Courts when two days later on 18.02.2023 the Speakers of
the Punjab and the Khyber Pakhtunkhwa Assemblies jointly
filed a Constitution Petition in the Court seeking the fixation
of date of the General Elections to the two dissolved Provincial
Assemblies. At that time the facts of note were that the
custodians of both the Provincial Assemblies had approached
the Court for relief; that a strict constitutional deadline for
holding the General Elections was in the field which required
compliance; and that the information from the two High
Courts showed that the pending proceedings were not
progressing. In the above circumstances, the CJ following the
rule laid down in SMC No. 4 of 2021 (PLD 2022 SC 306)
accepted the recommendation made by the two learned
Judges of the Court advising Suo Motu notice of the delay in
announcing the election date. He accordingly invoked Suo
Motu jurisdiction on 22.02.2023 and constituted a 9 Member
Bench to hear the matter on 23.02.2023.
1 CP No.3988/2022
<https://www.supremecourt.gov.pk/downloads_judgements/c.p._3988_2022.pdf >
CMA No.3932/2023
5
4.
Meanwhile on 16.02.2023 a Twitter account with
the name of indibell released three audio recordings of alleged
telephonic conversations between the following persons:
i.
Mr. Chaudhary Pervaiz Elahi, ex-Chief Minister, Punjab
and Mr. Arshad Jhoja, ASC;
ii.
Mr. Chaudhary Pervaiz Elahi and Mr. Abid Zuberi, ASC,
President Supreme Court Bar Association of Pakistan,
the petitioner in Constitution Petition No.14 of 2023;
and
iii.
Mr. Chaudhary Pervaiz Elahi and Justice Sayyed
Mazahar Ali Akbar Naqvi, a sitting Judge of the
Supreme Court.
Over a period of two months or so thereafter, more audio
recordings of alleged telephonic conversations concerning
known personalities or their families were released by indibell.
Amongst these audio leaks a recording allegedly involving the
mother-in-law of the CJ (âRelativeâ) was released by indibell
on 23.04.2023. Without verifying either their authenticity or
the identity and credibility of their leaker the Federal
Government immediately endorsed the audio recordings to
denounce the Judges mentioned therein for compromising the
independence of the Judiciary. Accusatory press conferences
were held by incumbent Federal Ministers citing the audio
recordings as proof that the Superior Judiciary was
prejudiced against the Government of the day.
5.
Such vilification of Superior Court Judges by
elected Government functionaries continued before the media
and sometimes even in Parliament. Finally action in the
matter was taken by the Federal Government on 19.05.2023.
CMA No.3932/2023
6
On this date in exercise of its power under Section 3 of the
Pakistan Commissions of Inquiry Act, 2017 the Federal
Government formed a three member Inquiry Commission
(âCommissionâ)
vide
SRO
No.596(I)/2023
(âimpugned
notificationâ) with the mandate, inter alia:
â6âĻ
(i) to inquire into the veracity of audio leaks
allegedly concerning including the Judiciary;
(a) call between ex-Chief Minister Punjab and
an advocate regarding a sitting Judge of the
Supreme Court of Pakistan, (b) between ex-
Chief Minister, Punjab and an advocate
regarding fixation of some cases before a
particular Bench of the Supreme Court of
Pakistan,
(c)
between
ex-Chief
Minister
Punjab and a sitting Judge of the Supreme
Court of Pakistan, (d) between Retired Chief
Justice of Pakistan and a senior lawyer, (e)
between a lawyer and a journalist on the
outcome of a case before a particular Bench
of Supreme Court of Pakistan, (f) between
former Prime Minister of Pakistan and his
party colleague about their links in the
Supreme Court of Pakistan, (g) between
mother in law of the Chief Justice of Pakistan
and wife of a lawyer regarding cases in the
Supreme Court of Pakistan and hoping for
un-constitutional rule[,] (h) between son of a
former Chief Justice of Pakistan and his
friend mentioning his father in a political
role;
âĻ
(iii) to determine violation, if any, of integrity
of the process of administration of justice,
independence of Judiciary, right to fair trial
and equality of citizens;
âĻ
(v)
to
determine
as
to
whether
any
disciplinary proceedings are attracted;
âĻ
(viii) if the stated audios are fake or
fabricated,
to
inquire
into
and
fix
responsibility with regards, as to who is
making these and recommend action to be
taken in this regard;âĻâ
(emphasis supplied)
6.
It is clear from clauses 6(i), (iii), (v) and (viii) set
out above that the Federal Government desired the
CMA No.3932/2023
7
Commission to first inquire into the veracity of the audio
recordings. If the same turned out to be genuine and their
content disclosed the violation of âintegrity of the process of
administration of justice and the independence of the
Judiciaryâ then the Commission was to determine whether
disciplinary proceedings are attracted. Prima facie the
impugned notification does not give the Judges of the
Superior Courts named in the audios immunity from such
proceedings. On the other hand, if the Commission concluded
that the audio recordings are fake or fabricated then under
clause 6(viii) action was to be recommended by it against the
persons responsible for making the audios.
7.
The persons selected by the Federal Government
for carrying out these functions of the Commission are
serving Superior Court Judges, namely, Justice Qazi Faez Isa,
Senior Puisne Judge of the Supreme Court (Chairperson);
Justice Naeem Akhtar Afghan, Chief Justice of Balochistan
High Court (Member); Justice Aamer Farooq, Chief Justice of
Islamabad High Court (Member). It is a matter of record that
the Federal Government did not inform, consult with or
obtain the consent of the CJ before constituting the
Commission. On 22.05.2023 the Commission held its first
hearing and passed an order on the same date (the details are
not relevant for present purposes).
8.
Soon thereafter the titled Constitution Petitions
bearing Nos.14 to 17 of 2023 (âConst P Nos.14 to 17 of
2023â) were filed in Court challenging the vires of the
CMA No.3932/2023
8
impugned notification. These were duly registered and listed
for hearing before the present Bench. On the first date of
hearing of the titled petitions i.e., 26.05.2023 the learned
counsel for the petitioner in Constitution Petition No.14 of
2023 formulated the common questions of law requiring
determination in the petitions. These are:
i.
Whether
the
impugned
notification
violates
the
fundamental constitutional principle of separation of
powers by vesting the Executive with the power to
investigate alleged judicial misconduct through a
Commission comprised of Superior Court Judges and in
case of its proof to recommend appropriate disciplinary
action;
ii.
Whether the mandate of the Commission encroaches
into the exclusive jurisdiction conferred on the Supreme
Judicial Council by Article 209 of the Constitution
(which lays down the process for and grounds of
accountability of Superior Court Judges);
iii.
Whether the impugned notification negates a salient
feature of the Constitution, namely, the independence of
the Judiciary by interfering with its functioning in
bypassing the CJ for unilaterally picking Superior Court
Judges as Members of the Commission; and
iv.
Whether in the absence of a law allowing for the
surveillance and recording of private communication
between citizens, the audios are a breach of Article 14 of
the Constitution (right of privacy of home) and the
dictum of the Court laid down in Benazir Bhutto Vs.
President of Pakistan (PLD 1998 SC 388).
During the course of the same hearing the learned Attorney
General for Pakistan (âAGâ) made an oral request to the
Bench that one of us, namely, the CJ may consider recusing
CMA No.3932/2023
9
himself from the Bench for the reason that one of the audio
recordings selected for probe by the Commission allegedly
contains a conversation of his Relative that mentions him.
The order dated 26.05.2023 disapproved this oral request of
the learned AG for failing to refer to any implicating
conversation of the Relative and/or to the particulars of the
allegation levelled against the CJ. However, as important
constitutional questions of law were raised and explained by
the learned counsel for the petitioner in Constitution Petition
No.14 of 2023 the said order of 26.05.2023 granted the
interim relief sought by him in CMA No.3663 of 2023 in the
following terms:
â8. CMA NO.3663 OF 2023 IN CONST.P.14
OF 2023.
Learned counsel for the petitioner also prayed
for interim relief since the Commission has
already started functioning and has made an
order on 22.05.2023 and the next meeting of
the Commission is scheduled for 27.05.2023.
In the circumstances, till the next date of
hearing, the operation of the impugned
notification
No.SRO.596(I)/2023
dated
19.05.2023
issued
by
the
Federal
Government is suspended as is the order
dated 22.05.2023 made by the Commission
and in consequence thereof proceedings of
the Commission are stayed.â
(emphasis supplied)
The matter was adjourned to 31.05.2023 when the learned
AG pressed the freshly filed recusal application on which
notice was issued to the parties for arguments of the learned
counsel on 06.06.2023.
Submissions of Counsel
CMA No.3932/2023
10
9.
At the outset before commencing his submissions
on the recusal application the learned AG recorded two
preliminary points:
i.
First, that he would not be pressing for the recusal of
either Justice Ijaz ul Ahsan or Justice Munib Akhtar;
and
ii.
Second, that the sole ground for seeking the recusal of
the CJ is his alleged conflict of interest in the matter on
account of his Relative.
Our judgment is therefore confined to the prayer made for the
recusal of the CJ from continuing to sit on the Bench hearing
Const P Nos.14 to 17 of 2023.
10.
In support of the recusal application, the learned
AG primarily relied on clause 1 of Article IV of the Code of
Conduct for Judges of the Supreme Court and High Courts
(âCoCâ) which reads:
âA Judge must decline resolutely to act in a
case involving his own interest, including
those of persons whom he regards and treats
as near relatives or close friend.â
He argued that allegedly the Relative of the CJ was conversing
in one of the audio recordings which had been selected for
probe by the impugned notification. The vires of that
notification are under challenge in Const P Nos.14 to 17 of
2023. Therefore, to avoid a conflict of interest and to maintain
the appearance of impartiality the CJ should recuse himself
from the Bench. More so when the rule of necessity did not
require his presence on the Bench because even after his
recusal there would be a sufficient number of Judges
available for a reconstituted 5 Member Bench to hear and
CMA No.3932/2023
11
decide the said petitions. He cited Suo Motu Case No.5 of
2012 (PLD 2012 SC 664) to demonstrate that in the past
Judges of the Court did not preside over or sit on Benches
that were hearing matters involving the interests of their
relatives. That in furtherance of the said practice the CJ
should disassociate from the Bench. However, he reiterated in
categorical terms that it was not the assertion of the Federal
Government that the CJ was either biased or that he had any
pecuniary or proprietary interest in the decision of Const P
Nos.14 to 17 of 2023.
11.
In response, the learned counsel for the petitioner
in Constitution Petition No.14 of 2023, Mr. Shoaib Shaheen,
ASC submitted that the recusal application should be
rejected. Otherwise its acceptance would validate a practice of
harassing Judges by first maliciously uploading their
unverified
audios,
recorded
secretly
and
unlawfully,
anonymously on an unregulated social media platform and
then by relying on those audios to seek the recusal of such
Judges from hearing cases. He also referred to the decisions
rendered in Justice Qazi Faez Isa Vs. President of Pakistan
(2019 SCMR 1875); Independent Media Corporation Vs.
Federation of Pakistan (PLD 2014 SC 650); Federation of
Pakistan Vs. Muhammad Nawaz Sharif (PLD 2009 SC 284);
The President Vs. Mr. Justice Shaukat Ali (PLD 1971 SC
585) to show that Judges of the Court have been reluctant to
recuse from cases on mere allegations of bias which is a more
serious allegation than conflict of interest. In rebuttal, the
CMA No.3932/2023
12
learned AG emphasised that in this matter conflict of interest,
and not bias, has been alleged therefore the judgments
quoted by Mr. Shoaib Shaheen, ASC are inapplicable.
12.
After hearing the learned counsel for both sides
the Bench reserved its judgment. Our decision on the recusal
application and reasons for arriving at the same are given
below.
Conflict of Interest and Bias
13.
During his arguments, the learned AG relied on
Article IV of the CoC (produced above in para 10) to
emphasise the principle of conflict of interest mentioned
therein. Clearly, the said principle would be attracted if any
interest of the CJ or that of his Relative was indicated in the
lis. However, the Courtâs query as to what interest of the CJ
or his Relative is involved in Const P Nos.14 to 17 of 2023
was neither answered nor explained by the learned AG. He
candidly admitted though that no pecuniary or proprietary
interest of either the CJ or his Relative was tied with the fate
of the said petitions. When asked to explain the term âconflict
of interestâ the learned AG merely clarified that as a ground of
recusal it was distinct from âbias.â The latter being an
allegation that the Federal Government had not raised. The
diffidence of the learned AG to respond to the Courtâs
questions
denotes
that
the
objection
of
the
Federal
Government may have been raised nonchalantly, possibly to
delay a decision on the merits or to harass the concerned
Judge. Nevertheless, to consider the Federal Governmentâs
CMA No.3932/2023
13
vague plea with utmost solemnity an effort has been made to
understand it. For this purpose the meaning and scope of the
term âconflict of interestâ and its difference, if any, from âbiasâ
have been examined. Relevant passages from two treatises are
produced below for reference:
âCorpus Juris Secundum (Volume 48A)
§109: The words âbiasâ and âprejudiceâ, as
used in connection with the disqualification
of a judge, refer to the mental attitude or
disposition of the judge toward a party to the
litigation and not to any views that he might
entertain
regarding
the
subject
matter
involved. Bias and prejudice mean a hostile
feeling or spirit of ill will against one of the
litigants, or undue friendship or favoritism
toward one. This requires antagonism or
animosity toward the affiant or his counsel or
favoritism towards the adverse party or his
counselâĻ
§120: Ordinarily, the interest of a judge, in
order that he may be disqualified, must be in
the subject matter of the litigation, and not
merely in a legal question involvedâĻ
The interest in the subject matter of the
litigation which disqualifies a judge is a direct
pecuniary or property interest, or one which
involves some individual right or privilege,
whereby a liability or pecuniary gain must
occur on the outcome of the suit. The interest
that disqualifies a judge is a personal
interestâĻ
American Jurisprudence, 2nd Edn
§98: It is well settled that a judge is
disqualified to sit in an action where he has
any pecuniary interest in its result, or owns
property that will be affected by its outcome.
A disqualifying pecuniary or property interest
is an interest in the event or subject matter of
the action or in the judgment to be rendered
therein such that by the judgment the judge
will be directly affected by a pecuniary gain or
loss.
According to some of the cases, the interest
which will disqualify a judge must be
pecuniary in its nature, or must be a
pecuniary or property interest in the action or
its result. But other courts have held that the
interest need not necessarily be a pecuniary
one, but that it may be a personal one to the
judgeâĻ
§167: The words âbiasâ and âprejudiceâ refer
to the mental attitude or disposition of the
judge toward a party to the litigation, and not
CMA No.3932/2023
14
to any views that he may entertain regarding
the
subject
matter
involved.
Bias
and
prejudice mean a hostile feeling or spirit of ill
will against one of the litigants or undue
friendship or favoritism toward oneâĻâ
(emphasis supplied)
14.
The afore-quoted excerpts show that conflict of
interest and bias are indeed two distinct grounds on which a
party may seek the recusal of a Judge from hearing a case.
Whilst conflict of interest is related to the Judgeâs interest in
the subject matter of a particular case, bias is concerned with
his state of mind and his feelings towards the parties
appearing before him. Since the learned AG confined his
submissions to the ground of conflict of interest only and not
on bias, it is clear that the Federal Government does not
anticipate any prejudice from the CJ.
Conflicts of Interest Entailing Disqualification
15.
As noted above, a conflict of interest is related to
the subject matter of the litigation. This means that the
Judge, whose recusal is being sought, must have a direct
pecuniary, proprietary or personal interest in the litigation. A
classic example of a Judge having a pecuniary interest in a
litigation is Dimes v Grand Junction Canal Proprietors [10
ER 301 (1852) (HL)]. In that case the (then) Lord Chancellor,
Lord Cottenham, owned a substantial shareholding in Grand
Junction Canal which was an incorporated body. In a suit
filed by Grand Junction Canal the Vice-Chancellor granted
the relief sought. The appeal came before the Lord Chancellor
who affirmed the decision of the Vice-Chancellor. The matter
then came before the House of Lords which reversed the
CMA No.3932/2023
15
decree of the Lord Chancellor and Lord Campbell, in what is
now regarded as the classic formulation on disqualification on
the basis of interest, held:
â âĻNo one can suppose that Lord Cottenham
could be, in the remotest degree, influenced
by the interest that he had in this concern;
but, my Lords, it is of the last importance
that the maxim that no man is to be a judge
in his own cause should be held sacred. And
that is not to be confined to a cause in which
he is a party, but applies to a cause in which
he has an interestâĻâ
(emphasis supplied)
16.
It is not the case of the Federal Government that
the CJ or his Relative have any direct pecuniary and/or
proprietary interest in the present matter (refer para 7, pg.5 of
the recusal application). Instead it alleges, as noted above in
para 10, that because the CJâs Relative is involved in one of
the audio recordings selected for probe by the Commission,
therefore, he has a direct personal interest in the outcome of
these Constitution Petitions. Consequently, he ought to
recuse himself from hearing the case. Personal interest has
been defined in Halsburyâs Laws of England (Volume 61A,
2018) as follows:
â33.
âĻThe
most
obvious
form
of
direct personal
interest is
a
financial
interestâĻ However, financial interests are
merely one form of direct personal interest.
The rule also applies if the adjudicator's
decision will lead to the promotion of a cause
in which he is involved together with one of
the parties.â
(emphasis supplied)
Apart from pecuniary (financial) interest of a Judge, which
has already been ruled out because the same was neither
alleged nor pressed, the afore-noted comment in Halsburyâs
CMA No.3932/2023
16
Laws explains that non-pecuniary interests are also included
in personal interests. The âpromotion of a causeâ has been
cited as an example of one such interest. This particular
ground was created by the House of Lords in R v Bow Street
Metropolitan Stipendiary Magistrate, ex p Pinochet
Ugarte (No 2) ([2000] 1 AC 119) for setting aside its earlier
decision wherein Lord Hoffman and two other Judges (by a
majority of 3:2) had held that Augusto Pinochet, being the
former Head of State of Chile, was not entitled to immunity
and could be arrested, extradited and prosecuted for his
alleged crimes against humanity. In this earlier decision of
the House of Lords Amnesty International (âAIâ) was an
intervener and argued in support of the proposition that
Pinochet was not entitled to immunity. After the earlier
decision was released information came to light that Lord
Hoffman was a director of Amnesty International Charity Ltd
(âAICLâ), a registered charity which undertakes charitable
works for AI. As a result, Pinochet lodged a petition in the
House of Lords with the prayer that either the earlier decision
be set aside or the opinion of Lord Hoffman be discarded.
Ultimately, the House of Lords granted the former relief. Lord
Browne-Wilkinson, speaking for the Bench, observed:
â âĻHitherto only pecuniary and proprietary
interests
have
led
to
automatic
disqualificationâĻ
âĻMy Lords, in my judgment, although the
cases
have
all
dealt
with
automatic
disqualification on the grounds of pecuniary
interest, there is no good reason in principle
for so limiting automatic disqualification. The
rationale of the whole rule is that a man
cannot be a judge in his own cause. In civil
CMA No.3932/2023
17
litigation the matters in issue will normally
have an economic impact; therefore a judge is
automatically disqualified if he stands to
make a financial gain as a consequence of his
own decision of the case. But if, as in the
present case, the matter at issue does not
relate to money or economic advantage but is
concerned with the promotion of the cause,
the rationale disqualifying a judge applies
just as much if the judge's decision will lead
to the promotion of a cause in which the
judge is involved together with one of the
parties.â
(emphasis supplied)
17.
The principle laid down above by the House of
Lords treats the promotion of a cause by a Judge to be in
conflict with his constitutional duties. However, the learned
AG did not even specify, let alone elaborate, what cause, if
any, the CJ may be interested in promoting by sitting on the
Bench hearing Const P Nos.14 to 17 of 2023. The failure of
the learned AG to identify the specific cause and hence the
interest of the CJ or of his Relative that may be affected by
the said petitions renders the allegation of the Federal
Government against the CJ fanciful. Moreover, the Relative of
the CJ is neither a party in these petitions nor is she claimed
to be involved in the controversy under adjudication before
the Court. In these circumstances, Article IV of the CoC has
no application to the present case. Therefore, it appears that
an illusory claim of conflict of interest has been alleged
against the CJ by the Federal Government to prima facie
postpone a decision in the instant Constitution Petitions.
Such an object appears to be consonant with the Federal
Governmentâs strategy, discussed later in the judgment, of
CMA No.3932/2023
18
blocking or delaying the Courtâs decisions on questions of law
requiring the interpretation of constitutional principles.
18.
There is a possibility that the Courtâs decision on
the questions of law raised in the titled petitions (refer para 8
above) may result in the impugned notification being struck
down. That result would relieve the Judges implicated in the
said notification from being scandalised in the public without
the authenticity of the audios and the identity and credibility
of their leaker being established or any allegation of
wrongdoing being levelled against them. It becomes apparent
then that in the present petitions the Court is acting solely to
safeguard the public cause of upholding the cherished values
of separation of powers, the independence of the Judiciary
and the Fundamental Rights of privacy and dignity of
persons. Accordingly, no personal interest of the CJ can
inhere in the subject matter of these petitions that pertain
only to the determination of constitutional questions of public
importance. In fact, to even assume a personal interest of the
CJ in the titled petitions a cause promoted by him or a benefit
or liability accruing to him would need to be positively
identified in the subject matter of the petitions. However, the
learned AG has failed to do that. Therefore, the CJ cannot be
expected to abandon his constitutional duty as a Judge
hearing Const P Nos.14 to 17 of 2023 on the basis of an
unknown and imaginary interest. The law is clear that for an
CMA No.3932/2023
19
interest to attract the disqualification of a Judge from a case,
the same needs to be direct and certain:
âAmerican Jurisprudence, 2nd Edn
S99: To work a disqualification of a judge, the
interest must be a direct, certain, and
immediate interest and not one which is
indirect, contingent, incidental, or remoteâĻ
Corpus Juris Secundum (Volume 48A)
S120: âĻAlthough it has been broadly stated
that a judge should not sit in any case in
which he is directly or indirectly interested, to
disqualify a judge, his interest in the subject
matter of the litigation, must be direct, real,
and certain, and not one which is merely
incidental, remote, contingent, or possible,
speculative, unreal, or merely theoretical.â
(emphasis supplied)
Necessity
19.
On account of his inability to disclose any direct
and certain interest of the CJ or of his Relative in Const P
Nos.14 to 17 of 2023 the learned AG took the plea that the
Federal Governmentâs request for the CJâs recusal from the
Bench would not offend the rule of necessity. That the CJâs
withdrawal will not prevent the formation of a new 5 Member
Bench to hear and decide the titled petitions. Whether the
learned AGâs argument has any relevance to the prayer made
in the recusal application requires firstly, understanding the
meaning of the term ânecessityâ and secondly, ascertaining the
purpose of and the circumstances in which the said principle
can be invoked in the context of judicial proceedings. The rule
was explained in the case of Justice Shaukat Ali (supra) in
these words:
â âĻâthe rule of disqualification must yield to
the demands of necessity, and a Judge or an
CMA No.3932/2023
20
officer exercising judicial functions may act in
a proceeding wherein he is disqualified even
by interestâĻ if his jurisdiction is exclusive
and there is no legal provision for calling in a
substitute, so that his refusal to act would
destroy the only tribunal in which relief could
be had and thus prevent a termination of the
proceedingâ (vide American Jurisprudence,
Vol 30, page 770)âĻâ
(emphasis supplied)
This dictum was subsequently quoted with approval by the
Court in the cases of Federation of Pakistan Vs.
Muhammad Akram Shaikh (PLD 1989 SC 689) and Parvez
Musharraf Vs. Nadeem Ahmed (Advocate) (PLD 2014 SC
585).
20.
The above passage shows that even when a Judge
suffers from a valid disqualification, the rule of necessity
permits him to sit on the Bench if his jurisdiction is exclusive
or if no substitute is provided by the law in his place.
However, as held above there is no direct and certain interest
of the CJ in these Constitution Petitions. Therefore, in the
absence of a valid ground for disqualification necessity has no
application to the present matter. It may also be observed
that the learned AGâs submission ignores another crucial
aspect of the rule of necessity, namely, that it constitutes a
defence for a disqualified Judge to remain a part of the Bench
hearing a case rather than being a means for reinforcing a
litigantâs challenge to the presence of a Judge on the Bench.
For these reasons, the learned AGâs plea of necessity lacks
force and is therefore refused.
Islamic Perspective on Recusal
CMA No.3932/2023
21
21.
Whilst the law of the land grants a Judge
discretion to recuse from a case if his disqualification is
sought, the Holy Quran provides the criteria for guiding the
exercise of such discretion:
âSurah An-Nisa, Verse 135
O ye who believe! stand out firmly for justice,
as witnesses to Allah, even as against
yourselves, or your parents, or your kin, and
whether it be (against) rich or poor: for Allah
can best protect both. Follow not the lusts (of
your hearts), lest ye swerve, and if ye distort
(justice) or decline to do justice, verily Allah is
well-acquainted with all that ye do.â
(emphasis supplied)
(Translation by Yusuf Ali)
The Holy Quran makes it explicit that believers are expected
to uphold the scales of justice even if such a course of action
goes against their own interest or that of their parents or
relatives. This is because of the higher duty to be impartial
and to remain uninfluenced by any interest whilst dispensing
justice that is owed by a Muslim to the Almighty. Therefore,
there is no rule of Islamic Law requiring a Judge to refrain
from administering justice in matters in which his personal
interest or that of his relatives is involved. The Judge is
nevertheless under the onerous obligation that he must not
be swayed by any extraneous considerations when deciding a
matter. This duty is also reflected in the Oath of Office taken
by a Superior Court Judge: â[t]hat I [Judge] will not allow my
personal interest to influence my official conduct or my official
decisionsâ (ref: Third Schedule to the Constitution). It is
evident from the above discussion that even if an interest of
the CJ had existed in the subject matter of Const P Nos.14 to
CMA No.3932/2023
22
17 of 2023 that would still not prohibit him from sitting on
the Bench hearing the said Constitution Petitions.2
22.
In this respect, Pakistani jurisprudence also leaves
it to the discretion of the Judge to decide whether he will be
able to perform his legal duty of administering justice in a
particular case where either conflict of interest or bias (or
both) is alleged against him. Reliance in this regard is placed
on Independent Media Corporation (supra) at para 13;
Federation of Pakistan Vs. Muhammad Nawaz Sharif (PLD
2009 SC 284) at para 27; Islamic Republic of Pakistan Vs.
Abdul Wali Khan (PLD 1976 SC 57) at pg.188. In these cases
the following allegations were levelled against the Judges of
the Court:
i.
In Independent Media Corporation (supra) the recusal
of Justice Jawwad S. Khawaja was sought on account of
his sister-in-lawâs brother being involved in the case
before the Court.
ii.
In Muhammad Nawaz Sharif (supra) the recusal of
Judges who had taken oath under the Provisional
Constitution Order, 2007 was sought on the basis that
the petitioner had expressed strong reservations against
such acts.
iii.
In Abdul Wali Khan (supra) the recusal of two learned
Judges was sought on the ground that they were
previously associated with the case being prepared for
the banning of the National Awami Party which was
headed by the petitioner, Abdul Wali Khan.
However, rejecting the contentions of the parties seeking
recusal in each of the above cases, the Court observed that it
2 The only exception would be if a Judge is unable to dispense justice impartially on account of
his/her interest
CMA No.3932/2023
23
was for the respective Judge(s) to decide whether to continue
to sit on the Bench or not. For reference, the Courtâs
observation in the case of Independent Media Corporation
(supra) is produced below:
â13. âĻ It is the conscience of the Judge
himself which must determine his decision to
sit on a Bench or not.â
Therefore, apart from failing on both the facts and the law,
the Federal Governmentâs objection to the CJâs presence on
the Bench disregards the Quranic command to a Judge i.e.,
to dispense justice impartially; a rule that is also echoed in
the Oath of Office administered to Judges under the
Constitution. It is accordingly refused for lacking merit.
Conduct of the Federal Government
23.
Before parting with this judgment we consider it
only fair to reflect on the Federal Governmentâs inimical
treatment of the Court and some of its Judges ever since the
recommendation for Suo Motu notice was made by a two
Member Bench of the Court to the CJ on 16.02.2023. This
exercise is helpful for understanding the likely purpose of the
Federal Government in filing the present recusal application
because there is a chain of events in which the Federal
Government and/or Federal Ministers have sought to erode
the authority of the Court and to blemish the stature of some
of its Judges with the object of blocking, delaying or distorting
the result of the judgments of the Court on the constitutional
right of the people to be governed by an elected government.
CMA No.3932/2023
24
24.
As already mentioned the crucial point in time is
16.02.2023. On that date, as noted above in para 3, Justice
Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi
recommended the CJ to take Suo Motu notice of the delay in
holding General Elections to the Punjab Assembly. Curiously,
this is also the date on which the first three audio recordings
(noted above in para 4) were leaked by indibell. Without
confirming the veracity of the audios or ascertaining the
identity of the person who uploaded them, Federal Ministers
on the same day lent support to the news of the leaked audios
on
national
media.
Shortly
after
on
18.02.2023,
a
Constitution Petition was filed by the Speakers of the Punjab
and
Khyber
Pakhtunkhwa
Assemblies
in
Court.
Acknowledging that it was the custodians of the two dissolved
Provincial Assemblies who had petitioned the Court, the CJ
fixed their Petition and connected matters (âSpeakers
Petitionâ) for hearing before a 9 Member Bench on
23.02.2023.
25.
At the very outset of the proceedings one of the
learned Judges objected to the presence of Justice Ijaz ul
Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the
Bench. It was urged that by recommending the CJ to take Suo
Motu notice of the delay in announcing the date of General
Elections to the Punjab Assembly the two learned Judges had
âalready expressed their opinion by stating that elections âare
required to be held within 90 daysâ and that there was
CMA No.3932/2023
25
âeminent danger of violationâ of the Constitution.â3 On the same
day, before any arguments on the merits could commence
another two learned Judges in their separate notes dated
23.02.2023 dismissed the Speakers Petition.4
26.
Capitalising on the disorderly proceedings, the
ruling coalition parties sought the recusal of Justice Ijaz ul
Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the
next day i.e., 24.02.2023 from the Bench hearing the
Speakers Petition. The basis of the objection was that the two
learned Judges had already disclosed their minds on the
question in issue. Under the practice of the Court the CJ may
commence
Suo
Motu
proceedings
against
the
alleged
violation(s) of Fundamental Rights on the recommendation of
a Bench of the Court. This mode of invoking Suo Motu
jurisdiction has been recognised and upheld by a larger
Bench in SMC No. 4 of 2021 (supra). Consequently, in
rejecting the recommendation of the two learned Judges the
ruling coalition parties lost sight of this judgment of the Court
affirming its settled and declared practice.
27.
The apparent purpose of the Federal Government
for seeking the recusal of the two learned Judges through an
ill-conceived objection was to disrupt or otherwise delay the
proceedings in the Speakers Petition. Due to the turbulent
hearings of both 23.02.2023 and 24.02.2023 the nine Honâble
Judges on the Bench met in Chambers on 27.02.2023 to
discuss the means for restoring harmony in the proceedings.
3 Separate Note to Order dated 23.02.2023
<https://www.supremecourt.gov.pk/downloads_judgements/s.m.c._1_2023_23022023.pdf >
4 Ibid
CMA No.3932/2023
26
Ultimately, all nine Judges unanimously resolved vide order
dated 27.02.2023 that the CJ should reconstitute the Bench.
Pursuant to the said order a 5 Member Bench was
constituted to hear the case. The Federal Government did not
oppose the reconstituted Bench and therefore the matter
proceeded and was decided by a majority of 3:2 through short
order dated 01.03.2023. The three Judges in majority
declared that the Speakers Petition was maintainable and
directed, inter alia, that the General Elections to the two
Provincial Assemblies must be held within 90 days of their
dissolution as mandated by Article 224(2) of the Constitution.
The two learned dissenting Judges held the Speakers Petition
to be not maintainable and therefore dismissed the same. The
said decision displeased the Federal Government which
rejected it by proclaiming that the Speakers Petition had
actually been dismissed by a majority of 4:3 (after taking into
consideration the separate notes earlier authored by the two
learned Judges on 23.02.2023 as part of the original 9
Member Bench).5 On that pretext the Federal Government
refused to accept and implement the short order dated
01.03.2023.
28.
The Federal Government repeated its above
mantra of dismissal of the Speakers Petition by 4:3 during the
hearing of a subsequent election matter. In Constitution
Petition No.5 of 2023 the order of the ECP dated 22.03.2023
was challenged for unilaterally extending the date of General
5 Press Conference of the Law Minister, Mr. Azam Nazeer Tarar, and the then learned Attorney
General held on 01.03.2023
<https://www.youtube.com/watch?v=1YcS2IPZGTQ&ab_channel=SAMAATV>
CMA No.3932/2023
27
Elections to the Punjab Assembly from 30.04.2023 to
08.10.2023. The Federal Government hampered the progress
of the proceedings in that case under the false guise of
dismissal of the Speakers Petition by an alleged majority of
4:3. However, in doing so it ignored the important fact
mentioned above that all 9 Members of the Bench vide order
dated 27.02.2023 requested the CJ to reconstitute the Bench
hearing the Speakers Petition. The CJ accordingly formed a 5
Member Bench. At no stage was a 7 Member Bench
constituted to return a 4:3 verdict on 01.03.2023 in the
Speakers Petition as contended by the Federal Government.
The order of the ECP dated 22.03.2023 challenged in
Constitution Petition No.5 of 2023 was set aside by the Court
on 04.04.2023 for violating the constitutional command to
hold General Elections to a Provincial Assembly within 90
days of its dissolution. Nonetheless, the Federal Government
chose not to comply with this order of the Court. Instead it
insisted, rather inexplicably, that the short order issued by
the 5 Member Bench of the Court on 01.03.2023 had rejected
the very maintainability of the Speakers Petition by 4:3. The
consequence is that two out of four Provinces continue to be
governed by unelected caretaker governments without any
end in sight.
29.
The resistance of the Federal Government and its
coalition parties to our proceedings and judgments has also
expanded to hurling threats6 and making scathing attacks
6 Press Conference of Minister of Information and Broadcasting, Ms. Marriyum Aurangzeb, held on
11.05.2023 <https://www.youtube.com/watch?v=Qr8x0aFuVRM&ab_channel=GNN>
CMA No.3932/2023
28
against certain Judges of the Court ever since the audio
recordings were leaked.7 An extreme example of a personal
attack on Judges was witnessed on 15.05.2023 when the
Court was hearing the review petition filed by the ECP against
the order of the Court dated 04.04.2023 passed in
Constitution Petition No.5 of 2023 directing the General
Elections to the Punjab Assembly to be held on 14.05.2023.
On that day certain political parties forming part of the ruling
coalition staged an aggressive demonstration outside the
Court threatening the CJ of serious consequences in the
event of the Court taking coercive action for securing
compliance with its order dated 04.04.2023.8 However, the
disturbing aspect of the said demonstration was the
assistance given by the Federal Government to its coalition
parties to gather and protest against the Court in the Red
Zone area of Islamabad where such protests are strictly
prohibited. The government machinery facilitated the entry of
the horde of protestors and remained a silent spectator to
their slander, the discernible purpose of which was to
pressurise the Court and its Judges into giving a favourable
decision or no decision at all. The power show assisted by the
Federal Government was a direct attack on the independence
of the Judiciary. Although the freedom of speech guaranteed
to the people of Pakistan by Article 19 of the Constitution is a
Fundamental Right, this right is subject to reasonable
7 Press Conference of the Interior Minister, Mr. Rana Sanaullah, held on 23.04.2023
<https://www.youtube.com/watch?v=7zyjomRnkc8&ab_channel=HUMNews>
8 <https://www.dawn.com/news/1753570> in Dawn Newspaper dated 16.08.2023
CMA No.3932/2023
29
restrictions imposed by the law. One such restriction exists in
Article 19 itself:
â19. Freedom of speech, etc. Every citizen
shall have the right to freedom of speech and
expression, and there shall be freedom of the
press, subject to any reasonable restrictions
imposed by lawâĻ in relation to contempt of
court...
(emphasis supplied)
Despite the afore-noted constraints under Articles 19 and 68
of the Constitution on discussing the conduct of Judges, it is
regrettable that amongst others, Cabinet Members also
flouted these constitutional limits. Judges were assailed in
harsh and intemperate language to justify the defiance of
decisions that were perceived to be detrimental to the Federal
Government and/or its interests in the matters of the General
Elections.
30.
In
the
face
of
the
Federal
Governmentâs
uncooperative stance the Court exercised restraint for the
negation of its judgments notwithstanding its constitutional
power to punish any person for disobeying any order of the
Court. Such control was exercised on account of the pending
review filed by the ECP against the order of the Court dated
04.04.2023 which fixed 14.05.2023 as the date for elections
to the Punjab Assembly. Some questions of constitutional
importance deserving our attention had been raised by the
ECP in its review petition. The Court considered that the
prevailing hostile political environment called for the finality
of its judgment for which purpose the ECP review had to be
decided. For this reason the Court fixed that review petition
for hearing on 15.05.2023 and decided to await its outcome
CMA No.3932/2023
30
before alleging non-compliance and therefore disobedience of
its orders by the Federal Government and the ECP.
31.
Be that as it may, we note that the Federal
Government has by various machinations and stratagems
managed to delay adjudication by the Court and also
discredited its judgments:
i.
This happened when our order dated 01.03.2023 was
reinvented to have dismissed the Speakers Petition by a
majority of 4:3 thereby denying its true legal effect.
ii.
Then without challenging the order dated 04.04.2023
the Federal Government took refuge behind the ECPâs
review petition filed against that order to justify its
inaction.
iii.
Subsequently, Parliament enacted the Supreme Court
(Review of Judgments and Orders) Act, 2023 which
came into effect on 26.05.2023. The said Act changed
the scope and form of review. As a result, the
proceedings in the partly heard review petition filed by
the ECP were stalled pending adjudication of the vires of
that law. That Act has since been found and held to be
ultra vires the Constitution.
iv.
The Federal Government has repeatedly sought recusals
of certain Judges from Benches hearing constitutional
cases, including of the CJ in the present matter, on
unknown and unspecified grounds of conflict of interest
and/or bias.
v.
Federal Ministers have also routinely made incendiary
statements on public platforms against Judges of the
Court sitting on Benches hearing Constitution Petitions
pertaining to elections to the Provincial Assemblies to
lend strength to the agenda of the Federal Government
noted above in sub-point (iv).
CMA No.3932/2023
31
The Court has faced all such actions of the Federal
Government with tolerance, forbearance and restraint.
However, it goes without saying that any refusal to implement
a final and therefore binding judgment of the Court can be
visited with consequences laid down in the Constitution.
Conclusion
32.
In light of the above factual position and
the law regarding the recusal of a Judge from a Bench
hearing a lis, the instant recusal application filed by
the Federal Government is declared to be devoid of merit and
legal force. Its object lacks good faith for aiming to harass
a Member of the Bench without cause in order to
avoid adjudication on the constitutional failings pointed
out in the impugned notification by Const P Nos.14 to 17 of
2023. To our minds the recusal application suffers from
the
common defect of being motivated and hence constitutes an
attack on the independence of the Judiciary. In view of the
foregoing the recusal application is dismissed.
Sd/-
Chief Justice
Sd/-
Judge
Sd/-
Judge
CMA No.3932/2023
32
Sd/-
Judge
Sd/-
Judge
Announced in open Court
at Islamabad
on 8th September, 2023.
Sd/-
J.
NOT APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN
C. M. A. NO. 3986 OF 2017
IN
C. M. A. NO. 2939 OF 2017
IN
CONST. P. NO. 29 OF 2016 ETC.
(Application by Hussain Nawaz Sharif)
In attendance:
Kh. Harris Ahmad, Sr. ASC.
Mr. Wajid Zia, Head of JIT.
Mr. Aamir Aziz, Member JIT.
Mr. Bilal Rasool, Member JIT.
Mr. Irfan Naeem Mangi, Member JIT.
Brig. M. Nauman Saeed, Member JIT.
Brig. Kamran Khurshid, Member JIT.
Mr. Ashtar Ausaf Ali, A. G. for Pakistan.
Rana Waqar, Addl. A. G.
Date of Hearing:
14.06.2017 (Order Reserved).
O R D E R
EJAZ AFZAL KHAN, J.- This CMA has been moved on behalf of
Hussain Nawaz Sharif one of the respondents for issuance of an appropriate
order directing the JIT to stop the video recording of the proceedings
relating to examination and interrogation of witnesses and to constitute an
independent Commission of a retired or sitting Judge of this Court to inquire
into the circumstances leading to the leakage of his image.
2.
The learned Sr. ASC appearing on behalf of the applicant
contended that where Sections 161 and 162 of the Cr.P.C. have prescribed
a manner for examination of witnesses supposed to be acquainted with
the facts and circumstances of the case, any other manner of their
examination would be against the law. He next contended that where
even signing of such statement by its maker has been prohibited by the
legislature, on the ground that it tends to bind the witness and impair his
freedom to speak the truth in the Court, recording of such statement by
C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017
2
audio-video electronic means which is more circumscribing than signing
such statement, cannot be permitted. To support his contentions the
learned Sr. ASC placed reliance on the cases of P. Sirajuddin, etc. Vs. State
of Madras, etc (1970 (1) Supreme Court cases 595), Ch. Razik Ram. Vs. Ch.
Jaswant Singh Chouhan and others (1975) 4 Supreme Court Cases 769),
Tahsildar Singh and another. Vs. State of U.P. (AIR 1959 Supreme Court 1012
(V 46 C 137) and Pakala Narayana Awami. Vs. Emperor (AIR 1939 Privy
Council 47).
3.
The learned Attorney General appearing on behalf of the
Federation of Pakistan contended that modern electronic devices have
liberated man from exhausting physical labour and made the things easier
but where a statute requires a thing to be done in a particular manner that
be done that way or not at all. Even otherwise, the learned Attorney
General added, the Court cannot read in a statute what is not there.
Recording of police statement by audio-video electronic means, the
learned Attorney General maintained, would thus be out of question.
4.
We have considered the submissions of the learned Sr. ASC
for the applicant and those of the learned Attorney General for Pakistan.
5.
Before we answer the question it is worthwhile to refer to
Sections 161 and 162 of the Cr.P.C. which read as under :-
â161. Examination of witnesses by police. (1) Any
police officer making an investigation under this
Chapter or any police officer not below such rank as
the Provincial Government may, by general or
special order, prescribe in this behalf, acting on the
requisition of such officer, may examine orally any
person supposed to be acquainted with the facts
and circumstances of the case: âĻâĻâĻâĻâĻâĻâĻâĻâĻ
(2)
Such person shall be bound to answer all
questions relating to such case put to him by such
officer, other than questions the answers to which
would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.
(3)
The police officer may reduce into writing any
statement made to him in the course of an
examination under this section, and if he does so he
shall make a separate record of the statement of
each such person whose statement he records.
C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017
3
162. Statements to police not to be signed; use of
statements in evidence.
(1)
No statement made by any person to a police
officer in the course of an investigation under this
Chapter shall, if reduced into writing, be signed by
the person making it; nor shall any such statement or
any record thereof, whether In a police diary or
otherwise, or any part of such statement or record, be
used for any purpose (save as hereinafter provided)
at any inquiry or trial in respect of any offence under
investigation at the time when such statement was
made:
Provided that, when any witness is called for the
prosecution in such inquiry or trial whose statement
has been reduced into writing as aforesaid the Court
shall on the request of the accused, be furnished with
a copy thereof, in order that any part of such
statement, if duly proved, may be used to contradict
such witness in the manner provided by 'section 145
of the Evidence Act, 1872. When any part of such
statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in
his cross-examination:
Provided, further that, if the Court is of opinion that
any part of any such statement is not relevant to the
subject matter of the inquiry or trial or that its
disclosure to the accused is not essential in the
interests of justice and is inexpedient in public
interests, it shall record such opinion (but not the
reasons therefor) and shall exclude such part from the
copy of the statement furnished to the accused.]
(2) Nothing in this section shall be deemed to apply to
any statement falling within the provisions of section
32, clause (1) of the Evidence Act, 1872 [or to affect
the provisions of section 27 of that Act].â
6.
A reading of Section 161 Cr.P.C. would reveal that a police
officer investigating the case may examine any person supposed to be
acquainted with the facts and circumstances of the case. Such person
shall be bound to the answer the questions relating to the case except the
questions whose answers tend to expose him to a criminal charge, penalty
or forfeiture. While reading of Section 162 Cr.P.C. would reveal that no
statement made by any person to a police officer in the course of an
investigation shall, if reduced to writing, be signed by the person making it
nor shall any such statement or any record thereof whether in a police
diary or otherwise or any part of such statement or record, be used except
C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017
4
for the purpose of contradicting its maker in terms of Article 140 of the
Qanoon-e-Shahadat Order. Signing of such statement by its maker is
prohibited because it tends to bind its maker and impair his freedom to
speak truth in the Court. Recording of such statement by audio video
electronic means could be treated at par with a statement which has
been signed by its maker, inasmuch as it hampers his freedom to testify in
the Court. But in any case use of audio or video devices to facilitate the
recording of such statement cannot be said to have been prohibited by
any interpretation of the provisions reproduced above when the finished
product to be used in the Court to confront the witness is the statement
reduced to writing and not its audio or video recording. Since the
statement so transcripted or reduced to writing cannot enlarge its scope or
its probative worth it could possibly have on its proof. The concerns voiced
by the applicant being paranoiac appear to be more of form rather than
substance. In the case of State of Rajasthan. Vs. Teja Ram and others
((1999) 3 Supreme Court Cases 507) the Supreme Court of India after
examining a string of judgments went so far as to hold that even the
signature of the witnesses on such statement cannot contaminate or vitiate
its worth in the words as under :-
âIf any investigating officer ignorant of the said
provision secured the signature of the person
concerned in the statement, it does not mean that
the witnessâs testimony in the Court would, therefore,
become contaminated or vitiated, the Court will only
reassure the witness that he is not bound by such
statement albeit his signature finding a place
thereon.â
7.
In the age of computer where almost everything is
communicated and even business of every type is transacted online,
emphasis on the form of doing a thing as it used to be done in 1898 would
amount to putting at naught the dynamics of scientific and technological
advancements which have not only liberated man from exhausting labour
but also made the things easier. Law in many countries of the East and the
West has been changed and even re-enacted. Addition of the word âtrulyâ
C.M.A. NO. 3986 OF 2017 IN CMA. NO. 2939 OF 2017
5
in sub-Section 2 after the word âanswerâ and insertion of the proviso to sub-
Section 3 of Section 161 of the Code of Criminal Procedure, 1973 of India,
providing for recording of such statement by audio-video electronic means
is an illuminating example on the subject. Alright, audio or video recording
cannot be admitted into evidence for the proof of such statement till the
law is amended, as it has been amended in India and the other countries,
but its use to facilitate recording of such statement cannot be discouraged
on the basis of so pedantic an interpretation of Sections 161 and 162 of the
Cr.P.C. The cases of P. Sirajuddin, etc. Vs. State of Madras, etc, Ch. Razik
Ram. Vs. Ch. Jaswant Singh Chouhan and others, Tahsildar Singh and
another. Vs. State of U.P. and Pakala Narayana Awami. Vs. Emperor
(supra) being related to admissibility of the statement signed or recorded
through audio-video electronic means do not appear to have any
relevance at this stage.
8.
In view of what has been discussed above, we donât feel
persuaded to countenance the request thus made. The other prayer of the
applicant cannot be attended to at this stage as the response of the
learned Attorney General for Pakistan has not been received so far viz-a-viz
the inquiry report as to the leakage of the image.
JUDGE
JUDGE
JUDGE
Announced in Court at Islamabad on ________________________
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE YAHYA AFRIDI
C.M.A.4053/2018 in C.A.637/2018 and C.A.637/2018
(On appeal from the judgment dated 13.2.2018 passed by the Islamabad
High Court, Islamabad in RFA No.166/2013)
Mst. Samina Riffat & others
(In both cases)
âĻApplicants/Appellants
VERSUS
Rohail Asghar & others
(In both cases)
âĻRespondents
For the applicants/
appellants:
Mr. Haroon Irshad Janjua, ASC
Mr. Mehmood A. Sheikh, AOR
Respondent No.1:
Mr. Junaid Iftikhar Mirza, ASC
Syed Rifaqat Hussain Shah, AOR
Respondent No.4:
Ch. Riasat Ali Gondal, ASC
Raja Abdul Ghafoor, AOR
Date of Hearing:
4.5.2020
ORDER
MUSHIR ALAM, J-. This appeal arises out of the impugned
judgment dated 13.2.2018, passed by the Islamabad High Court,
Islamabad, in RFA No. 166/2013. Respondent No. 1, on 4.1.2005,
filed a suit for specific performance of sale agreement dated
4.10.2004 before Civil Judge. Suit was contested by the Appellant
(Defendants No. 2 and 3), filed written statement on 7.03.2005 it
was specifically pleaded that they are âPardah Nasheenâ, defendant
No.1 being their brother took undue advantage of relationship,
struck the deal to their disadvantage. It was specifically pleaded
that since the plaintiff failed to pay balance consideration within
period stipulated therein. It was pleaded that through notice dated
08.12.2004 and reply dated 28.12.2004 to plaintiff notice deal was
C.M.A.4053/18 in C.A.637/18, etc
2
cancelled and, earnest amount in terms of clause 6 of the
agreement was forfeited. In paragraph 4, again it was specifically
pleaded that the agreement dated 4.10.2004 for failure to pay
balance consideration, within stipulated period, is cancelled and
earnest money stand forfeited. Defendant No. 1, who is brother of
appellant, filed a conceding written statement favouring the
Plaintiff.
2.
Alongwith the suit an application under Order XXXIX
Rules 1 & 2 read with Section 151 CPC was filed by Respondent No.
1, seeking restraining order against the appellants not to
sell/transfer the suit property. The learned trial court on 19.7.2005
while deciding the application on merits directed the respondent
No.1/vendee âto deposit the balance sale consideration amounting
to Rs.1,50,00,000/- (in terms Clause 3 of the sale agreement) within one
month otherwise the stay granted in favour of Plaintiff shall be
deemed to be cancelledâ. It is matter of record the balance sale
consideration, as directed was not deposited.
3.
The suit proceeded on merits and Khalid Mehmood,
duly appointed special attorney of Plaintiff Rohail Asghar, was
examined as PW-1. In cross examination, he admitted that
contesting Defendants (appellants herein) are âPurdah Nasheenâ
ladies. They did not sign the agreement in their presence; and their
signatures were procured later by the Defendant No.1. He narrated
in vivid detail how the earnest money through pay order
was paid to the appellants here in. However, He could not
furnish any details of payment of Rs. Twenty lacs to Defendant
No.1, though the witness denied the suggestion that the sale
agreement was procured from the Defendants No.2 and 3
C.M.A.4053/18 in C.A.637/18, etc
3
(appellant herein) in concert with their brother at value much below
the market price and no advance was paid to their brother. He
admitted in cross examination that the âpresent market value of
the suit property is 4 to 5 croresâ he declined to purchase the
property at the current market value. As regard time fixed for
performance and clause providing for forfeiture of earnest money
he deposed as follows.
ÛدÛاؚŲ
ØąÚ¯Ø§ ÛÚŠ ÛÛ Ø¯ŲØŦŲŲ
ØˇØąØ´ ÛÛ ÚēÛŲ
EX-P.2 "
ŲØĒ ÛØĻÚ¯ ÛÚŠ ÛŲ ادا Ų
ŲØą ÛÛŲب ØąØ¯Ųا ÛÚŠ ÛŲÛÛŲ
Ųد ÛÚŠ
ÛÛ ØĒØŗØąØ¯ ÛÛ ÛÛÚ¯ ÛØĻاØŦ ŲÛ ØˇØ¨Øļ Ų
ŲØą ÛØĻÚ¯ ÛÚŠ ادا
ÛŲ Ų
ŲØą دŲŲ اÛاŲب ÛŲ ÚēÛŲ
ÛدÛاؚŲ
ØąØ¯Ųا ÛÚŠ ÛاŲ
Ųد ÛÚŠ
Ûد ÛÚŠ ÚēŲØĩØ ÛÚŠ ÚēŲÛØĻاڞب ŲÛب ÚēŲŲÛØĒ ÛÚžØŦŲ
ÛÛÚžØĒ
Ų
ÚŠØ Ų°ÛŲؚد ŲØ§ØąŲد ÛÛÛ ÛŲ Ų
ŲŲØšŲ
ÚēÛŲ
ÛØąØ§Ø¨
ŲØ¨Ø§ØˇŲ
ÛÚŠ ÛŲØĩÛŲ ÛÚŠ ØĒØŗاŲØŽØąØ¯ ÛÚŠ ÛؚاŲØĒŲ
ا
ØĒŲادؚ Ų
ŲØą اÛاŲب ÛŲ ÚēÛŲ
Ų
ŲØą اÛاŲب ÛÚ¯ÛØĻادا ØˇØąØ´Ø¨
"ÛÛÛ ÛØĻاŲØąÚŠ ÛŲ ØšŲ
ØŦ ÚēÛŲ
It may be observed that the Defendant No.1 did not cross examine
the plaintiffâs witness nor adduced any evidence.
4.
Mst.Samena Riffat, appellant /Defendants 2 appeared
as DW-1 and was cross examined by the Plaintiff only. In her cross
examination she categorically stated that âwe sisters are still ready
to sell the property to the Plaintiff at present market valueâ
5.
After recording the evidence, suit was dismissed by the
learned trial court on merits with cost of Rs.10,000/- vide
judgment dated 7.10.2013. Which Judgment came up for scrutiny
in Regular First Appeal No. 166 of 2013. Learned Division bench of
the High Court though maintained the judgment and decree of
dismissal of the suit for specific performance. In paragraph 13 of
the impugned judgment, returned with a conclusion that âIt is
admitted position that the appellant could not show compliance
with the said order. We are of the view that had the appellant
C.M.A.4053/18 in C.A.637/18, etc
4
been in a position to pay the balance sale consideration within a
period of two months from the date of execution of sale
agreement or even prior to the filing of the suit , he would have
shown compliance with the order of the court dated 19.07.2005
passed by the learned civil Court by depositing Rs. 1,50,00,000/-
in court within a period of one month from the date of passing of
said order. Before or even after the institution of suit, the appellant
did not show his bonafide by making pay order or drawing a
cheque in favour of the Respondents No.1 and 3 (appellant herein) for
an amount equivalent to the balance consideration. As regards the
Appellantâs plea that the Respondents No.1 to 3 was supposed to
obtain an NOC from the CDA for transfer of suit house, there is no
such obligation imposed on respondent No. 1 to 3 under the terms
of the agreement to sellâ. Learned Bench of the High Court under
the given fact and circumstances of the case while relying on the
case of Mst. Gulshan Hamid v. Kh. Abdul Rehman1 came to a
conclusion that that the time was essence of the contract,
maintained the dismissal of suit and appeal was dismissed.
However, in the concluding paragraph 18 of the impugned
judgement held: -
âIn view of the above, we do not find any merit in
this appeal, which is accordingly dismissed with no
order as to costs. Since no notice was served by
respondents No.2 and 3 on the appellant that the
earnest money would be forfeited if the balance sale
consideration was not paid within the time stipulated
in the agreement to sell, it is ordered that
respondents No.2 and 3 shall return the earnest
money received by them alongwith profit as would
be payable on defense saving certificates of the
National Savings to the appellant. Respondent No.2
(Mst. Samina Riffat), appeared as DW-1, and
deposed that she and her sister had each received
Rs.10,00,000/- from the appellant. As regards
1 2010 SCMR 334
C.M.A.4053/18 in C.A.637/18, etc
5
respondent No.1, since he in his written statement
had expressed his willingness to perform the
agreement, he is directed to return the earnest
money amounting to Rs.20, 00,000/- without profit.â
6.
Learned counsel for the appellants contends that the
appellants alongwith their brother inherited the suit property,
which was negotiated for sale by their brother through agreement
noted above, for a total sale consideration of Rs.1,90,00,000/- out
of which Rs.20,00,000/- (twenty lacs) was statedly paid to Shahid
Mehmood respondent No. 2 (brother of the appellants), and ten lac
each (i.e. 5.26% of total sale consideration) to the appellants
herein. Balance consideration in terms of the agreement to sell
dated 4.10.2004 was to be paid within two months in terms of
Clause-3 of the agreement. Per Clause-5 and 6, on failure of
vendors to transfer the property in terms of agreement they were
liable not only to refund the advance together with equivalent sum
as compensation and correspondingly on failure of the vendee to
pay the balance sale consideration, the vendors were entitled to
forfeit the earnest amount paid in advance.
7.
It appears that respondent No. 1, instead of coming
forth to perform his part of reciprocal obligation to pay the balance
sale consideration within period stipulated, through notices called
upon the appellants to comply with certain conditions, which were
not the part of the agreement. Later on, respondent No. 1 filed a
suit for specific performance on 4.1.2005; alongwith the suit, he
filed an application under Order XXXIX Rules 1 & 2 CPC seeking ad-
interim injunctive relief.
8.
Learned
trial
court
on
19.7.2005
directed
the
plaintiff/respondent âto deposit the balance sale consideration of
C.M.A.4053/18 in C.A.637/18, etc
6
Rs.1, 50, 00,000/- within one month in the court. Otherwise stay
granted today in favour of plaintiff/respondent shall be deemed to
as cancelledâ. It is a matter of record that during trial of suit or
even during pendency of RFA, balance consideration was neither
offered nor deposited. Consequently, suit was dismissed, which was
maintained in appeal. However, the learned Bench of the High Court
deemed appropriate to direct refund of the earnest money and so
also burdened them with payment of profit on the earnest amount
as would be payable on Defense Saving Certificates to the
respondent No.1 in terms of the last paragraph of the impugned
judgment as reproduced hereinabove.
9.
Learned Counsel for the appellant argued that it was
concurrently
held
by
both
the
court
that
it
was
the
Plaintiff/Respondent No. 1 who was at fault and committed breach
of the contract. It was urged that the learned bench on one hand
relied upon the case of Ghulam Hamid2 to conclude that âBy failing
to pay the balance sale consideration in accordance with the said
agreement or in compliance with the said order, the appellant
cannot be considered to have done equity. This conduct of the
appellant stripped him from bonafides and disentitled him for grant
of equitable relief.â It was argued that once both the courts were at
unison that the breach, if any, was on the part of Plaintiff, the
defendant were justified to forfeit the earned amount which was
well within the contemplation of the same agreement.
10.
Learned counsel for the respondent No. 1 has appeared
and defended the impugned para noted above. It is stated that
since breach was on the part of the Petitioners/defendants 2 and
2 2010 SCMR 334
C.M.A.4053/18 in C.A.637/18, etc
7
the Respondent No.1/Plaintiff was not obliged to pay the balance
sale consideration, the unless the Defendants procured the
requisite NOC was obtained from the CDA.
11.
In rebuttal it was urged by the learned Counsel for the
Appellant that issue of NOC was raised merely to buy time and
delay payment of balance consideration, which became due and
payable within two (2) months from the date of execution of sale
agreement dated 4.10.2004 within the contemplation of Clause 3
of the sale agreement. Respondent No.1 even failed to comply with
the directions as contained in the order dated 19.7.2005 passed by
the learned trial court. He further contends that unless, breach of
contract on the part of petitioner/vendor was established; they
cannot be burdened with return of forfeited amount that too with
profit. It was urged that the direction contained in paragraph 18 of
the impugned judgment is against the spirit of the agreement
between the parties.
12.
We have heard the arguments and perused the record.
Entire controversy revolves around the terms of the agreement for
sale and the bargain struck between the parties. Clauses 1, 3,5 & 6
being relevant stipulated as follow: -
1. That all the liabilities, dues to the said property
shall be cleared, paid by the sellers.
2. That the purchaser has agreed to pay the
remaining sum of Rs.1,50,00,000/- (Rupees One
Crore Fifty Lac Only) to the sellers after Two
months from the date of signing this agreement
at the time of execution of sale deed in favour of
purchaser or any of his nominee(s).
3. That if the Sellers withdraw from this deal or not
to transfer the said property in favour of the
purchaser or any of his nominee(s) then they
shall pay back the entire sale consideration
already received from the purchaser along with
an equal amount as compensation, or purchaser
C.M.A.4053/18 in C.A.637/18, etc
8
will have the full right to get transferred the said
property through the court of law, at the risk
and cost of the sellers, in his own name or any
of his nominee(s).
5. That if the Sellers withdraw from this deal or not
to transfer the said property in favour of the
purchaser or any of his nominee(s) then they
shall pay back the entire sale consideration
already received from the purchaser along with
an equal amount as compensation, or purchaser
will have the full right to get transferred the said
property through the court of law, at the risk
and cost of the sellers, in his own name or any
of his nominee(s).
6. That if the Purchaser backs out from this deal or
fails to pay the remaining consideration within
prescribed
period,
then
this
deal
will
be
considered canceled and the received earnest
money will be forfeited.â
13.
Clauses as reproduced do not contemplate any
obligation on the part of the appellants to obtain NOC, as rightly
noted by the learned trial as well as the High Court. Learned
counsel for the respondent No. 1 was not able to demonstrate from
record that any dues against the property were outstanding. The
respondent No.1 to avoid making payment of balance sale
consideration cannot import or press any condition extraneous to
the conscious bargain struck between the parties. Generally, in
respect of sale of immovable property, time is not considered as of
the essence of the Contract. However, parties may consciously
strike a deal to make time essence of the contract by providing
certain consequences for breach of reciprocal obligation casted
upon them, in such cases, time is treated as essence of the
contract3. In instant case, as could be noted that, where vendor
backs out from the deal and avoid to execute conveyance deed,
clause 5 of the agreement stipulated that âthen they shall pay back
the entire sale consideration already received from the purchaser
3 Mst.. Gulshan Hamid v. Kh. Abdul Rehman 2010 SCMR 334 Paragraph 15.
C.M.A.4053/18 in C.A.637/18, etc
9
along with an equal amount as compensation.â Likewise for failure
of the vendee to perform his part of the obligation in terms of
clause 6 âin event he backs out from this deal or fails to pay the
remaining consideration within prescribed period, then this deal
will be considered canceled and the received earnest money will be
forfeitedâ. In terms of Section 51 of the Contract Act (IX of 1872);
where a contract is dependent on discharge or performance of
reciprocal promise or obligations to be performed or discharged.
The Promisor need not perform his part of promise or obligation,
unless the promisee, (here in this case the vendee) âis ready and
willing to perform his reciprocal promise.â In cases arising out of
sale of immovable property, a vendee seeking specific performance
has to demonstrate his readiness and willingness to perform his
part of reciprocal obligation as to payment of balance sale
consideration. The question what is readiness and willingness to
perform a contract was attended to by a learned division bench of
the West Pakistan High Court (Karachi) in the case of Abdul Hamid
v. Abbas Bhai- Abdul Hussain.4 It was held5 that âIn the first place,
willingness to perform ones contract in respect of purchase of
property
implies
the
capacity
to
pay
the
requisite
sale
consideration within the reasonable time. In In the second place,
even if he has the capacity to pay the sale consideration, the
question still remains whether he has the intention to purchase the
property. On consideration of all the facts it appears that the
appellant was not in a position to pay the balance sale
consideration. At any rate, the appellant was not willing, even if
he had the capacity to pay the money, to have the sale deed
4 PLD 1959 (WP). Karachi 629
5 Ibid 632
C.M.A.4053/18 in C.A.637/18, etc
10
completed.â As noted above, the learned trial court vide order
dated 19.7.2005 was indulgent in giving one monthsâ time beyond
the period agreed in the sale agreement, to deposit balance
consideration, which was not availed nor any attempt was made to
deposit the amount during the pendency of the appeal. Since there
is nothing on record to show, that the Appellants/Defendant 2 and
3 committed any breach, mere observation of the appellate court
that since the Defendants 2 and 3 did not issued any notice making
time essence of the contract is not justified under facts and
circumstances of the case, even if it is presumed no notice to such
an effect was issued, very fact specific plea was raised in the
written statement that for failure to make the payment of the
balance sale consideration within stipulated period rendered the
agreement rescinded and earnest amount forfeited is sufficient
notice, such fact coupled with fact that the Plaintiff on one hand
failed to offer sale consideration within agreed period, secondly did
not tendered the amount despite order of the learned trial Court
dated 19.7.2005 and even after the suit was dismissed on
7.10.203 no effort was made to deposit the balance consideration
what to speak of making any offer. The Appellant in cross
examination agreed to sell the property at the current market
value. The Respondent No.1 not only conceded that consequence
for not making payment in time would result in forfeiture of the
earnest money. He declined the offer of the appellant to purchase
the property at current value. In a recent case6 this court approved
the forfeiture of the 3.5 % earnest amount, where the bidder failed
to make the balance payment within time. In the instant case
6 Space Telecommunication (Pvt) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101
C.M.A.4053/18 in C.A.637/18, etc
11
earnest amount paid to the appellant represent merely 5.26% of
total sale consideration.
14.
At this stage, learned counsel for the appellants on
instructions states that out of sheer benevolence appellants are
prepared to refund 50% of the earnest amount received by them
i.e. Rs.5,00,000/- (five lac) each to the respondent No.1 as a
humane consideration. We record our appreciation for the conduct
of the appellant, displaying grace toward the Respondent No.1, to
which he was not otherwise entitled under the facts and
circumstances of the case. We would, therefore modify the
impugned judgement to the extent that appellants shall refund
Rs.5,00,000/- (five lac) each to the respondent No. 1 through pay
order within 45 days from the date of receipt of this order. Appeal
allowed, with partial modification as noted herein. In view of the
above CMA 4053/2018 also stand disposed of.
Judge
Judge
Judge
Islamabad,
4th May, 2020
Sarfraz /-
âApproved for reportingâ
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IN THE SUPREME COURT OF PAKISTAN
(Original/Appellate Jurisdiction)
PRESENT:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
Mr. Justice Maqbool Baqar
CIVIL MISC. APPLICATION NO.4109 OF 2015
IN CONSTITUTION PETITION NO.77 OF 2010
(Application of ECP seeking directions to the
Federal Government to expedite the passing
of the bill and framing of rules in order to
enable ECP to hold Local Government
Elections in ICT)
President, Balochistan High Court Bar
Association
âĻ Applicant (s)
Versus
Federation of Pakistan and others
âĻ Respondent (s)
&
CIVIL PETITION NO.1413 & 1455 OF 2015
1. Qamar Mustafa and others
(In CP No.1413 of 2015)
2. Muhammad Saleem and others
(In CP No.1455 of 2015)
âĻ Petitioner (s)
Versus
The Election Commission of Pakistan
through the Secretary and others
âĻ Respondent (s)
&
CONSTITUTION PETITION NO.39 OF 2015
Syed Zafar Ali Shah
âĻ Applicant (s)
Versus
Election Commission of Pakistan and
others
âĻ Respondent (s)
For the applicant(s)
: Mr. Muhammad Arshad, Addl. DG,
ECP
Mr. Abdul Qayyum, DD
(In CMA No.4109/2015)
Constn. P. No.77-2010 etc ICT elections
- 2 -
2
For the petitioner(s)
: Mr. Mobeenud Din Qazi, ASC
(In CP No.1413 of 2015)
Sardar Muhammad Aslam, ASC
(In CP No.1455 of 2015)
Syed Zafar Ali Shah, Sr. ASC (In
person)
(In Constn. P No.39 of 2015)
For the Federation
: Mr. Salman Aslam Butt, AGP
(In Chamber hearing)
Mr. Aamir Rehman, Addl. AGP
Date of Hearing
: 08.07.2015
ORDER
Jawwad S. Khawaja, J.- When we had taken up this
matter at Sl. No.1 first thing in the morning, Mr. Aamir Rehman,
learned Addl. AGP stated that there is a meeting in progress on this
matter and if the case can be taken up after 12:00 noon, he will be
able to place complete information before the Court. At 11:15 a.m.,
we have exhausted the cause list. In these circumstances, let the
hearing of this matter continue in Chambers at 12:00 noon.
In Chambers at 12:00 noon
2.
The learned Attorney General for Pakistan is also now
present. He states that the matter in the Senate has passed the
Committee Stage on 30.6.2015. The proposed legislation has now
been placed in the current session of the Senate on 6th July, 2015 and
there is a reasonable expectation that the Senate will take a decision
on the matter during the current week.
3.
The reason for our concern in this matter is that the
citizens of the Islamabad Capital Territory still appear to be waiting
Constn. P. No.77-2010 etc ICT elections
- 3 -
3
for Local Government Elections. The last such elections were held in
the Islamabad Capital Territory in 1992 and already a period of 23
years has elapsed since then. The urgency in the matter and the need
to provide elected Local Governments at the grass-roots level, at the
earliest, cannot be gainsaid, particularly in view of the fact that Local
Government Elections have already been held in Balochistan, KPK
and in the Cantonment Boards while such election in Sindh and
Punjab are scheduled for mid-September.
4.
Needless to say, in view of the fact that the expected
legislation is not as yet in place, the Election Commission of Pakistan
may notify a revised schedule for the said elections if this becomes
necessary on account of delays in Parliament. We may note that the
National Assembly passed the Local Government Bill on 26.3.2015
and since then it is pending with the Senate.
5.
To come up on 03.8.2015 when we may consider the
possibility of Local Government Elections under previously existing
legislation, so that the citizens of ICT are not discriminated against
and receive their right to elect their local bodies.
Judge
Judge
Islamabad, the
Judge
08.07.2015
Safdar/*
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA.
MR. JUSTICE EJAZ AFZAL KHAN.
MR. JUSTICE QAZI FAEZ ISA.
C. M. A. NO. 4343 OF 2014 IN S. M. C. NO. 1 OF 2005.
(Matter regarding publishing/printing incorrect version of Section 23 of
Contract Act, 1872 in the Book titled âThe Contract Act, 1872, 2nd
Ediction/2011â by M. Mahmood, Advocate).
AND
C. M. A. NO. 5436 OF 2014 IN S. M. C. NO. 1 OF 2005.
(Matter regarding Miss printing of Section 7(1)(e) and Section 7(4)(d) and (e)
of the Patent Ordinance, 2000 in the Book titled âManual of Intellectual
Property Lawsâ).
AND
C. M. A. NO. 5869 OF 2014 IN S. M. C. NO. 1 OF 2005.
(Matter regarding Section 2(K)(i) of Punjab Consumer Protection Act, 2005
and Manual of Consumer Protection Laws by Raja Nadeem Haider, ASC
Published by Punjab Law House (Edition 2009).
On Courtâs notice:
For the Federation:
Kh. Ahmed Hussain, DAG with
Mr. Muhammad Raza Khan, Secretary M/o Law
For Govt. of Balochistan:
Mr. Muhammad Farid Dogar, AAG with
Mr. Safdar Hussain Secy. Law
For Govt. of KPK:
Mr. Abdul Latif Yousafzai, AG
Mr. Muhammad Aarfin, Secretary Law
For Govt. of Punjab:
Mr. Mudassar Khalid Abbasi, AAG with
Mr. Mohsin Abbas Syed, Addl. Secy./Director (Law & PA)
For Govt. of Sindh:
Mr. Muhammad Qasim Mirjat, Addl. AG
Mir Muhammad Sheikh, Secretary Law
For Pakistan Bar Council:
Nemo.
For Punjab Bar Council:
Nemo
For KP Bar Council:
Nemo
For the respondents:
Nemo (In CMA-4343/14)
Nemo. (in CMAs-5436)
Mr. Muttaqi Raza, Manager (in CMA-5869 of 2014)
Date of hearing:
28.01.2015.
J U D G M E N T
Jawwad S. Khawaja, J. The present case highlights a serious issue viz. the non
availability, whether on an official website or in hard form, of the laws of Pakistan in the
form of a consolidated code. Making the applicable laws readily available to the public is a
CMA-4343/14 in SMC No.1/05
2
responsibility of the state about which there can be no two opinions. Discharging this
responsibility is one of the primary functions of the Federal and Provincial Law
Departments, a function which they did perform in the past, as we will discuss later in this
opinion. Yet, now, it appears as if through deliberate effort the law has been shrouded in a
cloak of secrecy. Regardless of whether this state of affairs has arisen on account of a
glaring omission or a deliberate act, it has serious consequences for state governance and
for judicial adjudication of cases. It adversely effects the rights of the people of Pakistan
and contributes towards the perpetuation and spread of lawlessness in the country.
2.
Initially Suo Moto Case (âSMCâ) No.4 of 2004, SMC Nos. 1, 2, 6 & 7 of 2007 and SMC
No. 17 of 2007 were taken up when it was noticed that a number of law books privately
published and cited in court contained glaring mistakes committed by authors and
publishers in the text of the statutes. Even bare Acts of statutes were erroneously printed.
These cases received the attention of the Court and notices were issued to the Bar Councils
as well as to certain authors and publishers of books containing errors. The aforesaid suo
moto cases were disposed of on 9.5.2013 in the following terms:
âIftikhar Muhammad Chaudhry, CJ.- In these cases, notices have been served
in respect of the glaring mistakes committed by the authors and publishers in
bare acts and law books. It is pointed out that the matter has already been
referred to the respective Bar Councils to look into the matter. Since the matter
relates to the printing of the law books, etc. therefore, the respective Bar
Councils within their permissible jurisdiction under the Legal Practitioners
and Bar Council Act, 1973, shall be free to take action if such material is
provided to them, therefore, the above-said petitions are disposed of.â
3.
It is apparent from the discussion which follows that the Bar Councils or even the
Federal and Provincial Governments did not attend to the important legal issues mentioned
above because no action whatsoever appears to have been taken since the disposal of the
above noted cases on 9.5.2013. It was on 25.2.2014 while hearing a case (CP No. 102 of 2014)
it came to our notice that a vital omission had been made in section 23 of the Contract Act
published by Al Qanun Publishers and authored by Mr. M. Mehmood Advocate. We may
CMA-4343/14 in SMC No.1/05
3
add that the potential financial impact of this case and an erroneous adjudication based on
the aforesaid publication would have run into billions of rupees.
4.
We, therefore, directed the Librarian of this court to examine the issue and submit a
report. He has done so, whereafter the case was ordered to be put up in court. It was
pointed out by the Court Librarian that the issue of gross negligence in the publication of
law books had been dealt with in the earlier cases noted above. Notices, therefore, were
issued to the various Bar Councils and also to the Federal and provincial governments.
When the governments entered appearance, it was disconcerting to note that they had not
undertaken any measures to address the dire situation and nor had the Bar Councils done
so despite the order dated 9.5.2013, reproduced above. We had in particular noted that the
Bar Councils were supposed to look into this matter which seriously undermines the
administration of justice and results potentially in immense loss to litigants. On 24.10.2014,
therefore, we once again issued notices to the five Bar Councils as well as the Federal and
provincial law departments. On 19.11.2014, we also asked the learned Attorney General to
inform us if there is any effective mechanism or legislation in place to ensure that the
publication of law books is properly regulated. He was also asked to ascertain if there was
any law which would impose a civil and/or criminal liability on publishers, authors etc.
responsible for publishing law books with such errors. It appears that there is no law on the
statute book because none was cited before us. The learned Attorney General, however,
stated that according to his information the entire statute book of the Country in the form
of the Pakistan Code was available on the website of the law department, but on 19.11.2014
he sought time to confirm if this indeed was so.
5.
Even today and as reflected in the orders passed on the previous dates of hearing, it
appears that there is in effect, no serious interest evinced in the matter by the concerned
authorities. Neither the Bar Councils (who have since the past few dates of hearing stopped
appearing in this case) nor the Federal or provincial governments have shown any
seriousness of intent in addressing what clearly is a major issue. We find it to be quite
extraordinary that there is in fact no official publication whether in hard form or on the
internet which can provide an accurate and error free version of the laws of Pakistan in one
easily accessible compendium. As such there are no easy and user-friendly means available
CMA-4343/14 in SMC No.1/05
4
to the people of Pakistan to enable them to find out what the statute book contains. The
abysmal state of affairs was amply demonstrated in a few hearings of this case, firstly,
when it was found out by our research staff sitting in Court that when they tried to access
the website of the Ministry of Law it was unavailable because of shutdown; secondly, when
the Pakistan Constitution was not easily accessible on the website of the Ministry of Law, it
could conveniently be accessed through the website of the Library of the United States
Congress in Washington. Even today when our research staff attempted to access the
website of the federal Ministry of Law, Justice and Human Rights, although the main page
of the website opened, but the link namely âLawsâ was not accessible and the caption
appeared that âThis web page has a redirect loopâ, but the user was not redirected
anywhere nor provided any further information about how to gain access.
6.
Furthermore, during the hearing of one of the cases in Court on 27.01.2015 we had
observed that different versions were available regarding Section 420 of the Pakistan Penal
Code, 1860 being bailable or not. âThe Code of Criminal Procedure, 1898â by M. Mahmood
(Edition 2005) stated the offence was bailable. On the other hand the âCode of Criminal
Procedure, Bare Actâ, by S.A. Abid (Edition 2012) described it as not-bailable. Such glaring
errors and mistakes are obviously misleading legal practitioners and judges too and are
creating uncertainty in the administration of law. It should be obvious that the non-
availability of an easily accessible official version of the Pakistan Code is principally
responsible for contributing to this Kafkaesque situation.
7.
We are dismayed to note that even the website of the Ministry of Law is grossly
inadequate and no effort or initiative has been taken to bring it up to date. It is only when
this matter was taken up by this Court and the governments and their law departments
were reminded of their duties and obligations that there was some movement to rectify the
matter. One fact apparent from the hearings in this case is that the Federal Government had
a very effective system for compiling the Pakistan Code till 1966 when the last
compendium comprising of 16 volumes of Federal laws was published in a proper and user
friendly form containing a chronological as well as alphabetical index of the laws on the
federal statute book which included the amendments made from time to time so that any
CMA-4343/14 in SMC No.1/05
5
lawyer, judge, researcher or man on the street could ascertain the state of the law applicable
in the country.
8.
On 8.1.2015, we were informed by our Librarian and later also by the learned DAG,
that the last official publication is a book titled âPakistan Codeâ which has been published
by the Manager of Publication, Government of Pakistan, Karachi in the year 2010. A
cursory examination of said book shows that it is not the statute book in the form of a Code
and is unhelpful because whilst it has a chronological index of statutes most of these have
not been printed in the said book, secondly, there is no alphabetical index as was the norm
until the publication of the Pakistan Code in proper format was discontinued after 1966,
thirdly, there are no marginal notes or cross referencing of a statute to provisions in another
connected statute and, fourthly, there are no foot-notes mentioning the amendments made
from time to time. Therefore, the said book mentioned by the DAG does not constitute the
Pakistan Code. It has not been explained to us why the manner in which the Pakistan Code
was published until 1966 was discontinued.
9.
The provinces also appeared to be in a similar state of disarray. This was not always
so. In Sindh there used to be a publication known as the Sindh Code but the last printing of
the Sindh Code occurred in 1956, thereafter and till the present day, there is no
compendium of the provincial laws in Sindh in the form of the Sindh Code. In Balochistan,
there was a publication by the provincial law ministry which purported to contain the laws
of the province last published in 1990, but the said publication is also not helpful as it does
not contain an alphabetical index as was done in the Pakistan Code until 1966. In Khyber
Pakhtunkhwa we were informed that the provincial code had been published until 1988
and thereafter the laws of 2013 and 2014 had been published in two volumes and that the
gap years (1988 to 2013) will be filled by working backwards from 2013. It is not clear
whether such publication will contain an alphabetical index, which as stated above is the
most effective and utilitarian feature of any statutory compendium. The Punjab province
appears to be ahead of the other three provinces and the Federation because it has brought
the Punjab Code up to date although the Additional Secretary of the Punjab Law Ministry
has acknowledged that the Code contains errors and omissions which are in the process of
being rectified.
CMA-4343/14 in SMC No.1/05
6
10.
Neither the Provinces nor the Federation have undertaken the exercise of codifying
the subordinate legislation made pursuant to rule-making powers given to the respective
executives by legislation and nor is there any codification of notifications or other statutory
instruments. At present only the Punjab Government appears to have in mind a second
phase of its Code which will comprise of subordinate legislation and a third phase which
will comprise of notifications and statutory orders. The Federation and the Provinces
claimed to have the laws of the Federation and Provinces respectively on their websites.
We, however, note that what is displayed on the respective websites is not a Code. The
Pakistan Code which was modified upto 31st December, 1967 and published by the
Manager of Publications, Government of Pakistan provides the template of a Code. It can
be very substantially improved and made user friendly by use of the latest technology. It is
clear that none of the online publications mentioned by the Law Officers of the Federation
and Provinces can be considered the same as a Code.
11.
On 8.1.2015, we were constrained to direct the law secretaries of the Federation and
the four provinces to make sure that at least the statute book is made available both in hard
form and on the website of the law departments of the Federation and the four provinces.
We had noted in our order of the said date that the situation represented by this case is
alarming and could be one of the contributory causes of the lawlessness which prevails in
the country today. It is obvious that where applicable laws are not available, there can be
little expectation or likelihood that the law will be abided by.
12.
At this juncture, it is important to bear in mind that copyright in the laws is vested
in the governments which have made such laws. This is also reflected in the Rules of
Business of the Federal and the provincial governments made under the Constitution. It,
however, appears that the books published in print and available for sale in the country are
authored and published incorporating the statutes of the Federation and the provinces, but
without the permission of the concerned government, being the owners of the copyright. In
view of the distressing situation which is reflected from the above narrative, it is for the
governments to rectify the situation, if necessary, by enforcing their copyrights or by
CMA-4343/14 in SMC No.1/05
7
legislation so that publishers of law books can be dealt with and penalized if they publish
erroneous books.
13.
Here it is also important to emphasize that in any civilized system of government,
the first and foremost obligation of the government is to make sure that all applicable laws
are made easily available to citizens in easily understandable language. It was, therefore, a
matter of great concern to us that the laws, whether Federal or Provincial, had not been
translated into the national language which is a requirement of Article 251 of the
Constitution or publicized in provincial/local languages if considered appropriate, in line
with the constitutional provision in Article 28 of the Constitution. Section 78 of the Stamp
Act 1899 enacted in the pre-independence period provided that, âevery Provincial
Government shall make provision for the sale of translations of this Act in the principal vernacular
languages of the territories administered by it at a price not exceeding twenty five paisa per copyâ. If
the colonial dispensation could be sensitive to the need for dissemination of laws through
inexpensive translations, we donot see why this is not being done post Independence.
14.
Because of the inadequacy of the functioning of the Federal and provincial law
departments, we gave extensive hearing to this case on 19th, 21st and 22nd of January, 2015.
In view of the lack of assistance received by us from the concerned Government
functionaries, we were constrained to direct the Federal and provincial law secretaries to
appear and to let us know why the laws of the Federation and the provinces had not been
made available to the people of Pakistan as was the norm in the Federal Law Ministry till
1966 and in the provinces. There being no explanation forthcoming, the five law secretaries
were asked to submit reports setting out targets to be met by the five governments and
timelines within which such targets are to be met. Reports were submitted by the
governments from which it appears that the governments of Sindh, Balochistan and the
Federation are not currently equipped with or in a position to publish whether online or in
hard form their respective law codes. As noted earlier, only the Punjab Government
appears to have made some progress and has published on the official government website,
the statutes applicable in the Province in the form of a Code. The progress and direction of
the KPK Government also indicates that a Code of all laws applicable in the Province may
become available in the near future.
CMA-4343/14 in SMC No.1/05
8
15.
In view of the fact that the five governments were unable to give any satisfactory
explanation for their glaring omissions which have far reaching consequences, we directed
our own research staff to examine the state of affairs in India, Bangladesh and in the United
Kingdom. In India there is a complete chronological and alphabetical index both in English
and in Hindi and all laws are available in both the said languages on the internet ('Indian
Code' (India Code ) <http://indiacode.nic.in/> accessed 28/01/2015) and in printed book
form. In addition the âFreeText Searchâ on the web page can be used by typing in any
word(s) and all laws containing the said word(s) are shown. This enables any citizen,
lawyer, judge or researcher to have immediate and easy access to the laws applicable in the
country. Similarly each of the provinces (known as States in India) have their own websites
which publish the applicable laws in easily accessible ways. Bangladesh also has the
Bangladesh Code in Bengali and in English with chronological and alphabetical indices. As
for the United Kingdom, there is a complete website for UK and Scottish legislation.
16.
Samples from the extracts of the above were printed and paper books of the same
were supplied by the Court to the law secretaries of the five governments and their law
officers. We are constrained to emphasize that this extensive exercise which had been
undertaken by the Court was in fact the responsibility of the governments and only
because the governments had failed to fulfill this duty the Court had to expend its own
resources for this purpose. We may mention that it did not take long for our young and
relatively inexperienced (for this task) researchers to produce their output. Based on the
current situation, we are not satisfied that the five Governments will have the willingness
and/or the capacity to undertake the relatively simply exercise of preparing the Pakistan
Code and the Provincial Codes in the form of one consolidated compendium of laws in
hard and in soft form.
17.
Therefore, after hearing the Law Officers and the Law Secretaries of the five
Governments and taking into account the reports which have been submitted on behalf of
the respective Governments in the present matter, we direct and order as under:
(i)
The complete Pakistan Code (âthe Codeâ) shall be compiled and displayed on
the website of the Federal Law Ministry.
CMA-4343/14 in SMC No.1/05
9
(ii)
Bound hard copies of the Code shall be made available for sale throughout
the country so as to be easily accessible to the public, at inexpensive prices.
(iii)
An alphabetical consolidated word index containing the words in the title of
a statute and words defined in the provisions of a statute containing
definitions shall be included in the alphabetical index.
(iv)
As a sample of the required consolidated word index, the consolidated index
appearing at the end of volume 16 of the Pakistan Code published by the
Manager of Publications, Government of Pakistan, Karachi (1968) may be
used as a rudimentary sample. Improvements in the sample must be made
by use of technology and by benefiting from the Codes published by
common law jurisdictions in the subcontinent and elsewhere.
(v)
The Code shall include in foot-notes, particulars of amendments made from
time to time in the various statutes published in the Code.
(vi)
Marginal notes shall be made to cross reference the provisions of one statute
with related provisions in another statute. The sample of the Pakistan Code
published by the Manager of Publications (1968) may be adapted and
improved.
(vii)
Translation into the national language shall be completed and displayed in
easily understandable form at inexpensive prices.
(viii) Translations of the Code into provincial/vernacular languages where
deemed appropriate by provinces shall be made by the Provinces.
(ix)
Subordinate legislation in the form of rules and regulations framed under
statutory powers shall be compiled in the form of a Code. This shall also
contain a consolidated word index.
(x)
A compendium of all statutory orders and notifications shall be compiled
and shall be made available to the public at inexpensive prices.
(xi)
A legislative and/or administrative regime shall be prepared with effective
enforcement and prosecution mechanisms to ensure that law publications
for sale to the public are error free and, where applicable, have the
permission of the Government owning copyrighted material.
CMA-4343/14 in SMC No.1/05
10
(xii) The Provinces shall follow the same pattern of publication of soft and hard
copies of laws, rules and notifications as has been ordered for the
Federation.
18.
The matter shall now be listed for hearing on 17.02.2015 on which date the five
Governments shall come prepared so that the Court can settle timelines within which each
of the directives and orders in the preceding paragraph shall be complied with. A copy of
this judgment shall be sent to the five Governments through their Chief Executives and
Law Secretaries. A copy shall also be sent to the Secretary of the Law and Justice
Commission (LJCP) with notice for 17.2.2015 so that within the mandate of the LJCP under
the Law Commission Ordinance, 1979, it can monitor the work being done by the five
Governments and ensure that the quality and usefulness of the publications to be made as
ordered above, are best suited for the public need.
Judge
Judge
Judge
ISLAMABAD.
A. Rehman
Announced on _______________
APPROVED FOR REPORTING.
īŗīī īī§ īĒī´
īī°īĒ
īš
(
īŽīī§ī¨ī īī°īī
īŠ
)
īŦ
ī
īŊ
īļ īīīī
ī°īīē
ī
īī īŊ
īģīĄ īŠī
īš
ī
īī¨īīŊ
īīŦ
īŊ
1/2005
īī§īīŠ
īī īīĸ ī°
4343/2014
īīīīŖ
ī´īē
īī§ī°ī
ī
īīĻ
īž
23
īŠī ī
1872
īŽī ī¨īŗ īŠīĒīĒī
īŽ īĻīīīĄ īŠ
ī§ īšīĸīī°ī īī§ī īšīĸīīī§īīŠ
īīģ
īīē īīĒ ī§
2011
īīīŠīĢ
īˇī īīēī¸ īŖ
The Contract Act 1872
īž īī īī§ ī¨
īīš
ī īēīē īīŠīĢ
ī
(Matter regarding publishing/printing incorrect version of Section 23
of Contract Act, 1872 in the Book titled "The Contract Act 1872, 2nd
Ediction/2011" by M. Mahmood, Advocate).
1/2005
īī§īīŠ
īī īīĸ ī°
5436/2014
īīīīŖ
ī´īē
īī§ī°ī
ī
īīĻ
īž
īīēī§
(Manual of intellectual Property
īĻ
īīą īēī īļ
īˇīš īģ ī˛ ī¸ī ī°ī
"
īīąīī
īŠ
īŽī ī ī
ī°ī īŠ
7(4) (d) (e)
īī¤ī ī
īīĸ
2000
ī´īĒ īšīĸīī īŧ īž
Laws
ī§
īŽ
(Matter regarding Miss printing of Section 7(1)(e) and Section
7(4)(d) and (e) of the Patent Ordinance, 2000 in the Book titled
"Manual of Intellectual Property Laws")
īīēī§
1/2005
īī§īīŠ
īīŠīŦī īīĸ ī°
5869/2014
īīīīŖ
ī´īē
īī§ī°ī
ī
īĻ
ī
īŽīīŖ īģīīŠīĢ
īģīīŠ īīŠ
2009 "
īˇīš īģīšīĸīīīīīŗī§ī
"
īīąīī ī
ī§īŠ īĒī°īĢ ī§īīē
īŠ
īŽīīž
īŠ
2(k)(i)
īŠī ī
īīĸ
2005
īīē
īīīģīŽ
ī§īīīīē īīēī§ īĢ
īĒīšīĸīīīīī
ī´
ī ī´ī
īŽī§ī°
(Matter regarding Section 2(K)(i) of Punjab Consumer Protection
Act, 2005 and Manual of Consumer Protection Laws by Raja
Nadeem Haider,ASC Published by Punjab Law House(Edition 2009).
īĒī°ī
īĸīī¨
ī
īļīŦ
īē
īˇīĨ īīŖī ī°īīē
īˇīž īŖī§ īīīĒ
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īˇīž īŖī§ īīīĒ
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īˇīž īŖī§ īīīĒ
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ī
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īīīīĸī˛īŽī§ ī
īŠī¨
īˇīž īŖī§ īīīĒ
īīˇīīīˇī
īŖ
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īąī§ī
īē
īēīĄīīšīŋīˇīŦ
īˇī°ī
4343/2014
īīīīŖ
ī´īē
īī§ī°ī
ī
īīĻ
īž
īˇī°ī
5436/2014
īīīīŖ
ī´īē
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ī
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īž
ī§īī§ īŗīīģ
5869/2014
īī§īīīīŖ
ī´īē
īī§ī°ī
ī
īīĻ
īž
28.01.2015
īŽī ī
ī ī§īĢīˇīīīĒ
īŠ
īē
ī īīŽ
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īŊ
īļ īīīī
ī°īīēīē
īąī īŠīŦ īīīģ īą
īēīīīĢī ī īš ī
ī īīŖīĒ
ī īŦ īīĒ
īšī ī˛ ī¸ī īŖīī°īĒ
īˇ
īģī§īž īĩ īž īī§ī ī
ī¤īē
ī¤
īīĸīŗ
ī¯īī
ī¸ī° īž īīĄī īŖīĒī
(Pakistan Code)
ī¸ī
īĢīīŦ ī°ī īĄīˇ
ī°īīž īŊī§īĄīĒ
īīēī§ī
ī īˇīą
ī
ī˛ ī¸ī īŋ īī
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īēīī¸
ī
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ī°īī§ ī
īŖī
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ī
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ī
ī īīēī§ īš īēī īĒīĒ
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īī ī īģīīē
īą īī īŦ īžīŽ
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ī¤
īī īī īīī īž ī¨īĸ
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ī§īīŠīīī§īž
ī īž īīģ īī
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ī
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ī īīĄīĒ
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īĒīŖīēī īīĩī§īīŽīĢīīīīŗ
ī
īīĨīī´ ī īŖīĒ
īīīī¸
īīš īŦ
ī ī˛īŊ īīš ī ī¯īēī
īŠ ī¤
ī¸īīēī§
ī°ī
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īī¨
īīīļīŦ
īĨīŽī´ ī ī¨
ī¤
ī īĒī§īŦīąī īĒīĒ
īīī´īŖī īēīī¸ ī
īšīī°īĒ
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īīīēī§
īĢīĸīīīžī¯
īī
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īīŊī īĻī īž īŽīģ
ī
6ī2ī1ī
īŠīŦīī° īīŠ
ī īĸī 2004 ī4
īīŠīŦ
(suo motu)
ī§īŽ īī°īī
īī° īīŠ īļīŦ
.2
īī īīŖīĒī§ī¨ īŠīĨīĻīī ī
īĸī2007 ī17ī īŦ
īŠ
(suo motu)
īī° īīŠ
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īĸī2007 ī7
īīēī§
ī
īž īī´ īŖ
īĒī°ī ī īīŖīĒ
ī§īŽī īĒīīĄ īē īĨīēī§īŦ ī ī¨
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ī§īŽī īīēī§
īļīŦ
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ī
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ī
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ī
ī
īĢī ī
īĢīīĒīĒ īīēī§
īēī ī¤
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ī
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(Bare Acts)
ī īĸīī īīšīĸīī īŠī īī
īī
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īīīī īīĄ īīēī§ ī
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ī
īīīŦīŗīĻ ī§īēīąī
īąī
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09.05.2013
ī§īą
ī
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ī īŗīšīŗ īīą ī ī˛īŽ
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"
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ī§ īīĒ
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(Bare Act)
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ī īīŽīŦ
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ī
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ī īī§ī
ī
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īąīīīīīīī´ īĢ
īī§īī
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īī¯īīī§īīĩīąī
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1973
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ī¸
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ī
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ī¯īīī´ ī¯īĢīˇ
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īĒīŽīļ
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ī°
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īī īŖīēī ī´ īīĒ īīīģ īą
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ī īīēī§ īš īēī ī īŠ īīēī§ ī
ī
īīĄīī°īĄīĒ
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ī īŖīĸīīĢ īģī īīšī īī¤
īēīī°īīļīŦ
īī īī īīž īˇ
īĄīĒī§īēīąī īŖ
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ī
īąī
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īīīī¸
īĢī ī
09.05.2013
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ī
(CP 102/2014)
īą īī
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25.02.2014
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(Contract Act)
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īąī īž
īīīŠīĢīē īīĒ ī§ī īī īĢ īī īŦ īī
ī´īī
ī īēīē
23
ī ī
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ī¸
īīēī§ī
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ī ī ī¤
īĢī īīĨ īīī°īĒ
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ī ī
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ī īģīī§ īĢ īēīģī
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.4
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ī īĢī īīĒī ī¤īĢ
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09.05.2013
īīēīļīŦī īļīīī
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ī
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24.10.2014
ī īŦī
īąī°ī īīŖīĒ
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ī īŖīĸīī
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ī
ī ī īīž ī
ī īŦī ī¯ī
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ī
ī¤
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( P a k i s t a n C o d e )
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īīĨ īĢī ī¤ īīŦ īī
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ī
19.11.2014
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ī
ī
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ī´ ī ī ī ī īžī§ī īž īīēī§īīĒ
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1956
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1990
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1988
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īąī ī¤ īīīī īšī īī°īĒ
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1967
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08.01.2015
īī§īą
.11
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īīēī§īēī
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(Copy Right)
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| {
"id": "C.M.A.4343_2014.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE SH. AZMAT SAEED
C.M.A. NO. 4581 OF 2013 IN
C.M.A. NO. 3470 OF 2013 IN
CIVIL APPEAL NO. 409 OF 2010
(Fake degree case)
Application by Muhammad Younis against Arif Mehmood, MPA
In Attendance:
Raja Amir Abbas, ASC a/w applicant
Mr. Hamid Khan, Sr. ASC a/w respondent Arif
Mehmood
For HEC
Mian Muhammad Hanif, ASC
Raja Abdul Ghafoor, AOR
For BISE, Faisalabad
Mr. Fida Hussain Shah, Assistant Controller (Record)
Mr. Abdul Rehman, Assistant (Record Branch)
Mr. Muhammad Arshad, Junior Clerk (Legal Section)
Ch. Akhtar Ali, AOR
Date of Hearing:
09.04.2014
ORDER
TASSADUQ HUSSAIN JILLANI, CJ.- We have heard learned
counsel for the applicant and respondent Arif Mehmood and have also perused
the record produced by the Assistant Controller (Record) of the Board of
Intermediate and Secondary Education, Faisalabad.
2.
Applicantâs learned counsel read out the detailed statement of
Assistant Controller (Record) of the Board of Intermediate & Secondary
Education, Faisalabad dated 22.4.2013, according to whom, the FA certificate
of the respondent was fake because on the date of FA examination, the
respondent Arif Mehmood purportedly appeared at two centers i.e. at one as a
private candidate and at the other as a regular candidate. The admission form
as a private candidate bears pink colour whereas the admission form of regular
students is yellowish white.
3.
Learned counsel for the respondent submitted that the only
evidence against the respondent is the statement of Mr. Fida Hussain,
Assistant Controller (Record) whereas a close look at the admission forms
would indicate that in the pink form (private admission form) his metric roll
number is correctly written as 11592 and his name also has been correctly
written as Arif Mehmood. However, in the yellowish white admission form
(regular admission form) the matriculation roll number is incorrectly written as
18592 and even the name has not been correctly written i.e. Arif Mehmood Gill.
Adds that in the degree of Bachelor of Arts of respondent regarding which there
is no dispute, his name is written as Arif Mehmood. He lastly submitted that in
2003 pursuant to the direction issued by the learned Lahore High Court in a
petition filed by some other objector, a detailed inquiry was carried out by the
Board of Intermediate & Secondary Education and the FA degree of the
respondent was found to be genuine.
4.
We have examined the record to which reference has been made by
learned counsel for the respondent with the assistance of Board official and
find that the submissions made by respondentâs learned counsel prima facie
are not without substance. But in these proceedings no conclusive finding can
be given. If applicant still wishes to challenge the authenticity of the FA degree
of the respondent, he may take recourse to other remedy, if available under the
law.
5.
In the afore-referred circumstances, the suo moto notice issued to
the respondent as also the order of suspension of his membership from
Provincial Assembly seat dated 25.9.2013 is withdrawn. This CMA is disposed
of in terms noted above.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
9th of April, 2014
Not Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
CMA No.4671 of 2012 in HRC No.19 of 1996
(News item published in Daily Express Tribune, Partner of
International Herald Tribune, on 14.03.2012 under the
following
Caption
âMisappropriation:-
Government
withdrew Millions from Intelligence Bureauâs Account)
On Court Notice
: Attorney General for Pakistan (Absent)
For Express Tribune
: Mr. Asad Kharal, Reporter
For I.B.
: Ms. Naveeda Noor, AD (L)
Date of Hearing
: 02.01.2013
ORDER
In response to order dated 17.12.2012, reply has been
submitted, which is found to be unsatisfactory. Let the D.G. (IB)
furnish comprehensive fresh reply, however, he should keep in
mind that he is the incumbent DG, therefore, he has access to
the record and he should not conceal anything from the Court.
He may also keep in mind that if the amount as alleged by Mr.
Asad Kharal, was withdrawn for toppling of Government of Punjab
in the year 2009 is not correct, atleast he should disclose that
what was the other object of withdrawal of this huge amount and
details of its expenditures as atleast record must have been
maintained that to whom the amount was distributed. It would
be appreciated and kept secret, if object and purpose of spending
CMA No.4671 of 2012 in HRC No.19 of 1996
- 2 -
huge tax payer amount is also disclosed. If reply seems
satisfactory, direction shall be issued to Mr. Tariq A. Lodhi, former
DG (IB), for his personal appearance to testify on the basis of
record and in such situation, if he appears and confirms the fact
at that time, the incumbent D.G (IB) has to face some
embarrassment. It is noteworthy that Mr. Tariq A. Lodhi was
holding charge for two months, in his earlier reply had not denied
the withdrawal of the amount except stating that it was not for
toppling of the Punjab Government. So, prima-facie, inference
can be drawn that the amount was withdrawn and there should
not be any reason for the incumbent DG to conceal the facts from
the Court. We expect full cooperation from him, being a
responsible officer and head of one of the most important
intelligence organizations of the country. Dr. Muhammad Shoaib
Suddle, former D.G. (IB) has not sent any reaction, therefore, the
instant order be also sent to him through the Registrar to inquire
as to whether if he had any information, he should communicate
before the next date of hearing in writing through the Registrar of
this Court. The Secretary Finance, Government of Pakistan is
also directed to trace the record on the basis of which sanction
was made for withdrawal of amount referred to in the earlier
orders, with details of transferring the same in the account of IB
as well as communication for such withdrawal must be with the
Finance Department, through some treasury/bank. Notice to Mr.
CMA No.4671 of 2012 in HRC No.19 of 1996
- 3 -
Masood Sharif, former DG (IB) be also repeated in pursuance of
earlier order dated 28.11.2012.
2.
Adjourned to 8th January, 2013. The sealed envelope
containing replies of former DGâs (IB) Mr. Aftab Sultan and Mr.
Javed Noor has been opened and perused and is ordered to be
re-sealed, as confidentiality has been claimed.
3.
When we have dictated the above order Mr. Asad
Kharal, petitioner as well as Ms. Naveeda Noor, A.D (Legal) IB
have left the courtroom. The Registrar of this Court has sent a
sealed envelope received by him from Dr. Muhammad Shoaib
Suddle, the same was opened in the Court. The assertions made
in the letter by Dr. Muhammad Shoaib Suddle, prima facie,
confirm the allegations put forward by the petitioner Asad Kharal.
However, to the extent of withdrawal of huge amount of Rs.40
crore, during the years 2008-09 but not for the purpose of
toppling the Punjab Government, as he has considered it a
farfetched phenomenon. The report received from him is ordered
to be re-sealed and kept in safe custody.
4.
In view of the contents of report, we direct Mr. Tariq A.
Lodhi through the DG (IB) to appear in person on the next date
of hearing, already fixed as 8th January, 2013. However,
implementation of the earlier portion of the order as directed
therein is required to be made in the same manner except further
communicating Dr. Muhammad Shoaib Suddle, as his reply has
CMA No.4671 of 2012 in HRC No.19 of 1996
- 4 -
been received. This order be communicated to the DG (IB)
during the course of day, enabling him to establish contact with
Mr. Tariq A. Lodhi, to appear in person on the next date.
CJ.
Islamabad
J.
02.01.2013
*Hashmi*
J.
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v-râ,-,..n.yrdlemstv.ntxt,rersly`.16747IRLMIXE,'",,
For ETPB:
Mr. M. Ikram Ch., Sr, ASC.
Dr. Aainir Ahmed, Chairman ETPB.
Mr. Tariq Khan Wazir, Addl. Secy.,
(Shrines) ETPB.
For Govt. of KP:
Mr. Shumail Ahmed Butt, A. G. KR
Mr. Qasim Niaz, Chief Secy., KP.
Mr. īŋŊ
M. īŋŊ
Rafiq, īŋŊ
Addl. īŋŊ
Asstt.
Commissioner, Kohat.
Mr. Tayyab Khan, RPO, Kohat.
Mr. M. Naeem, Deputy Secretary, H.E.
KP.
IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, I-ICJ
MR. JUSTICE IJAZ UL ANSAN
MR. JUSTICE SAYYED lvIAZAHAR AL1 AKBAR NAQVI
CMA No.4821 of 2018 in S.M.C. No.01 of 2014.
(Human Rights Commission of Pakistan through
Chairperson, Dr. tvlehdi Masan and others. v. Federation of
Pakistan through Ministry of Education and others).
AND
CNIA No.516 of 2019 in Const. Petition No.62 of 2017.
(Pribhu Lai, etc. v. Government of Pakistan, etc.)
AND
Constitution Petition No.62 of 2017.
(Pribhu Lal, etc. v. Government of Pakistan, etc.)
AND
Constitution Petition No.63 of 2017.
(Leo Roderick Paul, etc. v. Government of Pakistan, etc.)
In Attendance: īŋŊ
Mr. Sohail Mehmood, Addl. AGP,
Mr. Shoaib Suddie, Chairman
of
Corn mission. âĸ
Mr. M. Saqib jillani, Member of
Commission.
Dr. Ramesh Kumar, Member of
Conn mission.
For Govt. of Punjab: Ch. Faisal Fareed, Addl. A. G. Punjab.
Mr. Ibad Ullah Sajid, Social Welfare
Office, Govt. of Punjab.
1.1wriuu.,v,Isnneuranrcuarr
. -74rTSZTI7EMI.â17SM...Ma. īŋŊ
âĸ âĸ īŋŊ
.
CW.6111124,021 of 2018 enM.cNo.Qj of 201 S. eic.
For ICT:
For Govt. of
Balochistan:
Fed. Department:
Mian Zahid Mehrnood, Law Officer, H.R.
Punjab,
Rizwana Naveed, Addl. Secy., H.R.
Punjab.
Mr. Amir Riaz, Director, PCTB, Lahore,
Dr. Sohail Sarwar, Deputy Director,
PCTB, Lahore.
Mr. Shehzad Manzoor, DSP, Multan.
Mr. Wajid Ullah Kundi, Secretary 1&C,
Punjab.
Mr. Niaz Ullah Niazi, A. G. Islamabad.
Mr. Ayaz Khan Swati, Addl. A. G.
Balochistan.
Mr. Iftikhar Ahmed, S.O. M/o Religious
Affairs.
Mr. Sohail Aijaz, Dy. Director Litigation
M/o Federal Education.
Mr. M. Rafig Tahir, J.E.A. M/o Federal
Education.
Mr. Kamran IVIurtaza, Sr. ASC
(via video-link from Quetta)
Mr. Peter Jacob, E.D. CSJ/Chairperson
PCMR.
For Govt. of Sindh: īŋŊ
Ms. Leela Kalpana, Addl. A. G. Sindh
(via video-link from Karachi)
Mr. Abdul Hadi, Secretary Minorities
Affairs, Sindh.
(via video-link from Karachi)
Date of Hearing: īŋŊ
15.02.2021.
ORDER
In our last order dated 08.02.2021, there is a
reference of Rupees Thirty Eight Million to be paid to Pakistan
Hindu Council by the Evacuee Trust Property Board rETPB"),
It is stated that an amount of Rupees Two Million has already
been paid by Government of Khyber Pakhtunkhwa for
reconstruction of the Samadhi at Karak. So far the claim of Dr.
Rornesh Kumar for payment of Rs.38 million by the ETPB is
CAM No.4821 012018 in S.A{C. No.01 012011, etc
3
concerned, it is stated by the learned Additional Attorney
General as well as learned ASC for the ETPB that no account
has been submitted by the Hindu Council in response of said
claiM and that in case the Hindu Council submits the account
of such amount of Rs.38 million, the ETPB shall consider the
same and deal with it appropriately and in case any amount is
due to be paid by the ETPB to Hindu Council, the same shall
be paid. In . this view of the matter, Dr. Ramesh Kumar may
submit appropriate accounts to the Chairman, ETPB.
2. īŋŊAs regards the criminal cases initiated against the
persons who are alleged to have caused damage to the
Samadhi in Karak, it is stated by Mr. Kamran Murtaza,
learned Sr.ASC appearing before us through video link from
Quetta that the cases are not proceeding before the criminal
Courts and on this account the arrested persons are facing
difficulties. On this, the learned Advocate General, Khyber
Pakhtunkhwa has stated that there is no obstruction from the
side of KP Government for proceeding with the cases of
arrested persons and that the cases are being proceeded. He
however makes a statement: that he will seek instructions with
regard to the complaint made and ensure that the cases are
proceeded expeditiously. In view of such statement made by
the learned Advocate General, KP the learned counsel (Mr.
Kamran Murtaza) for the arrested persons states that his above
query stands satisfied.
CALA No.-7822 or 2028 io 17.M.G No.02of2014, ofd īŋŊ
4
3.
So far Prahlad Mandir at Multan is concerned, no
satisfactory report has been received from the Government of
Punjab and even the Chief Secretary, Punjab is not in
attendance despite the fact that it was directed to him to
ensure that restoration of the Mandir is made in order to
facilitate Hindu ComMunity of Pakistan to hold Holi festivals in
said Mandir on 28th March of 2021.
4.
Once the Court had passed an order, it was the
duty of the Chief Secretary, Punjab to ensure its compliance.
We note that despite meeting of the 'One Man Commission'
appointed by this Court with the Chief Secretary, Punjab so
also by Dr. Romesh Kumar nothing has been done by the Chief
Secretary and this Court takes serious note of such conduct of
the Chief Secretary, Punjab. In the circumstances, the Chief
Secretary, Punjab is directed to ensure that compliance of this
Court's order dated 08.02.2021 is made in letter and spirit and
such compliance report be submitted before this Court on the
next date of hearing, when the Chief Secretary, Punjab shall
also be in attendance. Two weeks' time is granted for this
purpose.
5.
Mr. Muhammad Ikram Chaudhry, learned ASC
appearing for the ETPB- states that through notification dated
12.06.2006 management of Katas Raj Temple Complex in
District Chakwal was transferred by the Federal Government
to the Provincial Government Punjab for its maintenance with
immediate effect and until further orders. We are infoimed that
rmaxaasza.e..aaaraalevaaraartaaareparap,10.0.`[.âĸSl īŋŊ
Srr.TS.SF.InTOWZ.V.I.a.161
-SSITa.M1.
-W7.1.71,,,,::=,,,ZI772,;;;Z=KpaZ,,,,_ âĸ
4 OSA No.4821 of 2018 In 2 M.C. No.01 of 2014, etc. īŋŊ
5
the maintenance which was required to be made in the year
2006 has already been done by the Punjab Government and
now the purpose of said notification dated 12.06.2006 stands
served and Katas Raj Temple Complex in District. Chakwal has
to be reverted back to the ETPB. In this regard, let Federal
Government issue necessary notification(s) and ensure that
Katas Raj Temple Complex in District Chakwal is returned
back to the ETPB to be dealt with under the Evacuee Trust
Properties (Management & Disposal) Act, 1975. Such an
exercise will be completed by the Federal Government within a
period of two weeks.
6.
A report has been submitted on behalf of Secretary,
Ministry of Federal Education and Professional Training which
is not signed by the Secretary himself rather it is signed by
Deputy Director (Literacy) of said Ministry. Such report is not
in compliance of our order dated 05.02.2021 and as such the
same is returned with direction to the Secretary, Ministry of
Federal Education and Professional Training to submit a report
duly signed by him to the Court and he shall also be in
attendance on the next date of hearing. The report shall be
made available by him within a period of two weeks.
7.
The Chairman, ETPB has handed over to the
learned 'One Man Commission' in Court a USE Drive
containing full details of all Evacuee Trust Properties as well as
details of all Iviandirs, Samadhies and Gurdawaras, etc. The
learned 'One Man Commission' shall examine such material
.11111.S.A.VarMIT.M.T.S.ASTATIS. tw27331,
Vra".=.
No.9821 of 2018 in .9 tie 1ln.0? of2014. an īŋŊ
6
âĸ contained in the USB as supplied to him by the Chairman
ETPB and thereafter, if deemed necessary, submit his response
to the same.
8. īŋŊHowever, the Chairman, ETPB has been informed
that none of the properties of the ETPB can be utilized by the
Board for its own employees nor the same can be sold
out/transferred to any person and in case leases of such
properties have been made, the Chairman shall give full details
of the same as well as the amounts which the Board is
receiving from the lessees. He shall also in the report mention
the rates which were initially fixed as lease amounts and the
present rates of lease amounts which are being paid to the
ETPB by the lessees. The duration of the teases shall also be
indicated from the initial stages uptill now and the persons to
whom such leases have been granted. This report shall be
made available by the Chairman, ETPB to this Court within a
period of two weeks and he shall also be in attendance before
us on the next date of hearing. Adjourned to a date in office
after two weeks.
--â_
(c;\)
ISLAMABAD.
15.02.2021.
ZR/*
'Not Approved For Reporting'
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SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE QAZI FAEZ ISA
MR. JUSTICE IJAZ UL AHSAN
C. M. A. NO.490 OF 2021
IN
CONSTITUTION PETITION NO.20 OF 2013
(Action against Distribution of Development Funds to
MNAs/MPAs by Prime Minister)
IN ATTENDANCE:
For the Federation
: Mr. Khalid Jawed Khan,
Attorney General for Pakistan
Mr. Sohail Mehmood, Addl. AGP
For Govt. of Punjab : Barrister Qasim Ali Chohan,
Addl. A.G. Punjab
Khalid Mehmood,
Addl. Secretary Finance, Punjab
Shehbaz Ahmed Sheikh,
Law Officer, Finance, Punjab
For Govt. of KPK
: Mr. Shumail Ahmed Butt, A.G., KP
Mr. Aftab Ali Khan, Addl. A.G., KP
Atif Rehman, Secretary Finance, KP
Amir Sultan Tareen,
Secretary, P&DD, KP
For Govt. of
Balochistan
: Mr. Arbab Muhammad Tahir,
A.G., Balochistan
Mr. Muhammad Fareed Dogar,
Assistant A.G., Balochistan
For ICT
: Mr. Niaz Ullah Khan Niazi,
A.G., Islamabad
For Govt. of Sindh
(via video link from
Karachi)
: Mr. Salman Talib ud din, A.G., Sindh
Saeed Ahmed Qureshi,
Focal Person to Chief Secretary,
Sindh
Sikander Hassan,
D.S. Finance, Sindh
Date of Hearing :
11.02.2021
CMA.490/2021 IN CONST.P.NO.20/2013
2
ORDER
GULZAR AHMED, CJ.â The learned Attorney General for
Pakistan has filed a report by way of CMA No.751 of 2021, signed
by the Secretary, Finance Division, Government of Pakistan,
Islamabad. The above report, inter alia, submits as follows:
âiii)
There is no discretionary allocation at the disposal of the
Prime Minister, Federal Minister, Parliamentarian, or any
other person, under the existing budgetary system. As such,
expenditures incurred are never person specific. Rather they
are Demand-specific, duly approved by the National
Assembly.â
It was observed in Court that the Prime Minister enjoys protection
for his person under Article 248 of the Constitution, nevertheless
he has in deference to our last order also signed the above report
with the following endorsement:
âIt is submitted that no public funds are being distributed to
Parliamentarians by the Federal Government and any report to the
contrary in media is incorrect. No money will be handed over to the
legislators to carry out development schemes.â
2.
The learned Additional Advocate General, Punjab, has also
submitted a report by way of CMA No.719 of 2021, signed by the
Finance Secretary and the Chief Secretary, Government of the
Punjab, where responding to query (b) in para 4 of the order of this
Court dated 03.02.2021, it is stated as follows:
âPublic funds are allocated by the Provincial Assembly in
terms of Articles 120 to 124 of the Constitution of the Islamic
Republic of Pakistan. Expenditure against aforesaid budgetary
allocations is made in accordance with the rules made under
Article-119 of the Constitution. There is no provision in the rules
ibid to hand over funds to legislators. The Government of Punjab
has neither handed over funds to legislators, nor is it in the process
of handing over funds to legislators, and nor does it intend to hand
over funds to legislators. Under the Annual Development Program
2020-21 prepared by the Planning & Development Board,
Government of Punjab, no funds have been allocated at the sole
disposal / discretion of the Chief Minister or Provincial Minister or
any member of the Provincial Assembly. The execution of various
development schemes is made by the respective authorities
mentioned in the above referred rules, which empower the
concerned authorities mentioned therein to incur expenditure up to
the limits prescribed under these rules. Furthermore, the
development schemes are project specific and no person specific.â
CMA.490/2021 IN CONST.P.NO.20/2013
3
whether the Federal and provincial governments had handed over
or intended to hand over monies to the legislators and/or carry out
development works identified by them.â
3.
The learned Advocate General, Sindh, while appearing
through video link from the Supreme Court Branch Registry,
Karachi, has informed that the Government of Sindh has also filed
its report by way of CMA No.750 of 2021, signed by the Secretary
Finance as well as the Chief Secretary, Government of Sindh, in
response to the order of this Court dated 03.02.2021. The response
of the Government of Sindh to the query (b) of para 4 of the order
of this Court dated 03.02.2021, it is stated as follows:
âIn response to query at Para-4(b) of the Order dated 03.02.2021
passed by the Honourable Supreme Court of Pakistan, it is
submitted
that
the
Government
of
Sindh
has
not
allocated/disbursed any Development funds to any MNA/MPA or
notable in the Annual Development Plan (ADP-2020-21).
It is further submitted that the Government of Sindh will make all
allocations in accordance with the provisions of Constitution of
Islamic Republic of Pakistan and the guidelines provided by this
Honourable Court in its judgment (action against distribution of
Development Funds by the Ex-Prime Minister, PLD 2014 Supreme
Court 131) referred to in the order dated 03.02.2021.â
4.
In our order dated 10.02.2021, we have noted that the
Government of Khyber Pakhtunkhwa by way of CMA No.568 of
2021 so also the Government of Balochistan by way of CMA
No.613 of 2021, have already submitted their replies where the
categorical statements have been made that no development fund
is going to be given to any of the MPAs/Ministers/Notables of their
respective Provinces and that the development funds shall be used
and spent as per the constitutional mandate and the rules framed
by the respective Governments for utilization of the development
funds, provided in their annual budget.
5.
The report of the Federal Government (CMA No.751 of 2021)
submitted by the learned Attorney General for Pakistan in Court
today, the relevant paras whereof have been reproduced above,
amply demonstrate that none of the development funds shall be
CMA.490/2021 IN CONST.P.NO.20/2013
4
handed over to any of the Federal Ministers, Parliamentarians or
any other person under the existing budget and that whatever
budgetary provisions have been made in the annual budget, the
same will be utilized in the manner, as is provided in the
Constitution and other applicable laws and regulations. The
reports of the Government of the Punjab so also Government of
Sindh, in specific terms, have responded that no development fund
is going to be given to any of the MPAs/Ministers/Notables of their
respective Provinces and that the development funds shall be used
and spent as per the constitutional mandate and the applicable
rules framed by the respective Governments for utilization of the
development funds provided in the annual budget.
6.
At this stage one of us (Qazi Faez Isa, J.) sought to place on
record photocopies of certain documents statedly received by him
from some anonymous source through a WhatsApp message.
Copies of such documents were handed over by the Hon. Judge to
other Hon. Members of the Bench. A copy was also handed over to
the learned Attorney General for Pakistan. The Hon. Judge also
stated that he was unsure if the documents were genuine. The
learned Attorney General for Pakistan submitted that since the
authenticity of the documents was questionable, the same may not
be taken on record. He further submitted that in any event the
Hon. Judge would become a complainant in the matter and in that
capacity it would not be appropriate for the Hon. Judge to hear the
matter. The Hon. Chief Justice of Pakistan, therefore, observed
that in these circumstances it would not be proper for the Hon.
Judge to hear the matter considering that he had already filed a
petition against the Prime Minister of Pakistan, in his personal
capacity. Therefore, to uphold the principle of un-biasness and
impartiality, it would be in the interest of justice that the Hon.
CMA.490/2021 IN CONST.P.NO.20/2013
5
Judge should not hear matters involving the Prime Minister of
Pakistan.
7.
In view of the above position on record, it appears that the
queries raised by this Court in the order dated 03.02.2021 have
been responded/addressed by all the respective Governments and
thus, we see no reason to further proceed with the matter.
Accordingly, the Civil Miscellaneous Application No.490 of 2021 in
Constitution Petition No.20 of 2013 is disposed of.
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA.
MR. JUSTICE KHILJI ARIF HUSSAIN.
MR. JUSTICE EJAZ AFZAL KHAN.
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013
IN
CONSTITUTION PETITION NO. 23 OF 2012.
(Regarding putting of two Govt. Officers namely
Hassan Waseem Afzal and his wife Farkhanda
Waseem Afzal as OSD).
For the applicant:
Mr. Hassan Waseem Afzal and his
wife Farkhanda Waseem Afzal in person.
For the respondents:
Mr. Dil M. Khan Alizai, DAG.
Malik Sher Afzal, Joint Secretary.
Mr. Abdul Latif, Dy. Secy.
Mr. Sarfraz Durrani, Dy. Secy.
Mr. Shahbaz Kirmani, SO (Legal).
Establishment Division.
Date of hearing:
26.04.2013.
J U D G M E N T
EJAZ AFZAL KHAN, J. - In the case of âSyed Mahmood Akhtar
Naqvi and others. Vs. Federation of Pakistan and othersâ commonly known
as Ms. Anita Turab case (PLD 2013 S.C. 195), this Court ruled as under :-
âOSD: Officers should not be posted as OSD except for
compelling reasons, which must be recorded in writing and
are judicially reviewable. If at all an officer is to be posted as
OSD, such posting should be for the minimum period possible
and if there is a disciplinary inquiry going on against him,
such inquiry must be completed at the earliest.â
2.
A news item in daily âThe Newsâ was flashed with the heading
âThe OSD couple, waiting for Godâs or SC helpâ. This Courtâs while taking its
notice on 31.12.2012 observed as under :-
âNotice was taken on a news item appearing in the daily
âNewsâ wherein it has been stated that two senior civil
servants namely Hassan Wasim Afzal and Farkhunda Wasim
Afzal who are officers in BS-21 are posted as officers on
special duty (OSD) by the Establishment Division since
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
2
16.6.2008 and 15.11.2011 respectively. This prima facie
constitutes a violation of the judgment of this Court in
Constitution Petition No.23/2012 (Anita Turab Vs. Federation
of Pakistan). Let notice issue to the Secretary Establishment
Division for 2.1.2013 to explain as to why contempt
proceedings should not be initiated against him and others
responsible for violating the Court order.
2.
Likewise, notice shall issue to the Chief Commissioner
Islamabad to explain as to why orders in the case of Ms.
Rabia Aurangzeb were issued by him in violation of the
aforesaid judgment in
Constitution
Petition
No.23/12.
Furthermore, the Secretary, Ministry of Interior shall explain as
to why similar proceedings as noted above for violating the
Court orders in Constitution Petition No.23/12 should not be
initiated against him in relation to orders for premature
transfer/posting of Dr. Khurram Rashid and Maryam Khan.
3.
Let this application and connected matters arising
from Constitution Petition No.23/12 and CMA 4848/12 be
listed for hearing on 2.1.2013â.
3.
Its follow up culminated in the order dated 2.1.2013 which
reads as under :-
âA report has been submitted by the Chief Commissioner
Islamabad. The officer Ms. Rabia present in Court has gone
through the report and states that facts have not been
properly set out in the same. She needs some time to state
the correct factual position. Let this be done within this
week.
2.
Mr. Shahid Hameed, Additional Secretary, Interior is
present. The Secretary Interior who is statedly busy in a
meeting in the Election Commission, has submitted a report
which is perfunctory and unsatisfactory. It does not give full
details as to the letter surrendering the services of Dr.
Khurram Rashid, SP shortly after he was posted as SP
Industrial Area. Likewise, the report in respect of Ms. Maryam
Khan sought from the Secretary Interior is unsatisfactory. The
Court needs information as to the reasons why the law
enunciated in the case of Anita Turab (Constitution Petition
No. P.23//12) was not adhered to. A report in this behalf
shall be submitted by the Secretary Interior within this week.
3.
A report had been sought from the Secretary
Establishment Division as to why Mr. Hassan Wasim Afzal and
Mrs. Farkhanda Wasim Afzal, both BS-21 officers had been
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
3
continued as OSD even after the enunciation of law on the
subject vide our order of 12.11.2012 in the case of Anita
Turab (supra). The report submitted is wholly unsatisfactory
because it merely informs the Court that the two officers
have been given posting on 1.1.2013. This report does not
respond to the notice issued to the Secretary Establishment
Division to show cause why proceedings should not be
initiated against him for not complying with the above
referred judgment of this Court dated 12.11.2012. A report in
this behalf shall be submitted by the Secretary Establishment
within this week.
4.
CMA No.8/2013 has been filed by Dr. Shafi ur
Rehman for being impleaded as a party in this matter. Let it
be listed with other matters. Adjourned for 8.1.2013â.
4.
On 9.1.2013, this Court observed as under :-
âWhen the case was first called for hearing in the earlier
hours of the day, we were informed by Mr. Khayal Zada Gul,
Dy. Secretary, Establishment Division that a notification
dated 1.1.2013 had been issued appointing Mr. Hassan
Waseem Afzal as Director General Pakistan Museum of
Natural History and Mrs. Farkhanda Waseem Afzal as the
M.D. National Trust for Disabled. However, we were surprised
to note that the aforesaid notification had not actually been
delivered/served on the petitioners and as a consequence,
they remained uninformed officially of their postings and
resultantly did not report for duty at the notified positions.
We, therefore, asked the Deputy Director, Establishment
Division to file a statement giving reasons as to why the
officers named above, were not given any postings and
were instead made OSDs since 2008 and 2011 respectively.
The statement does not appear to be satisfactory inasmuch
as the details of official action since 2008/2011 has not been
given and also because there is no reasonable explanation
as to why these officers were not given postings until 1.1.2013
or that they have not been given intimation of their postings
even after 1.1.2013. For ease of reference, the statement
submitted by the Deputy Secretary in Court is reproduced as
under:-
âNotification in respect of Mr. Hassan Wasim Afzal
(PAS/BPS-21) and Mrs. Farkhanda Wasim Afzal (PAS/BPS-21)
to their posting as Director General (BPS-21), Pakistan
Museum of Natural History and MD (BS-21) National Trust for
Disabled were issued on 1st January, 2013, in late hours.
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
4
Accordingly the signed notifications were issued to all
concerned on 2.1.2013. As per practice, the notifications to
the individual officers are sent to the Organization where
they are posted and also sent on their last posting address. In
the instant case the posting orders have been sent to the
Organization where they have been posted and delivered
to Admin Wing on 02.01.2013. However, the same could not
be further communicated to the officers concerned at their
postal address. This is not a deliberate action on the pasrt of
any individual official or the Establishment Division, rather a
lapse pointed out by any officer for the first time. As per past
practice in all such cases the official concerned contact the
Establishment Division, obtain their posting orders and
relinquish the charge of the post of OSD for processing
issuance of Last Pay Certificate (LPC) for regularization of
their pay in the other organization (where posted) and
taking charge in that organization.
On taking notice by the Honâble Supreme Court of
Pakistan on 8.1.2013to the Non-delivery of notifications to the
officers
concerned,
the
Establishment
Division,
took
immediate action to send the notifications on home
addresses of the concerned officers through UMS/TCS on
08.01.2013. The Establishment Division further shall take
serious cognizance of this incident and improve system
regarding intimation of posting orders to the officer
concerned at their available postal addresses.
(KHALIL ZAD GUL)
Deputy Secretary
Establishment Division.â
It is a matter of concern that it is only after this Courtâs
notice in the matter, on the basis of a press report, that
action appears to have been initiated by the Establishment
Division and clear directions in the judgment dated
12.11.2012 (Anita Turabâs Case) appear to have been
violated. We, therefore, would be justified in issuing notices
to concerned government functionaries as to why contempt
proceedings should not be initiated against them. However,
before doing so we direct the two officers namely Hassan
Wasim Afzal and Farkhanda Wasim Afzal to file their
statements setting out particulars and identifying the
causes/persons who may have been responsible for the
failure to give them substantive postings. The incumbent
Secretary Establishment Division and the Secretaries of the
Establishment Division since 16th June, 2008 shall also submit
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
5
their concise statements setting out their reasons as to why
these officers were made OSDs and why they were not
given
substantive
postings.
The
incumbent
Secretary
Establishment Division shall also file relevant documents
including all noting/correspondence which he may consider
relevant during this week. The matter shall be listed for
hearing on 15.1.2013â.
5.
On 16.1.2013, this Court after hearing the parties at some
length observed as under :-
âWe had noted that the two officers Hassan Wasim Afzal
and Mrs. Farkhanda Wasim Afzal both in BS-21 had been
made OSDs since 2008 and 2001 respectively. We had,
therefore, directed the Secretary Establishment Division and
the Secretaries of the said Division since 16.6.2008 to submit
their concise statements setting out their reasons âas to why
the aforesaid officers were made OSDs and why they were
not given substantive postingsâ. The incumbent Secretary
Establishment has filed a concise statement (CMA-173/13).
The said concise statement, however, does not contain
explanations as to why the aforesaid officers have been
kept as OSDs. Furthermore, there were six civil servants who
occupied the position of Secretary Establishment from
16.6.2008 till the present incumbent was posted to the
position on 28.6.2012. We have inquired about the status of
these six persons. It is surprising that four out of these six
persons have attained superannuation and have been re-
employed on contract basis. This has happened even
though the two officers namely Hassan Wasim Afzal and Mrs.
Farkhanda Wasim Afzal are OSDs and are being paid their
salaries/emoluments out of the public exchequer, although
no official work has been assigned to them since 2008 and
2011 respectively.
2.
The six persons whose names appear on page 100 of
CMA. 173/13 shall again be served notice. The office and
the Establishment Division shall be responsible for effecting
service on them. These persons shall file their concise
statements giving details as to why during their tenure no
effective steps were taken for postings of the above named
two officers. The case shall be listed for hearing on 31st
January, 2013â.
6.
On 27.3.2013, this Court again heard the matter and summed
up in paragraph Nos. 3 and 4 which read as under :-
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
6
â3.
We have gone through the aforesaid summary which, as its
subject indicates, was moved for the purpose of appointing one Mr.
Abdul Latif Leghari as Additional Secretary, Capital Administration
and Development Division. It has been stated in para 2 of the
summary that the âEstablishment Division proposes a panel of the
following BS-21 officers for posting as Additional Secretary, Capital
Administration and Development Divisionâ. Thereafter the 3 officers
and the summaries in respect of them have been recorded as
follows:-
âForegoing in view, Establishment Division proposes a
panel of the following BS-21 officers for posting as
Additional Secretary, Capital Administration and
Development Division.
(i)
MR.
ABDUL
LATIF
LEGHARI
(Secretariat
Group/BS-21)
He joined Government service on 2.9.1980. Presently,
he is posted as Senior Joint Secretary, Capital
Administration and Development Division. Earlier, he
remained
posted
as
Joint
Secretary,
Capital
Administration and Development Division, Joint
Secretary, Industries and Production Division; Director
General,
Pakistan
Public
Administration
and
Research Centre; Joint Secretary, Cabinet Division,
Director General, National Archives of Pakistan
Deputy Secretary, Finance Division and Deputy
Secretary, Economic Affairs Division. He is Sindh
domiciled and will superannuate on 12.7.2004.
(ii)
MR. HASSAN WASEEM AFZAL (PAS/BS-21)
He joined Government service on 8.3.1978. Presently,
he
is
posted
as
OSD,
Establishment
Division.
Previously, he remained posted as Principal Secretary
to the Governor Punjab; Deputy Chairman, NAB
Lahore; Secretary, Home Department, Government
of
the
Punjab;
Secretary,
Health
Department
Government of the Punjab; Director NIPA Lahore, MD
Pakistan
Housing
Authority,
Islamabad;
Joint
Secretary, Prime Ministerâs Secretariat; Additional
Director General EPB, Lahore and Consul General
Montreal. The officer is Punjab domiciled and will
superannuate on 26.4.2013.
(iii)
MR.
SHAHZAD
IQBAL
(SECRETARIAT
GROUP/BS-21)
He joined Government
service on
15.11.1980.
Presently, he is posted as Senior Joint Secretary, Inter
Provincial
Coordination
Division.
Previously,
he
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
7
remained posted as Joint Secretary, Inter Provincial
Coordination Division, Director General, Privatization
Commission, Joint Secretary, Information Technology
and Telecom Division, Deputy Secretary, Commerce
Division, Deputy Secretary, Environment Division, and
Deputy Secretary, Housing and Works Division. The
officer is Punjab domiciled and will superannuate on
18.10.2013.
The proposal at para 2 above is submitted for kind approval
of the Prime Minister.
4.
This summary which has been mentioned above prima
facie, does not conform with the judgment in the case of Ms. Anita
Turab supra, because it does appear to be incomplete inasmuch as
it has not been stated therein that Mr. Hassan Waseem Afzal has
remained OSD for a period of 5 years starting 16.6.2008. And, even
after our judgment on 12.11.2012 in Anita Turabâs case, the situation
was not rectified. We, therefore, require the Secretary Establishment
to submit an explanation in terms of section 3 of the Contempt of
Court Ordinance, 2003 read in the light of Article 204 of the
Constitution. This should be done within 10 days from today.
Thereafter based on our consideration of the explanation, we shall
consider further action â.
7.
Today when we took up this case for hearing, it was again
noted that Mr. Hassan Waseem Afzal had been posted OSD ever since
2008 and Mrs. Farkhanda Waseem Afzal. Their cases were forwarded for
promotion but were deferred on the sole ground that they could not earn
any PERs because of their being posted as OSDs. When we inquired as to
what called for such treatment, no answer much less satisfactorily has been
given by the persons at the other end. In fact the two officers of the
Ministry, present in Court have accepted that the treatment given to the
applicants is not in conformity with the accepted norms. We ourselves also
scanned the record but could not find anything which could call for such
treatment. Had their past performance or integrity been below the mark,
they could have been treated as such but there is nothing of that sort. We
were rather amazed and even appalled to see them treated in this way.
Yes, as per minutes of meeting dated 02.08.2011, 25.11.2011 and
12.04.2012, they could not earn any PERs one way or the other because of
CMA. NO. 4918 OF 2012 AND CMA. NO. 08 OF 2013 IN
CONSTITUTION PETITION NO. 23 OF 2012.
8
their posting but this could not be construed to their detriment under any
cannons of law and propriety. The more so when their past record had
been outstanding throughout. They initiated a contest in the High Court,
but called it off when the respondents on the other end assured the High
Court that they would be considered for promotion. But nothing in black
and white was done towards what was assured, in spite of the fact that this
order was also upheld in intra court appeal. We have been told that Mr.
Hassan Waseem Afzal is going to retire in a day or so while his spouse is
going to retire in a year in grade 21. Their promotion to the next higher
scale has been denied for want of PERs and PERs have not been complied
on account of their posting as OSDs which is not an act of their own doing.
âLet them sufferâ may be a command of expediency but we cannot
approve it when, âgive them their dueâ is a command of justice, which
prima-facie appears to have been denied to them out of indignation and
ill will of the high ups. It appears to be a typical case of political
victimization, where even a momentâs delay could cause irreparable harm
and immeasurable loss to the officers whose merit lacks intercessional props
and pillars. We have, therefore, no alternative but to direct the Secretary
Establishment to convene a meeting of HPSB DSC for passing an
appropriate order after considering the aforesaid officers for promotion to
the next higher scale but before the sunset today.
Judge
Judge
Judge
Islamabad.
26.04.2013.
MAZ/*
âNOT APPROVED FOR REPORTINGâ
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE MUHAMMAD SAIR ALI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
MR. JUSTICE MUHAMMAD ATHER SAEED
CMA NO. 5144 OF 2011
& CIVIL REVIEW PETITION NO.129/2010
IN CONST. P. 76/2007 & CMAs No. 1427/2011
[Against the judgment dated 16.12.2009 passed in Constitution
Petitions No. 76 to 80 of 2007]
Federation of Pakistan through Secretary
M/o Law, Justice and Parliamentary Affairs, Islamabad
vs.
Dr. Mubashir Hassan, etc.
For the applicant/petitioner: Mr. Mahmood A. Sheikh, AOR
[CMA
5144/11
&
CRP
129/10]
Mr.
Masood
Chishti,
Secretary, Ministry of Law &
Justice.
On Court notice: Maulvi Anwar-ul-Haq
Attorney General for Pakistan
For the respondent No.1: Mr. Salman Akram Raja, ASC
[CRP 129/2010] Mr. Mehr Khan Malik, AOR
Date of hearing: 25.11.2011
âĻ
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - On
24.11.2011, Dr. Babar Awan, learned Sr. ASC concluded his
arguments. In the meanwhile, he had filed CMA no. 5234/2011
and insisted for permission to rely upon the same. As it is settled
principle of law that ordinarily at the review stage, a document is
not allowed to be produced unless it is very much relevant to do
complete justice. Initially request was not entertained, but
subsequent thereto, after giving a second thought, we formed
the opinion to allow the learned counsel to refer to and read the
said documents. However, when we assembled in the second
half, he was not present. Message was sent to him through the
Court staff, but he did not turn up. In the meanwhile, learned
Attorney General for Pakistan was asked to convey him to appear
in Court today because otherwise except the case of Syed Nasir
Ali Shah, all the listed matters including the instant CMA/Review
Petition have been concluded.
2. It seems that in the late hours a request was sent by
him to the Registrar for adjournment, which was not entertained
and the same was returned. When the hearing of the case
opened today, Mr. Masood Chishti, Secretary, Ministry of Law &
Justice, Government of Pakistan, who himself had drafted the
Review Petition at the time when he was practicing law, was
asked to read the documents instead of arguing the same
because we are of the opinion that the learned counsel to whom
directions have been made out of sheer respect, he should have
made himself available before the Court, but the Secretary,
despite our clear direction as well as expressing displeasure,
except reading only one letter dated 02.09.1997 declined to read
other documents. However, the learned Attorney General for
Pakistan, in such a situation, was asked to read documents
through and through. In compliance with the order, all the
documents, which pertained to the years 1997 to 1999 in respect
of investigation of the cases against Mr. Asif Ali Zardari and
Mohtarama Benazir Bhutto pending before the Swiss Courts were
considered in his presence.
3. It may be observed that this Court is seized with the
matter relating to review of the judgment dated 16.12.2009 in
pursuance whereof, the National Reconciliation Ordinance, 2007
was declared void ab initio, being ultra vires and violative of
certain Articles of the Constitution, therefore, to be deemed non
est from the day of its promulgation. However, after hearing the
learned counsel for the petitioner from 21 to 24th November,
2011 at length and having gone through the documents as well
as considering all the aspects of the case relating to the Review
Petition filed under Article 188 of the Constitution to review the
judgment dated 16.12.2009, we are of the considered opinion
that no case is made out for the review of the said judgment.
Resultantly, the Review Petition and CMA No. 5144/2011 are
dismissed with no order as to costs. The concerned authorities
are hereby directed to comply with the judgment dated
16.12.2009 in letter and spirit without any further delay.
4. The reasons for this order shall be recorded later on.
Islamabad, the
25th November, 2011
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE ANWAR ZAHEER JAMALI
Mr. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE AMIR HANI MUSLIM
CIVIL MISC. APPLICATION NO.5216 OF 2012,
CONST. PETITION NO.6 OF 2011 AND HUMAN
RIGHTS CASE NO.48012-P/2010 AND CIVIL
MISC. APPLICATION NO.1720 OF 2011
CMA.5216/2012
(Against appointment of Raja Azeemul Haq as Executive
Director of the World Bank)
CONST.P.6/2011
Syed Mubashir Raza Jaffary and another âĻ
Petitioner
VERSUS
Employees Old Age Benefits Institutions
âĻ
Respondent
(EOB) thr. its President.
CMA.5216/2012
(Application by Tajamal Hussain)
Attendance
On behalf of
Mr. Afnan Karim Kundi, ASC
Raja Azeen-ul-Haq :
:
Raka Azeem-ul-Haq
On Court Notice
:
Shafi Muhammad Chandi, DAG
Mr. Ahmed Bakhsh Lehri, Secy. Estb.
Mr. Akhtar Nasir JS. Establishment.
Mr. Abdul Latif, DS.
Date of hearing
:
06-06-2013
O r d e r
It is a part heard case which was adjourned for today. In
response to our earlier orders, the Secretary Establishment Division
has appeared in Court. For our perusal he has produced the original
record
containing
summery
to
the
Prime
Minister
regarding
appointment of Muhammad Azeem-ul-Haq Minhas as Executive
Director/Alternate Executive Director of the World Bank and other
CMA.5216/2012
2
relevant correspondence. Original file is returned to him with the
direction that a complete photostate copies set of this file be provided to
the office within three days.
2.
Muhammad Azeem-ul-Haq Minhas, is present in Court.
His counsel Mr. Afnan Karim Kundi, ASC, has filed a statement in
writing which reads as under : -
1.
I have complete faith in this august Court
that it is open to conviction and will do
complete justice in the matter.
2.
This august Court was very kind to
accommodate my request for fixing the
matter of yesterday to enable me to
personally appear and assist the Court, for
which I am grateful.
3.
This august Court was also very gracious
in giving me a patient audience and going
through my past service record, which
enabled me to explain that I have been a
career civil/government servant.
4.
Yet like any other case, I am cognizant of
the fact that this case could have a
favourable outcome or otherwise for me.
5.
Keeping in view my age and future
prospects (life permitting), I would like to
avoid any controversy and have thus
tendered my resignation from the position
of AED to the Executive Director (EDS-06) at
World Bank this morning.
6.
Also since the said position represents my
homeland Pakistan and six other friendly
countries,
I
would
not
like
any
embarrassment caused to Pakistan in any
manner.
7.
I would most humbly request this august
Court that the Suo Motu Notice in my case
(CMA .5216/2012) may kindly therefore be
discharged as having become infructuous.
3.
Alongwith the above statement he has also placed on
record a copy of his resignation dated 6.6.2013 and a Fax
transmission confirmation print.
CMA.5216/2012
3
4.
Further hearing of Civil Misc. Application No.5216/2012 is
adjourned to a date in office after two weeks. Meanwhile, in case,
Muhammad Azeem-ul-Haq Minhas receives confirmation regarding
acceptance of his resignation from the World Bank a copy thereof may
be placed on record.
J.
J.
J.
Islamabad
06-06-2013
Saeed/**
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
C.M.A. NO.5602/2021 IN C.M.A. NO.4821/2018 IN S.M.C.
NO.1/2014, C.M.A. NO.4821/2018 IN S.M.C. NO.1/2014,
C.M.A. NO.516/2019 IN CONST.P. NO.62/2017, CONST.P.
NO.62/2017, CONST.P. NO.63/2017, C.M.A. NO.1507/2021 IN
C.M.A. NO.4821/2018 IN S.M.C. NO.1/2014
C.M.A.5602/2021 in C.M.A.4821/2018 in S.M.C.1/2014
Human Rights Commission of Pakistan, through Chairperson,
Dr. Mehdi Hasan and others v. Federation of Pakistan through
Ministry of Education and others
AND
C.M.A.4821/2018 in S.M.C.1/2014
Human Rights Commission of Pakistan, through Chairperson,
Dr. Mehdi Hasan and others v. Federation of Pakistan through
Ministry of Education and others
AND
C.M.A.516/2019 in Const.P.62/2017
Pribhu Lal, etc. v. Government of Pakistan, etc.
AND
Const.P.62/2017
Pribhu Lal, etc. v. Government of Pakistan, etc.
AND
Const.P.63/2017
Leo Roderick Paul, etc, v. Government of Pakistan, etc.
AND
C.M.A.1507/2021 in C.M.A.4821/2018 in S.M.C.1/2014
Human Rights Commission of Pakistan through Chairperson,
Dr. Mehdi Hasan and others v. Federation of Pakistan through
Ministry of Education and others
In Attendance:
Federation &
Department
Mr. Sohail Mehmood,
Addl. Attorney General for Pakistan
Muhammad Shabbir,
C.M.A.5602/21, etc
- 2 -
Deputy Secretary, M/o Religious Affairs
Muhammad Rafiq Tahir,
Joint Secretary Curriculum
Miss. Farah Hamid,
Secretary, Ministry of Federation Education
Commission
Mr. Shoaib Suddle, Chairman
Mr. M. Saqib Jillani, Member
Dr. Ramesh Kumar, Member
KP
Mr. Shumail Ahmed Butt, AG KPK
Barrister Qasim Wadood, Addl. AG KPK
Mr. Atif Ali Khan, Addl. AG KPK
Khayam Hassan Khan,
Secretary Minorities, KPK
Javed Marwat, Commissioner, Kohat
Zafar Khan, RPO, Kohat
Rai Babar Saeed, DIG HQ, KPK
Balochistan
Mr. Ayaz Khan Swati, Addl AG, Balochistan
Mathar Rana, Chief Secretary, Balochistan
ICT
Mr. Niaz Ullah Khan Niazi, AG Islamabad
For ETPB
Mr. Muhammad Ikram Ch., Sr. ASC
Dr. Amir Ahmed, Chairman
Punjab
Ch. Faisal Fareed, Addl. AG
Shahid Abbas, DSP, Multan
Naveed Ahmed Goraya,
Sr. Law Officer HR & MA
Muhammad Aslam Sipra, DS Punjab
Curriculum & Text Book Board
Muhammad Afzal Bashir, DS Home
Department
Shah Manzar Fareed, Director Sports
Sindgh
Ms. Leela Kalpana, Addl. AG
Javed Ahmed Abro, Addl. Secretary
Muhammad Abdul Hadi Bullo,
Secretary Minorities
Riaz Hussain Sahi, Sahito, Addl. Secretary
Raheem Bukhsh Matlo, District Registrar
Board of Revenue
Dr. Saeed Ahmed Qureshi, Focal Person to
Chief Secretary, Sindh
(through Video Link from Karachi)
Applicant
Ms. Hina Jillani, ASC
Mr. Kamran Murtaza, Sr. ASC
Mr. Samual Payara, Chairman IMRF
Peter Jacot, ED/CSJ, Chairperson PCMR
C.M.A.5602/21, etc
- 3 -
O R D E R
GULZAR AHMED, CJ.-
C.M.A. No.5602 of 2021: The one man Commission
has filed this application with the prayer that the allocation of
funds be made to it because earlier funds of Rs.7 million allocated
to it vide order dated 19.02.2020, has already been spent and
rather some liabilities have also accrued. In the application, the
Commission has prayed for granting of an amount of Rs.14.994
million for clearance of outstanding liabilities and also for
allocation of budget for the year 2021-2022. Notice of this
application be issued Ministry of Religious Affair and Interfaith
Harmony and also to the Attorney General for Pakistan. In the
meanwhile, the amount of Rs.14.994 million be disbursed to the
Commission. For allocation of new budget, let a proper response
be filed by the Ministry of Religious Affairs and Interfaith
Harmony. We, however, be noted that one man Commission shall
ensure to maintain proper accounts for the moneys disbursed to it
and spent by it for the purpose of implementation of the
Commission.
2.
The learned counsel for the applicant in Civil Misc.
Application No.4821 of 2018, states that the very Commission
created by the Ministry of Religious Affairs and Interfaith
Harmony is not in accordance with law for the reasons that it has
been constituted through an executive order and no law to
support such a Commission has been passed. She contends that
the functioning of the Commission constituted by the Ministry is,
C.M.A.5602/21, etc
- 4 -
therefore, not legal and the Ministry should ensure that the
Commission be constituted with proper support of law. Let
submissions on such points be made on the next date of hearing.
Adjourned to a date after the summer vacations.
3.
Dr.
Ramesh
Kumar,
Co-opted
Member
of
the
Commission, states that the property on Plot No.32, NP-04 Napier
Quarters Saddar Town-I, Karachi, measuring about 716 Sq. Yards
was a Dharam Shala and placed before the Court photographs of
such building, which is being demolished for making way for a
new construction of a commercial plaza. He states that this
property has been leased out by the Evacuee Trust Property Board
to some private person and he is in the process of demolishing the
Dharam Shala and raising of a new building. It is stated by the
Chairman, Evacuee Trust Property Board that the matter
regarding the very Dharam Shala has been decided by the High
Court of Sindh, where it has allowed the Evacuee Trust Property
Board to lease it out, have it demolished and raised new
construction. Such an order of the High Court of Sindh is not
before us. The very photograph apparently shows that the
building is of Dharam Shala constructed in the year 1932, which
can be read from the marble slab affixed on the building and must
be a protected heritage building. Let notice be issued to the
Secretary Heritage, Government of Sindh to file its report
regarding the building. In the meantime, no demolition activity of
the said building shall be conducted by anyone and possession of
the building and the land shall be taken over by the
Commissioner Karachi, who shall manage the same and not allow
C.M.A.5602/21, etc
- 5 -
any person to enter upon it. No demolished material shall be
allowed to be removed. This be done by the Commissioner Karachi
today and report, in this respect, be submitted to the Office of the
Supreme Court. The office of this Court shall communicate this
order to the Commissioner Karachi, today.
CHIEF JUSTICE
JUDGE
Bench-I
Islamabad
11.06.2021
âNOT APPROVED FOR REPORTINGâ
Mahtab/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Ejaz Afzal Khan
Mr. Justice Maqbool Baqar
CMA No.592-K/13 in SMC No.16 of 2011, CMA No.423-K/14, Cr.O.P.24-K/14,
CMA No.634-K/14, CMA No.359-K/14, Cr.O.P.Nos.25-K and 26-K/14, CMA
No.360-K, 373-K, 382-K, 389-K and 394-K of 2014
(For taking action against the Govt. of Sindh thr. IGP, Sindh on entering into contract for
purchase of the APC Armed Personnel Carrier at an exorbitant rate without calling open
tender in deviation of Sindh Public Procurement Rules).
Syed Mahmood Akhtar Naqvi
âĻ
Applicant(s)
Versus
Govt. of Sindh, etc.
âĻ
Respondent(s)
Applicant: Nemo.
On Courtâs notice
Mr. Irfan Qadir, ASC
For Govt. of Sindh
Mr. Meeran Muhammad Shah, Addl. A G Sindh
For the Chief Secretary
Mr. Farooq H. Naek, Sr.ASC.
On behalf of IGP, Sindh:
Mr. Ghulam Haider Jamali, IGP.
Dr. Mazhar Ali Shah, AIG (Legal)
For HIT:
Nemo.
Date of hearing:
26.03.2015
ORDER
Jawwad S. Khawaja, J.- When this case was called, we adverted to our previous
order dated 12.3.2015. In that order we have noted the fact that there was no authorization
in favour of Mr. Irfan Qadir authorizing him to appear in the case and nor was there any
âvakalatnamaâ of an AOR on record on behalf of IGP Sindh. We can advert to our previous
order wherein we had raised the query and asked the learned Additional Advocate General
Sindh to inform us as to how and under what arrangement Mr. Irfan Qadir was
representing the IGP Sindh. In our order, it has also been noted that Mr. Irfan Qadir had
been appearing in this case for the last 12 dates of hearing. Considering that he has no
authorization from any Advocate on Record, it is apparent that Rule 6 of Order IV of the
Supreme Court Rules, 1980 has been violated. The said Rule stipulates that âno Advocate
CMA-592-K/2013, etc.
2
other than an Advocate-on-Record shall appear or plead in any matter unless he is instructed by an
Advocate-on-Recordâ. Rule 15 of the said Order directs that âno Advocate other than an
Advocate-on-Record shall be entitled to act for a party in any proceedings in the Courtâ. Instead of
acknowledging this short coming, Mr. Irfan Qadir conducted himself in a manner
(discussed below) which indicates that he has been guilty of misconduct and conduct
which is unbecoming of an Advocate. Through an earlier order we had provided an
opportunity to Mr. Qadir to explain his position but he has chosen not to do so.
2.
On 11.3.2015 we were constrained to note that when we commenced hearing of the
case, âMr. Irfan Qadir ASC purported to represent IGP, Sindhâ. When he was questioned as to
whether Sindh Police was an entity recognized under Article 137 of the Constitution or the
Rules of the Business of the Sindh Government under Article 139, instead of addressing the
question, he raised his voice and starting saying loudly that he would not argue before this
Bench. We were, therefore, compelled to note that this sort of behaviour is not conducive to
the proper administration of justice and is also prohibited by the Legal Practitioners and
Bar Councils Act, 1973. It is quite apparent that the conduct displayed by Mr. Irfan Qadir is
also violative of Order IV Rule 30 of the Supreme Court Rules. Mr. Irfan Qadir stated as
noted above, that he would not be arguing this matter before the Court. Despite this he
once again interrupted Court proceedings today and launched into a harangue and tirade
which has been recorded and the Office has been directed to prepare a transcript of the
recording and place it on record. The persistent objectionable behaviour of Mr. Irfan Qadir
provides good cause for taking strict action against him however, for the sake of ensuring
fairness we had also given him notices to explain his conduct which, as noted above, he has
not availed. This was quite sufficient to justify issuance of a notice to Mr. Irfan Qadir under
Order IV Rule 30 of the Supreme Court Rules. The loud and unbecoming tone of his
uncalled for and irrelevant interruptions can only be gathered from the audio recording.
The Office shall save such recording as a part of the record.
3.
Our staff have traced the record of some other cases from which it is apparent that
Mr. Irfan Qadir may have been guilty of misconduct or conduct which is unbecoming of an
Advocate. The first such case is of Ch. Muhammad Ashraf Gujjar vs. Riaz Hussain (2013 SCMR
161). In the cited case, it has been held at the very outset that a query was made from the
Attorney General [Mr. Irfan Qadir] as to âwhether it would be possible for him to conduct the
CMA-592-K/2013, etc.
3
proceedings of this case, fairly, justly, honestly and in accordance with law when he at some stage
remained counsel for the respondent [contemnor]â. The reply of Mr. Irfan Qadir was that
âinspite of that [he] would be able to conduct the prosecution of this case fairly, justly, honestly and
in accordance with lawâ. When the Court suggested that propriety demands that he should
lay his hands off this case, Mr. Irfan Qadir replied by saying that âwhen he was on the Bench
as a Judge of the Lahore High Court, he declined to hear one of the cases of the respondent on the said
score but since the Attorney General being persona designata, is alone to conduct the proceedings in
such matters, the fact that he at some stage remained counsel of the respondent can conveniently be
ignoredâ. The Court also had occasion to comment on the evident misconduct of Mr. Irfan
Qadir as Attorney General by observing as to âhow the Chief Justice of Pakistan could figure as
a witness in the list of witnesses submitted by the Attorney General when he neither filed a
complaint in his individual capacity nor submitted an affidavitâ. It was also noted by the Court
that âeven if it were so, the Chief Justice could not have been examined as a witness in view of the
proviso to section 17 of the Contempt of Court Ordinance, notwithstanding the desire of the
contemnor to cross examine himâ. Thereafter a very significant finding was recorded that Mr.
Irfan Qadir as Attorney General was âacting more as a defence counsel than a prosecutor. âĻ His
concerns, as far as it can be gathered from his conduct in the Court, aim at turning the table on the
Court rather than preserving its dignityâ. It was also observed that âhis partial and partisan
attitude with pronounced leaning towards the respondent cannot be conveniently ignoredâ. The
partiality of Mr. Irfan Qadir as Attorney General as Prosecutor was duly noted and it was
observed that such partiality was âpatent on the face of the steps he has taken thus far during the
proceedingsâ.
4.
The next case which has been traced by our research and office staff is that of Bank of
Punjab vs. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109). In the cited case a three
Member Bench of this Court noted that the Judges âwere âĻ bemused rather shocked, at the
grievance rather vociferously raised, not by the accused persons of this case but by the learned
Prosecutor General Accountability, Mr. Irfan Qadir that the âĻ intervention by this Court in the
investigation of the case in question, was an illegal and an unconstitutional interference by it which
was likely to cause prejudice to the cause of the accused personsâ. It was also noted in the cited
case that Mr. Irfan Qadir âadmitted that he had been a counsel for the accused persons âĻ and that
the said case was presently under investigation with none other than the NAB itself with Ministry of
CMA-592-K/2013, etc.
4
Law as their Administrative Ministry and with him [Irfan Qadir] as its Prosecutor Generalâ. The
submission of Mr. Irfan Qadir was noted that âhe was the one who had filed all the cases on
behalf of the accused persons of the said fraud case in the Lahore High Court and even in this
[Supreme] Courtâ. The Court also recorded in the judgment that âhe [Irfan Qadir] was the one
who had engaged some other senior Advocates also to represent the said accused persons in the High
Court and in this Court at that time not because he wanted so to do but because the said accused
persons had desired that he should also associate some senior Advocates with him who enjoyed
influence with the Judges of the High Courts and of the Supreme Court and that it was in deference
to the said desire of his said clients that he had engaged Syed Sharifuddin Pirzada, Mr. Waseem
Sajjad and Mr. Babar Awan, Advocates to represent the said accused persons in the said cases. He,
however, denied the allegation that he had taken any money from his said clients for any collateral
purposes or that he had misappropriated any part of any money given to him by his said clients for
onward payment to the said learned Advocatesâ. To put it mildly, this type of conduct brings
the noble profession of lawyers into disrepute and undermines honour, prestige and
dignity of the two institutions of the Bar and the Courts.
5.
There is yet another case reported as Arsalan Iftikhar vs. Riaz Hussain (PLD 2012 SC
903). A number of instances showing Mr. Irfan Qadir as being prima facie, guilty of
misconduct or conduct unbecoming of an Advocate are evident. The first 10 paragraphs of
the cited judgment which highlight such conduct are being reproduced to the extent
relevant, for ease of reference:-
â âĻ
2.
Our judgment dated 14.6.2012 had been passed after considering the
concise statements submitted by the parties and after hearing their learned counsel.
The relevant part of our judgment on which the hearing of this petition is mainly
focused is para 22 which, for ease of reference, is reproduced as under:-
âWhile this suo moto action has been brought to an end in view of the material
considered above, [Mr. Irfan Qadir] the learned Attorney General who has assisted
us in this case is fully abreast of all aspects of this case. It is our expectation that he
will set the machinery of the State in motion so that all those who may have
committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan, Salman
Ali Khan etc. are pursued and brought to book with the full force and rigour of the
lawâ.
3.
It has been brought to our notice through the present proceedings that [Mr.
Irfan Qadir] the Attorney General wrote a letter to the Chairman, NAB on
18.6.2012, purporting to be in furtherance of para 22 our judgment of 14.6.2012.
CMA-592-K/2013, etc.
5
Learned counsel for the petitioner has taken us through the said letter which was
placed on record by the learned Deputy Attorney General. According to learned
counsel, instead of abiding by para 22 ibid [Mr. Irfan Qadir] the learned Attorney
General has transgressed the terms thereof and has exerted illegal and unwarranted
influence over NAB. The contents of the letter dated 18.6.2012 written by [Mr.
Irfan Qadir] the Attorney General will be considered shortly. It may be noted that
the [Mr. Irfan Qadir] learned Attorney General was not a contesting party in the
case and was only assigned the limited function, as an officer of the Court and as
the principal law officer of the Federation, of setting the machinery of State in
motion.
4.
The main allegation leveled by the petitioner against [Mr. Irfan Qadir] the
Attorney General is that he acted in a partisan manner and influenced NAB to
favour the respondent Malik Riaz Hussain. To support his contention, learned
counsel for the petitioner drew our attention to Writ Petition No. 258 of 2007
which was filed in the Lahore High Court by nine petitioners against a number of
respondents including Malik Raiz Hussain who was arrayed as respondent No. 7.
The Writ Petition and other documents filed in the case have been placed on record.
Mr. Irfan Qadir (now Attorney General) represented Malik Riaz Hussain in the
said Writ Petition. He filed parawise comments and appeared in Court on various
dates of hearing on behalf of Malik Riaz. The learned DAG, upon being questioned,
stated that as per his information, [Mr. Irfan Qadir] the Attorney General did act
as counsel for the respondent Malik Riaz Hussain in the said Writ Petition.
Learned counsel representing Malik Riaz Hussain interjected at this point and
contended that there was nothing wrong or improper if Mr. Irfan Qadir
represented the respondent as his client in the case. âĻ
5.
There is indeed no impropriety if an Advocate represents a client in any
given case. Learned counsel for the respondent is, however, missing the point of the
petitionerâs objection. The objection is not to the fact that [Mr. Irfan Qadir] the
Attorney General, in his private professional capacity represented the respondent.
The allegation being made is that neither during the course of hearing of SMC
No.5 of 2012 nor when our judgment was announced in Court on 14.6.2012 nor at
any time thereafter [Mr. Irfan Qadir] the Attorney General disclosed to the Court
his association or professional relationship with the respondent. It is quite clear
that we would not have tasked [Mr. Irfan Qadir] the Attorney General with any
responsibility in this matter if he had made disclosure to us as to his professional
association with the respondent Malik Riaz Hussain. It is of concern to us that
[Mr. Irfan Qadir] the learned Attorney General did not make the requisite
disclosure.
6.
Learned counsel for the petitioner contended that the above facts provide
substantiation in respect of a number of allegations which have been made against
[Mr. Irfan Qadir] the Attorney General in this petition and which were reiterated
during the course of arguments. The primary objection in this respect is that [Mr.
CMA-592-K/2013, etc.
6
Irfan Qadir] the learned Attorney General through his letter of 18.6.2012 sent to
NAB, went much beyond the scope of our order of 14.6.2012 and this amounted to
interference with and unlawful influence on the inquiry by NAB and also
constituted failure on his part, to abide by our order. âĻ
7.
âĻ
8.
The foregoing facts which are floating on the surface of this record provide
prima facie evidence that NAB may have wilted under the outside influence of [Mr.
Irfan Qadir] the Attorney General and may, therefore, not be in a position to
conduct an impartial inquiry in the matter. We may add that when we passed our
order dated 14.6.2012, we had no reason to believe that [Mr. Irfan Qadir] the
Attorney General will go beyond the simple and limited act of âsetting the
machinery of the State in motionâ. It is, therefore, disturbing to see that he chose to
write a letter in terms reproduced above thus overstepping the remit of our order.
9.
In addition to the above, the unusual conduct of [Mr. Irfan Qadir] the
learned Attorney General in these proceedings has previously been subject of
comment by us. In our order dated 24.7.2012, we noted that Mr. Shafi Muhammad
Chandio, learned DAG had undertaken on 17.7.2012 that he will file in Court the
letter sent by [Mr. Irfan Qadir] the learned Attorney General to the Chairman,
NAB. The DAG failed to file the same despite the lapse of several days. We also
noted that such failings impeded the administration of justice and could not be
approved. Expressing our disappointment, we had asked Mr. Chandio, learned
DAG to appear and inform us of the reasons, if any, for not abiding by his
undertaking, but were informed that he was unavailable. We, therefore, recorded in
our order that we were âsurprised and somewhat taken aback when [Mr. Irfan
Qadir] the learned Attorney General became agitated at this and made remarks that
the Court was taking undue interest in this case, implying that this was not
appropriate. In the same agitated state he also remarked that there were sensitivities
to this case. We are in particular surprised at the attitude of [Mr. Irfan Qadir] the
learned Attorney General because he was not present on the last date of hearing.
Instead of putting his own office in order, it is clear that he had not been briefed by
the learned DAG in respect of what transpired at that hearingâ. We had also
commented that [Mr. Irfan Qadir] âthe learned Attorney General may be careful in
maintaining the decorum of these proceedings being an officer of the Court in
addition to being the principal law officer of the Federationâ. Perhaps the above
facts which have now been brought to our attention, can help explain [Mr. Irfan
Qadir] the Attorney Generalâs unusual conduct in the case.
10.
The effect prima facie, of the foregoing circumstances whether taken
independently or cumulatively is that there is a reasonable and well founded prima
facie basis for the petitionerâs allegation that [Mr. Irfan Qadir] the Attorney
General did not act fairly and impartially while purporting to act in furtherance of
para 22 ibid reproduced above. Since these are matters of serious concern to us and
also would be to [Mr. Irfan Qadir] the Attorney General as a member of our bar, it
CMA-592-K/2013, etc.
7
would be in the interest of fairness and justice if he is provided an opportunity of
hearing to explain his conduct. The office shall, therefore, create a file and issue
notice to [Mr. Irfan Qadir] the Attorney Generalâ.
6.
We are quite surprised that although we had directed Mr. Irfan Qadir as Attorney
General to âset the machinery of State in motionâ against persons such as Malik Raiz Hussain,
Dr. Arslan, Salman Ali Khan etc. so that they are pursued and brought to book, Mr. Irfan
Qadir chose not to disclose to the Court that Malik Riaz Hussain had been his client and as
such in Writ Petition No. 258 of 2007, Mr. Irfan Qadir had represented Malik Raiz Hussain.
It is because the requisite disclosure of such relationship had not been made that the Court
entrusted him with a sensitive job. We duly noted that âwe would not have tasked [Mr. Irfan
Qadir] the Attorney General with any responsibility in this matter if he had made disclosure to us as
to his professional association with the respondent Malik Riaz Hussainâ.
7.
To date Mr. Irfan Qadir has chosen not to respond to the notice issued to him and to
explain the behaviour which, on the face of it, is unethical. We can, therefore, justifiably
proceed on the basis that he has no explanation to offer. This should particularly be of
concern to both Bar and Bench as any dispassionate and objective analysis of the situation
will demonstrate that such conduct cannot be conducive for an effective and fair justice
system.
8.
From the above instances, it is evident that Mr. Irfan Qadir has made it a habit to
indulge in misconduct or conduct unbecoming of an Advocate. In the interest of fairness
and justice, we had provided an opportunity of hearing to Mr. Irfan Qadir to explain his
conduct. Although this was done as far back as 28.8.2012, and once again on 12.3.2015 Mr.
Irfan Qadir has chosen not to give any explanation in writing or otherwise. From this we
can only assume that he has in fact no valid explanation to give.
9.
In addition to the above, in the case of Hamid Mir vs. Federation of Pakistan
(Constitution Petition No.105/2012), we had passed an order wherein we noted as under:-
â[The petitioner] drew our attention to CMA No. 4041/2012 which was submitted
by the Ministry of Information and Broadcasting. Page 2 of this CMA bears a
heading âSupplementary grants allocated to the M/o Information and Broadcasting
for financial year 2011-12â. The petitioner then adverted to the first column of table
appearing under the above heading and submitted that the original grant in the
various heads described in the table was Rs.4,080,076,000/-. This figure when
written in words comes to Rupees four billion, eighty million and seventy six
CMA-592-K/2013, etc.
8
thousand and when written in vernacular, the figure comes to Rs. 4 arab, 8 crore and
76 hazar. While the petitioner was addressing the Court, the Attorney General [Mr.
Irfan Qadir] interrupted the proceedings and has started contentious argument and
a mindless harangue as to the figure. We are surprised at this interjection when the
figure being given by the petitioner is absolutely in accordance with the table at page
2 of CMA No. 4041/2012 submitted by the Ministry of Information and
Broadcasting itself.
3.
We repeatedly informed the Attorney General [Mr. Irfan Qadir] that this
was not the way in which cases are to be heard. And we also repeatedly asked him to
take his seat. Instead of doing so, he continued with his interruption and obstructed
the Court proceedings. This is not something which should be countenanced as it is
not conducive to the administration of justice. If such conduct is allowed to continue
it will undermine the legal system. We are, therefore, constrained to warn the
Attorney General that he should not interrupt the arguments being advanced by the
other side and instead he should, in accordance with established norms and practice
expected from all members of our Bar, reserve his comments and address the Court
on his own turnâ.
We also noted that valuable time of the Court had been unnecessarily wasted and as a
consequence, the aforesaid warning had been given to Mr. Irfan Qadir as Attorney General.
10.
The above are persistent acts on the part of Mr. Irfan Qadir which display a pattern
and a mindset which is not at all conducive to the honour and dignity of the Court and the
Bar. A fair, honest and ethical Bar is essential for dispensation of justice. The Court has
shown a lot of patience in dealing with Mr. Irfan Qadir but he has failed to uphold and
maintain the dignity of his profession or the Court. Therefore, in order to maintain the
honour, respect and dignity of the Bar and the Court, we find ourselves compelled to
suspend the practicing license of Mr. Irfan Qadir as an Advocate of this Court and he is also
given notice to show cause as to why he should not be removed from practice as an
Advocate of this Court.
11.
We can now take up the case at hand. The Inspector General of Police, Sindh is in
attendance pursuant to our previous order dated 12.3.2015. He has submitted a report
(CMA 1445/15). However, still we require additional information as to the deliberations, if
any, which may have taken place to justify hiring of Advocates other than the Advocate
General and law officers from his office. We have also not been able to ascertain from the
IGP or from his report as to the amount which was paid as professional fee. Upon being
questioned, the IGP has stated that a total sum of Rs.30 lakhs was agreed to be paid to Mr.
CMA-592-K/2013, etc.
9
Irfan Qadir out of which a sum of Rs.20 lakhs has already been paid while the remaining
Rs.10 lakhs is outstanding and payable. The Government of Sindh and IGP Sindh shall file
copies of all relevant documents showing deliberations and justification for engaging
counsel other than from the office of Advocate General Sindh. The case shall be listed for
hearing in the 2nd week of April, 2015. On the last date of hearing Mr. Farooq Naek had
candidly conceded that the Agreement dated 15.3.2013 was not in accordance with the
provisions of the Constitution or the Sindh Rules of Business. Consequently, the Agreement
was declared to be null and void.
12.
Today CMAs Nos. 423-K and 394-K of 2014 have also been listed for hearing
relating to acquisition of Fire Tenders and one helicopter by the Sindh Government. At the
request of Mr. Farooq H. Naek, Sr. ASC, these two CMAs shall be delinked from the main
case and shall be listed for hearing after 30 days as requested by him.
Judge
Judge
Judge
Islamabad, the
26th March, 2015
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Amir Hani Muslim
Civil Miscellaneous Application No.5959/2013
(For extension of time in holding elections in Cantonment)
IN
Constitution Petition No.65 of 2009
Raja Rab Nawaz
Vs. Federation of Pakistan and others
AND
Civil Misc. Application No.5508/2013 in CRP-Nil/2013
(For permission to file and argue the CRP)
IN
CMA-3258/2013 in Constitution Petition No.65 of 2009
For the petitioner(s):
Nemo.
For the applicant:
Mr. Muneer A. Malik,
Attorney General for Pakistan with
Mr. Asif Yaseen Malik, Secy. Defence
(In CMA-5959/2013)
Syed Zafar Abbas Naqvi, AOR
(In CMA-5508/2013)
For Respondent No.3:
Nemo.
For ECP:
Mr. Abdul Rehman, Addl. D.G. (L)
AND
Constitution Petition No.77 of 2010
(Only to the extent of holding local government elections)
President High Court Bar Association, etc. âĻ
Petitioner(s)
Versus
Federation of Pakistan and others
âĻ
Respondent(s)
For the Petitioner(s):
Nemo.
For the Applicant:
Dr. M. Salah ud Din Mengal, ASC
Raja Abdul Ghafoor, AOR (CMA-6723/13)
On Courtâs Notice:
Mr. Muneer A. Malik,
Attorney General for Pakistan
For the Federation:
Mr. Shah Khawar, Addl. AGP
For Govt. of Balochistan:
Mr. Nazim ud Din, AG
Mr. Abdul Latif Kakar, AAG
For Govt. of KPK:
Mr. Abdul Latif Yousafzai, AG
For Govt. of Punjab:
Mr. Muhammad Hanif Khattana, Addl. A.G.
For Govt. of Sindh:
Mr. Qasim Mirjat, Addl. AG
CMA 5959/2013 in
Const. P.65/ 2009 etc.
2
For ECP:
Mr. Muhammad Akram Sheikh, Sr. ASC
Mr. Mehmood A. Sheikh, AOR
Mr. Sher Afghan, Addl. Secy (Elections)
Date of hearing:
05.11.2013
ORDER
Iftikhar Muhammad Chaudhry, CJ. By means of instant order,
we have to dispose of matters pertaining to the Local Bodies Elections
which are required to be held under the command of Article 140(A) of
the Constitution relating to:-
a) Elections of the Cantonment Boards;
b) Islamabad Capital Territory; and
c) Khyber Pakhtunkhwa.
2.
As far as elections of Cantonment Boards are concerned, a
Constitution has been filed under Article 184(3) of the Constitution by
Raja Rab Nawaz who is an Advocate of Supreme Court as well as
former Member â Vice Chairman of Quetta Cantonment Board. This
petition came up for hearing on 3.1.2013 and was disposed of with
directions to the Federal Government ânot allow further extension in the
variation of composition of the Cantonment Boards in terms of Section
14(1)(b) of the Act, after 5th May, 2013 unless conditions noted in these
provisions are required to be in service compulsorily and in the meanwhile,
steps shall be taken to ensure that the elections of the Cantonment Boards are
held after completing the process of delimitations of the wards, etc., as per the
Cantonment Ordinance, 2002 read with the Cantonments Local Government
(Elections) Rules, 2012, as the Election Commission is also willing and ready
to undertake the process of the electionâ. Unfortunately, despite of passing
of above order, elections were not held and in the meanwhile, on 7th
May, 2013, CMA No. 3258/13 was filed for the extension of time. This
CMA 5959/2013 in
Const. P.65/ 2009 etc.
3
application came up for hearing on 2.7.2013 when following order was
passed:-
â19. Hereinabove are the detailed reasons of our order of even
date, relevant paras there from are reproduced hereinbelow:-
â(2) After discussing the issue at length in presence of Secretary
Defence and also seeking instructions from the Election
Commission, who is responsible to holds elections, following
statement his has been placed on record:-
STATEMENT OF SECRETARY DEFENCE/RESPONDENT NO.1
I, the Secretary Defence, respectfully request for extension in time
during which elections are to be completed in the Cantonments
Boards and undertake that the entire process of the elections in all
the Cantonment Boards shall be completed on or before the 15th
September, 2013.
Sd/-
Lt. Gen (Retd)
Asif Yasin Malik
Secretary Defence/Respondent No.1â
The petitioner also expresses his satisfaction on the above statement.
(3)
Thus, in view of commitment made on behalf of the
Executive, we allow this application and extend the period of
holding the elections in the Cantonment Boards up to 15th
September, 2013. Copy of this order be also sent to the Election
Commission of Pakistan to ensure holding of the elections in terms
of Constitutional provisions (Article 32 read with Article 140A) on
or before the 15th September, 2013.
(4)
We extend our gratitude and place on record our thanks to
learned Attorney General for Pakistan as on account of his
intervention the Executive has agreed to hold the elections of
Cantonment Boards, after a period of about 14 years.
(5)
We may point out that in view of the constitutional
provisions and the principles of good governance, local bodies have
to play an important role to achieve the welfare and good
governance for the citizens of the country. At the same time we are
also hopeful that the provincial governments as well as the
administration of Islamabad shall also make arrangements as early
CMA 5959/2013 in
Const. P.65/ 2009 etc.
4
as could be possible to hold local bodies elections in accordance with
law.â
3.
Detailed reasons of the above order were dictated which now
have been published in the case titled Raja Rab Nawaz vs. Federation of
Pakistan (2013 SCMR 1629). We have painfully noted that despite of
above statement of the Secretary Defence, noted hereinabove, the
elections were not conducted. However, CMA No.5959/13 was filed
wherein request was made for further extension of time. It may be
noted that in this application, plea has been taken that Federal
Government contemplates to bring some amendments in the
Cantonments Local Government (Elections) Ordinance, 2002, therefore,
time may be extended for holding of Local Bodies Elections in the
Cantonment Boards. In the meanwhile, Provincial Government of
Balochistan, Punjab and Sindh have already made request to the ECP
for holding of the Local Bodies Elections in their provinces and they
have made respective requests in writing. As far as the Province of
Sindh is concerned, on its behalf, it has been desired the elections shall
be held on 27th November, 2013 whereas the Provinces of Balochistan
and Punjab are ready to conduct elections on 7th of December, 2013.
4.
We have asked the learned Attorney General of Pakistan that in
such like situation when constitutional provisions have to be followed
what would be the effect if the elections in the Cantonment Boards are
not held or organized particularly in view of the statement of the
Election Commission which has been referred to hereinable from the
order dated 2.7.2013 showing its readiness to hold the elections. The
learned Attorney General appeared and stated that a Committee has
been constituted vide letter No. 2635-SPM/13, dated 10th September,
2013 to examine the proposed amendments in the Cantonments Local
CMA 5959/2013 in
Const. P.65/ 2009 etc.
5
Government (Elections) Ordinance, 2002 by the Ministry of Defence
with a view that public representation in the Local Government is both
inclusive and meaningful and has placed on record a draft Bill.
However, we have pointed out to him that the contents of the Bill
depicts democratic vision of the Government headed by a political
party but as far as existing laws are concerned unless the same are in
field, it is not possible to cause delay in the enforcement of
constitutional provisions (Article 32 read with Articles 17 and 140A of
the Constitution). However, the government is always free to make
amendments in the laws and can change the composition or
constitutionality of the elected bodies, if need be with retrospective
effect as well. He himself is of the opinion that this Court had not
shown haste in passing any directions as it is evident from the
proceedings because petitioner Raja Rab Nawaz has filed Constitution
petition No. 65 as far back as in the year 2009 and it came up for
hearing in presence of the representatives of the respondents
Federation of Pakistan, Director General Military Lands, Cantonment
Board on 29.5.2012, 1.6.2012, 7.11.2012, 3.12.2012, 10.12.2012, 17.12.2012
and 18.12.2012. As far as last mentioned date i.e. 18.12.2012 is
concerned, on behalf of Ministry of Defence, Commander Hussain
Shahbaz appeared and filed CMA 5232/12 wherein it has been stated
that âin compliance of the Honâble Supreme Court order passed on 7
December, 2012, in the subject petition, it is submitted that Ministry of
Defence has submitted a summary to get approval of Prime Minister to request
Election Commission of Pakistan to hold election of local bodies in the
Cantonment Board all over the country. The approval is awaited. On receipt of
the same, the Election Commission of Pakistan will be requested to hold
election in accordance with the provision of Rule 8 of Cantonment Local
CMA 5959/2013 in
Const. P.65/ 2009 etc.
6
Government Election Rules, 2012â. It was further stated âthis Ministry has
no intention to seek further extension (which is till 04 May, 2013) in the
existing Boards sought earlier vide Section 14(1) of Cantonment Act, 1924â.
5.
However, subsequently a statement in writing has also been
made by the Secretary Defence representing the Federation, for holding
the elections on or before upto 15 September, 2013 but despite of it the
commitment has not been fulfilled.
6.
Reluctance to enforce the constitutional provisions for one or the
other reason is not understandable to us. Therefore, having left with no
option, we have to issue notice of the Contempt of Court to the
Secretary Defence. Such notice shall be dealt with separately.
7.
Again it is a matter of surprise for us that the Federation who is
responsible to ensure the elections in the Cantonment Boards has raised
another issue for the postponement of the elections in the name of
amendments in the Cantonments Local Government (Elections)
Ordinance, 2002, reference of which has already been made
hereinabove.
8.
We are of the considered opinion that in the name f the
amendment of the laws, constitutional provisions cannot be allowed to
be not adhered to. Two or three options are available to the Federation
as we have studied the relevant provisions of the law with the
assistance of the learned Attorney General namely:-
(i)
Without any further delay, under the existing laws on the
subject, command of the Constitution under Articles 17,
32 and 140A to be fulfilled immediately and as the other
Provinces have already expressed their readiness to hold
the elections, therefore, the polls must be held either on
27th November, 2013 or on 7th December, 2013 as these
two dates have been agreed by the Provinces of Sindh,
CMA 5959/2013 in
Const. P.65/ 2009 etc.
7
Balochistan and Punjab respectively. It would be an ideal
situation and will earn an appreciation for the general
masses as they have to be empowered under Article 140A
as per its command establishing a Local Government
system would devolve political, administrative and
financial responsibility and authority to the elected
representatives of the local governments and no
discrimination to the electors who are residing in the
Cantonment Boards shall be permissible qua the electors
who are residing in the non-Cantonment Boards where
local bodies elections are likely to be held. This decision
has to take by the Federal Government as early as could
be possible but not later than 7 days.
(ii)
Otherwise the Court would enforce the provisions of
Section 15E of the Cantonments Act, 1924 which reads as
under:-
â15E. Term of office of members.-(1) Subject to
the provisions of this Act, a member of a Board
shall hold office for a period of four years from the
date of the notification of his election or
nomination or from the date on which the vacancy
has occurred in which he is elected or nominated,
whichever be later:
Provided that, notwithstanding the expiry of his
term, such member shall continue to function as a
member until the election or, as the case may be,
nomination of his successor is notified under sub-
section (5) of section 13A.
(2) The term of office of an ex-officio member of a
Board shall continue so long as he holds the office
by virtue of which he is such member.
(3) The term of office of an elected member who
fills a causal vacancy shall commence from the
date of his election and shall continue so long only
as the member in whose place he is elected would
have been entitled to hold office if the vacancy had
not occurredâ.
And despite of reluctance of Federal Government of
Pakistan to hold election of Local Bodies, we are of the
considered
opinion
that
elected
parliamentary
government would prefer to devolve the rights upon the
electors as it has been noted under the constitutional
command so the fresh representation of the local
CMA 5959/2013 in
Const. P.65/ 2009 etc.
8
government may deal with their affairs instead of
following the compelling procedure.
(iii)
As after 5th of May, 2013, no permission has been obtained
to vary constitution of Boards in terms of Section 14(1)(b)
of the Act, 1924, therefore, the Court shall examine that
under which authority of the law and how the
expenditure etc. are being made from the funds of the
Cantonment Boards and if satisfactory explanation is not
offered, the Court would be free to protect the rights of
the general public living in the Cantonment Boards by
pronouncing appropriate orders.
9.
The Secretary Defence, Government of Pakistan shall
submit report on or before 11th November, 2013 about the compliance
or otherwise of this Courtâs order to the Registrar for our perusal in
Chambers and passing appropriate orders, if need be.
10.
Turning towards the case of ICT, unfortunately despite of
issuing directions to the Federal Government from time to time make
arrangements for holding elections in the ICT as it is the requirement of
the Constitution, but so far no progress has been made except that a Bill
has been prepared which is likely to be tabled before the Assembly or
an Ordinance on the subject has to be issued. Suffice it to observe that it
is the duty of the State to enforce the Constitution in its letter and spirit
and there should not be any discrimination in terms of Article 25 of the
Constitution but discrimination amongst the citizen living in different
Federating Units is not permissible as if in the Province of Punjab
elections are being held but residents of ICT are being deprived from
participating in governance at gross roots level. Therefore, we hope
that no further delay shall be caused in this behalf and within 7 days as
it has been directed in the case of Cantonment Boards, progress report
CMA 5959/2013 in
Const. P.65/ 2009 etc.
9
shall be sent to the Registrar of this Court for our perusal in Chambers
and passing appropriate orders.
11.
Now as far as the case of Khyber Pakhtunkhwa is concerned, the
learned Advocate General stated that Assembly has already passed the
Act. Draft rules of delimitation have been prepared and after getting
the assent of the Governor, the Local Government Act shall be
enforced. It has been pointed out to him that as it is the duty of the
Provincial and Federal Governments to ensure holding of Local Bodies
system
and
devolve
political,
administrative
and
financial
responsibility and the authority to the elected representatives of the
local bodies, thus no departure is possible from constitutional
provisions nor any concession can be extended for its enforcement.
Therefore, adherence of constitutional provisions has to be made as
early as could be possible. The Advocate General shall also submit
report in this behalf within 7 days to the Registrar of this Court for our
perusal in Chambers and for passing appropriate orders.
12.
CMA No.6723/2013. This application has been filed on behalf of
applicants by Mr. Salahuddin Mengal, learned counsel. He has stated
that the elections of the local bodies should be held throughout the
country on the same day and his second grievance is that delimitation
has not taken place and further the Election Commission is not being
provided stationery etc. by the government.
13.
We are not inclined to agree with the contentions of learned
counsel because the Provincial Government has already given date for
polls keeping in view its convenience to hold elections. As far as
delimitation is concerned, as per stand of learned Assistant Advocate
General, Balochistan, the Provincial Government is fully geared up to
hold elections meaning thereby the process of de-limitation has been
CMA 5959/2013 in
Const. P.65/ 2009 etc.
10
completed. So far as non providing of stationery etc. is concerned, it is
not the job of this Court to give directions to the government in this
regard. But, if the applicants have any grievance, they should approach
to the Federal Government or the Election Commission of Pakistan for
the redressal of such grievance. Instant application is dismissed
accordingly.
Case stands disposed of.
Chief Justice
Judge
Judge
Islamabad,
5th November, 2013
A. Rehman
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and
Mohmand Dam by the government of Pakistan.
In attendance:
Mr. Khalid Jawed Khan,
Attorney General for Pakistan
Syed Nayyar Abbas Rizvi, Addl.A.G.P.
Mr. Tariq Bajwa, Governor State Bank.
Mr. Arif Ahmed Khan, Secy. Finance.
Mr. Saleemullah Khan, Executive Director
(Finance State Bank).
Dr. Rahim Awan, Secy.
Law & Justice Commission
Mr. Sanaullah Gondal,
Dy. Legal Advisor (State Bank)
Syed Ansar Hussain, Assistant Director
State Bank
Mr. Muhammad Saleem Baig,
Chairman PEMRA
Ms. Rukhsana Yasmeen, Chairman FBR.
Dr. Muhammad Iqbal, Member FBR.
Mr. Ali Naseer, Jazz.
Muhammad Basharat, Telenor.
Muhammad Ayub, Zong.
Naveed K. Butt, U-fone)
Mr. M. Talib Dogar, D. G. (Service) PTA.
Mr. Arif Sargana, Director (PTA) ECO.
Mr. Aadil Umer Khalil, Dir (CA) PTA.
Mr. Muhammad Khurram Siddiqui,
(Dir) Law PTA.
Date of hearing:
11.07.2018
ORDER
Vide order dated 04.07.2018, passed by this
Court, we had emphasized the urgent need for construction of
Dams and appealed to the Nation to make its contribution in
a fund being established for this purpose by way of donations
for this National cause. The State Bank of Pakistan has
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 2 :-
accordingly set up an account titled, âSupreme Court of
Pakistan â Diamer Bhasha & Mohmand Dams â Fundâ. The
account has been set up to receive donations from the Nation
for the sole purpose of construction of the aforenoted Dams
(Diamer Bhasha & Mohmand Dams).
2.
Donations can be made at all Branches of the
State Bank of Pakistan, all Treasury Offices and Branches of
National Bank of Pakistan as well as other Banks including
Micro Finance Banks. Such donations can be made in the
form of cash, cheques, pay orders, demand drafts, prize
bonds deposited either at the counters or through online
transfers. The Banks receiving such donations shall provide
duly stamped/signed receipts acknowledging receipt of the
donations.
3.
Branches of all Banks (15000 approximately)
across the country receiving such deposits shall prominently
display banners on their entry points stating that donations /
contributions are being received in these branches for the
construction of Diamer Bhasha & Mohmand Dams as ordered
by the âSupreme Court of Pakistanâ.
4.
The State Bank of Pakistan has set up a Toll Free
Helpline No.021-111-723-273 for answering queries as well
as receiving complaints from anyone interested in making a
donation. Other Banks shall also set up their separate
Helplines which will be notified through their advertisements
in the Print and Electronic Media.
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 3 :-
5.
An IBAN Number has also been allocated to
facilitate receipt of online donations/contributions in the
Fund through internet banking and ATMs. This IBAN Number
shall be displayed on the websites of the State Bank of
Pakistan and the Supreme Court of Pakistan.
6.
Persons wishing to make donations through
Credit/Debit Cards may do so without any extra charge on
payments made through such Cards if these are issued
domestically. However, payments made through credit/debit
Cards issued outside Pakistan will be subject to charges (if
any) applicable in the respective countries.
7.
Branchless Banking i.e. Omni/Easy Paisa, etc
operated by their approximately 400000 Agents across the
country shall be made functional within 48 hours from today.
All donations/ contributions received in any form and in any
Bank shall within a maximum time of 30 minutes of the
transactions be transmitted to the Fund account with the
State Bank of Pakistan.
8.
Donations/contributions
received
by
Banks
through Debit/Credit Cards transactions and Branchless
Banking Agents shall be settled with the State Bank of
Pakistan within 48 hours.
9.
The State Bank of Pakistan shall communicate the
amounts received in its account to the Registrar of this Court
on hourly basis through its data acquisition portal.
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 4 :-
10.
The Pakistani Missions as well as all Branches of
Pakistani
Banks
abroad
shall
receive
donations/contributions.
The
routing
instructions
for
remittances from abroad shall be displayed on the websites of
this Court as well as the State Bank of Pakistan.
11.
The Ministry of Foreign Affairs is directed to issue
appropriate directions to the Pakistani Missions abroad in
consultation with the State Bank of Pakistan for receiving
donations / contributions and transmission of the amounts
received by them to the designated account of the Fund with
the State Bank of Pakistan.
12.
Subscribers of cellular mobile phone companies
namely Mobilink (Jazz), Telenor, Zong and Ufone wishing to
make donations / contributions may dial short code i.e. 8000
which will result in an automatic deduction of Rs.10/-. The
amount so received by the said Companies shall be
transferred on daily basis to the Fund with the State Bank of
Pakistan. All four cellular mobile phone companies shall
display on their websites, the amounts received by them
which shall be transferred to the Fund account on daily
basis.
13.
Aforesaid cellular mobile phone companies have
voluntarily undertaken to run a media campaign of 5-8
seconds on the Print and Electronic Media publicizing this
initiative.
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 5 :-
14.
Mobilink (Jazz) and Telenor shall also facilitate
receipt of contributions / donations through Jazz Cash and
Easy Paisa modes. These companies shall advertise the mode
and manner through which contributions/donations through
Jazz Cash and Easy Paisa can be made. All amounts received
in this regard shall be transferred to the Fund with the State
Bank of Pakistan on daily basis.
15.
All four cellular mobile phone companies through
their respective Banks shall provide details of collections to
the Registrar of this Court and shall also display details
thereof on their respective websites on daily basis which shall
be accessible to the public.
16.
The Ministry of Information and Broadcasting has
in consultation with the State Bank of Pakistan, Pakistan
Telecommunication Authority and Print & Electronic Media
Regulatory Authority prepared an advertisement campaign for
the media to increase public awareness through the Print as
well as Electronic Media which shall be run by all Print and
Electronic Media houses/channels/FM Radio Station free of
cost as public service messages.
17.
PEMRA and the Ministry of Information shall
ensure that the media campaign for the Fund run effectively
and efficiently and is allocated sufficient time during prime
hours for raising public awareness about the, âSupreme
Court of Pakistan â Diamer Bhasha & Mohmand Dams â
Fundâ.
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 6 :-
18.
We direct the Ministry of Law & Justice in
consultation with Federal Board of Revenue to promulgate an
Ordinance for inter alia making appropriate amendments in
different laws including the Income Tax Ordinance to ensure
that donations/contributions made to the Fund are not
subjected to any taxes or deductions. The contributions made
to the Fund shall be treated as contributions towards
charitable purposes and shall not be liable to any tax/duty
whatsoever. The Ordinance shall also cater for the following:-
i)
Exemption to any income of, âSupreme
Court of Pakistan â Diamer Bhasha &
Mohmand Dams â Fund;
ii)
Exemption to the Fund from minimum tax
on turn over under Section 113 of the
Income Tax Ordinance, 2001;
iii)
Exemption from withholding tax on payment
received by the Fund;
iv)
All
Provincial
Governments
and
their
respective Revenue authorities shall provide
appropriate
exemptions
under
their
respective Laws and if necessary issue
appropriate Ordinances;
v)
Any person making donations /contributions
to the Fund shall not be subjected to any
inquiry or probe as to the sources of the
funds utilized for making contributions/
donations by any Department, authority or
person; and
vi)
The Auditor General of Pakistan as well as
all Accountant Generals of the Provinces
shall assist the Registrar of this Court in
CMA NO.6155/2018 IN CONSTITUTION PETITION NO.57/2016
-: 7 :-
maintaining,
operating
and
conducting
audits of the Fund from time to time.
19.
This Court has not authorized any individual or
group, etc to collect donations.
20.
We are confident that the systems being put in
place on the recommendation of the Governor, State Bank of
Pakistan, various Government Departments as well as
representatives of the Cellular Mobile Phone Companies and
other experts shall operate smoothly and seamlessly towards
achieving the objective of this national cause. All concerned
have assured this Court that in case any problems are
experienced at any stage and of any nature in receipt of
contributions, the same shall immediately be resolved.
21.
Let this matter be listed for hearing 30.07.2018.
CHIEF JUSTICE
ISLAMABAD, THE
11th of July, 2018.
ZR/*
NOT APPROVED FOR REPORTING
JUDGE
JUDGE
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
Civil Miscellaneous Applications No.6309 & 6332 of 2018
IN
Civil Miscellaneous Applications No.6155 of 2018
In
Constitution Petition No.57 of 2016
Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha
and Mohmand Dam by the government of Pakistan.
In attendance:
Mr. Khalid Jawed Khan,
Attorney General for Pakistan
Syed Nayyar Abbas Rizvi, Addl.AGP.
Raja Abdul Ghafoor, AOR/ASC (for SBP)
Date of hearing:
13.07.2018
ORDER
IJAZ UL AHSAN, J-. These applications (CMA
Nos.6309 and 6332 of 2018) seek amendments in our order
dated 11.07.2018 to get typographical errors corrected and to
remove
certain
technical
difficulties
being
faced
in
implementation of the same.
2.
It has been pointed out that in paragraph 4 of the
order, the correct Toll Free Helpline Number, set up by the
State Bank of Pakistan is â021-111-727-723â which has
inadvertently been written as â021-111-723-273â. The said
correction is accordingly made.
3.
In paragraph 5 of the order, the words, âan IBAN
Number hasâ shall be replaced by the words, âIBAN Numbers
haveâ.
4.
Paragraph 7 of the order shall be replaced by the
following:-
Civil Miscellaneous Applications No.6309 & 6332 of 2018
-: 2 :-
âDonations can also be made through Jazz Cash / Easy
Paisa / Wallet, etc. All such donations / contributions shall
be transmitted to the Fund account with the State Bank of
Pakistan within 48 hoursâ
5.
It has further been pointed out that in paragraph
12 of the order, the Short Code No.â8000â has been
mentioned through which contributions can be made by
sending a blank SMS at the said Number. It has been
requested that in order to remove technical difficulties, it may
be stated in the order as follows:-
âsubscribers wishing to make donations/contributions may
type the word âdamâ and send the said SMS at Short Code
No.8000â.
Further, it is clarified that the amounts received
by the Cellular Mobile Companies shall be remitted to the
Fund account within 48 hours.
6.
In terms of paragraph 13 of the order, it is clarified
that the cellular mobile companies shall run media
campaigns
as
per
instructions
of
Pakistan
Telecommunication Authority on the print and electronic
media publicizing the initiative of this Court.
7.
In paragraph 14 of the order, in the second line
from the top, the words, â/wallet, etcâ shall be added. The
amounts so deducted shall be transmitted to the Fund
account within 48 hours.
8.
The above modifications will be deemed to be an
integral part of the order of this Court dated 11.07.2018.
Except as hereinabove modified, the order of this Court shall
for all intents and purposes continue in full force and effect.
Civil Miscellaneous Applications No.6309 & 6332 of 2018
-: 3 :-
9.
The
listed
applications,
with
the
above
modifications, are accordingly disposed of.
CHIEF JUSTICE
ISLAMABAD, THE
13th of July, 2018.
ZR/*
NOT APPROVED FOR REPORTING
JUDGE
JUDGE
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
C.M.A. NO.64 OF 2013 IN CONST.P.87 OF 2011
AND
C.R.P. NO.191 OF 2012 IN CONST. P.NO.87 OF 2011
Workers Party Pakistan, etc.
âĻ Petitioner (s)
VERSUS
Federation of Pakistan, etc.
âĻ Respondent (s)
For the Applicant/
Petitioner
: Mr. Bilal Hassan Minto, ASC
For the Federation
: Mr. Irfan Qadir,
Attorney General for Pakistan
Mr. Dil Muhammad Alizai, DAG
For the ECP
: Mr. Muhammad Munir Piracha, Sr. ASC
Mr. Abdul Rehman,
Additional Director General (Elections)
Date of Hearing
: 30.04.2013
ORDER
Learned counsel for the Election Commission of
Pakistan (ECP) stated that the ECP has already incorporated
directions, observations and suggestions of the Court in the Code
of Conduct or the Rules framed under the Representation of the
CMA.64/13 in Const.P.87/11, etc.
- 2 -
People Act, 1976 (ROPA). However, we have noticed that the
Executives who are bound to assist the ECP for holding honest,
free and fair general elections are required to ensure protection to
the life and property of the citizens, voters and candidates
throughout the country because a peaceful and congenial
atmosphere persuades the voters, citizens and the candidates to
show their full participation in the process of general elections
throughout the country. There are certain areas where the life and
property of the citizens, voters and the candidates, prima facie,
seem to be not protected, as has been reported in the media about
the incidents of bomb explosions, suicides and murders, etc.
Therefore, we direct to the Chief Secretaries of the Provinces and
the Chief Commissioner, ICT to ensure complete control of law
and order situation throughout the country so the process of the
general elections is completed peacefully.
2.
The learned counsel stated that the ECP is already
focusing on this subject and on its behalf it is being ensured that all
possible efforts/steps shall be taken to provide peaceful and
congenial atmosphere to the voters, citizens and the candidates so
they may run their campaign for the forthcoming General
CMA.64/13 in Const.P.87/11, etc.
- 3 -
Elections and also ensure their attendance at the Polling Stations
on the day of polling for exercising the Right of Adult Franchise.
3.
Adjourned to a date in Office after two (02) weeks.
CJ.
Islamabad
J.
30th April, 2013.
Mahtab/*
J.
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IN THE SUPREME COURT OF PAKISTAN
(Review/Original Jurisdiction)
BENCH
Mr. Justice Amir Hani Muslim
Mr. Justice Qazi Faez Isa
Mr. Justice Sardar Tariq Masood
Civil Misc. Application Nos. 687, 719 & 1551 of 2017
(Interim Reports by AIG Legal for I.G. Punjab, Home Department, Govt. of
Punjab and Inspector General of Police, Punjab respectively)
In
Civil Review Petition No. 49 of 2016
AND
Crl. Org. Petition No. 33/2017 in CRP. 481/2016 in CA No. 184-L/2013
(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by
this Court in CA No. 184-L/2013 and CRP No. 481/16)
Khalid Mehmood Afzal
Vs
Mushtaq Sukhera, IG Police & others
AND
Crl. Org. Petition No. 55/2017 in CRP. 482/2016 in CA No. 184-L/2013
(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by
this Court in CA No. 184-L/2013 and CRP No. 481/16)
Malik Muhammad Sabir
Vs
Mushtaq Sukhera, IG Police
AND
Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016
(For non-compliance of the orders dated 30.12.2016 passed by this Court in CRP No. 83/16)
Awais Malik and others
Vs
Mushtaq Sukhera, IG Police & others
AND
Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89/2016
(For non-compliance of the orders dated 30.12.2016 passed by this Court in CRP No. 89/16)
Muhammad Haseeb
Vs
Muhammad Amin Vans and others
In Attendance:
For Govt. of Punjab :
Mr. Shakeel-ur-Rehman, AG, Punjab
Barrister Khalid Waheed, Addl.AG, Punjab.
For the IG., Punjab
:
Mr. Kamran Adil, AIG Legal Police, Punjab.
C.M.A. No. 687/17 in CRP. 49/16, etc.
2
For Applicants/ Petitioners :
Khawaja Haris Ahmed, Sr. ASC
Mr. Mehr Khan Malik, AOR
(in CMA.457/17 & Crl.MA. 490/17
Crl.O.P.60/17)
For the Applicant
:
Malik Muhammad Qayyum, Sr. ASC
(Akhtar Umar Hayat)
Mr. Qusain Faisal Mufti, ASC
Syed Rifaqat Hussain Shah, AOR
(in CMA.1755/17)
For the Petitioner
:
Ms. Ayesha Hamid, ASC
Syed Rifaqat Hussain Shah, AOR
(in Crl.O.P. 33/17)
For the Petitioner
:
Sardar Ashiq Mehmood Khan Sadozai, ASC
Ch. Akhtar Ali, AOR
(in Crl.O.P. 55/17)
For Petitioner
:
Ms. Asma Jehangir, ASC
(in Crl. O. P. 62/17)
On Court Notice
:
Mr. Talat Farooq Sheikh, ASC
Jameel Ahmed (In person)
(in Crl.M.As.487-489/17)
Dates of Hearing
:
27th & 28th March, 2017.
JUDGMENT
AMIR HANI MUSLIM, J:- These matters emanate out of two reported
judgments of this Court, i.e. Contempt Proceedings against Chief Secretary, Sindh
(2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015
SCMR 456), whereby this Court declared that the concept of out of turn
promotions was unconstitutional and against the Fundamental Rights enshrined in
the Constitution. The copies of these judgments were ordered to be sent amongst
others to the Chief Secretaries of all the Provinces and the Secretary,
Establishment Division, Government of Pakistan who were directed to streamline
the service structure in the line with the directives contained in these judgments.
2.
On 26.01.2016, Civil Appeal No.184-L of 2013, came up for hearing
before this Court, when this Court passed the following order:
â3.
âĻWe expect that all out of turn promotions granted either
to the police personnel on gallantry award or otherwise shall be
undone within four weeks from today and their seniority be re-
fixed with their batch mates in terms of the directions contained in
the aforesaid judgments. Out of turn promotions ranging from
C.M.A. No. 687/17 in CRP. 49/16, etc.
3
constable to any gazetted officer shall be streamlined in terms of
the aforesaid two judgments. On completion of the exercise, the
I.G Police Punjab, Home Secretary, Punjab and Chief Secretary,
Punjab, shall submit compliance report with the Assistant
Registrar of the Court for our perusal in chambers. This order
shall be communicated to the I.G, Punjab, Home, Secretary,
Punjab and Chief Secretary, Punjab, for their information and
compliance and non-compliance of this judgment shall expose the
concerned officials to contempt proceedings.â
The aforesaid order was challenged through Civil Review Petition No.49
of 2016, etc. by police officers who claimed that they had earned their out of turn
promotions on the basis of acts of bravery during their duty or otherwise. The said
Review Petitions along-with other applications were dismissed, by the judgment
dated 30.12.2016, reported as Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206)
(hereinafter the âShahid Pervaiz caseâ) .
3.
On 20.03.2017, the Home Department, Govt. of Punjab, and the Inspector
General of Police, Punjab (âIGâ), submitted their separate reports. The IG issued
notices to all the police officers and after providing them with an opportunity of a
hearing, prepared a comprehensive and voluminous report which dealt with the
case of each police officer separately. The Additional Secretary (Police) of the
Home Department vide letter dated 16.03.2017 objected to the report of the IG
only to the extent that a few of the out of turn promotion cases were âjudicially
protectedâ. It appears that these officers were granted out of turn promotion by
judicial fora. The learned Advocate General, Punjab supports this letter of the
Home Department, and both he and the counsel representing these officers
contend that such promotions were also specifically saved by paragraphs 111 and
143 of the judgment in Shahid Pervaiz case.
4.
For convenience, the referred to paragraphs 111 and 143 from the
judgment of the Shahid Pervaiz case are reproduced hereunder:
â111.
Yet another anomalous consequence of this
argument is that while two identical provincial laws are enacted
and acted upon and one province repeals the law while the other
continues with its operations. Subsequently, the vires of the law
that continues on the statute books is examined by the Court and
C.M.A. No. 687/17 in CRP. 49/16, etc.
4
its provisions have found to be inconsistent with the Constitution
or Fundamental Rights with the result that the benefits conferred
or availed thereunder, unless protected by the category of past and
closed transaction, have to be reversed and its deleterious effects
undone. This category, quite obviously, consists of the cases
wherein âout of turn promotionâ was granted to individuals,
pursuant to the judgments of the High Court, Service Tribunal and
the Supreme Court. They shall remain intact unless reviewed. Even
otherwise, it does not appeal to logic that in such a situation, while
those benefitting from a law which continued to be on the statute
book and eventually found to be ultra vires the Constitution would
stand deprived of such illegal benefits, those continuing to enjoy
the same under the omitted/repealed law in other Province would
stand protected. If an illegal benefit was accrued or conferred
under a statute, whether repealed (omitted) or continuing, and its
benefits continue to flow in favour of beneficiaries of such an
unconstitutional Act, and it is declared ultra vires, the benefits so
conferred would have to be reversed irrespective of the fact that
the conferring Act was still on the statute book or not. Where such
an anomalous situation surfaces â i.e. where one province
continues to countenance the benefits of an unconstitutional
(though repealed/omitted) Act, while the other Provincial statute
has been struck down on the same touchstone, and thereby
determined whether those enjoying benefits pursuant to the
repealed law are entitled to continue to do so, such reversal of
benefits is imperative.â
â143.
For the aforesaid reasons, all the listed Review
Petitions and the Applications are dismissed. The I.G.P, Punjab,
the Home Secretary, Punjab, and the Secretary, Establishment
Division, are directed to comply with the judgment, by fixing the
seniority of all the Police Officers who were given out of turn
promotion alongwith their batch-mates, as if they were never given
out of turn promotion. However, the orders of withdrawal of out of
turn promotion passed by the Department/Competent Authority
shall be recalled against the Police Officers who had earned out of
turn promotions, pursuant to the judgments of superior
Courts/Service Tribunals, as discussed in paragraph 111 of this
judgment. For the purpose of compliance of this judgment,
necessary D.P.C/Board, as the case may be, shall be immediately
held without further loss of time and a compliance report be
submitted to the Registrar of this Court for our perusal in
Chambers. This exercise shall be completed within a period of one
month. The Advocate General, Punjab, and the learned Attorney
General for Pakistan shall communicate the directives of this
Court to the relevant authorities.â
5.
The Advocate General Punjab (âthe AGâ) states that there was a conflict
between the opinion of the Home Department and that of the Inspector General of
Police on the point, whether the out of turn promotions given to some of the
police officers were protected by the afore-quoted paragraphs of the judgment in
the Shahid Pervaiz case. He relied upon the letter dated 16.03.2017 of the Home
Department, Government of Punjab with regard to the out of turn promotion
C.M.A. No. 687/17 in CRP. 49/16, etc.
5
granted to the nine police officers mentioned in the said letter which was
addressed to the Secretary Services, Government of Punjab, except Shahid
Razzaq Qureshi who has since retired. According to the learned AG meetings
were held to resolve the said controversy, but till date to no avail. The learned AG
stated that there are three categories of persons who would be protected and
would be construed to come within the purview of the aforesaid paragraphs 111
and 143, which are:
i.
Where a Court had directed that a particular officer or official
should be given out of turn promotion and a notification to this
effect be issued;
ii.
Where an official or officer had approached a court and it was
held that he be treated at par with some other official/officer
who was given out of turn promotion since he had also
participated in the same operation or encounter; and
iii.
An officer or official who was given out of turn promotion
however later than his colleagues and after he had approached
a court the date of his out of turn promotion was ante-dated to
the date when his companions were given out of turn
promotion.
6.
Khawaja Haris Ahmed, learned senior ASC, represented eight officers,
namely, Awais Malik, Ijaz Shafi Dogar, Muhammad Umer Wirk, Rana Shahid
Pervez, Muhammad Usman Anwar, Naeem ul Hassan Babar, Syed Jammat Ali
Bukhari
and
Karamat
Ullah
Malik.
He
states
that the
orders
of
cancellation/withdrawal of out of turn promotion of the first four police officers
named by the Home department should be recalled. As regards the remaining four
officers, the Home Department has not offered any view. The learned counsel
contends that the said paragraphs 111 and 143 are very clear and by relying
thereon states that, any out of turn promotion which was given to a police
officer/official through any court order is protected and this protection extends to
the following three categories of officials/officers:
i.
Those who approached a court and were allowed/granted
out of turn promotion;
C.M.A. No. 687/17 in CRP. 49/16, etc.
6
ii.
Those a court directed to grant out of turn promotion on the
basis that the Department had granted out of turn
promotion to some of the police officers/officials similarly
placed; and
iii.
Those who the Department did not grant out of turn
promotion but once a court had granted out of turn
promotion thereafter the Department itself gave out of turn
promotions to them in line with the principles laid down in
the judgments despite the fact that the persons did not
approach the Court.
7.
The learned Senior ASC Khawaja Haris Ahmed contends that this Court
has specifically held in the said paragraphs 111 and 143, that out of turn
promotions made on the basis of a court or tribunalâs order shall remain intact,
however, the IG of Police Punjab has done away with even those out of turn
promotions. He sought protection of the out of turn promotions granted to Awais
Malik, Ijaz Shafi Dogar, Muhammad Umar Virk and Rana Shahid Parvez, stating
that on 18.01.1997, Awais Malik alongwith other police officials was deputed to
perform security duty and to protect the leaders of Sipah-e-Sahaba who had to
appear in the Court of Additional Sessions Judge Lahore where a bomb blast took
place and he received injuries alongwith others. The others members of the Police
party approached the Lahore High Court, by filing Writ Petition No.17474 of
1997, seeking out of turn promotion and the High Court directed that a formal
notification of their out of turn promotion be issued. Awais Malik also filed Writ
Petition No.19749 of 1997 for grant of out of turn promotion as he was similarly
placed and the learned High Court allowed the Writ Petition in terms of judgment
passed in Writ Petition No.17474 of 1997, therefore, his case falls squarely within
the parameters of paragraphs 111 and 143. As regards Ijaz Shafi, the learned
senior ASC submitted, that he was granted out of turn promotion pursuant to the
orders of the Lahore High Court passed in Writ Petition No.1257/2005, whereby
it was directed that his case for grant of out of turn promotion be placed before the
Provincial Selection Board; consequently, the Provincial Selection Board
considered his case and recommended him for out of turn promotion as a Deputy
C.M.A. No. 687/17 in CRP. 49/16, etc.
7
Superintendent of Police (âDSPâ) and later he was promoted as Superintendent of
Police (âSPâ), but he has been relegated to the post of DSP. As regards
Muhammad Umer Virk, the learned senior ASC contended, that while he was
posted as Inspector he had participated in an operation launched by the Police to
curb the terrorist activities of Sipah-e-Muhammad, a militant group with its
headquarters at Thokar Niaz Beg, Lahore. Since he was not granted out of turn
promotion for his said act of bravery he approached the Lahore High Court
through Writ Petition No. 17232 of 1997, which was accepted and it was
observed that his case be placed before the Provincial Selection Board which shall
ensure that his case is treated at par with those who had participated in the
incident. As regards Shahid Pervez, the learned Senior ASC contended, that he
also participated in the Thokar Niaz Beg incident and he also approached the
Lahore High Court through Writ Petition No. 28879 of 1997, on the basis of
discrimination, which was allowed and he was granted one step out of turn
promotion. The Department assailed the High Court judgment before this Court
by filing C.P. No. 259-L of 2000, which was dismissed on 26.04.2000 as it was
time barred.
8.
Malik Muhammad Qayyum, the learned Senior ASC, appears on behalf of
Akhtar Umer Hayat Lalika and in addition to adopting the arguments advanced by
Khawaja Haris Ahmed, Senior ASC, contended that the applicant had filed Writ
Petition No. 2445 of 1995 for the grant of out of turn promotion on the basis of
discrimination, which was allowed on 03.12.1996 and out of turn promotion as
prayed for was granted. C.P. No. 656-L/1997 was filed before this Court by the
Province of Punjab against the said order of the Writ Petition, but it was
dismissed by this Court on 03.02.1998 as it was barred by time. However, the
C.P. No. 1446-L/1997 filed by another official against the judgment in the said
Writ Petition was dismissed on merits and the Civil Review No. 19-L of 1998
filed in C.P 1446-L of 1997 was also dismissed by this Court on 08.07.1998. He
next contended that the promotion of Akhtar Umer Hayat Lalika was a past and
C.M.A. No. 687/17 in CRP. 49/16, etc.
8
closed transaction in view of the judgments in his favour upto this Court,
therefore, out of turn promotion granted to him is protected in view of the
principles laid down in the said paragraphs 111 and 143.
9.
Ms. Asma Jehangir, the learned ASC, represents Applicant Muhammad
Anjum adopted the arguments of Kh. Haris Ahmed, learned ASC. In addition, the
learned ASC submits that the question of seniority was involved in the case of the
Applicant and his case was erroneously dealt with by the Department to be a case
of out of turn promotion. She contended that the Applicant approached the Punjab
Service Tribunal in Appeal No.2094 of 2006, and the Tribunal accepted his
Appeal, by its judgment dated 13.10.2006, by remanding his case to the
concerned authority for re-consideration of his case for conformation as Assistant
Sub-Inspector (ASI) from the date he was due for promotion to the post of ASI,
subject to his service record being satisfactory after the period when he would
have completed his two years probation period. Therefore, the learned counsel
submitted that the orders of the IG in the case of the Applicant are required to be
set aside.
10.
Sardar Ashiq Mehmood Khan Saddozai, learned ASC, appears for the
Petitioner in Criminal Original Petition No.55 of 2017 and contends that the case
of the Petitioner is identical to the case of Muhammad Haseeb Anjum. According
to him, the Petitioner filed Appeal No.140 of 1998 before the Punjab Service
Tribunal, which was allowed, with the observation that he was due for
consideration as well as promotion as an Inspector alongwith the confirmed Sub-
Inspectors and that he be considered for promotion with effect from 20.08.1995,
without prejudice to the seniority of Mohammad Ramzan and Mohammad Nazir
whose promotion was deferred for want of requisite record, subject to fulfillment
of prescribed requirement.
11.
Mr. Talat Farooq Sheikh, learned ASC, appeared for the Applicants,
namely Muhammad Sarwar Awan and Muhammad Iqbal who were issued notices
by this Court on 20.03.2017. He, on the legal plane, adopted the arguments of Kh.
C.M.A. No. 687/17 in CRP. 49/16, etc.
9
Haris Ahmed, learned ASC, and contended that Muhammad Sarwar Awan was
given out of turn promotion pursuant to the directions of the Lahore High Court in
Writ Petition No.8147 of 1998, on the analogy of the cases of SSP Javed Hussain
Shah and SP Umer Virk, to avoid discrimination. The Department challenged the
judgment of the Lahore High Court, by filing Civil Petition No.226-L of 2000,
which was dismissed on 26.04.2000, by this Court, as it was barred by time. He
further submits that the matter had attained finality, therefore, the out of turn
promotion granted to Muhammad Sarwar Awan was protected in light of the said
paragraphs 111 and 143. As regards Muhammad Iqbal the learned ASC stated,
that he was granted out of turn promotion as Inspector with effect from
01.08.1992, by the Additional IG, Punjab. However, in compliance of the
judgment dated 15.06.2005, passed by the Punjab Service Tribunal in Appeal
No.2548 of 2004, the date of his out of turn promotion was revised as 09.07.1990.
The Department filed Civil Appeal No.203 of 2006 before this Court, which was
dismissed on 28.05.2007, on the ground that Appeal filed by the said police
officer without impleading the Government of the Punjab was not competent. The
learned counsel submitted that the case of Muhammad Iqbal is also protected in
view of the aforesaid paragraphs 111 and 143.
12.
The Applicant Jameel Ahmed appeared in person, pursuant to the notice
issued on 20.03.2017. He states that he adopts the arguments of Kh. Haris Ahmed,
learned ASC.
13.
Ms. Aysha Hamid, the learned ASC, represents the petitioner in Crl.O.P
33/2017 and contends that the present contempt petition is filed under the
impression that the Punjab Government which had formed a Committee to look
into and remove the so called anomalies in the judgment of this Court in the
Shahid Pervaiz case and that the Government intends to recall the orders/letters
withdrawing the out of turn promotions given to many police officers/officials.
She stated that there are no anomalies in the said judgment and that the real
purpose of the Committee, headed by the Law Minister, was to undo the effect of
C.M.A. No. 687/17 in CRP. 49/16, etc.
10
the judgment on a pick and choose basis. Learned counsel submits that the IGâs
report is based on individual speaking orders and she supports those orders as
they are in consonance with the principles enunciated in the judgment in the
Shahid Pervaiz case dated 30.12.2016; whereas the opinion of Home Department,
Government of Punjab, misconstrues the said judgment, moreover, the Home
Departmentâs opinion also agrees with the IG whereby the out of turn promotions
granted to some of the police officers/officials were recalled without mentioning
any reason to take a divergent view in respect thereof. She quoted the example of
Sarwar Awan, Akhter Umer Hayat Lalyka, Rana Shahid Pervaiz and Awais Malik
and contended that Sarwar Awan was granted out of turn promotion twice and his
second out of turn promotion was pursuant to Court orders dated 22.06.1999
passed by Lahore High Court, in Writ Petition No.8147 of 1998 on the analogy of
SSP Javed Hussain Shah and SP Umer Virk, due to purported discrimination.
Akhter Umer Hayat Lalyka was also granted out of turn promotion as DSP, by the
Lahore High Court through Writ Petition No.2445 of 1995, on the basis of
purported discrimination by citing precedent of Sub-Inspector Waqar Ahmed,
who was granted out of turn promotion by the Department and not by the Court,
therefore, after the judgment dated 30.12.2016, when the out of turn promotion
given to S.I Waqar Ahmed, was recalled, the reason of discrimination on the basis
of which Writ Petition of Akhter Umer Hayat Lalyka was allowed no longer
remained. Moreover, the earlier recommendation of the Department in favour of
the said officer was withdrawn. Rana Shahid Pervaiz was also granted out of turn
promotion through Writ Petition No.28879 of 1997, by the Lahore High Court, on
the ground of purported discrimination, by holding that the other participants of
the Thokar Niaz Beg operation including, inter alia, Javed Hussain Shah and
Muhammad Umer Virk, had been granted out of turn promotions. The learned
counsel next quoted the case of Awais Malik, who too was granted out of turn
promotion on the basis of verdict in Writ Petition No.19749 of 1997, which was
based on decision in Writ Petition No.17474 of 1997. As regards Karamatullah
Malik, Naeem ul Hassan and Jamat Ali Bukhari, the learned counsel contended,
C.M.A. No. 687/17 in CRP. 49/16, etc.
11
that they were not protected by any judicial pronouncement and the cases of
Haseeb Anjum and Muhammad Iqbal relate to the issue of seniority and not out of
turn promotion. The learned counsel concluded by contending that all the cases
which came before this Court were dismissed on the ground of limitation and not
on merits, therefore, it would not constitute res judicata or be covered by the
afore-quoted paragraphs 111 to 143.
14.
Before proceeding to decide the aforesaid matters we want to dispel the
notion that we are reviewing the judgment in the Shahid Pervaiz case in general or
paragraphs 111 and 143 in particular. The IG of Police, Punjab pursuant to the
judgments of this Court looked at each case of out of turn promotion. He issued
notices to all concerned and considered their respective comments and thereafter
decided each individual case. These matters pertain to the Punjab Police, which is
a disciplined force at the apex of which is the IG of Police. The matters of
seniority are settled/determined by the designated competent authority and, if any
official or officer has any reservation with regard thereto a representation can be
preferred to the designated authority and if he/she is still not satisfied an appeal
can be filed before the competent tribunal, which in this case would be the Punjab
Service Tribunal. Article 212 of the Constitution categorically mandates that such
a tribunal has exclusive jurisdiction with regard to all matters relating to the terms
and conditions of service. Against the decision of the tribunal an appeal can only
be entertained by the Supreme Court provided it involves a substantial question of
law of public importance and leave is granted to consider the same (Article 212(3)
of the Constitution).
15.
The aforesaid officials/officers of the Police were recommended for out of
turn promotion either by their superiors or claimed it because similarly placed
persons were given it. The recommendations were either not accepted by the
competent authority/IG or they were disregarded. They therefore proceeded to file
a petition in the High Court or approached the Tribunal. We are clear in our mind
that the High Court had no jurisdiction to entertain such petitions under Article
C.M.A. No. 687/17 in CRP. 49/16, etc.
12
199 of the Constitution, let alone to issue writs of the nature that were issued. If at
all the said petitioners were aggrieved by not receiving out of turn promotion they
should have proceeded on the stipulated legal path which has been mentioned
above. The learned AG and the learned counsel representing the said
officials/officers of Police have made much of the fact that the cases of some of
these persons had come before this Court, even though this Court had simply
dismissed the petitions on the ground of limitation. Such orders of this Court
cannot be categorized as a decision in terms of Article 189 of the Constitution.
The issue whether out of turn promotion was legal and whether the High Court
could consider the same under Article 199 of the Constitution was not considered
either by the High Court or by this Court in any of the referred to
judgments/orders. As regards the decision of the Tribunal it was given on the
basis that the appellant had been discriminated against vis-Ã -vis his companions,
however, when the companions out of turn promotion too has been withdrawn
there remained no element discrimination. The matter in issue before us is also
not the same which was in issue before the fora below and, therefore, it would
also not constitute res judicata.
16.
As mentioned above, the IG of Police, Punjab considered the judgments of
this Court with regard to the out of turn promotion cases and after examining each
personâs case decided the same. Neither the referred to letter of the Home
Department nor the learned AG have pointed out any legal defect in the
determination by the IG. They have simply referred to the afore-quoted
paragraphs 111 and 143 and stated that the officials/officers, mentioned above,
had been declared to be entitled to receive out of turn promotion by the fora
below, and that these orders/judgments had not been set aside by this Court,
therefore, the case of these individuals would be protected. With respect to the
learned counsel we cannot bring ourselves to agree with this contention because it
is not based on any legal or constitutional premise. The foundation of the said
paragraphs 111 and 143 on which they have erected their case also overlooks both
C.M.A. No. 687/17 in CRP. 49/16, etc.
13
the context and wording of the said paragraphs. Paragraph 111 specifically states
that out of turn promotions would remain intact, âunless reviewedâ, without
restricting such review by this Court alone. The IG of Police has reviewed the
matter at his end after issuing notices to all concerned and hearing all those who
availed of the opportunity of the hearing which was provided to them and
thereafter passed separate detailed orders in respect of each individual. As already
mentioned the orders of the IG have not been assailed on the ground that the same
are contrary to any legal or constitutional provision. We have also examined the
same and have not found any illegality therein. On the contrary it is based upon
the principles in the cited judgments of this Court. In such a situation, and where
the orders passed by the IG conform to the law as has been declared by this Court
in the referred to judgments, no exception can be taken thereto. The report of the
IG should be acted upon and notifications with regard to withdrawing the out of
turn promotions be immediately issued and compliance report in this regard be
submitted for our perusal in Chambers within ten days.
17.
It should also not be lost sight of that the competent authority/the IG had
decided not to grant out of turn promotion to the officials/officers who then went
to court/tribunal. At that juncture the Government of Punjab had resisted these
cases, but, had belatedly filed appeals before this Court against the
orders/judgments granting out of turn promotions. However, now before us the
Home Department and the learned AG have taken a complete u-turn and support
the very same out of turn promotions that were earlier opposed by them on the
pretext of the judgment in the Shahid Pervaiz case. We were not informed by the
Government that a Committee headed by the Law Minister was formed to attend
to the purported anomalies in our judgments. What the Committee did is also not
known. It is a matter of concern that it was not disclosed to us that the said
Committee had been set up by the Government, of which we come to know from
private parties. The referred to letter of the Home Department also makes no
reference to this Committee.
C.M.A. No. 687/17 in CRP. 49/16, etc.
14
18.
Before departing with this judgment we once again reiterate that the Police
is a disciplined force and officials/officers employed in the police should not
embark upon unnecessary litigation such as claiming out of turn promotions. If,
however, they have a genuine grievance the same should be taken before the
forums that the law provides instead of initiating proceedings before the High
Court under Article 199 of the Constitution. Not a single one of the judgments, on
which reliance is placed by the counsel who represent the said police
officials/officers, have discussed how jurisdiction was assumed in a matter which
the Constitution clearly does not permit or how the constitutional bar contained in
Article 212 was overcome.
19.
The listed Applications and Criminal Original Petitions were decided vide
order dated 28.03.2017:
âFor reasons to be recorded later, the listed Applications and
Criminal Original Petitions are disposed of in the terms that the
view point of the Inspector General of Police, Punjab is correct and
the officers shall be de-notified in terms of the speaking orders
passed by the Inspector General of Police, Punjab.â
The aforesaid are the reasons for the aforesaid order.
Judge
Judge
Judge
Bench-III
Islamabad:
29.03.2017
Approved for Reporting
(Sohail)
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Amir Hani Muslim
Civil Miscellaneous Applicaton No.6882/13 in Constitution Petition No.77 of 2010
(Letter by Election Commission of Pakistan dated 12.11.2013)
President Balochistan High Court Bar Association âĻ Petitioners
Versus
Federation of Pakistan and others âĻ Respondent
For the Petitioner: Nemo.
For the Applicant: Mr. Ishtiak Ahmed Khan, Secretary, ECP
(CMA-6882/13) Syed Sher Afgan, Addl. Secretary
On Courtâs Notice: Mr. Muneer A. Malik, Attorney General for Pakistan
Mr. Abdul Latif Yousafzai, AG, KPK
Mr. Khalid Javed Khan, AG, Sindh
Mr. Muhammad Hanif Khattana, Addl. AG, Pb.
Mr. Muhammad Farid Dogar, AAG, Balochistan
Date of hearing: 13.11.2013
O R D E R
Iftikhar Muhammad Chaudhry, CJ.- In pursuance of letter dated 12.11.2013
by the Election Commission of Pakistan, the instant matter was directed to be listed
in the Court. Contents of the said letter are reproduced hereinbelow:-
âThe Registrar the 12th November, 2013, Islamabad
Supreme Court of Pakistan,
Islamabad.
Subject: REQUEST FOR EXTENSION OF POLL DATES FOR
HOLDING LOCAL GOVERNMENT ELECTIONS IN
THE PROVINCES AND CANTONMENT AREAS
Dear Sir,
In continuation of the earlier letter of even date, it is
pointed out that on account of certain practical and technical difficulties,
the Election Commission of Pakistan has proposed revised poll
programme/dates for the Local Government Elections in the Provinces and
in the Cantonment areas in terms as follows:-
Sr.No.
Province/Area
Date
1.
For the Province of Punjab
30.01.2014
2.
For the Province of Sindh
18.01.2014
3.
For the Province of KPK and
Cantonment Areas
In the month
of February,
2014
Const.P.77 of 2010
2
2. As far as the Province of Balochistan is concerned, polling shall take
place on the date, which has already been fixed i.e. 07.12.2013.
3. This may kindly be brought to the notice of the Honâble Supreme
Court of Pakistan.
4. This issue with approval of Election Commission of Pakistan.
Yours sincerely,
-Sd-
(Syed Sher Afgan)
Additional Secretaryâ
It is to be noted that prior to receipt of the above letter on the even date another letter
was received from the Election Commission of Pakistan (ECP) highlighting the
difficulties being faced by the ECP in holding the local bodies elections on the date
which have already been fixed for the Provinces of Sindh and Punjab. This Court, as
back as on 5th April, 2012 while hearing a case relating to the law and order situation
in the Province of Balochistan, noted that the main problem of the Province is of
socio-economic nature which can only be solved if the general public of the Province
is empowered by holding elections of local bodies which otherwise is an
constitutional obligation of the Government in terms of Article 32 of the Constitution.
As it is obligation of the Government to adhere to the constitution in letter and spirit
and no one can be allowed in any manner, to deviate from any of its provisions
particularly in view of the fact that the Constitution is a binding document as it has
been given by 18 Crore people of this Country to themselves. Therefore, its
provisions particularly relating to the general public empowering them politically,
administratively and financially through their chosen representatives by establishing
the system of the local government in terms of Articles 32 and 140A of the
Constitution should be strictly observed. However, preceding to the above
observations, orders were repeatedly passed by this Court calling upon the
Provincial Governments as well as the Federal Government to hold local bodies
elections as early as could be possible as it is the command of the Constitution and no
deviation from the Constitution is possible.
Const.P.77 of 2010
3
2. In the meanwhile, another petition was filed by Raja Rab Nawaz, learned
Advocate of this Court and subsequent thereto directions were issued to the Federal
Government of Pakistan to hold elections in the Cantonment Areas. As for the last 18
years election of local bodes have not been conducted in Cantonment areas whereas
the Local bodies in the Provinces were dissolved on the following dates, and since
then there is no local government in the Provinces despite of mandatory provisions
of the Constitution.
Sr. No. Name of the Province
Date of dissolution of
Local
Bodies
in
the
Province
1.
Balochistan
09.01.2010
2.
Khyberpakhtunkhwa
(KPK)
30.01.2010
3.
Punjab
23.02.2010
4.
Sindh
24.02.2010
3.
It is to be noted that the Governments of Balochistan, Sindh as well as Punjab
had placed on record copies of the following letters, with the request to ECP to hold
local bodies elections in their Provinces.
1. Nos.PS/Secy:Law/2013/66-70 dated 24.10.2013 (Balochistan)
2. No.SOR(LG)38-12/2013 dated 23.10.2013 (Punjab)
3. No.RO(LG) 4(18)/2013 dated 23.10.2013 (Sindh)
Contents of one of the above letters (at Sr. No.1) read as under:-
âThe Secretary,
Election Commission of Pakistan,
Islamabad.
Subject: HOLDING OF LOCAL GOVERNMENT ELECTIONS IN
BALOCHISTAN
Dear Sir,
Reference the captioned subject. Government of Balochistan is ready for
holding Local Government Elections on 7th December, 2013, as already
committed before the Honâble Supreme Court of Pakistan. In this regard, the
delimitation process of 31 out of 32 Districts has been completed and 28
Districts notified. The delimitation of Quetta has administrative, security and
political dimensions and efforts are underway to develop consensus amongst
the stakeholders for amicable solution regarding a decision at the higher level.
The Local Government Act and related Rules have been framed.
(Safdar Hussain)
Secretary.â
Const.P.77 of 2010
4
It seems that in view of the request made in the above letter, election schedule was
fixed by the ECP as on 27.11.2013 for Sindh Province which was subsequently
changed to 7th December, 2013 in pursuance of the request so made by the Provincial
Government, through CMA-6797/2013 filed before this Court through Advocate
General which was sent to the Election Commission of Pakistan for appropriate
orders. Contents of the said order reads as under:-
âThis application has been filed on behalf of the Govt. of Sindh through
the learned Advocate General Sindh under Order 33 Rule 6 of the Supreme
Court Rules, 1980 seeking change of date from 27th November, 2013 to
7th December, 2013 for holding local bodiesâ election. The learned Advocate
General, Sindh emphasized, inter alia, that one of the reasons for seeking
extension is that the process for holding local government elections has
commenced w.e.f. 9.11.2013 and the holidays of Ashora Muharram ul Haram
fall on 14.11.2013 to 15.11.2013, therefore, it was constrained to postpone the
elections. Similarly, representatives of the Ahle Tashi Community also met the
Chief Minister, Sindh and expressed serious constraints and requested the
Government to move application for adjustment of date of local government
elections in Sindh. He also added that a large number of o ther representative
groups from different communities have also met the Chief Minister with the
same request. He further added that the Govt. of Sindh is fully committed to
honour the orders passed by the Court to observe the constitutional obligations.
We have pointed out to the learned Advocate General that the dates for local
bodiesâ elections are to be fixed by the Commission in pursuance of the request
so made by the Provincial Governments. We are of the considered opinion that
the Provincial Government had a constitutional obligation to hold local bodiesâ
election for the purpose of allowing the citizens of the country to show their
participation in the political, administrative and financial responsibilities and
authority through their representatives of the local government. Therefore, by
taking into consideration the request so made by the Provincial Govt. of
Sindh, we refer this application to the Election Commission of Pakistan for
considering the application and may accommodate them because in the other
Provinces like Punjab, and Balochsitan the elections are scheduled to be held on
7th December, 2013. The learned Advocate General may, therefore, appear before
the ECP during course of the day with the instant CMA and this order for
passing appropriate orders by the Election Commission of Pakistan. The CMA
is disposed of accordingly.â
However, in the meanwhile no request for change of election schedule has been
made either by the Province of Balochistan or by the Punjab Province. As far as the
Province of KPK is concerned, despite of knowing its constitutional obligations no
request has been filed for holding local bodies elections.
4. Learned Attorney General for Pakistan stated that as far as the local boides
election in the Cantonment Areas is concerned, the Federal Government has
Const.P.77 of 2010
5
requested to the ECP for holding the elections in the Cantonments and the ECP has
asked the Federal Government to fulfill certain requirements and the same will be
done in the meanwhile.
5.
Needless to observe that as per the provisions of Articles 32 and 140A of the
Constitution, as repeatedly emphasized, the Federal Government is duty-bound to
hold elections in the Federal Area and Provincial Governments in the Provinces to
ensure in the Provinces in order to ensure participation of the general public in the
administrative, political and financial affairs of the Government by establishing local
bodies system. As far as sub Article 2 of Article 140A is concerned, it cast a duty
upon the Election Commission to hold the elections of local bodies in terms of sub
Article 140A(1). Therefore, it should always remain prepared to meet the challenge
and whenever any request by the Federal or the Provincial Government is made for
holding elections, the ECP should comply with the same at the earliest.
6.
Be that as it may, as a revised Poll Programme noted herein above has been
issued for holding local bodies elections in the Provinces of Punjab, Sindh and KPK
and local bodies elections in Balochistan will also take place on 7th December, 2013 as
already fixed, therefore, we are of the opinion that the Election Commission and the
Provincial Governments have shown their commitment to the Constitution. Thus,
without making further observation, instant matter stands disposed of.
Chief Justice
Judge
Judge
Islamabad
13th November, 2013
M. Azhar Malik
Approved for reporting.
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Qazi Muhammad Amin Ahmed
CIVIL REVIEW PETITION NO.296 of 2020 a/w
C. M. A. NO. 7084 OF 2020 &
CIVIL REVIEW PETITION NO.297 of 2020 a/w
C. M. A. NO. 7086 OF 2020 &
CIVIL REVIEW PETITION NO.298 of 2020 a/w
C. M. A. NO. 7085 OF 2020 &
CIVIL REVIEW PETITION NO.299 of 2020 a/w
C. M. A. NO. 7087 OF 2020 &
CIVIL REVIEW PETITION NO.300 of 2020 a/w
C. M. A. NO. 7169 OF 2020 &
CIVIL REVIEW PETITION NO.301 of 2020 a/w
C. M. A. NO. 7170 OF 2020 &
C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 &
CIVIL REVIEW PETITION NO.308 of 2020 a/w
C. M. A. NO. 7171 OF 2020 &
CIVIL REVIEW PETITION NO.309 of 2020 a/w
C. M. A. NO. 7172 OF 2020 &
CIVIL REVIEW PETITION NO.509 of 2020.
Justice Qazi Faez Isa
âĻ Petitioner(s)
(in CRP No.296/2020)
Sindh High Court Bar Association
âĻ Petitioner(s)
(in CRP No.297/2020)
Mrs. Sarina Isa
âĻ Petitioner(s)
(in CRP No.298/2020)
Supreme Court Bar Association
âĻ Petitioner(s)
(in CRP No.299/2020)
Muhammad Asif Reki President
Quetta Bar Association
âĻ Petitioner(s)
(in CRP No.300/2020)
CRP.296/2020, etc.
2
Shahnawaz Ismail, VC Punjab Bar
Council
âĻ Petitioner(s)
(in CRP No.301/2020)
Balochistan Bar Council
âĻ Petitioner(s)
(in CRP No.308/2020)
Pakistan Federal Union of Journalists
âĻ Petitioner(s)
(in CRP No.309/2020)
Abid Hassan Minto
âĻ Applicant(s)
(in CMA No.4533/2020 in
CRP No.Nil of 2020)
Pakistan Bar Council thr. VC
âĻ Applicant(s)
(in CRP.509 of 2020)
VERSUS
The President of Pakistan and others
âĻRespondent(s)
(in CRP.296-301& 308-309 &
CRP.509 of 2020)
The Supreme Judicial Council thr.
its Secretary and others
âĻ Respondent(s)
(in CMA No.4533 of 2020)
For the petitioner(s)
: Mrs. Sarina Faez Isa (In-person)
Mr. Kassim Mirjat, AOR.
(in CRP.298/2020 & CMA.7085/2020).
Mr. Munir A. Malik, Sr.ASC.
(through Video Link from Karachi).
(in CRP.296/2020 & CMA.7084/2020)
Mr. Kassim Mirjat, AOR.
Mr. Rasheed A. Rizvi, Sr. ASC.
(through Video Link from Karachi).
(in CRP.297/2020 & CMA.7086/2020 &
in CRP.309/2020 & CMA.7172/2020)
Mr. Hamid Khan, Sr. ASC.
(through Video Link from Lahore).
(in CRP.299/2020 & CMA.7087/2020 &
in CRP.300/2020 & CMA.7169/2020 &
in CRP.301/2020 & CMA.7170/2020 &
in CRP.308/2020 & CMA.7171/2020)
Nemo.
(in CMA.4533/2020)
Syed Rifaqat Hussain Shah, AOR.
(in CRP.509/2020)
Ms. Shireen Imran, ASC.
(in Addl. Secy. SCBAP)
Respondents
: Not represented.
Dates of hearing
: 08.12.2020 & 10.12.2020.
* * * * * * *
CRP.296/2020, etc.
3
O R D E R
We have before us a number of miscellaneous
applications, filed under Order XXVI, Rule 8 of the Supreme Court
Rules, 1980 read with other enabling provisions. These seek
reconstitution of the Bench hearing several review petitions filed
against the majority judgment in Justice Qazi Faez Isa Vs.
President of Pakistan and others (Const. P 17/2019) and
connected petitions. The said Constitutional petitions had been
filed under Article 184(3) of the Constitution. These were heard by
a ten member Bench of the Court and were disposed of by means
of a short order dated 19.06.2020, which is reported as (Mr.)
Justice Qazi Faez Isa and 14 others Vs. The President of Pakistan
and others (PLD 2020 SC 346) (âShort Orderâ). Subsequently,
five judgments giving reasons were released. Seven members of the
Bench were party to the whole of the Short Order, in particular
paras 3 to 11 thereof (which portion is the subject matter of the
review petitions). They released a common judgment (authored by
Justice Umar Ata Bandial) on 23.10.2020 (âmajority judgmentâ).
One of them, Justice Faisal Arab, added his concurring judgment.
The remaining three learned members, who did not join in the
aforementioned paras 3 to 11 of the Short Order, authored their
separate minority judgments (âminority judgmentsâ). Justice
Yahya Afridi released his minority judgment at the same time as
the majority on 23.10.2020, while Justice Maqbool Baqar and
Justice Mansoor Ali Shah released their respective minority
judgments on 04.11.2020. The decision of the connected petitions
under Article 184(3) is therefore reflected in the majority judgment
concurred by seven learned members of the Bench and the three
CRP.296/2020, etc.
4
minority judgments rendered by three learned members of the
Bench.
Factual Context
2.
The review petitions, disputing paras 3 to 11 of the
Short Order subscribed to by seven members of the Bench, were
initially posted on 28.10.2020 before a Bench comprising the seven
learned Judges who had passed the majority judgment. However,
the matter was adjourned on the request of the review petitioners
for examining the detailed reasons given in the majority judgment.
Shortly afterwards, on 04.11.2020 Justice Faisal Arab retired from
his office, necessitating the reconstitution of the Bench to its
strength of seven Judges for hearing the review petitions. At this
stage, all of the review petitioners filed miscellaneous applications
and/or corresponded with the Registrar of the Court seeking the
inclusion of the three Judges in the review Bench who had
delivered the minority judgements. As the constitution of Benches
is the prerogative of the Honâble Chief Justice (âHCJâ), these pleas
were placed before the HCJ who, vide order dated 11.11.2020,
directed that the applications be placed for consideration and
decision before a Bench comprising the six remaining Judges who
had delivered the majority judgment. Thus, in total eight such
applications are fixed before us for rendering our opinion to assist
the HCJ in the formation of a review Bench in the matter.
3.
In two CMAs, each filed by Justice Qazi Faez Isa
(âthe learned petitionerâ) and Mrs. Sarina Isa (âMrs. Isaâ), the
prayer is that the review petitions be listed before a Bench which
includes the three learned Judges who passed the minority
judgments. In the remaining six CMAs (filed by the Bar
CRP.296/2020, etc.
5
Associations/Councils and PFUJ) the prayer is that the review
petitions âbe heard by the same Bench as possible as may be that
passed the judgment dated 19th June 2020.â Reference is also
made to what is perceived as the âestablished practiceâ of the Court,
namely, that the Bench âhearing the review [be] of at least the same
number of judges as passed the judgment under review.â It may be
added that before these CMAs were fixed for hearing, the learned
petitioner filed additional grounds of review in light of the detailed
reasons given by Justice Yahya Afridi in his minority judgment.
Mrs. Isa also filed additional grounds of review in which she
disputed all three minority judgments.
Procedure for Review: Legal Context
4.
Before examining the pleas raised by the review
petitioners, it would be useful to first consider the law vesting
review jurisdiction in this Court and the procedure laid down to
regulate its exercise:
The
Constitution
of
Islamic
Republic
of
Pakistan,
1973
(âConstitutionâ):
â188. Review of Judgments or Orders by
the Supreme Court. The Supreme Court
shall have power, subject to the provisions of
any Act of [Majlis-e-Shoora (Parliament)] and
of any rules made by the Supreme Court, to
review any judgment pronounced or any
order made by it.
191. Rules of Procedure. Subject to the
Constitution and law, the Supreme Court
may make rules regulating the practice and
procedure of the Court.
CRP.296/2020, etc.
6
The Supreme Court Rules, 1980 (âSCRâ) framed under
Article 191 of the Constitution:
ORDER XI
CONSTITUTION OF BENCHES
âSave as otherwise provided by law or by
these Rules every cause, appeal or matter
shall be heard and disposed of by a Bench
consisting of not less than three Judges to be
nominated by the Chief Justice:âĻâ
ORDER XXVI
REVIEW
1. Subject to the law and the practice of the
Court, the Court may review its judgment or
order in a Civil proceeding on grounds similar
to those mentioned in Order XLVII, rule I of
the Code [of Civil Procedure, 1908] and in a
criminal proceeding on the ground of an error
apparent on the face of the record.
8. As far as practicable the application for
review shall be posted before the same Bench
that delivered the judgment or order sought
to be reviewed.â
(emphasis supplied)
5.
We shall deal with each of these provisions in turn
although not necessarily in the sequence that they appear. To
begin, Article 188 declares that the power of review has been
vested in this Court by the Constitution itself. However, what is
significant for our purposes is that the review jurisdiction has been
conferred in respect of âanyâ judgment pronounced or any order
made by the Court. But Article 188 does not explain what the term
âanyâ means thereby leaving it for this Court to ascertain precisely
which types of judgments are amenable to review. In this behalf,
Article 188 provides us with an important guideline: the review
jurisdiction of this Court is subject to or regulated by any Act of
Parliament or any Rules made by the Supreme Court. At present,
there is no such Act in the field but there are Rules, specifically the
CRP.296/2020, etc.
7
SCR, which have been framed by the Supreme Court in exercise of
its power under Article 191. We shall now examine how these shed
light on the meaning of the phrase âany judgment pronounced, or
any order madeâ used in Article 188.
6.
At first glance, the provisions of Order XXVI of the SCR
are the most pertinent to our inquiry. Indeed, during oral
arguments on 08.12.2020 when this matter came up for
consideration, Mr. Munir A. Malik, who represents the learned
petitioner in his review petition, also relied on Order XXVI, Rule 8
while making his submissions (in CMA 7084/2020). He stated that
the judgment of the Court was that of the seven member majority.
They were party to the whole of the Short Order including the
paragraphs by which the review petitioners are aggrieved. However,
for the purposes of Rule 8 that judgment had to be regarded as
having been delivered by the ten member Bench. In other words, it
was the ten member Bench that was the âsame Bench,â in terms of
Order XXVI Rule 8 of the SCR, that had âdelivered the judgmentâĻ
sought to be reviewed.â Therefore, the review petitions had to be
heard by a Bench that included the learned Judges in the minority
as well. Learned counsel referred to a number of decisions of this
Court that, according to him, showed that a judgment in review
was heard by the same number of Judges who had delivered it. On
a query from the Court, learned counsel accepted that the
overwhelming majority of the decisions relied upon by him were
unanimous verdicts. However, he submitted that two had involved
dissents and he relied in particular on one of those cases: Zulfiqar
Ali Bhutto Vs. The State (PLD 1979 SC 741) (âthe Z A Bhutto
caseâ).
CRP.296/2020, etc.
8
7.
It will be recalled that (as presently relevant)
Mr.Zulfiqar Ali Bhutto and other accused had been tried and
convicted by the Lahore High Court. Mr. Bhuttoâs subsequent
appeal to this Court against his conviction failed. It was heard by a
seven member Bench and was dismissed 4:3. The subsequent
review petition, decided by the above-cited reported judgment, was
heard by the same seven member Bench. It was dismissed
unanimously. Two reasoned judgments were delivered. One was by
Justice Muhammad Akram, which was agreed with by the three
learned Judges who, like him, had dismissed Mr. Bhuttoâs appeal.
The other was delivered by Justice Dorab Patel, which was agreed
upon by the two learned Judges who, like him, had allowed the
appeal. Both judgments are relevant to our present inquiry.
However, learned counsel relied only on the following paragraph
from the judgment of Justice Muhammad Akram:
â27. At a subsequent stage a question arose
as to the position of the three learned Judges
of this Court who had recorded dissenting
opinions in regard to the disposal of the
petitioner's appeal. Again, relying upon the
aforesaid rule 6, we took the view that as they
were part of the Bench that delivered the
judgment sought to be reviewed, their
presence on the Bench was necessary, as
they were continuing as Judges of the
Supreme Court and were available for the
disposal of the review petition.â
(emphasis supplied)
It was argued that the same situation applied in the present case.
It was further submitted that the Z A Bhutto case, having been
decided by a seven member Bench, was binding upon us (a six
member Bench). On the foregoing basis it was prayed that a
suitable declaration or order may be made that the review petitions
CRP.296/2020, etc.
9
in the present case be heard by a Bench inclusive of the three
learned Judges in minority.
8.
At this stage, the attention of learned counsel was
drawn to Order X, Rule 2 of the SCR which provides as follows:
â2. Subject to the provisions contained in
Order XXVI, a judgment pronounced by the
Court or by majority of the Court or by a
dissenting Judge in open Court shall not
afterwards be altered or added to, save for the
purpose
of
correcting
a
clerical
or
arithmetical mistake or an error arising from
any accidental slip or omission.â
(emphasis supplied)
The context for referring to this provision was, of course, the
crucial questions raised in these applications, namely: according to
the meaning and for the purposes of Rule 8, what is the judgment
that is sought to be reviewed? And which is the Bench that has
delivered it? More specifically, a question was put to learned
counsel with reference to Order X, Rule 2: since this provision
clearly contemplates three different types of judgments, could for
example, a minority judgment (such as a dissent) be reviewed?
Initially, Mr. Munir A. Malik was inclined to answer this question
in the negative. This was on the basis of Rule 1 of Order XXVI,
which provides: âthe Court may review its judgment or order.â
Learned counsel submitted, relying in particular on the word
emphasised, that there could be only one judgment of the Court,
that of the Bench in its entirety (if unanimous) or its majority, if
such be the case. That alone was the judgment that could be
reviewed, and none was possible of a minority judgment. Hence, he
submitted that Order X, Rule 2 had no relevance for the purposes
of review jurisdiction, i.e., Order XXVI.
CRP.296/2020, etc.
10
9.
It was pointed out to learned counsel that the learned
petitioner had, as noted above, also sought a review of the minority
judgment delivered by Justice Yahya Afridi. On the position taken
by learned counsel such a review would obviously be impossible. In
the event, as the hearing proceeded learned counsel reconsidered
his position and ultimately accepted that a review of a minority
judgment was also possible but submitted that this matter should
be settled in a later, more appropriate, case.
10.
Next, Mr. Hamid Khan and Mr. Rasheed A. Rizvi,
learned counsel who appeared for the other review petitioners (in
CMA Nos. 7169, 7170, 7171, 7172, 7086 and 7087, all of 2020),
adopted the submissions made by Mr. Munir A. Malik. However,
they did not express any view on whether a review of a minority
judgment is possible. Mr. Latif Afridi, one of the senior most
members of the Bar and currently the President of the Supreme
Court Bar Association (which too is a review petitioner), also
appeared before the Court and filed written submissions in
support of the foregoing.
11.
Mrs. Isa, the spouse of the learned petitioner, also filed
a review petition and appeared in person. She relied on Order
XXVI, Rule 8 to make the same prayer (in CMA 7085/2020). She
further submitted that in the additional grounds filed by her in
support of her review petition, she has sought review of each
minority judgment and therefore, for this reason, the appropriate
Bench for hearing the review petitions had to include the three
dissenting Judges.
12.
We have heard learned counsel for the review
petitioners and have considered the record and case law cited, in
CRP.296/2020, etc.
11
particular the decision in the Z A Bhutto case. The questions
raised by the present applications are surprisingly complex. For
reasons that will become clear as we proceed, they have to be
approached somewhat obliquely. It is only in this manner that the
correct constitutional and legal position will emerge.
The Review Bench: Legal Analysis
13.
The primary question posed by these applications is:
what should be the numerical strength and composition of the
review Bench? The answer to this question depends upon two
considerations: the judgment sought to be reviewed and matters of
practicability (both criteria are given in Order XXVI, Rule 8). These
are the primary factors taken into account by the HCJ (in exercise
of his power under Order XI), along with the relevant provisions of
the Constitution, the SCR, the practice of the Court and the law
laid down by it, to guide him in constituting a review Bench.
14.
Now as has already been noted, the source of review
jurisdiction of the Court can be found in Article 188 of the
Constitution. This Article permits the Court to review âanyâ
judgment pronounced or order made by it subject to the provisions
of an Act of Parliament or the SCR. Rule 8 of Order XXVI of the
SCR is germane to the subject. It links the constitution of a review
Bench with the judgment that is sought to be reviewed. Rule 8
does not, however, specify the types of judgments that are
amenable to review; therefore it does not curtail the classification
of âanyâ type of judgment given in Article 188 of the Constitution.
The term âjudgmentâ has not been defined anywhere in the SCR.
However, Order X, Rule 2 in a context similar to Order XXVI Rule
CRP.296/2020, etc.
12
8, enumerates three types of judgments: unanimous, majority and
dissenting. This provision might be relevant for interpreting the
term âjudgmentâ used in Rule 8 for the reason that Order X, Rule 2
itself records its connection with Order XXVI by beginning with the
expression âSubject to the provisions of Order XXVI.â A reading of
the two Orders of the SCR reveals the cause of their express
association:
the
commonality
of
their
purpose,
namely,
rectification/correction of a judgment (albeit that whilst Order X
deals with minor ministerial errors in a judgment, Order XXVI is
concerned with errors in its substantive content). Therefore, the
wide and ambiguous term âjudgmentâ used in Order XXVI, Rule 8
can be interpreted in light of the meaning assigned to it in Order X,
Rule 2. Such a reading of Rule 8 finds support from the principle
of harmonious interpretation, a succinct elaboration of which is
found in Mirza Shaukat Baig Vs. Shahid Jamil (PLD 2005 SC
530):
â13. No
principle
of
interpretation
of
statutes is more firmly settled than the rule
that the Court must deduce the intention of
Parliament from the words used in [an] Act.
But if the words of an instrument are
ambiguous in the sense that they can
reasonably bear more than one meaning, that
is to say, if the words are semantically
ambiguous, or if a provision, if read literally,
is patently incompatible with the other
provisions of that instrument, the Court
would-be justified in construing the words in
a manner which will make the particular
provision purposeful. That, in essence, is the
rule of harmonious construction."
(emphasis supplied)
15.
At this point, a limitation imposed by Order XXVI, Rule
1 of the SCR needs to be stated. The use of the expression âits
judgmentâ in the said Rule suggests that only a judgment of the
CRP.296/2020, etc.
13
Court is amenable to review. That would mean a judgment
(direction, order or decree) that is enforceable or binding under
Article 187 or Article 189 of the Constitution throughout Pakistan.
In this respect a minority judgment does not possess the status of
being enforceable as a judgment of the Court. Consequently,
minority judgments, prima facie, fall outside the purview of review
under Order XXVI, Rule 1. However, the other two categories of
judgments given in Order X, Rule 2, namely, unanimous and
majority judgments issuing directions, orders or decrees possess
the attribute of being enforceable throughout Pakistan. Therefore,
on a joint reading of Order XXVI, Rule 1 and Rule 8, it is these
judgments that are reviewable. This conclusion also finds support
in our current legal jurisprudence, particularly in the test of review
laid down by the Court which only permits a review petition to
succeed if there is a material irregularity in the judgment which
has a substantial effect on the result of the case. In this regard,
one of the most seminal judgments is that of Chief Justice
Cornelius in Lt Col Nawabzada Muhammad Amir Khan Vs. The
Controller of Estate Duty (PLD 1962 SC 335). The relevant portion
from the judgment is produced below:
ââĻ There must be a substantial or material
effect to be produced upon the result of the
caseâĻ if there be found material irregularity,
and
yet
there
be
no
substantial
injury
consequent thereon, the exercise of the power of
review to alter the judgments would not
necessarily be required. The irregularity must be
of such a nature as converts the process from
being one in aid of justice to a process that
brings about injustice.â
(emphasis supplied)
CRP.296/2020, etc.
14
16.
This test was subsequently approved by the Court in
Abdul Ghaffar-Abdul Rehman Vs. Asghar Ali (PLD 1998 SC 363)
at para 17 and has been followed ever since. The relevance of this
test is that it expressly states that a review can only succeed if it
has a material effect on the result of the case i.e., it changes the
outcome of the case. Short of that, even a substantial irregularity
in a judgment will not convince this Court to recall its earlier
decision. This test, therefore, makes it abundantly clear that a
unanimous and majority judgment of the Court can be challenged
in review because a correction in these judgments can actually
alter the outcome/result of a case. On the other hand, a minority
judgment, whatever its content, lacks both enforceability and effect
on the outcome/result of a case. As a result, under the present
dispensation of the law even though a minority judgment does fall
within the ambit of Article 188 of the Constitution and within the
classification set out in Order X, Rule 2 of the SCR, prima facie, it
does not qualify the test of review. The foregoing suffices for
present purposes, and therefore we leave this question open for
further consideration in an appropriate case. Accordingly, insofar
as the additional grounds of review filed against the minority
judgments by the learned petitioner and Mrs. Isa are concerned,
the same should not be heard by us i.e., the Bench that has
delivered the majority judgment. Consequently, the Office is
directed to separate these grounds of review (to the extent that
they challenge the minority judgments) and place the same before
the HCJ for appropriate orders.
17.
We will now consider the main conundrum in this
case: what is to be the numerical strength and composition of a
review Bench? It is obvious that where the decision of the Court is
CRP.296/2020, etc.
15
unanimous and only one judgment is delivered (which invariably
happens in the overwhelming number of cases) there is no issue:
the Bench that delivered the original judgment and the one for
purposes of review in terms of Rule 8 coincide. The real question is
the one raised by these applications: what happens when there is a
majority decision? In our view, the answer must be that for
purposes of Rule 8 one has to look at the judgment that was
delivered, and the Judges who actually gave that decision. It is
those Judges who (subject to what is said below) can be considered
the authors of the judgment and therefore âthe same Benchâ which
âdelivered the judgmentâ under review.
18.
At this stage, it would be appropriate to recall the
arguments of Mr. Munir A. Malik. His primary submission, during
the hearing, was that âsame Benchâ as used in Rule 8 included all
the Judges in the Bench, whether they were in the majority or the
minority. This contention was based upon the proposition that a
judgment delivered by the Bench is a judgment of all the Judges
who comprised the said Bench regardless of whether a minority
amongst them dissented. In support of his contention he relied on
the Z A Bhutto case wherein this view was approved by the Court
(ref: para 27 of that judgment produced above). But that legal
position may not be in line with the literal interpretation of Order
XXVI, Rule 8. However, we are not in a position to resolve this
difference because the decision in the Z A Bhutto case was given
by a seven member Bench whereas we are sitting as a six member
Bench. As such, the judgment in that case is binding on us unless
a larger Bench (comprised of more than 7 Judges) re-examines this
matter and arrives at a different conclusion.
CRP.296/2020, etc.
16
19.
Be that as it may, the question remains: how does the
above plain reading of the SCR reconcile with the law enunciated
by this Court in the Z A Bhutto case, namely, that the numerical
strength of the review Bench and the original Bench has to be
identical regardless of whether the judgment under review was
passed by majority. This shall become clear in the following section
where we will examine the final two legal elements i.e., the practice
of the Court and its pronouncements on the subject of constitution
and composition of a review Bench.
The Practice of the Court
A. Practicability
20.
A particularly important factor in the practice of the
Court is the discretion vested by Order XI of the SCR (reproduced
above) in the HCJ to constitute Benches. Order XI lays down one of
the paramount duties of the HCJ which is to ensure a smooth
functioning of the Court system. The formal requirement under
Order XI is that (except where its provisos apply or the law or the
SCR direct otherwise) the Benches before which matters are to be
placed must comprise of not less than three Judges. Beyond that,
the matter is left to the discretion of the HCJ, both as to the
number of Judges who are to sit on a Bench and the composition
thereof. Such a view has been affirmed consistently by this Court.
Reference is made to the decision in Federation of Pakistan Vs.
Mian Muhammad Nawaz Sharif (PLD 2009 SC 284):
â122. âĻ The question of constitution of larger
Bench is the prerogative of the Hon'ble Chief
Justice of the Court as was held in PLD 2002
SC 939 (Supreme Court Bar Association v.
Federation of Pakistan wherein it was clearly
laid down as a principle that it was the sole
prerogative of the Hon'ble Chief Justice to
CRP.296/2020, etc.
17
constitute a Bench of any number of Judges
to hear a particular case. Neither an objection
can be raised nor any party is entitled to ask
for constitution of a Bench of its own choice.
123. While considering the provision of Order
XI and Order XXXIII Rule 6 of the Supreme
Court Rules, 1980, it was laid down in PLD
1997 SC 80 (In re: M.A. No.657 of 1996 in
References Nos.1 and 2 of 1996) that no
litigant or lawyer can be permitted to ask that
his case be heard by a Bench of his choice,
for it is the duty and privilege of the Chief
Justice of the Supreme Court to constitute
Benches for the hearing and disposal of cases
coming before the Court. In Malik Hamid
Sarfaraz v. Federation of Pakistan and
another (PLD 1979 SC 991) it was held that
no litigant or the lawyer can be permitted to
ask that a case be heard by a Bench of his
choice. In Malik Asad Ali and others v.
Federation of Pakistan (PLD 1998 SC 161) it
was held that "the qualification to hold the
office of the Judge is indeed discretion and
has nothing to do with his performance as a
Court or a Member of the Court.
124. In PLD 2005 SC 186 (Ch. Muhammad
Siddique and 2 others v. Government of
Pakistan, through Secretary, Ministry of Law
and Justice Division, Islamabad and others)
it was held: -
"...it
was
not
the
right
of
petitioner/appellant
to
select
the
Judge[s], of their own choice---To
constitute a Bench was a prerogative of
the Chief Justice and the parties could
not ask for a Bench of ââĻtheir choice".â
(emphasis supplied)
21.
Indeed, even where the SCR direct a matter to be fixed
before a Bench of a specific number, they invariably use the
expression ânot less thanâ. For instance, Order XI directs that any
cause, appeal or matter shall be heard and disposed of by a Bench
consisting of not less than three Judges to be nominated by the
HCJ. However, the first proviso to Order XI also permits appeals
from judgments/orders of the Service Tribunal or Administrative
Courts to be heard by a Bench of two Judges. Nevertheless, that
CRP.296/2020, etc.
18
very proviso expressly allows for the same matter to be laid down
before a larger Bench. Similarly, Order XXV requires that
applications for enforcement of Fundamental Rights should be
heard by a Bench âconsisting of not less than two Judges.â
Likewise, Order XXXV, Rule 4 states that an appeal against the
judgment of the Federal Shariat Court shall be fixed before a
Bench of ânot less than three membersâ in the case of an acquittal
and before a Bench of ânot less than two membersâ in all other
matters. It is thus clear that any direction under the SCR with
respect to the number of Judges in a Bench is a minimum figure.
Therefore, in all the above cases the SCR leave it within the power
and discretion of the HCJ to direct the numerical strength of a
larger Bench before which a matter may be placed for hearing.
22.
Clearly, in this sense the HCJ is the âmaster of the
rosterâ and he can form review Benches according to his discretion
as structured under guidance provided from four sources, namely,
Order XXVI, Rule 8 (the provision most relevant to the present
controversy), Order XI, and the practice of and the law laid down
by this Court. Rule 8 makes it abundantly clear that practicability
is the dominating factor in the constitution of review Benches. A
concise definition of the term âpracticableâ has been provided in
Words and Phrases (Volume 33, 1971 at page 251):
âIf undertaking, procedure, or thing is
possible to practice or perform or is capable
of attainment or accomplishment, it is
âpracticable.â An act is âpracticableâ if
conditions and circumstances are such as to
permit its performance or to render it
feasible.â
(emphasis supplied)
CRP.296/2020, etc.
19
By subjecting the constitution and therefore composition of a
review Bench to what is practicable, Rule 8 by its own terms lays
down directory criteria. The HCJ therefore has power to take into
consideration such conditions and circumstances that can affect
the formation of a review Bench. Therefore, Order XXVI, Rule 8
requires a substantial, rather than strict, compliance with its
terms. And whilst it is not possible for us to exhaustively list the
conditions and/or circumstances that may influence the strength
of the review Bench in each case, a few examples will suffice to
suggest the salient factors that may prevail with the HCJ:
i.
The temporary and/or permanent unavailability of the
Judges (e.g., because of retirement of the Judge) who
originally heard the matter [ref: Government of Punjab
Vs. Aamir Zahoor-ul-Haq (PLD 2016 SC 421) at para
17];
ii.
To ensure the smooth and efficient functioning of the
Court as a whole [ref: Federation of Pakistan Vs. Mian
Muhammad Nawaz Sharif (PLD 2009 SC 391) at para
4];
iii.
The nature of cases e.g., matters that, inter alia,
involve complex questions of law or are of significant
public importance are placed before a larger review
Bench. For instance, in Federation of Pakistan Vs.
Mian Muhammad Nawaz Sharif (PLD 2009 SC 664)
the strength of the review Bench was increased to five
members from the original Bench comprised of three
members; likewise in Fida Hussain Vs. The Secretary,
CRP.296/2020, etc.
20
Kashmir
Affairs
and
Northern
Affairs
Division,
Islamabad (PLD 1995 SC 701)]; and
iv.
Deference to the norms of judicial propriety.
B. Strength and Composition of Review Bench
23.
The flexibility furnished by Rule 8 for the HCJ is a
continuation of the discretion vested in him by Rule 6 of Order
XXVI of the erstwhile Supreme Court Rules, 1956. This
discretionary exercise of the HCJâs power was later articulated in
the Supreme Court Office Order No.P.Reg.99/90 (14)/SCA dated
03.03.1990. It identifies the essential features of Court practice
about the numerical strength of a review Bench and about the
need to include the author Judge, if available, in such a Bench.
The relevant portion from the Office Order is produced below for
reference:
ââĻHowever, the practice of fixing before a
Bench in which the author Judge is a
member and if he is no more available, before
the Bench in which at least one Honâble
Judge of the previous Bench is sitting can be
followed. When none of them is available a
new Bench can hear the review. Same applies
to the number of Judges on the Bench, if not
the same.â
24.
The said Order represents a convention in the practice
of the Court and was approved in Federation of Pakistan Vs. Mian
Muhammad Nawaz Sharif (PLD 2009 SC 391):
â4. Moreover, the well settled practice and
convention
of
this
Court
is
that
an
application for review is ordinarily placed
before the Bench of which the author judge
or in case of unavailability any other member
of the earlier Bench is a Member, so as to
ensure that working of that Bench is not
interrupted. The Office Order No.P.Reg.99/90
CRP.296/2020, etc.
21
(14)/SCA
dated
3-3-1990
of
this
Court is reflective of this convention. Since
two out of the three Hon'ble Judges of the
Bench which passed the judgment under
review are part of this Bench and as both of
them are authors of the same, the mandate of
Order XXVI, Rule 8 of the Supreme Court
Rules, 1980, stands substantially complied
with.â
(emphasis supplied)
25.
The above view was recently reiterated in Shahzada
Aslam Vs. Ch Muhammad Akram (PLD 2017 SC 142) when
learned counsel for the review petitioner in that case claimed that
only the exact âsame Benchâ which heard and decided the original
matter could hear the review:
â8. The contention of the learned Counsel for
the Petitioners that this Rule [8] has been
interpreted in the case of Asad Ali v.
Federation of Pakistan (PLD 1998 SC 161) (at
page 253) and this Court has held that "a
matter is to be heard as far as possible by the
same Bench", is misconceived. Even this
judgment, in no way, extends any help to the
learned Counsel for the Petitioners, whereas
the language of the said Rule and the
interpretation given by this Court in the
aforesaid case are very much clear and does
not mandate that the same Bench should
hear the Review Petition. In fact, it states that
the same Bench that delivered the judgment
needs to hear the matter, but subject to the
availability and practicability of the Bench,
which in other words suggests that the
Review Petition needs to be assigned by the
Chief Justice or the office at least before a
Bench of which the author Judge is a
Member. If the contention of the learned
Counsel is accepted, it would lead to
anomalous consequences, because hundreds
of review petitions are filed and the practice
of the nature will deprive the Hon'ble Chief
Justice from exercising powers under Order
XI, besides it would cause inconvenience to
the lawyers and the office. Even the plain
reading of Rule 8 of Order XXVI, itself does
not suggest so.â
(emphasis supplied)
CRP.296/2020, etc.
22
It may be noticed from the above-quoted passages that the actual
practice of the Court is not a pedantic reading of the terms of
Order XXVI, Rule 8. Instead, it captures the spirit of the said
provision. So even though the HCJ may constitute a Bench of his
choice in a review matter, the exercise of his discretion ought to be
guided by two criteria: firstly, the review Bench (at the minimum)
should bear the numerical strength of the original Bench. By
convention, this practice is followed even in cases where only the
majority judgment is under review. Secondly, the composition of
the review Bench should include the author Judge. If he is not
available then another member of the previous Bench (i.e., a Judge
who agreed with the author Judge) may substitute him.
Consequently, contrary to the argument of Mr. Munir A. Malik,
there is no practice of the Court of forming a review Bench
comprised of exactly the same Judges who heard the original
matter. As observed in the aforenoted precedent, such a practice
would be unworkable leading to anomalous consequences in the
hundreds of review petitions filed in the Court.
26.
Having read the practice of the Court on the second
criterion, the composition of a review Bench contemplated in the
Z A Bhutto case needs to be understood in its special context. In
that case the Judges who had heard the original matter were also a
part of the review Bench. This has been taken by learned counsel
for the petitioner to mean that all the members of the original
Bench must be included in the review Bench. But before such a
conclusion can be drawn it needs to be appreciated that in 1979,
when this case was heard and decided, the total strength of Judges
in the Supreme Court was nine. However, prior to the hearing of
CRP.296/2020, etc.
23
the appeal in the Z A Bhutto case, one learned Judge, Justice
Qaiser Khan had already retired. Another learned Judge, Justice
Waheeduddin Ahmed, fell ill during the course of the hearing of the
appeal. Therefore, only seven Judges decided the appeal. When the
matter came up for review, the number of available Judges in the
Court was still seven. As per the existing practice of the Court at
the time, the numerical strength of the review Bench had to be
maintained at seven. Hence, the original Judges had to be a part of
the seven member review Bench. Evidence of this can be seen in
para 27 of the review judgment where it was observed that the
dissenting Judges were sitting in the review Bench because they
âwere continuing as Judges of the Supreme Court and were
available for the disposal of the review petition.â Consequently, this
case is good authority for the proposition that a review Bench must
bear the numerical strength of the original Bench but it is doubtful
that it mandates a review Bench to mirror the composition of the
original Bench. In fact, there is sufficient practice after 1979 which
rebuts any claim whatsoever to this effect e.g., both the numerical
strength and the composition of the review Bench in Federation of
Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 644)
and Akhter Umar Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira
(2018 SCMR 1218) were revised. Specifically, the size of the two
review Benches was increased from three to five, whereas the
composition was altered by replacing the Judges who had heard
and decided the original matter with different Judges despite the
fact that the former were still continuing as Judges of the Supreme
Court and were therefore available for disposal of the review
petitions.
CRP.296/2020, etc.
24
27.
Consequently,
the
following
points
may
be
summarised in the light of the foregoing analysis of the practice of
the Court:
i.
The constitution of review Benches (or any Bench) is
the sole prerogative of the HCJ under Order XI;
ii.
The direction in Order XXVI, Rule 8 that review
petitions should be posted before the âsame Benchâ is
subject to the requirements of practicability;
iii.
In constituting a review Bench the HCJ should ensure
substantial compliance with Rule 8 of Order XXVI by
including the author Judge (if available) in the review
Bench. However, where it is not practicable to do so
there is no obligation to have exactly the same Judges
on the Bench;
iv.
The numerical strength of a review Bench has to be
the same as that of the original Bench, regardless of
whether the judgment under review was passed
unanimously or by majority; and
v.
In certain circumstances (as noted above), the HCJ
may in his discretion constitute a larger Bench
according to the importance of a matter or other
considerations of practicability.
Exercise of Review Jurisdiction
28.
We must now refer again to the Z A Bhutto case to
read another valuable judicial observation, namely, the brief
judgment of Justice Dorab Patel. His Lordship is regarded as one
of the titans of the law and anything that fell from his pen is
worthy of, and warrants, close attention. As noted, he had been in
the minority in dismissing Mr. Bhuttoâs appeal against conviction.
CRP.296/2020, etc.
25
In the concluding paragraph of his judgment (in review) Justice
Dorab Patel reflected on how a Judge who dissented ought to act if
called upon to sit in review of the majority judgment. His words
distil the wisdom of the ages:
âHowever, Mr. Yahya Bakhtiar's arguments
on the question of sentence were without
prejudice to his main submission, which was
that the majority judgment suffered from
errors apparent on the record which had
resulted in the dismissal of Mr. Bhutto's
appeal. Now learned counsel had address us
for nearly two weeks on this question, but as
he has failed to persuade the Judges, who
pronounced the majority judgment of the
Court, to revise the finding of guilt of the
petitioner, it follows that the review petition
must be dismissed. In these circumstances,
consistently with judicial dignity and the
practice of this Court, I do not think it would
be proper for me to make any observations on
learned counsel's submissions; and I would
dismiss the petition for the reasons given
herein.â
(emphasis supplied)
As is clear from the foregoing, Justice Dorab Patel believed that the
question whether a case had been made out for the review of a
judgment was, in the final analysis, essentially something for the
Judges who actually delivered the judgment under review to
decide. If those Judges were not so persuaded, then any other
Judges sitting on the Bench hearing the review ought to show
maximum restraint and maintain judicial dignity and quietude,
particularly when they had already expressed an opposite view in
the original matter. It is quite obvious that the learned Judge was
acutely aware of, and alive and sensitive to, the very real possibility
of the Judges, howsoever unwittingly and despite their best efforts,
slipping from the exercise of review jurisdiction into regarding
consideration of the review petition as but the âsecond roundâ in
an ongoing litigation. The words and wisdom of Justice Dorab Patel
CRP.296/2020, etc.
26
are evergreen and, in our respectful view, merit reflection by all
Judges in every generation.
29.
Indeed, the views expressed by Justice Dorab Patel
were very recently followed by Justice Asif Saeed Khan Khosa in
the review filed against the decision in the PANAMA case. That
judgment is reported as Imran Ahmad Khan Niazi Vs. Mian
Muhammad Nawaz Sharif (PLD 2017 SC 265). In this case the
three Judges in majority formed a JIT to probe into the allegations
against the then sitting Prime Minister whereas the two minority
Judges,
including
Justice
Khosa,
ordered
the
immediate
disqualification of the Prime Minister from the National Assembly.
Subsequently, the report of the JIT was released pursuant to
which the three majority Judges and the two minority Judges by
order of the Court jointly declared the Prime Minister debarred
from holding public office. Thereafter, a review was filed by the
respondent against this decision. The judgment in that case is
reported as Mian Muhammad Nawaz Sharif Vs. Imran Ahmed
Khan Niazi (PLD 2018 SC 1). During the hearing of the review,
learned counsel for the petitioner (previously the respondent)
raised an objection against the inclusion of the two minority
Judges in the Bench. According to him, the said Judges had
become functus officio after rendering their opinions. In the
circumstances of the case, Justice Ejaz Afzal Khan, speaking for
the whole Bench, repelled this contention of counsel for being
academic in nature.
30.
Accordingly, the review petitions were heard and
dismissed unanimously by the five Judges. Justice Khosa, one of
the minority Judges, also added a brief note of his own. This is
produced below for reference:
âNo ground has been taken in these review
petitions
nor
any
argument
has
been
advanced at the bar questioning anything
CRP.296/2020, etc.
27
observed or concluded by me in my separate
opinion recorded in the main case. The other
Hon'ble members of the Bench have not felt
persuaded to review their opinions already
recorded.
These
review
petitions
are,
therefore, dismissed.â
(emphasis supplied)
It is evident from His Lordshipâs observation that he did not deem
it appropriate to comment on the judgment passed by the majority
because the majority Judges themselves were not persuaded to
review their opinion. Therefore, in these circumstances he
dismissed the review petitions simpliciter. At this stage, it must be
reiterated that the power of review is limited in scope (ref: Lt Col
Nawabzada Muhammad Amir Khan and Abdul Ghaffar-Abdul
Rehman). Consequently, it must be exercised by all the Judges
sitting in the review Bench in such a manner that it does not
overstep into the realm of revisiting or re-hearing the original
judgment.
Conclusion
31.
Accordingly, in light of what has been discussed above,
these miscellaneous applications are disposed of as follows:
i.
Review jurisdiction (at present) can be invoked only in
relation to the judgments of this Court, namely,
unanimous and majority judgments.
ii.
As a matter of the current law and practice of the
Court:
a. for the purposes of Order XXVI, Rule 8, the
minimum numerical strength of the Bench
that delivered the judgment or order under
review is the numerical strength of the Bench
which heard and decided the original matter,
CRP.296/2020, etc.
28
regardless of whether the judgment under
review was passed unanimously or by majority;
and
b. the review Bench should comprise the author
Judge, if still on the Court, as its member, and
in case he is unavailable then any other Judge
who agreed with the author Judge should be
included in the Bench.
iii.
As a matter of law and settled practice it is for the
HCJ, as the master of the roster, to determine the
composition of a Bench and he may, for like reason,
constitute a larger Bench for hearing the review
petition.
32.
Therefore, the Office is directed to place the review
petitions before the HCJ for such orders as are deemed
appropriate.
I have read the order. I agree with the conclusion drawn in
Para 31(ii)(a) (numerical strength of review Bench). However, I would
attach my separate note for remaining findings/observations given in
the order.
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Announced in open Court
on 22nd day of February, 2021.
Sd/-
J(2).
APPROVED FOR REPORTING.
| {
"id": "C.M.A.7084_2020.pdf",
"url": ""
} |
IN SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL, HCJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE JAMAL KHAN MANDOKHAIL
C.M.A.7139/2019
in
Const.P.2/2011,
C.R.P.494/2019
in
Const.P.2/2011,
C.M.A.7894/2019 in C.R.P.NIL/2019 in Const.P.2/2011, C.M.A.7897/2019 in
C.R.P.NIL/2019
in
Const.P.2/2011,
C.M.A.8322/2019
in
C.M.A.7897/2019,
C.M.A.8251/2019 in C.R.P.NIL/2019 in Const.P.2/2011, C.M.A.11484/2021 IN
C.M.A.7139/2019 IN Const.P.2/2011, C.M.A.13353/2021 IN C.M.A.7139/2019 IN
Const.P.2/2011,
C.M.A.865/2022
IN
C.M.A.7139/2019
IN
Const.P.2/2011,
C.P.1233-L/2015, C.P.665-L/2020, C.P.38-P/2019, C.P.39-P/2019, C.P.41-P/2019,
C.P.190/2019, C.P.208-Q/2022, C.M.A.1124-K/2021 in C.R.P.Nill-K/2021 in
C.M.A.277-K/2021 in C.R.P.Nill-K/2021 in C.M.A.898-K/2021, C.M.A.1110-K/2021,
C.M.A.541-K/2020, C.M.A.630-K/2020, C.M.A.898-K/2020, C.P.420-K/2022.
MATTER REGARDING IMPLEMENTATION
OF THE ORDER OF THIS COURT DATED
28.6.2019
In C.M.A.7139/2019 in Const.P.2/2011
Mainland Husnain Pakistan Limited v. Ishaq
Khan Khakwani and others
In C.R.P.494/2019 in Const.P.2/2011
Hassan Naseem v. Ishaq Khan Khakwani
and others
In C.M.A.7894/2019 in C.R.P.NIL/2019 in
Const.P.2/2011
Lt. General(R) Saeed uz Zafar & others v.
Ishaq Khan Khakwani and others
In C.M.A.7897/2019 in C.R.P.NIL/2019 in
Const.P.2/2011
Lt. General (R) Saeed uz Zafar & others v.
Ishaq Khan Khakwani and others
In C.M.A.8322/2019 in C.M.A.7897/2019
Waqar Yazdani Butt & others v. Ishaq Khan
Khakwani and others
In C.M.A.8251/2019 in C.R.P.NIL/2019 in
Const.P.2/2011
Letter of A.F. Ferguson & Co v.
In C.M.A.11484/2021 IN C.M.A.7139/2019 IN
Const.P.2/2011
MATTER REGARDING IMPLEMENTATION
OF THE ORDER OF THIS COURT DATED
28.6.2019 v.
In C.M.A.13353/2021 IN C.M.A.7139/2019 IN
Const.P.2/2011
MATTER REGARDING IMPLEMENTATION
OF THE ORDER OF THIS COURT DATED
28.6.2019 v.
In C.M.A.865/2022 IN C.M.A.7139/2019 IN
Const.P.2/2011
Syed
Muhammad
Munfarid
Rizvi
v.
Federation
of
Pakistan
through
Secretary/Chairman Ministry of Railways
Government of Pakistan Islamabad, etc
In C.P.1233-L/2015
C.M.A.7139/2019 in Const.P.2/2011, etc
- 2 -
Pakistan Railways through its Chairman,
Pakistan
Railways,
Islamabad,
etc.
v.
Ghulam Sarwar
In C.P.665-L/2020
Syed Azhar Ali Shah v. Govt of Pakistan
through Ministry of Railway, Pakistan &
others
In C.P.38-P/2019
Mohsin Zafar v. Govt of Pakistan through
Ministry of Railway, Pakistan & others
In C.P.39-P/2019
Mansoor Rehman v. Govt of Pakistan
through Ministry of Railway, Pakistan &
others
In C.P.41-P/2019
Mansoor Rehman v. Government of Pakistan
thr. M/o Railways, Pakistan & others
C.P.190/2019
Ghulam
Nabi
v.
Pakistan
Railways
Employees
Cooperative
Society(PRECHS)
Quetta and others
C.P.208-Q/2022
Federation
of
Pakistan
through
Secretary/Chairman
Railways
v.
M/s.
Karachi
Town
Builders
(Regarding
encroachment over Pakistan Railway Land &
revival of KCR) (Tejori Heights/Tower)
In C.M.A.1124-K/2021 in C.R.P.Nill-K/2021 in
C.M.A.277-K/2021
in
C.R.P.Nill-K/2021
in
C.M.A.898-K'2021
Application
on
behalf
of
Divisional
Superintendent
thr.
Deputy
Director
Railways against M/s Labaik CNG Station
Hyderabad & others v. (Matter regarding
encroachment
over
Railway's
Land
at
Hyderabad)
In C.M.A.1110-K/2021
Muhammad Ahmed Khan & others v.
Federation of Pakistan & others (Matter
regarding Pakistan railway employees co-
operative Housing Society)
In C.M.A.541-K/2020
Pakistan Railway Employees Co-operative
Housing Society Limited. v. Federation of
Pakistan & others. (The matter pertains to
encroachment over Railway Land on account
of Railway Co-operative Housing Society
In C.M.A.630-K/2020
Pakistan
Railways
through
Divisional
Superintendent v. Federation of Pakistan &
others
(Regarding
Encroachment
over
Pakistan Railway Land & Revival of KCR
C.M.A.898-K/2020
Doctor Moinuddin v. Federation of Pakistan
through Chairman Pakistan Railways &
others
C.P.420-K/2022
Applicant)s)/Petitioner(s)
Respondent(s)
C.M.A.7139/2019 in Const.P.2/2011, etc
- 3 -
IN ATTENDANCE:
Mr. Rashdeen Nawaz Kasuri, Addl. AG
Ch. Aamir Rehman. Addl. AG
Barrister Zafrullah Khan, ASC
Mr. Sattar Awan, Spl. Prosecutor
Iffat Farooq, DG Audit Railways
Mr. Kashif Farooq, AO
Mr. Zafar Zaman, Sec. Railways
Mr. Salman Sadiq Sh. CEO
Mr. Arshad Salam Khattak, Sec. Railways
Mr. Javed Mehmood Pasha, ASC
Raja Qasit Nawaz Khan, ASC (Via video link from Karachi)
Mr. M. Ramzan (MHPL) (V.L. Lah.)
Mr. Pervaiz Qureshi (MHPL)
Mr. Khurram Akbar Khan (AF Ferguson)
Mr. Salman Kazmi, LA (Railways)
Imran Shaukat, Royal Palm Golf & Country Club
Mr. Munir A. Malik, ASC (Via video link from Karachi)
Mr. Qasim Mirjat, AOR
Ch. Muhammad Hussain, ASC
Mr. Faisal Siddiqui, ASC
Mr. Ghulam Nabi, In person(Via video link from Quetta)
Zulfiqar Memon, Dy. Chief Planning
Date of Hearing
26.01.2023
O R D E R
UMAR ATA BANDIAL, CJ,-.
C.M.A.1124-K/2021
in
C.R.P.Nill-K/2021
in
C.M.A.277-K/2021
in
C.R.P.Nill-K/2021 in C.M.A.898-K/2021:
The learned Additional Attorney General for Pakistan
and Barrister Zafarullah Khan, ASC have assisted the Court on the
business plan submitted pursuant to our last order dated
09.01.2023. The point of importance that has been emphasized
C.M.A.7139/2019 in Const.P.2/2011, etc
- 4 -
before us is that the Railways Organisation in Pakistan owns and
controls 169,128 acres of land, out of which 126,426 acres are
being utilized for its operational purposes, 16,742 acres are
earmarked for future expansion, 9,985 acres have been identified
to be under un-authorized possession of the encroachers. Out of
the remaining 10,750 acres has been leased out for a number of
purposes which generate some revenue for the Railways
Organization. It appears that there is an area of some 6,000 acres
of land that is under the ownership and control of the Railways
Organization but is not described in the business plan. The
submission before us today is that such a huge tract of land
requires management and protection from encroachment apart
from utilization of its potential for generating revenue for the
benefit of the Organization and hence the State. Ambitious targets
have been disclosed for the commercialization of such land with
which we are not concerned presently for that we have no expertise
to judge or determine the viability of such proposals. However, it is
clear to us that without change in the nature of the land, its use
for different purposes without causing harm to the land or the
public interest, utilization can be made and revenue be generated
for the benefit of the Railways Organization and hence the
exchequer. Insofar as the developmental proposals are concerned,
the Railways Organization must have legal backing for undertaking
such ventures in a form that is authorized by law. As far as the
utilization of the land without change of its nature is concerned,
we are informed that two orders were passed by this Court. One
such order was passed on 04.01.2019 in Crl.O.P.120/2016
C.M.A.7139/2019 in Const.P.2/2011, etc
- 5 -
(Pakistan Railways through Secy/Chairperson Railways v. Capt. (R)
Zahid Saeed & others), allowing the land in the occupation and
control of Pakistan Railways to be leased for a period not more
than five years and subject to any determination of title to such
land in favour of the Federation or the Province. Subsequently, in
view of the proceedings taken up at Karachi in respect of urban
land in the occupation and control of the Railways Authority, there
is an order passed by this Court dated 14.06.2021 in CMAs
No.277-K and 278/2021 IN CRP No.Nill-K/2021 IN CMA No.898-
K/2020 in Const.P.09/2010 reported as Naimatullah Khan
Advocate and others v. Federation of Pakistan and others (2022
SCMR 105). That order directs âthat no Railwaysâ land shall be
sold by the Pakistan Railways or transferred, leased or allowed to
be occupied by any person and shall be used only for Railwaysâ
operation purposesâ. It is the latter order by which the Railways
Organization is aggrieved because it put an end to the use of open
Railways land inter alia to protect the same from encroachers and
unauthorized occupants. In addition, there is potential for such
land to generate revenue for the Railways Organization which is
beneficial for lessening the burden on the exchequer. Barrister
Zafarullah Khan, learned ASC has submitted that insofar as the
more developed schemes or proposals for utilization of Railways
land is concerned, the Ministry should, in the first place, frame a
policy for approval of the Cabinet and thereafter to frame laws
whether rules or statutes with the approval of Parliament to
support any schemes envisaging the development of land sites by
the Railways Organization on its own or in collaboration with
C.M.A.7139/2019 in Const.P.2/2011, etc
- 6 -
interested entrepreneurs. Having heard the learned Addl. Attorney
General and the learned counsel for the Railways Organization, we
consider that protection of Railwaysâ land against encroachers and
its utilization without changing the nature of the land are
beneficial acts which do not harm any existing or claimed interest
therein. Such utilization would generate revenue for the Railways
Organization and would also clear up the area where such un-
utilized land may be put to use by third party interests without
regard to the environment or generation of local employment.
During discussion it emerges that another aspect of land
utilization in the public interest is for public works initiated by the
Railways Organization or by other Government bodies. Such
utilization by a Government body for public use and benefit is a
purpose that is supported by the law. Accordingly, in addition to
the grant of leases up to five years as envisaged in our order dated
04.01.2019, for the purpose of utilization of land without changing
the nature thereof, it would be beneficial also if such land that is
required for public purpose is allowed to be used by the Railways
Organization on such terms as it deems fit and proper. With
respect to the remaining uses that is disclosed in the latter
business plan, the Railways Organization should approach the
Federal Government and, if necessary, the Parliament for
authorizing the same pursuant to a lawful regulatory regime.
2.
A number of connected matters have been fixed for
hearing which our order does not touch presently. The learned
Addl. Attorney General shall prepare a list of these cases and
C.M.A.7139/2019 in Const.P.2/2011, etc
- 7 -
propose the manner in which the same should be heard by the
Court.
Civil Petition No.208-Q/2022:
3.
Notice.
Royal Palm Golf & Country Club, Lahore:
4.
Learned counsel for Pakistan Railways, assisted by
experts from M/s A.F. Ferguson & Co., informed us that the
technical evaluation report has been prepared and submitted to the
Railways Authorities. This is subject to comment by the latter. In
any
event,
the
evaluation,
once
approved,
will
result
in
prequalification of bidders followed by a grievance procedure and
thereafter the opening of the financial bids of prequalified bidders. It
is stated that the entire process would conclude by the end of
February, 2023. Insofar as the auditing exercise of the accounts is
concerned, the same is in progress and we are informed that the
entire audit period during which the Club was in the control of the
MHPL shall be completed by the end of March, 2023.
5.
Learned Addl. Attorney General informs that Rupees
95 million were to be recovered by the Railways Organization from
Mr. Asif Shah and Mr. Muhammad Shahrukh Khan. Out of that
amount Rs.10.318 million has been deposited while the balance
amount is due.
6.
Time had been granted to the said persons to file a
reply which has not been done. Let the same be done which would
C.M.A.7139/2019 in Const.P.2/2011, etc
- 8 -
also reflect their plea taken in respect of claim of Rs.95 million by
the Railways organization.
Relist, in the middle of March, 2023.
Chief Justice
Judge
Islamabad
26.1.2023
Sarfraz */
Judge
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE SH. AZMAT SAEED
C.M.A. NO. 7546/2013 IN CONSTITUTION PETITION NO.
65/2009 AND
C.M.A.
NO.
11/2014
IN
C.M.A.
NO.
6882/2013
IN
CONSTITUTION PETITION NO. 77/2010 AND
CRIMINAL ORIGINAL PETITION NO. 119 OF 2013 IN C.M.A.
NO. 5959/2013 IN CONSTITUTION PETITION NO. 65/2009
1.
Raja Rabnawaz
(In CMA 7546/2013)
2.
Regarding holding of Elections in
Islamabad & cantonment Boards
(In CMA 11/2014)
3.
Contempt proceedings against Mr. Asif
Yaseen Malik, Secretary M/o Defence
(In Cr.O.P. 119/2013)
âĻ Applicants/Petitioners
VERSUS
Federation of Pakistan etc
(In CMA 7546/2013)
âĻ Respondents
In Attendance:
Mr. Shah Khawar, Addl Attorney General
Mr. Muhammad Akram Sheikh, Sr. ASc
Mr. Ishtiaq Ahmed, Secretary ECP
Mr. Sher Afghan, D.G ECP
Mr. Salman Aslam Butt, Attorney General
Syed Iftikhar Hussain Gillani, Sr. ASC
Mr. Asif Yaseen Malik, Secretary M/o
Defence
Date of Hearing:
06.02.2014
ORDER
We have called learned Attorney General for Pakistan
to be of assistance. The Local Government Elections in the
Cantonment Areas have not been held since 1998 and now the
reason being given by the Federal Government for delay is that the
Government is contemplating to amend the Cantonment Act, 1924
and the Cantonment Local Government Election Ordinance, 2002.
2.
Holding of Local Government Elections is mandated by
the Constitution of Islamic Republic of Pakistan in terms of Article
140A and as required by the Principles of Policy enshrined in the
C.M.A. NO. 7546/2013 IN CONSTITUTION PETITION NO. 65/2009 etc
2
Constitution (Article 32). In the afore-referred circumstances, we
would like learned Attorney General for Pakistan to be of
assistance particularly on the following points:-
i)
what is the consequence of any further delay in
holding
of
Local
Government
Elections
in
the
Cantonment Areas in terms of the afore-referred
provision? and
ii)
whether
the
Local
Government
Elections
in
Cantonment Areas can be held under the existing law?
3.
The question of contempt against Mr. Asif Yaseen
Malik shall also be taken up on the next date. Adjourned to
20.2.2014 as requested.
CHIEF JUSTICE
JUDGE
Islamabad, the
6th of February, 2014
Not Approved For Reporting
Khurram
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE SH. AZMAT SAEED
C.M.A. NO. 18 OF 2014 IN
C.M.A. NO. 11 OF 2014 IN
C.M.A. NO. 6882 OF 2013 IN
CONSTITUTION PETITION NO. 77 OF 2010 &
C.M.A. NOs. 517 & 559 OF 2014
(For giving fresh directions to Election Commission of
Pakistan as to holding of Local Government Elections in the
Provinces of Sindh and Punjab)
President Balochistan Bar Association
âĻ Petitioner
VERSUS
Federation of Pakistan and others
âĻ Respondents
For the ECP:
Mr. Muhammad Akram Sheikh, Sr. ASC
Mr. Mehmood A. Sheikh, AOR
Mr. Ishtiaq Ahmed Khan, Secretary ECP
Mr. Sher Afghan, D.G. ECP
On Court Call:
Mr. Salman Aslam Butt, Attorney General
On Court Notice:
Mr. Waseem Ahmed Qureshi, Addl. A.G.
For the Applicant:
Mr. Zahid Yousaf, Addl. A.G. KPK
(In CMAs 517 & 559 of 2014)
Date of Hearing:
06.02.2014
ORDER
Notice to learned Attorney General for Pakistan for
20.2.2014.
CHIEF JUSTICE
JUDGE
Islamabad, the
6th of February, 2014
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE EJAZ AFZAL KHAN
C.M.A. 7679 OF 2013 IN
C.R.P. NO. 191 OF 2012 IN
CONSTITUTION PETITION NO. 87 OF 2011
(Application on behalf of Mr. Saifullah Nyazee, Additional
Secretary PTI for recount of votes in 4 constituencies, after
verification of thumb impressions)
Workers Party Pakistan through Akhtar Hussain
âĻ Petitioner
VERSUS
Federation of Pakistan and others
âĻ Respondents
For the Petitioner:
Mr. Hamid Khan, Sr. ASC
Mr. M.S. Khattak, AOR
Mr. Imran Khan, Chairman, PTI
For the Respondents:
N.R.
Date of Hearing:
16.12.2013
ORDER
TASSADUQ HUSSAIN JILLANI, CJ.- Through this
application, applicant who heads a political party makes a
grievance that the directions given by this Court in the judgment
reported at Workers Party Pakistan Vs. Federation of Pakistan
(PLD 2012 SC 681) have not been complied with; that in the said
judgment this Court had made certain declarations/observations
and issued certain directions/instructions to ensure that the
General Elections are free, fair and transparent; that there had
been massive rigging in elections held on 11.5.2013 and the major
victim of the said rigging has been applicantâs party while. While
arguing the application, learned counsel in particular referred to
various incidents / irregularities in four constituencies and
submitted that a direction be issued for recounting of the votes
CMA No. 7679/2013 in CRP No. 191/2012 in Constitution Petition No. 87/2011
2
cast as it would give a broad / general idea as to the extent of
rigging, which according to him has eroded the sanctity of the
Elections.
2.
On Court query with regard to the maintainability of
this application in view of the bar contained in Article 225 of the
Constitution and in terms of Article 184(3) of the Constitution
under which this application has been filed, learned counsel for
the applicant referred to para 32 at page 719 of the afore-
mentioned judgment wherein this Court inter alia adverted to the
jurisdiction of this Court in terms of Article 184(3) and had
observed that the Court would have jurisdiction if the issue raised
(a) relates and affects the Fundamental Rights provisions of the
Constitution which in the instant case are Articles 17 & 25, (b) if it
is public interest litigation; and (c) the proceedings are not
adversarial rather are more than in the nature of being
inquisitorial.
At this stage Mr. Imran Khan sought permission to
speak. However, this Court apprised him of the practice of this
Court and the fact that he is represented by an able Member of the
Bar. He requested for a few minutes and was allowed to speak.
According to him the issue raised is not party specific rather it
relates to the functioning of democracy which under the
Constitution is not possible unless the electoral process is free, fair
and transparent and the allegations leveled, according to him,
indicate that there was massive rigging. He, however, added that
he is conscious and appreciates the concern of this Court qua its
jurisdiction but only prays that the Election Petitions pending
before various Tribunals qua constituencies subject matter of this
CMA No. 7679/2013 in CRP No. 191/2012 in Constitution Petition No. 87/2011
3
application
be
directed
to
be
decided
expeditiously
as
notwithstanding the mandate of law that Election Petitions are to
be decided within 120 days, those have not been decided. Mr.
Hamid Khan referred to two cases in which despite direction of this
Court the Tribunal did not decide the Election Petition and in yet
another case the Tribunal did not comply with the order of the
Election Commission wherein direction was issued to decide the
application for comparison of thumb impressions within a certain
period.
3.
We would not like to comment at this stage on the
merits of the issues raised. However, in the interest of justice, we
direct the Secretary, Election Commission of Pakistan to submit
parawise comments. A report shall also be called from Election
Tribunals Lahore and Multan to report about the non-compliance
of the orders to which reference has been made in constituency
numbers NA-125 (Lahore) and NA-154 (Lodhran). The report shall
be submitted within a fortnight and the case shall be listed
thereafter.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
16th of December, 2013
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice Faisal Arab
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Civil Miscellaneous Application Nos.7923 & 7617 of 2019 in
Civil Miscellaneous Application No. 8758 of 2018, Civil
Miscellaneous
Application
No.1878
of
2020
in
Civil
Miscellaneous
Application
No.
7617
of
2019
in
Civil
Miscellaneous Application No. 8758 of 2018 and Civil
Miscellaneous
Application
No.2012
of
2020
in
Civil
Miscellaneous
Application
No.
8758
of
2018
in
Civil
Miscellaneous Application No. 376-K of 2014 in Suo Moto Case
No. 03 of 2009
Application for release of funds to
be paid by Bahria Town to the
Government of Sindh pursuant to
order dated 21.3.2019
CMA No. 7923/19
Application to deposit the entire
money deposited by Bahria Town
Pvt. Ltd in the public account of
Federal Government
CMA No. 7617/19 &
CMA 1878/2020
Implementation of judgment dated
4.5.2018 in CMA 376-K/2014
CMA 2012/2020
In attendance
: Mr. Khalid Javed Khan, Attorney General
Mr. Salman Talibuddin, A.G. Sindh
Syed Ali Zafar, ASC for BTPL
Mr. Farooq H. Naek, Sr. ASC for MDA
Date of hearing
29.6.2020
ORDER
We have before us four applications, (i) CMA
7923/2019) moved by the learned Advocate General for Sindh, (ii)
CMAs 7617/2019 & (iii) 2012/2020 filed by and on behalf of
Attorney General for Pakistan, and CMA 1878/2020 filed by Malir
Development Authority. We have been ably assisted by the learned
Law Officers with regard to the said applications.
2.
In terms of the order dated 21.03.2019 Bahria Town have
started depositing installments, such that as of today i.e.
2
29.06.2019, an amount of Rs. 52,694,270,554/- has been
deposited. By order dated 23.07.2019, it was directed that the
installments being deposited be invested (through the National
Bank of Pakistan) in T-Bills issued from time to time by the State
Bank of Pakistan. We are informed that as of 29.06.2010 an
amount of Rs.5,466,940,230/- has been earned by way of
profit/markup.
3.
The reason why the aforementioned CMAs came to be filed
was that the question of how the installments being deposited by
Bahria Town and the profit/ markup that has accrued thereon is
to be utilized has now arisen. Valuable submissions have been
made by the learned Law Officers in this regard. One point on
which there is consensus of the Attorney General and Advocate
General Sindh is that the disbursement and utilization of the
funds be under the supervision of a high powered, âblue ribbonâ
commission headed by a retired Judge of the Supreme Court of
Pakistan hailing from Sindh to be appointed by the Court.
However, there is some disagreement as to who should be the
other members of the commission. The learned Attorney General is
of the view that inclusion of representatives of the Federation
would be appropriate. The learned Advocate General Sindh
strongly contests this, his view being that the matter is purely
Provincial in nature and does not require any involvement by the
Federation, which would be inappropriate in the circumstances.
4.
We have carefully considered the CMAs and the rival
submissions. We are in agreement with the Law Officers that the
disbursement of the funds should be in the hands of a high
powered commission to be headed by a Chairman and having five
voting members permanently residing in Sindh with no political
affiliation and six non-voting members taking such position by
virtue of their office. The Chairman to be nominated by the Honâble
Chief Justice of Pakistan on the recommendations of the
Implementation Bench. All decisions of the Commission relating to
selection of projects, the cost of such projects and all financial
matters directly, indirectly or by implication relating to projects to
be undertaken shall be subject to approval of the Implementation
3
Bench of this Court. Since, as envisaged, this commission would
have to be in operation for a number of years to come, it would
have to be established and function accordingly and guidelines for
its scope, mandate and funds need to be given. In view of this, we
have made detailed provisions regarding the commission and its
functioning, as set out in the Annex to this order, which is to be
read as an integral part hereof. All the CMAs are disposed of in the
above terms.
JUDGE
JUDGE
JUDGE
Islamabad,
Announced on 20th of October, 2020
Not Approved For Reporting
4
ANNEX
1.
The Commission shall consist of the following members:
To be appointed by the Court,
being either (i) A retired Judge
of
the
Supreme
Court
of
Pakistan
hailing
from
and
permanently residing in the
province of Sindh or if not
available for any reason then
(ii) a named individual, an
eminent citizen residing in
Sindh; or (iii) the holder for the
time being of a public office of
or relating to Sindh; or (iv)
some combination of (ii) and
(iii).
Chairman
One person to be nominated
by the Governor of Sindh
subject to confirmation by the
Implementation Bench, being
eminent citizen resident in
Sindh, who does not hold any
public office and does not have
any
known
political
affiliations.
Member
One person to be nominated
by the Chief Minister of Sindh
subject to confirmation by the
Implementation Bench, being
eminent citizen resident in
Sindh, who does not hold any
public office and does not have
any
known
political
affiliations.
Member
Attorney General for Pakistan
Member
Advocate General for Sindh
Member
One woman out of three to be
recommended
by
the
Commission in its first meeting
who
is
an
eminent
and
accomplished citizen of Sindh
and who does not hold a
public office and does not have
political
affiliation.
One
of
three
such
recommendees
shall be nominated by the
Implementation Bench as a
member of the Commission.
Member
NON-VOTING MEMBERS WHO WOULD ATTEND BY
INVITATION OF THE CHAIRMAN
Chief Secretary, Government of
Sindh
Member
5
Finance
Secretary,
Government of Sindh
Member and Secretary to the
Commission
Senior
Member,
Board
of
Revenue, Sindh
Member
Senior most officer assigned to
Sindh in the office of the
Auditor General of Pakistan
Member
Senior most officer assigned to
Sindh in the office of the
Accountant
General
of
Pakistan
Member
Nominee of the Governor, State
Bank of Pakistan, being not
below the rank of Deputy
Governor
Member
2.
The Chairman and the first five nominated members shall
be voting members of the Commission and are herein
after so referred. The other members made by virtue of
their office are referred to as the non-voting members.
3.
The Chairman and the voting members shall have a term
of four years from the date of its first meeting but the
Court shall retain always the power at any time to direct
and order the replacement of any of them prior to expiry
of the tenure. The Chairman or voting member may
resign at any time subject to the permission of the
Implementation Bench. If the Governor or the Chief
Minister fail or refuse to nominate a member (whether in
the ordinary course or by way of replacement) within
such time as may be granted by the Implementation
Bench, then the Implementation Bench may make an
appointment instead subject to the other conditions as
stated above. No action or decision of the Commission
shall stand vitiated by reason of any vacancy in relation
to a voting member. The Chairman and voting members
shall be entitled to be re-appointed for such period(s) as
the Implementation Bench may determine.
4.
A valid quorum for any meeting of the Commission shall
be and require the attendance of the Chairman and at
least other three voting members, of whom one must be
6
the member nominated by the Governor and one the
member nominated by the Chief Minister. However, in
case two members fail to attend any meeting, the same
shall be adjourned for a period not less than seven days.
5.
All decisions of the Commission shall be by majority of
voting members. In case of equality of voting members the
Chairman shall have a second/casting vote.
6.
Non-voting members of the Commission must attend
such meetings to which the Chairman invites them:
provided that the Chairman may, in his discretion, allow
at any specific meeting for a non-voting member to be
represented by his nominee, who shall be an officer next
in seniority to the non-voting member.
7.
The Chairman or the Commission may at any time
require at any specific meeting the attendance of any
officer in the service of the Federation or the Province or
the officer of any institution or public body or of the
National Bank of Pakistan, and such officer shall be in
attendance accordingly.
8.
The Commission shall have an office at such location and
such physical and other resources and facilities as the
Chairman decides on the recommendation of the
Commission.
It
shall,
likewise,
have
officers
and
subordinate staff assigned to it by the Provincial
Government as would be sufficient for the normal and
effective
functioning
of
the
Commission.
The
requirements of the Commission shall be communicated
by the Chairman to the Chief Secretary, Sindh who shall
meet the same in the shortest possible time. All decisions
and
actions
of
the
Commission
must
have
the
concurrence of the Chairman of the Commission. In case
of any difference or dispute, the matter shall be resolved
by the Implementation Bench. The administrative head of
7
the secretariat and the officers and staff assigned thereto
shall be the Secretary to the Commission, to be appointed
by the Chairman who shall be answerable and subject to
the control of the Chairman.
9.
All expenses, other than the cost of the projects, relating
to or to be incurred by the Commission or relating to its
work shall be met by the Government of Sindh provided
that if there are any differences at any time regarding who
is responsible to meet / fulfill such requirements the
same shall be resolved by the Implementation Bench.
10.
By or before 01.12.2020 the Governor and the Chief
Minister shall, through the Registrar of the Court, make
their nominations for the voting members, through the
Advocate General, Sindh. If any nomination is not
accepted by the Implementation Bench, then a fresh
nomination shall be sought within such time as may be
determined by the Implementation Bench. The Chairman
and nominated members shall be appointed/confirmed
(as the case may be) by an appropriate order of the
Implementation Bench.
11.
The Commission shall have its first meeting on or before
25.01.2021. The Chief Secretary, Sindh and the Secretary
of the Commission shall at all times coordinate with the
Chairman so that the establishment of the office and all
matters as are or may be required for enabling the
Commission to commence its work by 25.01.2021 are
concluded in a timely manner.
12.
The first meeting of the Commission shall be held at its
duly notified office not later than 25.01.2021. The
Commission shall establish such standard operating
procedures (SOPs) rules/regulations for its internal
working that shall be subject to the approval by the
Implementation Bench, enable it to have access to the
8
funds and for the disbursement thereof in such terms as
are herein after stated. The Commission shall propose
and suggest projects for public utility including but not
limited to health, education, infrastructure etc for the
people of the province of Sindh. The Implementation
Bench shall consider and approve the project(s) from time
to time and shall allocate such funds from time to time as
per requirements of the project as communicated by the
Chairman.
13.
Once approved by the Implementation Bench, the
Commission shall then proceed to start the process for
award of contracts and other related matters for
implementation of the projects. The Commission shall
have the power to approve and disburse periodical
payments in accordance with the terms of the contract(s).
14.
For each project awarded, the Commission shall establish
an appropriate oversight committee which shall be
headed by a voting member and shall include such
persons as the Commission deems appropriate, being any
member of the Commission and/or any officer in the
service of the Federation or the Province or the officer of
any institution or public body. Each oversight committee
shall regularly report to the Commission regarding the
projects being overseen by it, in terms of such SOPs as
are established for this purpose. More than one project
may be entrusted to an oversight committee. Each such
committee shall (subject to the overall control of the
Commission) be responsible for ensuring the due
completion of the projects being overseen by it.
15.
All projects undertaken, and being undertaken, by the
Commission shall be subject to regular audit in terms of
SOPs to be established by the Commission for such
purpose. All audit reports shall be placed before the
Implementation Bench. A yearly audit shall also be
9
conducted by the Auditor General of Pakistan who shall
file his report before the Implementation Bench.
16.
Once a project has been completed, it shall be handed
over to the Provincial Government for its continuance and
operation. For this purpose, the Provincial Government
shall, before the handing over of the project, prepare and
place before the Commission an appropriate annualized
budget for operation and maintenance and all related and
ancillary purposes (which shall also include the allocation
and appointment of appropriate staff). If the Commission
does not accept the budget (or any part thereof) then the
matter shall be resolved by the Implementation Bench.
For a period of not less than three years (or such longer
period as the Commission may deem appropriate) any
project handed over to the Provincial Government shall be
liable to audit/inspection by the Commission in terms of
SOPs to be established by it in this regard. The Provincial
Government shall forthwith take all corrective measures
as are suggested by the Commission. If corrective
measures are not taken, or are taken inappropriately or
inadequately, then the Commission shall report the
matter to the Implementation Bench for such orders as
are deemed appropriate. Each report relating to any
audit/inspection carried out by the Commission shall in
any case also be placed before the Implementation Bench
for such consideration as is deemed appropriate.
17.
Without prejudice to the inherent powers and jurisdiction
of the Implementation Bench to at any time make such
orders as it deems appropriate, the Commission may also
at any time, for the removal of any difficulties in relation
to anything covered (or that ought to be covered) by this
Annex
make
an
appropriate
reference
to
the
Implementation Bench, which shall, after notice to all
concerned parties, make such orders as it deems fit,
10
whether by way of modification, omission, addition,
supplementation or otherwise.
JUDGE
JUDGE
JUDGE
Islamabad,
Announced on 20th of October, 2020
Not Approved For Reporting
| {
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Ejaz Afzal Khan
Mr. Justice Sh. Azmat Saeed
Mr. Justice Maqbool Baqar
Mr. Justice Ijaz ul Ahsan
Mr. Justice Mazhar Alam Khan Miankhel
C.M.A.NOS.8215 AND 6171 OF 2016 AND CIVIL APPEAL NO.2144
OF 2016, C.M.A. NO. 6225 OF 2016 AND CIVIL APPEAL NO.2145 OF
2016, C.M.A. NO.6226 OF 2016 AND CIVIL APPEAL NO.2146 OF
2016, C.M.A. NO.6291 OF 2016 AND CIVIL APPEAL NO.2147 OF
2016 AND CIVIL PETITION NO.3101-L OF 2016
(Against judgment dated 19.08.2016 of Lahore High Court, Lahore, passed in Writ Petition
No.39291 of 2015).
National Engineering Services Pakistan
[NESPAK] (Pvt) Limited
Applicant/Appellant(s)
(In CMA#8215 & 6171/16 AND Civil
Appeal No.2144/16)
Punjab Mass Transit Authority through its
Managing Director, Lahore
Applicant/Appellant(s)
(In CMA#6225/16 AND Civil Appeal
No.2145/16)
Lahore Development Authority through its
Director General & another
Applicant/Appellant(s)
(In CMA#6226/16 AND Civil Appeal
No.2146/16)
Province of Punjab through Chief Secretary,
Lahore and others
Applicant/Appellant(s)
(In CMA#6291/16 AND Civil Appeal
No.2147/16)
Civil Society Network through its Chairman
Petitioner(s)
(In Civil Petition No.3101-L/16)
VERSUS
Kamil Khan Mumtaz & others
Respondent(s)
(In CMA#8215 & 6171/16 AND Civil
Appeal No.2144/16; in CMA#6225/16 AND
Civil Appeal No.2145/16; in CMA#6226/16
AND Civil Appeal No.2146/16; and in
CMA#6291/16
AND
Civil
Appeal
No.2147/16)
Province of Punjab through its Chief
Secretary, Lahore
Respondent(s)
(In Civil Petition No.3101-L/16)
For the Appellant(s)
:
Mr. Shahid Hamid, Sr. ASC with
Mr. Mahmood A. Sheikh, AOR
assisted by Rabia Hassan, Advocate
Lahore Orange Line Metro Train Project
2
Mr. Salman Hafeez, G.M. NESPAK
(in CA.2144/2016)
:
Mr. Makhdoom Ali Khan, Sr. ASC with Mr.
Tariq Aziz, AOR assisted by Mr. Saad
Hashmi, Advocate
Mr. Sarmad Hani, Advocate
Mr. Sabtain Fazal Haleem, M.D. PMA
(in CA.2145/2016)
:
Kh. Haris Ahmed, Sr. ASC with
Mr. Mustafa Ramday, ASC
Mr. Tariq Aziz, AOR assisted by
Mr. Zaafir Khan, Advocate
Mr. Ahmed Jamal, Advocate
Israr Saeed, Chief Engineer, LDA
Muhammad Rashid, Dir(Law), LDA
Muhammad Hassan, Dy. Dir(E), LDA
Hafiz Nisar Hussain, A. Dir(Law), LDA
(in CA.2146/2016)
:
Mr. Shakeel-ur-Rehman, AG, Punjab.
Ms. Asma Hamid, Addl.AG Punjab
Barrister Qasim Ali Chohan, AAG.Pb.
Rao M. Yousaf Khan, AOR (Absent)
Mr. Khurram Chughtai, Strategic Counsel
(in CA 2147/2016).
For the Petitioner(s)
:
Mr. Azhar Siddique, ASC
Mr. M. Ozair Chughtai, AOR (Absent)
(in CP#3101-L/16)
For the Respondent(s)
:
Ms. Asma Jehangir, Sr. ASC with
Ch. Akhtar Ali, AOR
Mr. Kamil Khan Mumtaz assisted by
Mr. Noor Ejaz Chauhdry, Advocate
Mr. Hamid Azim Leghari, Advocate
Ms. Namra Gillani. Advocate
Ms. Ayesha Alam Malik, Advocate
Mr. Suleman Jahangir, Advocate
(in CAs#2144 to 2147/16)
Kh. Ahmad Hussain, ASC
Mr. M. Ozair Chughtai, AOR (Absent)
(No.2 in CAs#2144 to 2147/2016)
Mr. Azhar Siddique, ASC
Mr. M. Ozair Chughtai, AOR (Absent)
Assisted by Mr. Abdullah Malik, Adv.
Mr. Hammyun Faiz Rasool, Advocate
Mian Shabbir Ismail, Advocate
Mr. M. Irfan Mukhtar, Advocate
Ms. Parveen Mughal, Advocate
Ms. Hifsa Mafia, Advocate
(No.3 in CA#2144 AND Nos.3-5 in CAs#2145, 2146&2147/16)
Mr. Shakeel ur Rehman, AG Punjab
Ms. Asma Hamid, Addl. AG Punjab
Barrister Qasim Ali Chouhan, AAG, Pb
(Government of the Punjab)
Lahore Orange Line Metro Train Project
3
Syed Rafaqat Hussain Shah, AOR
(No.17 in CAs#2144 & 2146/16; No.19 in CA#2145/16 & No.16 in
CA#2147/16)
Dates of Hearing
:
3rd to 6th, 10th to 14th & 17th April, 2017
JUDGMENT
IJAZ UL AHSAN, J-. Having gone through the
proposed judgment authored by my learned brother (Maqbool
Baqar, J), I do not find myself in agreement with the same. I,
therefore, have recorded my own reasons and conclusions for
accepting the appeals and dismissing the petition which are as
follows.
2.
Through this judgment, we propose to decide Civil
Appeals No.2144 to 2147 of 2016 and Civil Petition No.3101-L of
2016 as common questions of law and fact have been raised against
a judgment of the Lahore High Court, Lahore.
3.
These Appeals with leave of the Court have arisen out
of a judgment of the Lahore High Court, Lahore, dated 19.08.2016
rendered in Writ Petition No.39291 of 2015 (Impugned Judgment).
Through the Impugned Judgment, the Constitution Petition filed by
the Respondents challenging various aspects of a mass transit
project commonly known as âLahore Orange Line Metro Train
Project (âOLMT Projectâ) initiated by Government of the Punjab
was partly allowed.
4.
Briefly stated the facts necessary for decision of these
appeals and the petition are that Government of the Punjab initiated
the OLMT Project in order to handle the chronic problem of acute
traffic congestion and to meet the present and future transportation
Lahore Orange Line Metro Train Project
4
requirements of the citizens of Lahore. The original feasibility study
for a mass transit system for the city of Lahore was undertaken by a
consulting Firm namely MVA Asia many years ago. The said study
recommended a network made up of four lines in the following order
of priority:-
âi.
Green Line: Ferozepur Road (Gajju Matta to Shahdara)
27km (completed).
ii.
Orange Line: Multan Road to GT Road (Ali Town to Dera
Gujjran) 27.1 km (under construction).
iii.
Blue Line: Jinnah Hall to Green Town 20 km (In future).
iv.
Purple Line: Data Darbar to Airport 19 km (in future).
5.
The orange line (OLMT) as originally recommended
was to consist of a 27.1 kilometers track (20.2 kilometers elevated
and 6.9 kilometers underground) including 26 stations (20 elevated
and 6 underground) at an aggregate cost of US $ 2.00 billion
exclusive of cost of land acquisition. The proposed project did not
see the light of the day, presumably on account of its prohibitive
cost.
6.
The Government of Punjab wished to reduce the cost of
the OLMT Project. It commissioned NESPAK, one of the best
companies in the country in the area of infrastructure development,
having vast local as well as international experience, to re-examine
the feasibility study prepared by MVA Asia. An addendum to the said
study was submitted by NESPAK in the year 2014. According to the
proposal submitted by NESPAK, the length of the track as well as its
alignment over and under the median of the road remained
unchanged. However, in order to reduce the cost of the Project, the
underground portion was reduced to 1.7 kilometers which resulted in
reduction of the aggregate cost from US $ 2.00 billion to US $ 1.6
billion. It was recommended that out of the total 27.1 kilometers
Lahore Orange Line Metro Train Project
5
length of the route 1.7 kilometers would be a cut and cover segment
and the remaining 25.4 kilometers would be an elevated viaduct.
The viaduct of the OLMT Project consists of âUâ shaped girders (two
separate channel shaped track ways of pre-stressed/concrete)
resting on piers which are 30 meters apart. The viaduct system is
supported by piles and a pile cap substructure system. The 1.85
meters thick pile cap consists of 6 piles of 1.2 meters diameter and
18 meters length. Piers of the viaduct are of 1.2 meters diameter.
The height of the piers is approximately 13.5 meters. A 10 meter
long transom rests over the top of each pier to support the âUâ
shaped girders.
7.
In the 1.7 kilometers cut and cover portion (underground
section), the construction methodology is to erect barricades on
either side of the road, about 12 meters apart. Holes of a diameter of
0.76 meters are drilled in straight lines on either side of the road.
Iron cages are lowered into the holes and these are filled with
concrete. Thereafter, the area in-between is excavated to a depth of
3 meters and a reinforced concrete roof 0.8 meters thick is
constructed, joining the tunnel formed by the roof and the piles on
either side with a clear height of 5.60 meters. Thereafter, a concrete
slab of 0.6 meters is laid on the floor of the tunnel. All wall gaps
(0.31 to 0.45 meters wide) in between the concrete piles are covered
with water proofing and vibration dampening materials.
8.
The system is designed to run B1 type trains (according
to Chinese standards). Each train consists of 5 bogies. The axel load
of a B1 type bogie (loaded) is 140 kN and that of an empty one is 80
kN. The proposed OLMT Project has a total of 26 stations, 24 of
Lahore Orange Line Metro Train Project
6
which are elevated while the remaining 2 are underground. The
projected ridership is an average of 2,45,000 passengers per day.
According to the appellants, more than 46% of the civil works
corresponding with the total estimated cost of the Project had been
completed till 30th of August, 2016 and another 30 to 40% of the civil
works were likely to be completed in the next 6 to 8 months.
9.
The main dispute raised before the High Court related
to the impact of the proposed OLMT Project on various heritage
sites and special premises as defined in the Antiquities Act, 1975
[the Act of 1975] and the Punjab Special Premises (Preservation)
Ordinance,
1985
[the
Ordinance
of
1985],
and
the
NOCâs/permission letters granted by the concerned departments to
undertake the OLMT Project.
10.
According to the Respondents, the following sites were
covered under the Act of 1975 and the Ordinance of 1985, which
were likely to be affected in view of their respective distances from
various structures of the proposed Project and therefore required
protection:-
PROTECTED PREMISES (under the Act of 1975)
i.
Shalamar Garden (approximately 29 meters away from the train
track)
ii.
Gulabi Bagh Gateway (21 meters away from the train track)
iii.
Budduâs Tomb (18.1 meters away from the train track)
iv.
Chauburji (16 meters away from the train tack)
v.
Zaibunnisaâs Tomb (33 meters away from the train track)
SPECIAL PREMISES (under the Ordinance of 1985)
i.
Lakshmi Building (9.3 meters away from the train track)
ii.
General Post Office (GPO) (3.6 meters away from the train track)
iii.
Aiwan-e-Auqaf (Shah Chiragh) Building (20.1 meters away from
the train track)
iv.
Supreme Court, Lahore Registry Building (3.72 meters away
from the train track)
v.
Saint Andrewâs Church (1.9 meters away from the train track)
(Not declared as a âSpecial Premisesâ under the Ordinance of
1985).
vi.
Mauj Darya Shrine and the Mosque (4.8 meters away from the
train track).
Lahore Orange Line Metro Train Project
7
11.
It appears that any development scheme within a
distance of 200 feet of an immovable antiquity, a protected site or
special premises requires sanction by the competent authority. The
procedure for obtaining such sanction is provided in Section 11 of
the Ordinance of 1985 and Section 22 of the Act of 1975. For ease
of reference, the relevant provisions are reproduced below:-
âSection 11: Execution of development schemes and new
constructions in proximity to Special Premises.â No
development plan or scheme or new construction on, or within a
distance of two hundred feet of a Special Premises shall be
undertaken or executed except with the approval of the
Government or a Committee.
AND
Section 22: Execution of development schemes and new
constructions
in
proximity
to
immovable
antiquity.â
Notwithstanding anything contained in any other law for the time
being in force, no development plan or scheme or new
construction on, or within a distance of two hundred feet of, a
protected immovable antiquity shall be undertaken or executed
except with the approval of the Director General.
12.
The Ordinance of 1985 and the Act of 1975 provide an
adequate and effective mechanism and statutory framework to
safeguard and protect heritage sites. These also identify the
authorities required to enforce these laws. A buffer zone of 200 feet
has been created around the heritage sites. However considering
that it may not be possible to enforce the 200 feet buffer zone in all
cases and under all circumstances, the competent authorities have
been empowered to permit development plans, schemes and
construction (as the case may be). However, such permission can
be granted by the competent authority after due application of mind
to the facts, circumstances and nature of each project and after
satisfying itself that all necessary steps will be taken to ensure that
the heritage site in question will not be destroyed, damaged or
adversely affected.
Lahore Orange Line Metro Train Project
8
13.
The record indicates that the requisite applications
alongwith relevant data were filed with the concerned Departments,
which issued a âNo Objection Certificateâ on 16.11.2015 for
construction of the OLMT Project along the alignment of five heritage
buildings protected under the Act of 1975. Similarly, another âNo
Objection Certificateâ was issued on 30.11.2015 in respect of the
aforesaid special premises protected under the Ordinance of 1985.
14.
The Respondents inter alia challenged issuance of the
aforesaid NOCs. By order dated 28.01.2016, a Bench of the Lahore
High Court suspended the said NOCs and restrained the appellants
from carrying on any construction activity within 200 feet of the said
buildings. Faced with this situation, the matter was referred to and
re-examined by an Advisory Committee constituted in terms of the
Act of 1975 under the Chairmanship of the Director General,
Archaeology. It was decided to request the Lahore Development
Authority (âLDAâ) to engage an independent structural engineer to
evaluate the effect of OLMT Project on the aforesaid buildings
during construction and operational phases. The Committee also
decided to engage the services of Dr. Ayesha Pamela Rogers to
conduct a Heritage Impact Assessment [HIA] of the OLMT Project.
15.
Pursuant to the above decision, Dr. Engr. Javed Uppal
was appointed as the independent structural engineer for evaluating
the effect of the Project on the aforesaid buildings during the
construction and operation phases of the Project. He submitted his
assessment report on 24.02.2016. Likewise, Dr. Rogers submitted
her report on 05.03.2016. The said reports as well as other material,
information and data were examined by the Committee. In light of
Lahore Orange Line Metro Train Project
9
the said examination of data, reports, recommendations and findings
new NOCs/permissions were issued by the competent authorities,
which were stated to be in continuation of the earlier permissions.
These incorporated stringent conditions and requirements to be
fulfilled during various phases of the Project. These were presented
before the Bench of the High Court hearing the matters. However,
these permissions were also rejected by the Bench holding that the
said experts were neither independent nor impartial in view of the
fact that they had allegedly undertaken some work at some stage for
Government of the Punjab or had been associated, in a professional
capacity with the said Government in the past. The Constitution
Petition was ultimately accepted in the terms reproduced below:-
âi)
The original NOCs dated 16.11.2015, 30.11.2015 and all
revised NOCs dated 06.05.2016 and all addendum
NOCs dated 20.5.2016 under the Act of 1975 and
Ordinance of 1985 are set aside being issued without
lawful authority and of no legal effect. Consequently, the
respondents shall not carry out any construction within
distance of 200 feet of protected immovable antiquity and
special premises mentioned in para 24 of this judgment.
ii)
The Director General Archaeology is directed to engage
independent consultants consisting of panel of experts of
international status preferably in consultation with
UNESCO to carry out fresh independent study/report
regarding protected immovable antiquities and special
premises.
iii)
The request for permission under Section 22 of the Act of
1975 and under Section 11 of the Ordinance of 1985 will
be considered afresh by the competent authorities in the
light
of
study/report
by
independent
experts
of
international status referred above.
iv)
To structure the discretion of competent authorities for
future permissions under Section 22 of the Act of 1975
and Section 11 of the Ordinance of 1985, the
Government is directed to frame rules under Section 37
Lahore Orange Line Metro Train Project
10
of the Act of 1975 and Section 16 of the Ordinance of
1985.
v)
This petition to the extent of Environmental Approvals
dated 09.7.2015 and 09.5.2016 is dismissed being not
maintainable.
However,
the
recommendations
of
Advisory Committee on environment (constituted under
section 5(6) of the Act of 1997) in its report dated
07.5.2016 will be implemented in letter and spirit by the
authorities concernedâ.
16.
When the matter came up for hearing before this Court,
after a preliminary hearing, it was clear to us that the bone of
contention between the parties was the credibility and technical
reliability of the original reports submitted by NESPAK. In passing,
doubts were also raised about the reports filed by Dr. Uppal and Dr.
Rogers, more so, on their impartiality rather than the merit and
technical soundness of their respective reports. It was therefore
clear and obvious to us that the concerns of the Respondents i.e.
the accuracy and technical soundness of the report of NESPAK and
credibility of the experts and their reports needed to be verified and
counter checked by sending the reports and all relevant technical
material and information to an independent expert to seek his
opinion on the contents of the report. These had been questioned by
the Respondents and discarded by the High Court. In our view the
opinion of an independent expert could enable us to resolve this
controversy.
17.
On our query, the learned counsel for the Respondents
quite readily and learned counsel for the Appellants after some
hesitation agreed to such course of action. We therefore directed
both parties to propose names of at least three independent experts
out of whom we could appoint one to undertake this exercise. Both
Lahore Orange Line Metro Train Project
11
parties submitted names of different experts. In order to ensure that
fairness and impartiality was maintained, we decided to nominate
two experts, one out of the three proposed by each side.
Accordingly, we nominated Mr. Robin Cunningham, a Professor in
the Department of Archaeology, University of Durham, United
Kingdom, proposed by the Respondents and M/s TYPSA â Asian
Consulting Engineers (Pvt) Ltd. JV (âTYPSAâ) proposed by the
appellants to undertake an exercise of re-verification and provide us
their opinion on various technical aspects of the report of NESPAK.
The Government of the Punjab was directed to bear all expenses for
both experts and parties were directed to provide all documentation,
material, data and information that the experts may possibly require
for making their independent assessment/re-verification of the
reports submitted by NESPAK. Vide our order dated 14.10.2016 the
experts were given 30 days time to finalize their reports and submit
the same before this Court. The reports were filed with some delay
which occurred on account of logistical reasons but is of no
relevance at this stage. The parties were called upon to submit their
objections. The parties filed their objections whereafter arguments
on the objections as well as the main appeals were heard by us.
18.
Despite the fact that the controversy had been narrowed
down to re-verification of credibility of the NESPAK reports dated
July, 2015 and February, 2016, in the context of Act of 1975 and the
Ordinance of 1985, detailed arguments on all aspects of the case
were addressed by the parties. Learned counsel for the appellants
namely Mr. Shahid Hamid, Sr.ASC (in Civil Appeal No.2144 of
2016); Mr. Makhdoom Ali Khan, Sr.ASC (in Civil Appeal No.2145 of
2016); Kh. Haris Ahmed, Sr.ASC (in Civil Appeal No.2146 of 2016);
Lahore Orange Line Metro Train Project
12
and Mr. Shakeel-ur-Rehman, Advocate General Punjab (in Civil
Appeal No.2147 of 2017) addressed detailed arguments in support
of their respective appeals. They not only defended the reports
submitted by NESPAK in July, 2015 and February, 2016 but also
reinforced their arguments by the contents of the report submitted by
M/s TYPSA - Asia which according to them fully supported, re-
verified and confirmed the accuracy and credibility of the reports
earlier submitted by the NESPAK. They also pointed out that the
report of Professor Robin Cunningham was quite general in nature
and dealt more with the legal interpretation of the provisions of the
Act of 1975 and the Ordinance of 1985. It did not advert to the
technical aspects of the reports of NESPAK, Dr. Uppal and Dr.
Rogers and was therefore not of much help with reference to the
credibility of the reports which were the subject matter of the
controversy before this Court.
19.
Learned counsel for the Respondents, including Mrs.
Asma Jahangir and Kh. Ahmad Hussain, ASCs on the other hand
made half-hearted attempts to challenge the credibility of the reports
of M/s TYPSA â Asia as well as NESPAK but unfortunately, without
submitting any technical data or information to counter, discredit or
dislodge the conclusions and opinions recorded in the said reports.
However, owing to the technical nature of the reports and in the
absence of any counter report, data or information they could not
come up with anything convincing that could persuade us to discard
the said reports. As a last resort, they also relied upon the expertise
of Mr. Kamil Khan Mumtaz, who was one of petitioners before the
High Court. Mr. Mumtaz gave us a presentation on multimedia and
also provided hard copies of his presentation for our assistance. We
Lahore Orange Line Metro Train Project
13
have carefully examined the material provided by him. We were also
shown real time footage made with the help of Drone mounted
cameras on multi media and computer simulations of the OLMT
Project on projection screens installed in the Court Room. In
addition, enlarged recent photographs of the Project and the location
and condition of the protected sites were also filed depicting various
stages of work in progress at various locations with the object of
giving us a clear understanding of the situation on the ground and
contextualizing the arguments submitted by both sides.
20.
We also granted permission to Mr. Mumtaz to address
us. He explained to us that the effect of vibrations (expected to
emanate during the construction phase of the Project and operation
of the train) on monuments depended on the following factors:-
i)
Magnitude of vibration produced by a particular action;
ii)
Distance between vibration source and the vibration
receiver;
iii)
The condition of the monument; and
iv)
The nature of mediums through which it travels to the
receiver (soil and concrete etc).
21.
His presentation while useful in an academic sense was
helpful in understanding the general concepts but did not, in our
opinion, directly address the issue before us. Further, it did not, in
any material way, challenge or displace the opinions and
conclusions of NESPAK, Dr. Uppal, Dr. Rogers or TYPSA.
22.
We have considered the arguments of the learned
counsel for the parties and carefully examined the various
documents and reports placed on the record. It appears that a
Project of this nature involves emanation and transmission of
potentially harmful vibrations for old buildings and structures at two
stages i.e. the construction phase and the operational phase. At the
Lahore Orange Line Metro Train Project
14
construction stage, operation of heavy construction machinery,
particularly, drills, pile drivers, excavators pavement breakers and
other impact devices create seismic waves that radiate along the
surface of the earth and downward into the earth. These vibrations
in excess of certain levels have the potential to cause damage to a
building as well as its foundation. The manner in which a particular
building will respond to such vibration depends on many factors
including the type of soil on which the building is founded, the age,
type and state of foundation of the building, the mass and stiffness
of main structural elements of the building, the condition of the
building as a whole and the level and frequency of its maintenance.
Assessment of susceptibility to vibration has to be taken into account
while setting vibration limits. The operational phase covers all
parameters that relate to the operation of trains. Factors such as
speed, the condition of suspension system installed on the trains,
the condition of the wheels, the quality, material and condition of the
rails on which the train will operate and the measures taken to
absorb/reduce transmission of vibration to surrounding areas are
some of the factors to be kept in mind.
23.
The reports submitted by NESPAK, Dr. Uppal and Dr.
Rogers suggested that there was no real danger to the protected or
special premises which were situated in the vicinity of the Project.
However, to be on the safe side they suggested additional remedial
and protective safeguards and measures. These were duly
incorporated in the NOCs and permission letters issued by the
Director General, Archaeology. However, these were rejected by the
High Court. In order to determine the validity of the reports and to
verify accuracy of the same with the consent of the parties, the same
Lahore Orange Line Metro Train Project
15
were sent to independent experts for their objective opinion. The
report submitted by TYPSA was found by us to be most relevant. It
directly addressed the concerns of the Respondents. Relevant parts
of the said report are summarized below:-
a)
The
description
of
the
viaduct
is
complete
and
comprehensive as a general description.
b)
A pile of 13.5 m seems to have been simulated and in the
SAP model, which does not include the viaduct desk, the
POT bearings and the upper part with the platform, track
and other concrete elements such as lateral parapets, the
pile is 8m in height approximately. Thus, the modeled pile
is significantly smaller than the real ones in any case and
since the density of the concrete has not been
corrected/adjusted to compensate the geometry difference,
the modeled pile is also significantly lighter than the real
ones. This assumption gives higher vibration on results
than to be anticipated and is considered to be a
conservative approach adopted in the report by NESPAK.
c)
POT bearings are commonly used between viaducts piers
and desks and introduce a resonance frequency. These
POT bearings are designed to bring a relatively low
resonance frequency. Thus, their influence would lead to
lower vibration levels. The POT bearings have not been
modeled, it can safely be said that more conservative and
safe parameters have been used and the vibration values
given in NESPAK reports are higher than the expected
values during operation of the trains.
d)
The
description
of
the
tunnel
is
complete
and
comprehensive.
e)
The description of the rolling stock is comprehensive,
although the speed data is missing in the report. It is very
relevant parameter, which affects directly the dynamic
loads on the track. It has further been indicated that the
modeled speed is 70 km/h as in the Xia paper. It is
considered correct, taking into account the maximum
speed is 80 km/h and the average commercial speed is
34.6 km/h. It is a conservative assumption, since stations
are close by and thus, speed is reduced and vibrations will
be lower.
FEA MODEL:
Lahore Orange Line Metro Train Project
16
The description of the FEA model is comprehensive.
a)
The viaduct model consists of pier, pile cap, the piles and
surrounding soil. The viaduct desk and the track affect the
total mass whereas the track usually includes vibration
damping elements, mainly the fastening system. NESPAK
models include indirectly these elements through the use
of the Xia force and thus, the model will be overestimating
the real vibrations, which shows a conservative but safe
model has been adopted.
b)
The backup material of the underground part indicates that
vibration isolators/dampers will be provided which will lead
to lower levels of vibration. Thus, vibration values higher
than what would be expected are reported and the
approach is safe.
c)
A 2D model has been used. It is assumed that the
geometry is constant and infinite in the longitudinal
direction. It is correct in the case of the viaduct, but in a 2D
model of a viaduct, the properties of all the modeled
materials generally need to be adjusted: the ground or the
rails can be considered infinite in the longitudinal direction
but not the piers of the viaduct and thus, their properties
(mass and stiffness) need to be adjusted. This seems to
have been done through the calibration with a 3D model,
which is acceptable and safe.
d)
A module of elasticity of 2000 MPa is indicated for the
ground and around 20.000 MPa for the pile concrete. This
is a conservative approach that has given higher values of
vibration in the report than those expected during
operation.
e)
Vertical force at the top of pier is determined from the
dynamic train model of Xia. The result is a load history
whose maximum value is 660 kN approximately, which is a
high value for a Metro vehicle. However, this force is
discretized every 0.25 s and thus, it corresponds to a
sample frequency of 4 Hz, which only allows analyzing
very low frequencies.
f)
These calculations are quasi static and valid for structural
issues. The viaduct and the tunnel seem to be modeled
without any node and the ground is with 4 nodes shell
elements with a 1x1 m mesh size in the case of the tunnel
and 2x2 m in the case of viaduct. This mesh size allows
getting reliable results which would be acceptable.
g)
As additional safety measures NESPAK indicates that
track details will be provided by the Chinese contractor
Lahore Orange Line Metro Train Project
17
including dampers, a 600 mm thick flexible sand cushion
material under the bottom slab supporting track, and
isolating cork material behind the wall in addition to the
waterproofing layer. These mitigation measures have not
been used in the FEA analysis and act as a further
cushion/reserve capacity as safeguard against the actual
vibration expected at the heritage and special premises
buildings.
h)
We also fully agree with the suggestion that during the
construction and at the commissioning time, noise and
vibrations should be measured/monitored to make sure
that the vibration and noise remain within the acceptable
limits.
VIBRATION EFFECTS ON HERITAGE BUILDINGS:
The vibration levels have been calculated according to the
methodology analyzed before and the results are assessed
according to the DIN 4150-3; 1999 and DECCâs standards.
German standards have been used by NESPAK for comparison
which are one of the most stringent available standards.
VIBRATION EFFECTS OF CONSTRUCTION ACTIVITIES:
a)
The vibration effects of the construction equipment are
estimated based on the CALTRANâs method. This seems
to be adequate and it can be assumed that the maximum
allowable values are the same as analyzed before for the
operation phase according to the DIN 4150-3 standard.
The reports state that the vibration levels at underground
critical sites are within the allowable limits, which is correct.
b)
The vibration levels associated separately to each
equipment have also been received. This can always be
controlled at site by not allowing machines to work
simultaneously near the heritage sites.
CONCLUSIONS:
The NESPAK reports seem to be very serious and complete from
structural point of view. It is relevant with respect to safety and
stability of buildings both during the construction stage and under
train
operation.
The
approach
adopted
by
NESPAK
is
conservative. The NESPAK reports rightly conclude that the levels
obtained by calculation will be within the permissible limits and
there will be no adverse effect on any of these sites. It is
concluded that the reports of NESPAK are compliant with
international codes and standards and the subject studies are
comprehensive and complete with reference to the subject and
the results are correct and within acceptable limits.
Lahore Orange Line Metro Train Project
18
24.
We are not experts in the fields of architectural,
structural or mechanical engineering, and do not claim any expertise
in the field of vibration sciences. We therefore have to rely upon the
reports and opinions of the experts submitted before us. These are
prima facie credible owing to the fact that they have been confirmed
and reconfirmed by independent experts and have by far remained
un-rebutted.
25.
During the course of arguments and on perusal of the
reports, the aspect of visual impairment of heritage sites has also
been highlighted. It has been pointed out that in addition to physical
impairment of protected or special premises, the aspect of visual
impairment of such premises also needs to be factored in. Visual
impairment occurs when the proposed development/installation or
structure blocks the view of the premises or distracts an onlooker
from appreciating the intrinsic beauty of such premises/structure. It
has been argued that in the case of some of the sites, which are
subject matter of these proceedings, there is a possibility of visual
impairment that may have a negative impact on the heritage sites
which are sought to be protected. We would, therefore, keep the
said factor in mind during the course of our discussion.
26.
We
would,
however,
confine
ourselves
to
the
examination of material as well as dealing with the arguments
advanced by the learned counsels for the parties regarding three
major aspects of the case namely, the construction phase, the
operational phase and the aspect of visual impairment in the light of
opinions of experts in their respective fields.
Lahore Orange Line Metro Train Project
19
27.
As far as the construction phase of the OLMT Project is
concerned, the learned counsel for the appellants have pointed out
that other than the 11 sites regarding which a restraining order had
been issued by the High Court, a major part of the construction work
on the Project has already been completed. This statement has not
seriously been contested by the Respondents. This is also evident
from the photographs placed on record and the real time footage
seen by us. Further, there is no evidence of any damage caused to
any building in the vicinity of the line on account of the construction
work done so far. We have been informed that 8250 holes were to
be excavated/drilled along the 25.4 kilometers elevated track. Out of
these 8028 holes have already been drilled / excavated / capped/
filled. A large number of holes falling within 200 feet of the
monuments/premises (subject matter of these appeals) had also
been drilled before the High Court issued a restraining order. These
include 74 out of 164 holes within 200 feet of Shalamar Garden; 39
out of 39 within 200 feet of Gulabi Bagh; 30 out of 30 within 200 feet
of Budduâs Tomb; 19 out of 48 within 200 feet of Lakshmi Mansion;
43 out of 48 within 200 feet of Chauburji; and 10 out of 45 holes
within 200 feet of Zaibunnisaâs Tomb.
28.
The
learned
Advocate
General,
Punjab,
has
categorically stated that no damage of any nature has been caused
to any building on either side of 25.4 kilometers elevated track
including the 5 protected and one special premises, as a result of
the completed excavation/ drilling/ filling/capping work. This
categoric statement has neither been contested nor denied by the
Respondent at any stage.
Lahore Orange Line Metro Train Project
20
29.
With regard to the cut and cover portion of the track, we
have been informed that 3693 holes are to be excavated/drilled
along the 1.7 kilometers underground track. Each of these holes has
a diameter of 0.76 meters i.e. substantially less than 1.20 meters
diameter of the holes in the elevated portion. All the excavations are
to be undertaken on the road surface i.e. inside the footpaths on
either side of the road using highly sophisticated drilling equipment
that creates minimal vibration. 1862 holes have already been drilled/
excavated/ filled/concretized and tunnels excavated on either end of
the 1.7 kilometers cut and cover length. No damage has so far been
caused or reported to any building or structure on either side of the
roads on which these 1862 piles have been completed and tunnels
excavated/capped. This statement of the learned Advocate General,
Punjab too has remained unrebutted.
30.
From the material placed before us, which is based on
verified data (not seriously contested by the Respondents), it is clear
and obvious that so far despite full fledged construction activity no
damage has been caused to any building / premises along the entire
route of the OLMT Project. The Respondents did produce some
photographs showing cracks in the wall of GPO and displacement of
some bricks at Chauburji. However, on closer examination and
seeking further information from the concerned quarters, it transpired
that such damage had occurred on account of age of the building,
normal wear and tear because of natural causes, environmental
factors, seismic activity and earthquakes, etc which had occurred in
the past, much before commencement of the OLMT Project. These
had no nexus or connection with the construction activity relating to
the said Project.
Lahore Orange Line Metro Train Project
21
31.
It may be appreciated that most of the protected and
special premises are located in the midst of heavily populated areas
surrounded by dense, haphazard, unplanned and unregulated,
commercial and residential construction. Roads have been
constructed in close proximity to these sites on which heavy
vehicular traffic including heavily loaded trucks, trailers, buses and
other transport vehicles ply throughout the year round the clock. This
activity has gone on for decades. Such traffic creates much higher
levels of vibration compared to the level of vibrations expected to be
created during the construction and operational phases of the OLMT
Project. However, no significant damage to any of the heritage sites
has been attributed to vibrations emanating from heavy vehicular
traffic on these roads.
32.
It is common knowledge that ancient buildings suffer
damage and decay on account of passage of time, elements of
nature, extremities of weather, environmental factors, seismic
activity and earthquakes, etc. These cannot be preserved indefinitely
unless serious and planned effort is made to constantly repair,
maintain, renovate, restore and reconstruct the damaged portions. It
is indeed unfortunate that very little serious effort has so far been
made to implement and enforce measures to protect, preserve,
repair and restore such sites. The matter came to fore and was
highlighted
once construction work
on the OLMT
Project
commenced.
33.
We are constrained to observe that serious efforts need
to be made by the concerned departments and agencies to
preserve, conserve, restore and protect heritage sites and where
Lahore Orange Line Metro Train Project
22
necessary, renovate, not only the sites which are the subject matter
of these proceedings but all other sites of historic significance on a
continual basis. This can be done by employing experts in their
respective fields and allocating the requisite funds generously to
finance such projects on long term basis. In this regard, we would
issue appropriate directions to the concerned authorities in the later
part of this judgment. Suffice it to say at this stage that, on our query,
the learned Advocate General, Punjab under instructions, gave an
undertaking that a sum of Rupees One Hundred Million would
immediately be allocated to the Archaeology Department for the
upkeep/maintenance and renovation of the sites which are subject
matter of the present litigation.
34.
Perusal of the reports submitted by NESPAK and M/s
TYPSA â Asia which uses German âDINâ and US âCaltranâ
standards as benchmarks of acceptable levels of vibrations for old
buildings / monuments / structures, with reference to the levels of
vibration expected to be generated during the construction as well
as operational phases of the OLMT Project indicates that the
projected vibration levels expected to emanate during the
construction
and
operation
phases
would
remain
within
internationally acceptable limits. These levels, according to expert
opinions placed before us are highly unlikely to cause any damage
or deterioration to the protected and special premises. However, in
our view a cautious approach has to be adopted. It has been stated
that different pieces of equipment produce different levels of
vibration and if various machines are used simultaneously during the
construction phase, the aggregate levels of vibration may exceed
acceptable limits. We have specifically confronted the learned
Lahore Orange Line Metro Train Project
23
counsel for the Respondents as well as the learned Advocate
General, Punjab with this observation of the experts. They have, on
instructions and in consultation with their engineering experts(some
of whom were present in Court), categorically stated that it would be
ensured that one piece of equipment is used at any given time while
undertaking work in the vicinity of the protected and special
premises in question. If more than one item of equipment is required
to be used, the aggregate levels of vibration shall not be allowed to
exceed the acceptable limits as provided in the afore-noted
international standards.
35.
It has also been undertaken that technical experts shall
constantly be present at the sites when work is undertaken in the
vicinity of protected and special premises and all necessary
equipment for the purpose of monitoring the levels of vibration, shall
be made available to them. It has further been undertaken that if the
experts point out any possibility or likelihood of vibration levels
exceeding acceptable limits, or any damage being caused to any
protected or special premises, on account of the construction
activity, work shall immediately be stopped till such time that all
necessary remedial measures have been taken to the satisfaction of
the experts to ensure that vibration levels remain within permissible
limits, and no such damage is caused to any protected or special
premises on this score. Further, work shall commence only after
experts have given written clearance for resumption. In this view of
the matter, we have no reason to disbelieve or doubt the intention of
the appellants and their bona fides to undertake work on the Project
without taking undue risk of causing damage or deterioration to a
protected or special premises.
Lahore Orange Line Metro Train Project
24
36.
The learned counsel for the Respondents were
repeatedly asked to place on record any material showing that the
reports of NESPAK, Dr. Uppal or TYPSA were incorrect, erroneous
or unworthy of reliance. However, other than making generalized
submissions based on apprehensions they were unable to place any
credible material on record to discredit the said reports. We notice
that the High Court also discarded two of these reports without
examining their veracity or merit on the basis of a misconceived and
imaginary notion of bias and partiality on the part of NESPAK, Dr.
Uppal and Dr. Rogers. We are at a loss to understand how the
reports of credible professionals could so lightly be discarded and
brushed aside, without an in-depth comparative analysis with
independent technical reports to be submitted by the Respondents,
which were never submitted. Simply on the allegation that NESPAK,
Dr. Uppal and Dr. Rogers had undertaken projects for the
Respondents in the past and were therefore partial and biased, the
High Court not only discarded the reports casting unjustified doubts
about the independence and integrity of the experts but also
proceeded to throw out conditional permission letters issued by
authorities competent under the law to do so after due deliberation
and application of mind to all relevant material. Likewise, the High
Court tossed out the revised conditional permission letters issued by
the Director General, Archaeology committee set up for the said
purpose who were competent to do so, in an offhand, ungracious
and dismissive manner without assigning any valid justification and
legally sustainable reasoning. It lost sight of the fact that the revised
permission letters were issued after examination of all technical data
and reports of experts and imposed stringent conditions and
Lahore Orange Line Metro Train Project
25
incorporated adequate safeguards to address most of the genuine
concerns of the Respondents. Unfortunately, these aspects were not
even considered let alone discussed and deliberated upon. We are
unable to understand why and how the High Court could discard the
opinions of experts and persons mandated by law to take decisions
based on such opinions, arrogate such powers to itself and proceed
to substitute unchallenged and unrebutted technical opinions of
experts with those of its own despite complete lack of training and
expertise in the fields of structural engineering and vibration
sciences. In our opinion, the High Court erred in law and quite
obviously exceeded its jurisdiction in doing so, without assigning
valid, cogent, sound and legally sustainable reasons. We are
therefore, unfortunately, unable to agree with or uphold the findings
of the learned High Court in this regard.
37.
As far as the operational phase of the Project is
concerned, even the learned counsel for the Respondents have
candidly conceded that the vibration levels would be considerably
lower than those expected during the operational phase. The
experts have also opined that there is hardly any foreseeable danger
of occurrence of any damage to the protected or special premises on
account of operation of the trains in question, provided all necessary
remedial and mitigating measures suggested by them are adopted
and put in place. We have further been informed that although the
maximum design speed of the train is 80 kilometers per hour, the
train would actually operate at an average speed of 34.8 kilometers
per hour which would also vary (on the lower side) on account of
location of 28 stations (more or less one station every one kilometer)
on the route of the OLMT Project covering a distance of 27.1
Lahore Orange Line Metro Train Project
26
kilometers. However, as a matter of abundant caution, we direct and
the appellants have undertaken to operate the train on experimental
basis for at least two weeks to test, monitor and ensure that
vibrations occurring on account of operation of the trains are well
within acceptable limits. It has also been undertaken that in case
levels of vibrations emanating from running of the trains exceed
acceptable limits, operations shall immediately be discontinued and
all necessary remedial measures will be taken to ensure that
vibrations are brought down to acceptable limits. Under no
circumstances shall the train be operated where its operation may
possibly cause damage to the protected or special premises. In this
context, we also direct that sophisticated and state of the art
vibration measuring and monitoring equipment be installed at
suitable places in or around the protected and special premises to
constantly monitor the levels of vibration created by operation of the
train. Further, the Archaeology Department shall constitute special
teams consisting of qualified experts which will periodically inspect
all protected and special premises to detect any damage or
deterioration occurring at the sites for any reason. They shall
maintain proper records and logbooks for the said purpose. They
shall bring all necessary facts relating to the condition of the
antiquities and special premises to the notice of the Director
General, Archaeology who will take all steps necessary to ensure
safety and long term preservation of the buildings and structures in
question.
38.
We have also been informed that all requisite
information and data relating to the operational phase was verified
through state of the art systems using XIA. H. Zang methodology
Lahore Orange Line Metro Train Project
27
and alignment analysis was conducted by Finite Element Analysis
(FEA). The results which were based on actual verified data show
that the vibration levels likely to occur at the operational stage would
remain well below internationally acceptable limits. Despite
supportive opinions of experts and as a matter of abundant caution,
we also direct that the citizens and community may also be involved
in the monitoring process; a hotline may be established, telephone
number whereof shall be prominently displayed in public areas
around all antiquities and special premises. Tourists, visitors and
members of the community should be encouraged to report any
damage or deterioration observed in the protected or special
premises for any reason to the competent authorities. If any such
information is received, the same shall be investigated by a team of
experts appointed by the Director General, Archaeology within 15
days of such information being reported. The team shall suggest
ways and means to repair/restore any damage or deterioration that
may have occurred to any antiquity or protected premises for any
reason. On recommendations being received, the Archaeology
Department shall commence repair/renovation work without any
delay and the requisite funds shall be made available by the
concerned quarters within 30 days of a request being made.
39.
As far as the question of visual impairment is
concerned, we note that all protected and special premises are
located in heavily populated areas of the city. Unplanned localities
and townships have sprung up around and in close proximity to such
buildings. Construction has been undertaken haphazardly and
without any sort of planning or regulation which has seriously
compromised the visual integrity of most of the protected and special
Lahore Orange Line Metro Train Project
28
premises. The report submitted by Dr. Rogers suggests remedial
measures. These appear to be effective and practical and must be
implemented. In a later part of this judgment, we would pass
appropriate directions in this regard.
40.
We have also been informed that a buffer Zone was
proposed around Shalamar Garden many years ago. It was
recommended that encroachments in the Zone be removed and it be
converted into a green area with proper landscaping to restore and
enhance the grandeur, glory and beauty of the Garden. The said
recommendations have been lying in cold storage and become
victims of procrastination and red tapism. We direct that positive
steps may be taken to implement the said recommendations as far
as practicable within a reasonable timeframe.
41.
The Respondents have primarily raised objections
relating to the visual impairment of two sites namely Shalamar
Garden and Chauburji. As far as Chauburji is concerned, we have
found that some visual impairment many occur because of the
alignment of the viaduct which passes at a short distance from the
structure. We have carefully examined the possibility of directing
alteration of the alignment of the viaduct or directing that the said
portion be constructed underground. However, we have been
informed by experts (which information has not been rebutted) that
realignment is not possible for a host of technical reasons in addition
to the fact that the area is densely populated with private properties.
Any realignment would entail considerable human cost in the form of
large scale cause displacement of families, in addition to prohibitive
increase in the cost of the Project. The idea of an underground
Lahore Orange Line Metro Train Project
29
tunnel though attractive at first glance is fraught with technical
difficulties including the fact that underground streams carrying
waste water from various localities of Lahore pass under the
proposed alignment. It would therefore be almost impossible to
construct an underground tunnel with the available technical and
financial resources. There is no other feasible option except to rely
on remedial and mitigating measures suggested by Dr. Rogers in
her report. We accordingly order that all such measures and steps
recommended by her be implemented in letter and spirit.
42.
As far as the visual impairment of Shalamar Garden is
concerned, we note that there is no significant visual impairment of
the said location. This is in view of the fact that the Garden is
surrounded by clusters of residential and commercial buildings of all
shapes and sizes as well as busy roads. A densely populated
township has developed on three sides of the Garden. A busy dual
carriage way (GT Road) runs on the fourth side. However,
fortunately the Garden has high walls around it. A person standing in
the street cannot see inside the Garden from the street level. As
such, there is no question of any visual impairment. A person
walking in the Garden may possibly be able to see glimpses of the
viaduct or the train from certain points. This aspect does not stricto
sensu constitute visual impairment. However, even this issue can
adequately and effectively be addressed by adopting remedial and
mitigating measures recommended by experts.
43.
The learned counsel for the Respondents have
vehemently argued that the viaduct passes over/at a very close
distance from the Hydraulic Tank of Shalamar Garden which is
Lahore Orange Line Metro Train Project
30
situated outside the Garden. We have carefully gone through the
photographs as well as the structural sketches submitted by both
parties. We find that the hydraulic tank is in a state of total disrepair
and has undergone considerable deterioration. We have been
assured that there is no likelihood of any further damage to the said
hydraulic tank by reason of construction of some piers supporting
the viaduct, close to it. We would however direct the Archaeology
Department as well as the Government of Punjab to ensure that the
hydraulic tank is repaired/restored as far as possible to its original
position. Such further steps may also be taken, as may be
necessary, so that further deterioration or damage is not caused to
the structure of hydraulic tanks.
44.
In addition to Shalamar Garden, we notice that the
elevated track of OLMT passes near some other sites which are
subject matter of these proceedings. All these sites exist on
thoroughfares and are surrounded (at in some cases hidden) by
heavy urban development. None of these sites has a visual
landscape integrity. Therefore, the visual impact of construction of
the elevated track will be of no material consequence for the
purpose of visual landscape obstruction of such sites.
45.
The learned counsel for the Respondents were
vehement in their assertion that UNESCO had threatened to remove
Shalamar Garden from the list of World Heritage sites, unless work
on the OLMT Project was immediately stopped. However, the
decisions adopted in the 41st Committee Meeting which are available
on the website of UNESCO do not support the claim of learned
counsel for the Respondents. The emphasis of UNESCO World
Lahore Orange Line Metro Train Project
31
Heritage Committee appears to be on control and monitoring of
urban encroachments and to discuss measures relating to
management and protection arrangements of the Garden. It has
nowhere been stated that the Garden will be removed from the list of
World Heritage sites if the Project goes ahead. However,
considering that Shalamar Garden features in the list of world
heritage sites, we direct that every possible effort be made to meet
the recommendations of UNESCO by way of taking mitigating and
remedial measures. Further, the Appellants in collaboration with
UNESCO shall adopt all practicable measures to control and monitor
urban encroachments and explore the possibility of creating a buffer
zone by coordinating efforts of all concerned departments.
46.
It has also been pointed out to us that the OLMT Project
will actually improve accessibility to antiquities and special premises
for local as well as international tourists. This is in view of the fact
that the roads leading to such sites are highly congested making the
commute from most parts of the city, time consuming, cumbersome
and difficult. Further, the views from elevated vantage points are
likely to attract and encourage tourists to visit the sites and
appreciate their historic value.
47.
We have been informed that Lahore is one of the few
cities in the world with population in excess of 10 million which do
not have a mass transit train system. London developed its first
metro system in 1843. More than 150 cities of various sizes all over
the world have had rapid transit train systems for decades. In scores
of cities in Asia, Africa and Latin America, such systems are
currently under construction. The citizens of Lahore also deserve an
Lahore Orange Line Metro Train Project
32
efficient, affordable and environmentally friendly mass transit system
to cater for their current and future transportation needs. Even the
Respondents admit that a mass transit system is the only viable
solution to address the issue of traffic congestion on the roads and
absence of adequate and affordable transport facilities for the rapidly
increasing population of Lahore. It has been submitted by the
Respondents that they do not oppose the Project. Their objection is
limited to the mode and manner in which it is being implemented
near some of the sites mentioned above.
48.
All over the world, where heritage sites are located
within cities, the development of the cities is planned in a manner so
as to maintain a balance between infrastructural development while
retaining/preserving and maintaining the heritage sites. This is often
a difficult balance to maintain, but a number of cities all over the
world have successfully managed to do so. London, Rome, Istanbul,
Beijing, Delhi, Jaipur, etc are but a few examples. We have no
reason to believe that this cannot be done in Lahore. There can be
no two views about the importance of our historical and heritage
sites and the need to preserve and protect them and to safely pass
them on to the future generations. But the same need not be at the
cost of depriving the citizens of Lahore of an efficient, reliable,
dependable and modern mass transit system and to force them to
live with an outdated, overstrained, inefficient and expensive system
which in addition to all its faults is badly polluting the city pushing air
pollution to levels, many times the safe and internationally
acceptable limits. Preservation and development are not mutually
exclusive and can go side by side complementing each other as has
successfully been accomplished in many cities of the world. All it
Lahore Orange Line Metro Train Project
33
requires is proper planning and efficient implementation. We,
therefore, direct the Government of the Punjab to ensure that every
possible effort is made to create and maintain such balance. Further,
we direct that in future if any project of this nature is to be
undertaken, the Project must be widely publicized through the print
and electronic media at least six months prior to the proposed date
of commencement. Public hearings should be held and the citizens
must
be
allowed
to
express
their
views.
All
requisite
permissions/approvals, licenses and NOCs etc must be obtained
from the concerned departments/agencies before actual work on the
Project is commenced so that all those who wish to raise objections
have adequate time and sufficient information to approach the
competent fora in case they have genuine objections.
49.
We have repeatedly asked the learned counsels for the
Respondents, if they have an alternative workable plan. The only
suggestions they could come up with involved either realignment of
the route or constructing the line underground for the portion where
it passes near the sites in question. This would entail an
underground portion of about 6.9 kilometers and an astronomical
increase in the cost of the Project. Both proposals are neither
financially feasible nor practically workable and would require re-
planning and realignment of the routes and revision of the entire
mass transit policy for Lahore which envisages a mass transit project
described above which has taken years of planning, data collection
and designing. The proposals put forth by the Respondents would
disrupt and throw into disarray the entire master plan which has
been prepared by international experts in the field of mass transit
projects a part of which (Green Line) has already been completed
Lahore Orange Line Metro Train Project
34
and is presently operational. No valid reason has been pleaded that
may persuade us to take such drastic an action. In the facts and
circumstances of the present case, it was even otherwise beyond
the jurisdictional domain of the High Court in exercise of its powers
under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 to delve into highly technical and purely policy issues which
were better left to be dealt with by experts having relevant
knowledge, training and expertise in their respective fields and the
competent authorities authorized and empowered by law to do so.
Reference may usefully be made to Dossani Travels Pvt. Ltd. v.
Travels Shop Pvt. Ltd (PLD 2014 Supreme Court 1).
50.
We have carefully gone through the reports submitted
by NESPAK, Dr. Uppal, Dr. Rogers, M/s TYPSA âAsia and Dr.
Cunningham and noticed that the Respondents have not placed on
record any authentic technical data / analysis that may reflect
negatively on or rebut the accuracy of the reports, opinions and the
conclusions drawn by various experts from the data and information
made available to them. We are, therefore of the opinion that the
conditions imposed and mitigating and remedial measures
suggested by the experts if implemented in letter and spirit would
adequately
address
the
apprehensions
expressed
by
the
Respondents.
We,
accordingly,
endorse
and
approve
the
NOCs/permission letters issued by the competent authorities and the
recommendations of experts relating to execution, mitigation and
remedial measures required to be adopted by the executing agency
and allow the Project to proceed subject to the following conditions
and directions: -
Lahore Orange Line Metro Train Project
35
i)
The appellant shall make all necessary arrangements
to ensure that the monuments remain stable and
undamaged in all respects during the execution of the
Project as specified in the HIA and Study of Control of
Vibration, Noise and Foundation;
ii)
Vibration monitoring shall be undertaken as a part of
the monitoring plan using the crack measure devices
such as Avongard Standard Tell-Tale throughout the
construction period and for an additional period of 10
weeks
from
the
date
of
commencement
of
commercial operation of the train or such further time
as may be directed by the Director General,
Archaeology. In case, it is found that vibration levels
at any stage of the construction or operation are
exceeding safe limits, construction work / operation
shall immediately be discontinued and remedial action
shall be taken to ensure that such levels are brought
down to acceptable limits. Such actions may inter alia
include use of one piece of equipment at a time,
during the construction phase, adjustment of train
speed, addition of buffers and such other remedial
and mitigating measures as may be recommended by
the experts;
iii)
Technical experts shall be present at the sites during
the construction phase in the vicinity of the antiquities
and special premises with all necessary equipment for
monitoring vibration levels. In case, vibration levels
exceed the acceptable limits, work shall immediately
be stopped, remedial measures taken to the
satisfaction of experts and further work shall not
commence unless written clearance for resumption of
work is given by the experts;
iv)
An
independent and experienced Conservation
Engineer shall be appointed to monitor the Project,
both during the construction and operation phases.
He shall submit monthly reports to the Advisory
Committee
which
shall
make
such
further
recommendations
to
the
Director
General,
Archaeology as may be required to ensure that the
Lahore Orange Line Metro Train Project
36
Project as a whole is meeting all technical
requirements
meant
to
preserve,
protect
and
conserve the antiquities or protected premises;
v)
On completion of the project, the train shall be
operated on experimental basis for at least 2 weeks
on the entire length of the route and the vibration
levels shall be monitored to ensure that the same are
within the acceptable limits. Commercial operation
shall not commence unless written clearance is given
by the experts confirming that vibration levels have
consistently been found to be within acceptable limits;
vi)
The speed of the Train shall be reduced while passing
near the monuments as recommended by the
Directorate General of Archaeology from time to time
on the basis of data made available to it;
vii)
State of the art vibration measuring equipments shall
permanently be installed at suitable places in and
around the antiquities and special premises to monitor
levels of vibration created by operation of the train.
Records of the same shall be maintained and
regularly checked by a responsible officer deputed to
do so;
viii)
Special teams consisting of qualified experts will be
set up which will periodically inspect all antiquities and
special
premises
to
detect
any
damage
or
deterioration at the sites. Proper records and
logbooks shall be maintained for this purpose;
ix)
Any damage or deterioration shall be reported to the
Director General, Archaeology in writing who shall
take remedial steps necessary to ensure safety of the
buildings and structures;
x)
Recommendations
of
the
Advisory
Committee
(already set up) shall be placed before the Directorate
General of Archaeology, who shall take necessary
steps to ensure that the same are complied with in
letter
and
spirit
by
all
concerned
agencies,
contractors, sub-contractors and operators;
Lahore Orange Line Metro Train Project
37
xi)
Where excavation is necessary it shall be carried out
in a way that it would not affect any structure or
foundation of the antiquities or special premises.
Where necessary special arrangements shall be
made to stabilize and strengthen the structure of the
antiquities and special premises. All necessary safety
arrangements shall be made in accordance with the
best
engineering
expertise
during
excavation,
construction and execution phases of the Project;
xii)
The executing agency shall install accelerometers,
velocity transducers, noise detectors and vibration
measuring equipment near the antiquities and special
premises. The appellant shall ensure implementation
of additional mitigation and remedial measures as
mentioned in vibration analysis report by NESPAK,
Heritage Impact Assessment (HIA) as well as in the
reports submitted by Dr. Uppal and Dr. Rogers;
xiii)
Excavation would be carried out in a way that would
not affect any of the exposed or buried structure of
the Special Premises;
xiv)
In case of any adverse impact to the antiquities or
special premises during excavation, construction or
execution, the appellant and all other related agencies
shall immediately and forthwith stop and discontinue
further work, take all possible actions to protect and
conserve the antiquities and special premises and in
this regard, involve such experts and consultants as
may be necessary to ensure that the causes and
effects of the adverse impact are effectively removed;
xv)
A dedicated hotline shall be set up, telephone
numbers whereof shall be prominently displayed in
public areas around all antiquities and special
premises for reporting damage or deterioration
observed by members of the public or tourists;
xvi)
In case, any information/report is received by the
Director General, Archaeology the same shall be
investigated within 7 days and after receiving
Lahore Orange Line Metro Train Project
38
recommendations (if any) from experts repair/
renovation work shall be commenced within 30 days;
xvii)
No
building
material
or
equipment
shall
be
stored/stockpiled
within
protected
area
of
the
monuments;
xviii) No change shall be made in the alignment of the track
which brings any part of it nearer to the monuments
than the distances set out hereinabove;
xix)
Dust pollution during construction shall be controlled
through extensive sprinkling of water on regular basis
and taking such other steps including but not limited
to covering the monuments with protective sheets in
order to avoid any damage from dust;
xx)
The design of the viaduct and nearby stations in
terms of colour and designing shall be in harmony
with the setting and appearance of the monuments;
xxi)
The Hydraulic Tank of Shalamar Garden shall be
restored, as far as possible, to its original position and
the surrounding area will be converted into a green
area;
xxii)
Structures on the southern side of the Shalamar
Garden shall be camouflaged through construction of
a wall in consultation with the Directorate General of
Archaeology. All practicable efforts shall be made to
create a buffer Zone around Shalamar Garden as per
proposal already pending in the Directorate General
of Archaeology and other competent forums;
xxiii) The decorative motifs of Shalamar Garden would be
replicated on the train station near the Shalamar
Garden to create harmony with the Garden;
xxiv) The tile mosaic motifs of the Gulabi Bagh Gateway
would be replicated on the nearby station of the
Gateway to create harmony with the historic Gateway;
xxv)
The area around the Chauburji Gateway would be
properly attended and developed into a greenbelt;
Lahore Orange Line Metro Train Project
39
xxvi) The decorative motifs of the Chauburji Gateway
would be replicated on the nearby station of the
Chauburji Gateway to create a harmony with the
historic Gateway;
xxvii) The area around the Zaib-un-Nisaâs Tomb would be
properly attended and developed;
xxviii) The decorative motifs of the Zaib-un-Nisaâs Tomb
would be replicated on the nearby station of the Zaib-
un-Nisaâs Tomb to create harmony with the historic;
xxix) The Respondents shall in consultation with UNESCO
and other international agencies prepare phase-wise
plan to control and monitor urban encroachments and
the process of creating buffer zone around the
Shalamar garden;
xxx)
All future projects which directly, indirectly and
incidentally involve antiquities or heritage sites shall in
the first instance be widely publicized through print
and electronic media at least 6 months prior to
proposed date of commencement of the project and
public hearings shall be conducted to hear objections,
if any against such project; and
xxxi) For all future projects, NOCs, licences, approvals and
permissions as required by law shall be obtained
before work on the project site is commenced.
51.
In addition to the above, we direct the Government of
Punjab within a period of 30 days from the date of this judgment to
take the following steps:-
a) Set up an Antiquity and Special Premises Fund with the
sum of Rupees One Hundred Million which shall be
dedicated to monitoring, renovation and reconstruction
work of 11 protected and special premises mentioned
hereinabove. It shall be a revolving fund and shall be
replenished on yearly basis. It shall be utilized firstly for
the
maintenance,
preservation,
restoration
and
renovation work of the protected and Special Premises,
Lahore Orange Line Metro Train Project
40
subject matter of this lis and thereafter on other
Antiquities and Special Premises situated in Lahore as
may be recommended by the special Committee of
Experts constituted under this Judgment;
b) A broad based Special Committee of Experts consisting
of Director General, Archeology Department; a Professor
of the Department of Archeology, University of the
Punjab; Head of Department of Structural Engineering,
University of Engineering and Technology, Lahore; a
Senior Professor nominated by the Chairman of Board of
Directors of National College of Arts; chaired by a retired
Judge of this Court nominated by the Chief Justice of
Pakistan
shall
be
notified
which
shall
oversee
implementation of the judgment of this Court and the
directions issued herein. This Committee shall also make
such further recommendations to the Chief Minister
Punjab to undertake such measures as may be
necessary to implement and enforce the directions and
recommendations made in this judgment. The tenure of
the Committee shall be one year from the date of its
notification;
c) The Government of Punjab shall retain the services of at
least three Experts having expertise in the field of
archeology
and
renovation,
preservation
and
maintenance of antiquities and special premises. One of
the experts shall be a person having expertise in
structural engineering. All three experts will work as a
Technical Committee with tenure of one year. The
Technical Committee shall report to advise and assist the
aforesaid Special Committee of Experts. The Committee
shall, if required and with the approval of Director
General, Archeology retain services of such other experts
as it may consider necessary to undertake its work more
effectively regarding the steps required to be taken to
monitor the protected and Special Premises all over
Lahore and suggest remedial measures that may be
necessary to ensure the safety of all protected and
special premises in Lahore; and
Lahore Orange Line Metro Train Project
41
d) We also emphasize the fact that the present condition of
the protected and special premises calls for major
preservation, renovation, reconstruction and repair work.
The Government of Punjab shall take immediate steps
and we have been assured by learned Advocate
General, Punjab that such steps shall immediately be
taken to start repair and renovation work for which the
requisite funds will be made available within thirty days
from the date of this judgment.
52.
In view of the foregoing discussion, the Impugned
Judgment of the Lahore High Court is set aside and the instant
appeals are allowed in terms noted above. Civil Petition No.3101-L
of 2016 is unanimously dismissed and Leave to Appeal is refused.
53.
Before parting with this judgment, we would like to
record our appreciation for valuable assistance rendered by learned
counsel for the Appellants namely; Mr. Shahid Hamid, Sr.ASC, Mr.
Makhdoom Ali Khan, Sr.ASC, Kh. Haris Ahmed, Sr.ASC, and Mr.
Shakeel-ur-Rehman, learned Advocate General, Punjab and Ms.
Asma Jehangir, Sr.ASC and Kh. Ahmed Hussain, ASC for the
Respondents alongwith their respective teams. We would also like to
acknowledge and commend the hard work assistance and backup
provided by the Law Clerks of members of the Bench.
Judge
Judge
Judge
Judge
Judge
Announced in open Court
On 08.12.2017 at Islamabad.
Judge
APPROVED FOR REPORTING
Lahore Orange Line Metro Train Project
42
EJAZ AFZAL KHAN,J.-Every thickly populated city like
Lahore needs a Mass Transit System. The system already in place
with rapidly growing population has become inadequate. A project
of this type could have been conceived at least two decades ago.
But the people at the helm could not appreciate its importance.
They realized to pay heed to it when the water was to go above
their heads. It is never too late to mend is an adage which could
console even the late starter. Since the things do not remain static
and stationary, the problems the late starters face become greater
in magnitude. They, thus, have to mend fences according to the
situation which has changed a great deal. Had this project been
launched twenty years ago it would not have harmed anything of
significance because there was sufficient space all around. Take for
instance the ShalimarGarden. In the seventies of the twentieth
century it was the sole monument in the area having nothing
around it. But today it is surrounded by buildings on almost all the
sides. Whatever setup we may have today and whatever odds we
may come across, the project of the Orange Line Metro Train
(OLMT) which is a dire need of the people living in Lahorehas to be
launched and completed.The main issue we are confronted with is
the preservation of the heritage sites (Antiquities and Special
Premises). If the establishment of the Mass Transit System is
indispensable so is the preservation of the heritage sites. What perils
does this project purportedly bring to the heritage sites could be
summed up as under:
1) Visual impairment of the sites and
2) Damage to the building structure of the heritage sites by
vibration during the phase of construction and that of
operation.
Lahore Orange Line Metro Train Project
43
Before examining the aforesaid aspects, we have to consider the
present state and surrounding of each of the heritage sites.
2.
The first heritage site in the sequence is Shalimar
Garden. It is surrounded by densely constructed houses on three
and a dualcarriageway, on the fourth side, which is frequented by
heavy vehicular traffic. The proposed railway track is being
constructed in the mid of the said dual carriageway. The proposed
construction does not cause any visual impairment of the site
because the Garden is walled on all the fours. A pedestrian walking
on one or another side of the road cannot see anything inside the
Garden. Vibration caused by the operation of the train does not
pose any threat to the Garden when there is a considerable
distance between the walls of the Garden and the railway track.
Hydraulic tank is also a part of the heritage site.But it is not likely to
be damaged by the proposed construction of the railway track as
none of the piers for the track has been raised in the area where
the tank lies.
3.
The next heritage site is Gulabi Baghâs Gateway. Its left,
right and back are covered by double-story buildings, whereas,
front is flanked by a dual carriageway. Railway track is being
constructed in the middle of the road which has least impact on
the site. If the buildings on its left, right and back have done little to
damage it, the railway track too would do little to damage its
viability. Vibration caused by the train could be said to pose a
threat to the heritage site but when the one caused by the
vehicular traffic despite being of much greater magnitude has not
posed any, there is absolutely no occasion for being paranoid
about the vibration caused by the train. There are cracks in the
dome and the crown of the arches but in any case the structure
Lahore Orange Line Metro Train Project
44
has not reached an edge where it could be declared dangerous
as per report of Dr. Ayesha Pamela Rogers. Even if it be so, the
benchmark could not be the fast dilapidating state of the building
but the one which isrestored on its being repaired and revamped.
In case it is left in the present state, tomorrow even a violent gust of
wind could cause its collapse. Measures to protect the site have to
be taken in any case. The proposed railway track, in this context, is
not a threat to the existence of the site. NESPAK and TYPSA, too, do
not see any threat to the site on account of the construction of the
track and operation of the train. Safeguards provided by law and
highlighted in the report of Professor Coninghamhave also been
taken care of in the NOC issued by the Director-General of
Archaeology, Government of Punjab. Visual impairment is the only
problem to be attended to but the fact is that the space left at the
moment across the site does not cause any visual impairment as
the pedestrians walking on one or another side of the road could
well see the façade of the garden. In this situation, we cannot
pursue the ideal or what ought to have been. We have to preserve
whatever can possibly be preserved. We, thus, do not see anything
as could hinder or hamper a âgo-aheadâ signal to the proposed
construction of the railway track as far as this site is concerned.
4.
Buddhuâs tomb is another impediment so-called in the
construction of the railway track. It is also situated alongside the
dualcarriageway. The part of the railway track near the site is
resting on fourpiers raised on the strip in between the dual
carriageway. Vibration caused by the operation of the train cannot
affect much less adversely the fabric of the site and structure of
what is built therein. This is not an opinion based on guesswork. This is
an opinion based on deduction. The basis for that said deduction is
Lahore Orange Line Metro Train Project
45
that the vibration caused by the heavy vehicular traffic which, thus
far, did not cause even a crack in any part of the structure on the
site. What is strange and even surprising is that disaster on account
of vibration caused to the site by the operation of train has been
visualized without comparing the vibration caused by the vehicular
traffic which appears to be of much greater magnitude. The
proposed and partially completed Mass Transit System cannot be
obstructed on the basis of assumptions which have no concrete
foundations. The piers already raised in between the dual
carriageway do not obstruct the vision of pedestrians walking on
either side of the road.
5.
Having said so, we now pass on to LakshamiBuilding.
This building has been demolished but its façade still stands in its
original position and this is what is sought to be protected and
preserved. Construction of the railway track does not meddle, nor
does it compromise the sanctity of its façade for two reasons: the
first is that a road intervenes in between the building and the
railway track, the second is the heavy vehicular traffic plied on the
road whose vibration by no scale of measurement is less than that
of the train. Even visual impairment does not appear to be a
problem as the pedestrians on one or another side of the road
could see the façade of the building. A look at the photographs of
the building and its surroundings shows that piers have been
partially constructed without causing any damage to the façade.
Even otherwise the proposed railway track does not intervene with
the building because of the distance between the two. We have
been just left wondering how the completion of this project is
opposed on the basis of the apprehension which are conjectural.
Lahore Orange Line Metro Train Project
46
6.
We now deal with Chauburji. This site makes a complex
reading. The proposed railway track encroaches upon its
courtyardas the piers have been raised therein but when we
compare the distance between the heritage site and the road and
the distance between the piers and the site, the latter appears to
be far greater than the former. But in any case, the proposed
railway track causes less intrusion and less visual impairment to the
site as compared to the road and vehicular traffic. Known or
conventionally recognized standards of protecting the monuments
cannot be adhered to without realigning the road and the track. If
the road could stay where it stands so could continue the proposed
construction of the track as it too does not cause any harm to the
site.Vibration caused by the train will not cause any damage to the
site when vibration caused by the vehicular traffic did not cause
any so far. Protection of the site in terms of ideal against this
backdrop is just unworkable. We, thus, have to accept it as it is.
7.
Zaib-un-Nisaâs tomb is another heritage site whose
existence is alleged to be jeopardized by the proposed
construction of the railway track, notwithstanding it is far off the
road and has all along been surrounded by double story buildings
on all the sides. How the proposed construction of the railway track
could cause visual impairment and how the vibration of the train
could cause any damage thereto, are the queries begging
answers. It is, therefore, nothing but creating a storm in a tea cup.
Even otherwise, if the heavy construction aroundthe heritage site
and the vehicular traffic plied on the dualcarriageway could not
cause a hairline crack, apprehending any threat to the site from the
proposed construction of the railway track and the operation of the
train would be just chimerical.
Lahore Orange Line Metro Train Project
47
8.
Now we are to see whether the proposed railway track
impinges on the health and existence of the heritage sitesinspite of
the fact that the track is going underground which in the technical
parlance is called cut and cover. The study which has been
undertaken by the experts in this connection led to certain
reservations. These reservations when considered carefully do not
appear to be of a nature as could justify change of site but
observance of certain measures which ensure their protection
against an imagined or actual danger arising out of the operation
of the train. It may, however, be noted that many of the measures
already taken adequatelycater for the reservations. It is,thus, not
the end of the chapter which would end with the construction of
the track and operation of the train. Any measure which is ancillary
and reasonably incidental could still be taken at any time if and
when anything endangering the heritage sites appears or emerges.
Much hue and cry has been raised about the vibration caused by
the operation of the train and its effect on the heritage sites. We
have again been left wondering as to how vibration caused by the
OLMT could damage the wellengineered and well architectured
structure of the sites when much greater vibration caused by
heavier trains of Pakistan Western Railway did not cause even a
crack in the walls of the guard rooms constructed alongside the
barriers of the railway tracks more than hundred years ago.
9.
How do the experts look at the railway track and its
impact on the heritage sites in terms of vibration and visual
impairment? A careful perusal of their opinions would reveal that
each of them has his own angle of vision. Yet their opinions are not
antithetical to each other. They do not see anything in the railway
track as could impinge on the health and existence of the heritage
Lahore Orange Line Metro Train Project
48
sites in any form. Dr. Ayesha Pamela Rogersâ expert opinion would
support the conclusion when she says that the vibration produced
during the construction and operational phase for all sites and sides
will be within the permitted limits. She sees an enemy of the sites in
dust which could be raised during the phase of construction but it
cannot be blown out of proportion when much greater dust is
raised by the heavy vehicular traffic plied on the dualcarriageway
which runs across the sites. She nevertheless suggested ways and
means for the treatment of the problem emerging from the
construction of the railway track and operation of the train which
could well be taken care of. At times her eyes are more focused on
the surrounding than the heritage site as if the site is an angle and
not an object of vision. But it too can be attended to, by
beautifying the surroundings which have been impaired by the
unplanned massive construction. Beautification of the surroundings
at any rate, is a yearning which at no stage becomes unmeaning.
According to NESPAK the vibration will have least impact on the
sites. TYPSA appears to be in agreement with NESPAK. Report of
Professor Coningham focuses more on the imagined violation of
law than the damage to be caused to the heritage sites. His
expertise in the field does not enlighten us much on the technical
aspects of the proposed construction. Report given by Dr.Javed
Uppal expressed satisfaction with the measures already taken and
to be taken to ensure foolproof protection of the heritage sites
against noise and vibration. His report does not suggest the change
of site for the construction of the railway trackbut it has not been
given much weight by the High Court. The reason in this behalf is
not any lapse in his expertise but his supposed bias on account of a
position he held in the government of Punjab a few years ago.
Lahore Orange Line Metro Train Project
49
10.
Let us see how and where does the construction of the
railway track make inroads in the domain of the law protecting the
heritage sites and how and where do the NOCs violate its letter and
spirit? Before we answer these questions, we would like to go
through the relevant provisions of Section 22 of the Antiquities Act
1975:
â22. Execution of development schemes and new
constructions in proximity to immovable antiquity.â
Notwithstanding anything contained in any other
law for the time being in force, no development plan
or scheme or new construction on, or within a
distance of two hundred feet of, a protected
immovable
antiquity
shall
be
undertaken
or
executed except with the approval of the Director
General.â
What does Section 11 of The Punjab Special Premises
Ordinance 1985 envisage in this behalf can well be seen
from the words reproduced as under:
â11. Execution of development schemes and new
constructions in proximity to Special Premises.â No
development plan or scheme or new construction
on, or within a distance of two hundred feet of a
Special Premises shall be undertaken or executed
except with the approval of the Government or a
Committee.â
11.
The provisions reproduced above show that the
legislature provided adequate safeguards for the protection of the
heritage sites in terms of distance between the sites and the
constructions proposed to be raised in their proximity. In case the
Lahore Orange Line Metro Train Project
50
distance provided by the law cannot be adhered to because of
the irreversible developments taking place in the meantime,what
could be the way out to kill the snake and yet save the stick. The
answer provided by the law is an NOC issued by the DG
Archaeology in respect of Antiquities and an NOC by the Special
Committee constituted under the Ordinance in respect of Special
Premises.But in no case it could be accepted asa gospel truth. It
could be changed, modified or revised if the NOC issued for the
proposed construction violates the sanctity of the site. It is not
injusticiable. The High Court and for that matter this Court could
issue an appropriate order, writ or direction if the NOC for the
proposed construction has been issued without safeguarding the
sanctity and integrity of the sites. Let us see how do the NOCs issued
by the competent authority in this behalf deal with the risk to the
Antiquities. NOCs on being read provide the following measures
which are common in all:
âA) No building material or equipment shall be
stored/stocked within the protected area of the
monuments.
B) No change shall be made in the alignment of the
track which brings any part of it nearer to the
monuments than the distances set out in the Report
of the Advisory Committee.
C) Dust pollution during construction shall be
controlled through extensive sprinkling of water on
regular basis.
D) Such further special arrangements shall be made,
as necessary, to keep the monument stable and un-
damaged in all respects during the execution of the
Lahore Orange Line Metro Train Project
51
project as specified in HIA and Study of Control of
Vibrations, Noise and Foundation.
E) The design of the viaduct and nearby station in
terms of colour and reflectivity should be in harmony
with the setting and appearance of the monuments.
F) Vibration monitoring must be undertaken as part
of a Monitoring Plan using the crack measures
devices
such
as
Avogard
Standard
tell-tales
throughout construction period of and for a period
of
10
weeks
after
commencement
of
train
operations and more time period if so directed. If
levels of vibrations exceed safe limits further action
must be taken to bring such levels down such as
adjustment of train speed, additional buffer, etc.,
Visual Inspection of indicators other than cracks shall
also be part of the Monitoring Plans.
G) An independent and experienced Conservation
Engineer must be engaged by the executing
agency, and later by the operating agency, to
monitor the Project both during its construction and
operational phases who shall submit monthly reports
to the Advisory Committee which shall in turn make
such further recommendations as may be required
to the Directorate- General Archaeology. This
monitoring shall be in addition to monitoring by the
technical
staff
of
the
Directorate-
General
Archaeology.
H) The speed of the train shall be reduced while
passing in front of monuments as recommended by
Lahore Orange Line Metro Train Project
52
the Directorate General of Archaeology from time to
time on the basis of the available data.
I) Recommendations of the Advisory Committee shall
be complied by all the involved agencies in letter
and spirit.â
Some of the measures are site specific which read as under:
A) The area around the Hydraulic tank would be properly
attended and developed into green belt.
B) Shabby structures on the southern side of the
Shalamar Garden would be camouflaged through
construction of a wall in consultation of Directorate
General of Archaeology.
C) The decorative motifs of the Shalamar Garden would
be replicated on the nearby station of the Garden to
create a harmony with the historic Garden.
D) The tile mosaic motifs of the Gulabi Bagh Gateway
would be replicated on the nearby station of the
Gateway to create harmony with the historic
Gateway.
E) The area around the Chuburji Gateway would be
properly attended and developed into a green belt.
F) The decorative motifs of the Chuburji Gateway would
be replicated on the nearby station of the Chuburji
Gateway to create a harmony with the historic
Gateway.
G) The area around the Zaib-Un-Nisaâs Tomb would be
properly attended and developed.
H) The decorative motifs of the Zaib-Un Nisaâs Tomb
would be replicated on the nearby station of the Zaib-
Un Nisaâs Tomb to create harmony with the historic
Tomb.
Lahore Orange Line Metro Train Project
53
NOC issued by the competent authority for Special Premises
contained the following conditions:
a. Excavation would be carried out in a way that it
would not affect any of the exposed or buried
structure of the Special Premises.
b. Wherever necessary special arrangement would be
made to stabilize and strengthen the standing
structures of the Special Premises.
c. Area of the Special Premises would not be used for
storing material or parking construction machinery
and
safety
arrangements
shall
be
made
in
accordance with the best engineering practice
during excavation, construction and execution phases
of the project.
d. If any damage occurred to Special Premises the
executing agency will conserve that part from its
resources in consultation with the Directorate General
Archaeology.
e. An independent and experienced Conservative
Engineer shall be engaged by Lahore Development
Authority/ Punjab MasstransitAuthority, to monitor the
Project during excavation, construction and execution
phases who shall submit regular reports to the
Directorate-General Archaeology which shall be
presented to the Committee which may make further
recommendations as may be required. This monitoring
shall be in addition to monitoring by the technical staff
of the Directorate-General Archeology.
f. Excavation would be carried out in a way that it
would not affect any exposed or buried structure of
the Special Premises. Wherever necessary special
Lahore Orange Line Metro Train Project
54
arrangement would be made to stabilize and
strengthen the standing structures of the Special
Premises.
g. The executing agency shall install accelerometers,
velocity transducers and noise detectors nearby the
Special Premises.
h. The
executing
agency
shall
ensure
the
implementation of the additional mitigation measures
as mentioned in vibration analysis Reports of NESPAK
and Heritage Impact Assessment.
i.
In case of any adverse impact to the Special Premises
during excavation, construction and execution phases
of the Project, the executing agency will take all
possible actions to conserve that part from its
resources in consultation and as per advice of the
Directorate General of Archaeology.
j.
In case of any violation of the above-mentioned
conditions during the excavation, construction or
execution phase of the Project this Permission/NOC will
be treated as withdrawn and the executing agency
(LDA) and any other involved agencies shall be dealt
with in accordance with the provisions of the Punjab
Special Premises (Preservation) Ordinance, 1985.
These NOCs cannot be looked askance at when the conditions
provided therein are effective and adequate. Rigid adherence to
the distance provided by law in view of the roads and buildings
already constructed has become practically impossible. It,
therefore, cannot be over emphasized in the present state of things
unless of course the entire mass of roads and buildings is razed and
erased. If that is not possible, we have to live with it and go ahead
without getting bogged down into a controversy which may
Lahore Orange Line Metro Train Project
55
distract the executors of the project from the completion of the
Mass Transit System which is launched for the welfare of the people.
12.
The main thrust of the arguments of the learned ASCs
for the appellants was that the final NOCs issued by the authorities
conform to the opinions of the experts viz-a-viz the measures to be
taken during the phase of construction and that of operation which
are by all means effective and adequate and fully cater for the
apprehensions of the respondents. We endorse the views of the
experts because they also conform to the grave ground realities
emanating from our surrounding. We could not, thus, prefer the
unknown to known and theoretical to practical.
13.
The learned ASCs for the respondents addressed
lengthy arguments but they are based more on their apprehension
than rational and realistic understanding of the controversy. They
stridently criticized the opinions of the experts without precisely
pointing out any infirmity or imperfection therein. They, however,
extolled to the skies the report of Professor Coningham without
realizing that it focused, more on legal than the technical aspects
of the construction of the railway track. They could not give
relevant facts and figures either on technical or factual plain. They
see heal-all in the arrival of the experts from UNESCO as Zoroastrians
see heal-all in reappearance of Zoroastor. We should not, however,
forget that we have our own problems. We can understand them
better by studying them in the context of our surroundings and solve
them accordingly by applying our minds. What in the prevailing
state of things would be sane, sound and sensible could be
decided by the local experts who know the ins and outs of the
project and its impact on the sites. The measures and conditions
suggested in the NOCs in view of the reports of the experts reflect
Lahore Orange Line Metro Train Project
56
the understanding of the problems and their solution according to
our surroundings.
14.
We, therefore, allow these appeals, set aside the
impugned judgments and direct the appellants to go ahead with
the project by rigidly adhering to the measures suggested by the
experts for the protection and preservation of the heritage sites.
JUDGE
Lahore Orange Line Metro Train Project
57
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MAZHAR ALAM KHAN
MIANKHEL
C.M.A. NOS.8215 AND 6171 OF 2016 AND CIVIL APPEAL
NO.2144 OF 2016, C.M.A. NO. 6225 OF 2016 AND CIVIL
APPEAL NO.2145 OF 2016, C.M.A. NO.6226 OF 2016 AND
CIVIL APPEAL NO.2146 OF 2016, C.M.A. NO.6291 OF 2016
AND CIVIL APPEAL NO.2147 OF 2016
(Against the judgment dated 19.8.2016 of the Lahore High Court,
Lahore passed in WP No.39291/2015
C.M.A. NOS.8215 & 6171 OF 2016 AND CIVIL APPEAL NO.2144 OF
2016
National Engineering Services Pakistan [NESPAK] (Pvt.) Limited
Applicant(s)/Appellant(s)
Versus
Kamil Khan Mumtaz and others
Respondent(s)
C.M.A. NO. 6225 OF 2016 AND CIVIL APPEAL NO.2145 OF 2016
Punjab Mass transit Authority through its Managing Director, Lahore
Applicant(s)/Appellant(s)
Versus
Kamil Khan Mumtaz and others
Respondent(s)
C.M.A. NO.6226 OF 2016 AND CIVIL APPEAL NO.2146 OF 2016
Lahore Development Authority through its D. G. and another
Applicant(s)/Appellant(s)
Versus
Kamil Khan Mumtaz and others
Respondent(s)
AND
C.M.A. NO.6291 OF 2016 AND CIVIL APPEAL NO.2147 OF 2016
Province of Punjab through Chief Secretary, Lahore and others
Applicant(s)/Appellant(s)
Versus
Kamil Khan Mumtaz and others
Respondent(s)
âĻ
For the Applicant/Appellant(s):
Mr. Shahid Hamid, Sr. ASC
Mr. Mahmood A. Sheikh, AOR
assisted by Rabia Hassan, Advocate
Mr. Salman Hafeez, G.M. NESPAK
(in CA.2144/2016)
Mr. Makhdoom Ali Khan, Sr. ASC with
Mr. Tariq Aziz, AOR
Assisted by Mr. Saad Hashmi, Advocate
Mr. Sarmad Hani, Advocate
Lahore Orange Line Metro Train Project
58
Mr. Sabtain Fazal Haleem, M.D. PMA
(in CA.2145/2016)
Kh. Haris Ahmed, Sr. ASC
Mr. Mustafa Ramday, ASC
Mr. Tariq Aziz, AOR
Assisted by Mr. Zaafir Khan, Advocate
Mr. Ahmed Jamal, Advocate
Israr Saeed, Chief Engineer, LDA
Muhammad Rashid, Dir. (Law), LDA
Muhammad Hassan, Dy. Dir (Engineering),
LDA
Hafiz Nisar Hussain, A. Dir (Law), LDA
(in CA.2146/2016)
Mr. Shakeel-ur-Rehman, AG Punjab
Ms. Asma Hamid, Addl. AG Punjab
Barrister Qasim Ali Chohan, Asstt. A.G.
Pb.
Rao M. Yousaf Khan, AOR (Absent)
Mr.
Khurram
Chughtai,
Strategic
Counsel
(in CA 2147/2016)
For the Respondent(s):
Ms. Asma Jehangir, Sr. ASC, a/w
Ch. Akhtar Ali, AOR
Mr. Kamil Khan Mumtaz
Assisted by Mr. Noor Ejaz Chauhdry,
Advocate
Mr. Hamid Azim Leghari, Advocate
Ms. Namra Gillani. Advocate
Ms. Ayesha Alam Malik, Advocate
Mr. Suleman Jahangir, Advocate
(For respondent No. 1 in CAs 2144 to 2147/2016)
Kh. Ahmad Hussain, ASC
Mr. M. Ozair Chughtai, AOR (Absent)
(For respondents No.2 in CAs 2144 to 2147/2016)
Mr. Azhar Siddique, ASC
Mr. M. Ozair Chughtai, AOR (Absent)
Assisted
by
Mr.
Abdullah
Malik,
Advocate
Mr. Hammyun Faiz Rasool, Advocate
Mian Shabbir Ismail, Advocate
Mr.
Muhammad
Irfan
Mukhtar,
Advocate
Ms. Parveen Moghal, Advocate
Ms. Hifsa Mafia, Advocate
(For respondent No. 3 in CA 2144/2016)
(For respondents No. 3-5 in CAs 2145, 2146 & 2147/16)
Mr. Shakeel ur Rehman, AG Punjab
Ms. Asma Hamid, Addl. AG Punjab
Barrister
Qasim
Ali
Chouhan,
AAG
Punjab
(For Govt. of Punjab)
Syed Rifaqat Hussain Shah, AOR
(For respondent No. 17 in CAs 2144 & 2146/16)
(For respondent No. 19 in CA 2145/16)
(For respondent No. 16 in CA 214716)
Dates of Hearing:
3rd to 6th, 10th to 14th & 17th April, 2017
Lahore Orange Line Metro Train Project
59
-,-,-.-.-.-.-.-.
Lahore Orange Line Metro Train Project
60
JUDGMENT
MAQBOOL BAQAR, J. Brought in question through
the above appeals is the judgment dated 19th August 2016,
whereby a learned Division Bench of the Lahore High Court, whilst
partially allowing the petitions filed by the respondents No. 1 to 3,
declared that the No Objection Certificates (âNOCsâ) issued by the
Director General, Archaeology, Punjab and the Chief Secretariesâ
Committee, for the construction of Lahore Orange Line Metro Train
(âOLMTâ) Project, was without lawful authority, and of no legal
effect, and directed the Director General, Archaeology to engage
an independent panel of consultants/ experts of international
stature, preferably in consultation with UNESCO, to carry out an
independent study regarding the protected immovable antiquities
and special premises situated along the alignment of the OLMT
track. The Court also directed that the request for permission sought
under section 22 of the Antiquities Act, 1975 (âthe 1975 Actâ), and
under section 11 of the Punjab Special Premises (Preservation)
Ordinance,
1985
(âthe
1985
Ordinanceâ),
respectively,
be
considered by the competent authorities in the light of the study
and report of the said experts, afresh. The Court also directed the
Government to frame rules under section 22 of the 1975 Act, and
under section 11 of the 1985 Ordinance.
2.
Through their petitions, the respondents No. 1 to 3 have
challenged before the High Court the aforesaid NOCs, as being
violative of section 22 of the 1975 Act, and section 11 of the 1985
Ordinance, respectively. It was contended that the construction of
the OLMT Project that will run along five heritage buildings, and five
special premises (the monuments), will cause severe damage to the
structure of the said monuments, harm their integrity and shall also
Lahore Orange Line Metro Train Project
61
cause their visual impairment. It was submitted that the project is
being constructed within the protective/buffer zone of two hundred
feet (200 ft.), prescribed by the 1975 Act, and the 1985 Ordinance
respectively, and in dangerously close proximity to the said
monuments. It was submitted that the vibrations induced during
the construction activity by use of various equipments/ machinery,
and by the transit of the project train, in such close proximity would
cause severe and irreversible damage to the said monuments,
some of which are more than 370 years of age. It was submitted
that as per the internationally recognized standards and scientific
data, and literature, the amplitude of the vibrations induced and
suffered
as
aforesaid
shall
be
far
in
excess
of
the
threshold/tolerance level which shall certainly cause irreversible
harm and damage to the monuments. It was claimed that the
viaduct structure of the project being constructed in close proximity
to the monuments would certainly impair their visual integrity and
would break the view line, between the viewers and the
monuments. It was further submitted that one of the heritage
premises, being the Shalimar Gardens, because of its Outstanding
Universal Value (âOUVâ) has been inscribed on the World Heritage
List maintained by UNESCO. However because of the impugned
construction and the resultant harm envisaged on account thereof
in the shape of physical damage, and visual impairment, the
relevant
Committees
of
UNESCO,
not
only
requested
the
Government to change the alignment of the OLMT project, but also
to suspend the construction of the project along with the alignment
of the Shalimar Gardens, and close to its hydraulic tank which is a
core element of the Garden. However subsequently on account of
certain assurances given by the Government of the Punjab, they
Lahore Orange Line Metro Train Project
62
agreed not to press for the suspension of the work, but insisted upon
the change of alignment/route as requested earlier with a caution
that non-compliance may result in removing the monument from
the World Heritage List. It was submitted that the above monuments
are the heart and soul of the city of Lahore and carry with them our
glorious past which we are obliged to protect and preserve, and to
hand over them in a safe and sound condition to the next
generation.
3.
It may be relevant to note here that the original
feasibility study in relation to the OLMT project was undertaken by a
consulting firm, namely, MVA Asia, for a 27.1 km track (20.2 km
elevated and 6.9 km underground), including 26 stations (20
elevated and 6 underground) at a total cost of US$ 2.00 billion
exclusive of land acquisition. An addendum to the study was
completed by NESPAK, one of the appellants before us, in the year
2014, in which the length of the track remained 27.1 km and
aligned over or under the median of the road as envisaged by MVA
Asia. However, as claimed by the appellants, in order to minimize
the land to be acquired for the track, the underground portion was
reduced to 1.7 km and the cost was thus reduced to US$ 1.6 billion.
It was decided that 1.72 kms of the total 27.1 km length of the route
would be cut and cover (underground) and the remaining 25.4 km
would be an elevated viaduct.
4.
The viaduct of the OLMT project consists of U-shaped
girders (two separate channel shaped track way in pre-stressed
concrete) resting upon the piers which are generally 30m apart. The
viaduct system is supported on piles and a pile cap substructure
system. The 1.85m thick pile cap consists of 6 piles of 1.2m diameter
and 18m length. Piers of viaduct are generally of 2300mm (1.2 m)
Lahore Orange Line Metro Train Project
63
diameters. The height of piers is generally 13.5 m. A 10m long
transom (double cantilevered reinforced concrete arms) rests over
the top of piers to support the U shaped girders.
5.
In the 1.7 km cut and cover (underground) section,
construction methodology is to erect barricades on either side of
the road, about 12 meter apart, drill holes of a dia of 0.76 meters in
straight lines on either side of the road, lower iron cages into the
holes and concrete the same, excavate the area in between to a
depth of 3 meters, construct a 0.8 meter thick reinforced concrete
roof joining the concreted piles on either side, then excavate the
earth under the tunnel formed by the roof and the piles on either
side with a clear height of 5.60 meters, place a concrete slab 0.6
meters on the floor of the tunnel, and wall the gaps (0.30 to 0.45
meters wide) in between the concrete piles with water proofing
materials and vibration dampening materials.
6.
The
viaduct
bridge
and
the
cut
and
cover
subway/tunnel shall carry BI type trains (according to Chinese
standard), consisting of 5 vehicles. The axel load of type BI train is
140 kN, and the axel load of empty vehicle is 80 kN.
7.
The Project has a total of 26 stations, 24 of which are
elevated and two are underground. The proximate rider ship would
be 2,45,000/- per day. The operation time of the trains would be
from 5:30 a.m. to 11:30 p.m. (18 hours daily). The total estimated
cost of the Project as approved on 13.05.2015 is US$1.629 billion,
equal to Rs. 165.226 billion, out of which the cost of civil works is
Rs.54.421 billion. According to the appellants civil work worth 46% of
the total estimated cost thereof, amounting to Rs. 27.999 billion, has
been completed up to 30th August, 2016.
8.
The Project passes along the following monuments:
Lahore Orange Line Metro Train Project
64
Antiquities:
(i)
Shalimar Garden (World Heritage Site)-95
feet away from the train tracks
(ii)
Gulabi Bagh Gateway-69 feet away from
the train tracks
(iii)
Budduâs Tomb-59 feet away from the train
tracks
(iv)
Chauburji-53 feet away from the train
tracks
(v)
Zebunnisaâs Tomb-110 feet away
Special Premises:
(i)
Lakshmi Building-34 feet away from the
train tracks
(ii)
General Post Office (GPO)-42.3 feet away
from the train tracks
(iii)
Aiwan-e-Auqaf (Shah Chiragh) Building-66
feet away from the train tracks
(iv)
Supreme Court Building-58.1 feet away
from the train tracks
(v)
Mauj Darya Darbar & Mosque-15.8 feet
away from the train tracks
9.
On 16.11.2015, the Director General Archaeology
issued no objection certificate for construction of the OLMT project
along the alignment of five (5) heritage buildings protected under
the Act of 1975. Similar NOC was issued on 30.11.2015, in respect of
the special premises protected under the 1985 Ordinance. By order
dated 28.1.2016, passed in the respondentsâ petition, a learned
Division Bench of the Lahore High Court suspended the said two
NOCs, and restrained the present appellants form carrying on any
construction work within two hundred feet (200 ft.) of the said
monuments. According to the appellants, it was on 15.2.2016, that
the âadvisor committeeâ under the chairmanship of the DG
Archaeology, decided to request LDA to engage an independent
structural engineer to evaluate the effect of the OLMT project on
the monuments during construction and operational phases. The
Lahore Orange Line Metro Train Project
65
committee also decided to engage Dr. Ayesha Pamela Rogers to
conduct a Heritage Impact Assessment (HIA), of the project. In
pursuance of the above, on 24.2.2016, Dr. Engineer Javed Uppal
submitted his vibration assessment report, whereas Dr. Ayesha
Pamela Rogers submitted her report on 05.3.2016. M/s NESPAK, who
has submitted a vibration analysis report in respect of the
viaduct/elevated section of the project earlier, submitted their such
report in respect of the cut & cover/subway section, in February
2016. By order dated 14.10.2016, this Court was pleased to appoint
M/s TYPSA Asia Consultant Engineering and Professor Cunningham,
whose names were separately suggested by the appellants and
respondents respectively, as technical experts for verification of the
credibility of the two NESPAK reports. Cunningham report was
submitted before this Court on 13.11.2016, and the TYPSA report was
so submitted on 19.11.2016.
10.
We have heard the learned counsel for the parties and
perused the relevant record, including the various reports submitted
in the matter from time to time, thoroughly.
11.
As succinctly put by Mr. Kamil Khan Mumtaz, the effect
of vibrations on the monuments depends on:
īˇ Magnitude of Vibration produced by a
particular action
īˇ Distance between vibration source and
the vibration receiver
īˇ The condition of the monument
īˇ Nature of mediums through which it travels
to receiver (soil, concrete etc.)
12.
National Cooperative Highway Research Program
(2012), as quoted by Dr. Pamela Rogers, states that âOperation of
Lahore Orange Line Metro Train Project
66
heavy construction equipment, particularly pile drivers, and other
impact devices such as pavement breakers, creates seismic waves
that radiate along the surface of the earth and downward into the
earth. These surface waves can be felt as ground vibration.
Vibration from operation of this equipment can result in damage to
buildings including cracks, tilting and subsidence. As seismic waves
travel outward from a vibration source, they excite the particles of
rock and soil through which the waves pass and cause the particles
to oscillate.
13.
The term âthreshold damage vibration levelâ is defined
as the highest vibration level at which no cosmetic, minor, or major
damage occurs. The manner in which a particular building will
respond dynamically to strong ground vibration depends on many
factors, among which are the soil on which the building is founded,
the buildingâs foundation (e.g., spread footing, piles), the buildingâs
mass and the stiffness of the buildingâs main structural elements. The
condition of a building and its maintenance are important factors
when assessing susceptibility to vibration damage and must be
taken into account when setting vibration limits.
14.
The study of the vibration induced by a train transit in a
building located along the line requires solution of the following
three sub-problems:
īˇ source problem, i.e. the definition of the
physical
mechanism
responsible
for
the
generation of vibrations induced by the transit
of trains, and the evaluation of the vibration
level at a short distance from the track;
īˇ propagation
problem,
i.e.
the
study
of
propagation of vibration from the source to
the building;
Lahore Orange Line Metro Train Project
67
īˇ structural
response,
evaluation
of
the
modification to the vibration signal induced
by the building components (i.e. foundations,
load bearing structure, including infill walls,
and floor plates).
15.
The physical parameters of the transit facility, the
geology, and the receiving building all influence the vibration
levels. The important physical parameters can be divided into
following four categories:
īˇ Operational
and
Vehicle
Factors:
This
category includes all the parameters that
relate to the vehicle and operation of the
trains. Factors such as high speed, stiff primary
suspensions on the vehicle, and flat or worn
wheels will increase the possibility of problems
from ground-borne vibration.
īˇ The
ideal
rail
vehicle,
with
respect
to
minimizing ground-borne vibration, should
have a low unsprung weight, a soft primary
suspension, a minimum of metal-to-metal
contact between moving parts of the truck,
and smooth wheels that are perfectly round.
A limit for the vertical resonance frequency of
the primary suspension should be included in
the specifications for any new vehicle.
īˇ Geology: Soil and subsurface conditions are
known to have a strong influence on the
levels of ground-borne vibration. Among the
most important factors are the stiffness and
internal damping of the soil and the depth to
bedrock.
Experience
with
ground-borne
vibration is such that vibration propagation is
more efficient in stiff clay soils, than in loose
sandy soil, and shallow rock seems to
concentrate the vibration energy close to the
surface and can result in ground-borne
Lahore Orange Line Metro Train Project
68
vibration problems at large distances from the
track. Subways/Tunnels founded in rock will
result in lower vibration amplitudes close to
the subway due to efficient propagation, as
the vibration level does not attenuate as
rapidly in rock as it does in soil. Factors such as
layering of the soil and depth to water table
can
have
significant
effects
on
the
propagation of ground-borne vibration. Soil
layering
will
have
a
substantial,
but
unpredictable, effect on the vibration levels
since each stratum can have significantly
different
dynamic
characteristics.
The
presence of the water table may have a
significant effect on ground-borne vibration,
but a definite relationship has not been
established.
Factors Related to Vibration Receiver
Foundation Type: The general rule-of-thumb is
that heavier the building foundation, the
greater the coupling loss as the vibration
propagates from the ground into the building.
Building Construction: Since
ground-borne
vibration
and
noise
are
almost
always
evaluated in terms of indoor receivers, the
propagation of the vibration through the
building must be considered. Each building
has
different
characteristics
relative
to
structure-borne
vibration,
although
the
general rule-of-thumb is, the more massive the
building, the lower the levels of ground-borne
vibration.
Lahore Orange Line Metro Train Project
69
Acoustical Absorption:
The
amount
of
acoustical absorption in the receiver room
affects the levels of ground-borne noise.
16.
Indeed, âHistorical structures are particularly vulnerable
to the effects of vibrations generated at an adjacent site. Deferred
maintenance and past alterations may have produced structural
weak points that are susceptible to damage. Historic finishes, such
as plaster walls and ceilings, lack the flexibility to accommodate
abnormal movement, while shallow foundations (common in
historic buildings) may lack the rigidity to resist vibration induced
movement.â (Randl 2001)
17.
However, we have noted that all analysis and studies
which purportedly formed the basis for the issuance of the NOCs, in
question were carried out/undertaken, without certain very relevant
basic and crucial information and specifications, like there is
absolutely no technical information/evaluation about the stability,
strength, endurance level/threshold, or vulnerability/susceptibility of
the structure of any of the eleven (11) monuments in relation to the
OLMT project, out of which monuments five (5), being protected
antiquities under section 10 of the 1975 Act, are by definition,
âancientâ buildings. There is absolutely no information about the
foundations, their strength, shape, size, and extent of these
monuments. Absolutely no physical/technical examination/test or
analysis of the monuments has been conducted in relation to the
subject project, though all of the above information & tests were
absolutely inevitable to determine the endurance/threshold level
and the susceptibility of the monuments in relation to the amplitude
of the vibration caused by the construction machinery/equipments,
and/or by transit of the train.
Lahore Orange Line Metro Train Project
70
18.
Although the proponents seem to have undertaken
extensive field investigation of the soil and subsurface condition,
through base hole test along the alignment of the project and
generally on the side of the road, and about 5-meter from the
centre line, and it is claimed that standard penetration tests were
used to determine the compactness/density of the soil, and that
silty clay and clayey silt upto 6-8 meters in depth, and thereafter silty
sand and sandy silt have been found, and further that Lahoreâs soil
is generally silty clay and clayey silt, however, no geotechnical
investigations were carried out between the track alignment and
the monuments or around the monuments which would have been
more prudent and appropriate for achieving precision, more so for
the reason that no verification, by any geologist, has been
submitted to support the claim that there shall be absolutely no
material
variation
in
the
nature,
properties,
qualities
and
characteristics of the different strata of the soil and the other
relevant components contiguous to and around the monuments.
19.
As is well known the vibration amplitude reduces as it
propagates from the source to the receiver. The larger the distance,
the lesser the amplitude. In the present case, there are two different
sources of vibration, one is the operation/deployment of the
construction machinery/ equipment, during the construction phase,
and the other would be the transit of train during the operational
phase. Construction machinery, as can be seen from the
photographs at page 8 of CMA No.8592/2016 in CA 2144/2016,
operates from and is deployed upto the point well beyond the
viaduct piers, and beyond the raft in the elevated section, and are
so deployed upto the point beyond the edge of the trench for the
tunnel/box of the cut and cover section. Whereas the train transit
Lahore Orange Line Metro Train Project
71
induced vibration is transmitted into the soil and propagates
towards the monuments, from the raft of the pier, and from the
edge of the cover/roof slab of the cut and cover tunnel/box, as the
medium through which the vibration is transmitted beyond the train
track changes from that of the viaduct and cut and cover systems,
respectively, into the contiguous soil at these two points. Therefore
the closest point for the vibration source for the monuments during
construction is the edge of the trench of the raft, and the edge of
the top/roof slab of the cut and cover tunnel/box. Certainly the
source of vibration must be calculated from the point of origin of
the energy. However, the distance for calculating/evaluating the
level of vibration for the construction phase has, in respect of
elevated viaduct system, been taken from the middle line of the
width of the pier, instead of the edge of the trench of the raft, and
for the cut and cover section, it has been taken from the edge of
the cover/roof slab of the subway tunnel/box, instead of the edge
of the trench of the cut and cover tunnel. Thus the NESPAK
measurements of the viaduct system refers to the distance in
between the middle of the viaduct piers and the monument wall,
whereas the actual distance is 6.43 meters (21 feet) closer to the
monument then stated by NESPAK, and verified by TYPSA Asia. This
additional/excessive distance of 6.43 meters (21 feet) has been
calculated by taking into account the distance between the
middle line of the pier and the edge of the raft/pile cap, being 5.4
meters (17.8 feet), plus the distance between the edge of the
raft/pile cap and the edge of the trench dug for the raft/pile cap.
Similarly, by ignoring the distance between the edge of the
roof/top slab of the cut and cover trench/box and the edge of the
tunnel trench, NESPAK has taken into account an additional
Lahore Orange Line Metro Train Project
72
distance of 4.82 meters (15.81 ft.) in respect of the cut and cover
section.
Both
the
above
additional/excessive
distances/calculations
are
clearly
demonstrated
through
photographs at pages 3 and 4 of the presentation submitted by Mr.
Kamil Khan Mumtaz, and thus the level/amplitude of vibration
received or to be received by the monuments has been calculated
on the basis of distances greater than the actual, and cannot,
therefore, be relied upon.
20.
The
calculation
suffers
from
another
inadequacy/inaccuracy as the size, shape and extent of the
foundations of the monuments have not been discovered and
have thus not been taken into account while calculating the
relevant distance. Possibility of the footings/foundations setting of
the monuments spreading/existing beyond the visible structure of
the monuments, bringing the monuments still closer to the Project
site cannot therefore be ruled out.
21.
As noted earlier neither have the structures of the
monuments been examined, or assessed nor is any structural
resilience data thereof available, however, from the record of the
present case, it can well be seen that the monuments, especially
the protected heritage amongst those, are quite old in age. Atleast
three (3) of the antiquities are more than three hundred and
seventy years (370 years) old. Some of the monuments, as recorded
by Dr. Pamela Rogers, have suffered structural instability and have
also developed signs of stress, cracks and neglect. However,
NESPAK in determining the vibration impact tolerance level of the
monuments, have applied a threshold value of 3 mm/s which is
prescribed by German Standard DIN 4150-3 for âbuildings of great
intrinsic valueâ. Whereas, as noted by structural engineer,
Lahore Orange Line Metro Train Project
73
Muhammad Khalil Rehman in his note dated 05.1.2017, (annexure
âDâ to CMA No.196/2017 in CA 2144/2016), the technical advisory
note TAV-04-01-R020 at page 17 of the CALTRAN manual states that
there is a real possibility of structural damage to historical buildings
and buildings in poor condition by transit of a train from within 15
meters (50 ft to 100 ft) thereof. It may be noted that it is in fact the
CALTRAN standard that has been applied by NESPAK in relation to
the construction machinery/equipment in this case. However, for
monuments/heritage buildings it has used DIN Standard instead,
which, as noted above, prescribes the threshold limit in respect of
âBuilding of Great Intrinsic Valueâ and not for âheritage buildingâ,
for closer to which category, it is CALTRAN which prescribes a
tolerance level of 2mm/s (0.08/s), under the description âancient
monuments or ruinsâ.
22.
A reference to the following passages from a research
study/paper in relation to âMetro Train induced vibration on historic
building in Changu, Chinaâ published in a journal of Zhenjiang
University â Science A (Applied Physic and Engineering) also may be
relevant in the present context.
âGenerally, it is extremely rare for vibrations from
train operations to cause any sort of building
damage, even minor cosmetic damage (Heckl
et al., 1996). However, there is sometimes a
concern regarding long-term vibration effects on
historic buildings located near the subway lines.
Traffic vibrations are usually low, but lasting,
which could lead to potential damage, like
building
material
fatigue
and
foundation
settlement to historic buildings. For structures that
have suffered from weathering, desquamation,
or have cracks, even low velocities could give
Lahore Orange Line Metro Train Project
74
rise
to
fatigue
damage
with
frequent
occurrences.â
âFor
modern
steel
structures
or
reinforced
structures, it is believed that a PPV lower than 10
mm/s will rarely cause any sort of building
damage. For historic buildings and memorials,
the criteria are usually stricter, from 3 to 10 mm/s
PPV, depending on local codes, which are
summarized by Ma et al. (2009). Numerous
measurements
show
that
typical
ground
vibration levels from underground tunnels lie in
the range of 0.05â1.00 mm/s, lower than the
values in the codes mentioned above, but there
remains the possibility of damages to historic
buildings. That is, the PPVs between 3 and 10
mm/s do not generally consider architectural
damage, but rather structural damage.â
âThe Chinese National Code (GB/T 50452-2008)
gives a criterion of 0.10â0.75 mm/s, which is now
one of the strictest allowable values in the world
and could be used to evaluate architectural
damage. In this code, the fatigue limit is used to
fix the allowable velocities. When the cyclic stress
is lower than the limit, the materials and structures
are unlikely to be destroyed by fatigue. In this
case study, for the brick-masonry structure listed
as a State Protected Historic Site, the allowable
horizontal PPV at the top of the monument is
0.15â0.25 mm/s, according to GB/T 50452-2008.
23.
With the various inaccuracies, inadequacies, anomalies
and lacunas as discussed in paras 17 to 21 hereinabove, the safe
distance from the project alignment to the monuments, as
mentioned by Dr. Pamela Rogers is thirty two feets (32 ft.), but the
Supreme Court Registry Building, Saint Andrew Church and Mauj
Daraya Darbar are situated at much shorter distances. Whereas the
Lakshmi building lies just outside the said limit, which monument,
Lahore Orange Line Metro Train Project
75
according to her, is already in a fragile state of existence. The
monuments have thus been rendered unsafe by the proposed
construction of the project, even as per Dr. Rogers calculations.
24.
The Mughal era hydraulic tank near the entrance of
the Shalamar Garden, which is integral part of the Garden is,
according to Dr. Rogers, very close to the alignment of the viaduct,
and will in fact be partially underneath the viaduct and is
particularly at risk. The continuous low level vibration from the Train
transit, in the opinion of Dr. Rogers, may cause structural damage to
the existing fabric, which opinion is in consonance with the opinion
expressed by a study published by Zhenjiang University reproduced
at page 16 hereof. It is also crucial to note that the cumulative
effect
of
the
various
construction
machineries
operating
simultaneously has also not been taken into account, which may
have a serious bearing in fixing the level of vibration.
25.
A further anomaly in the NESPAK report is that the peak
acceleration and peak velocities (vibration) for Supreme Court and
St. Andrew Church buildings are given as less than such value of
Mauj
Darya
Darbar,
even
though
the
distances
of
construction/operation point(s) for Mauj Darya Darbar is given
greater than such distance for that of the Supreme Court building.
26.
As noted earlier, the definition of the physical
mechanism that generates vibration is the foremost component,
and the most crucial factor for the study/analysis and evaluation of
vibration. In the present case such physical mechanism is a train,
said to be a âChinese standard BI trainâ. It may also be recalled
that the specifications like unsprung mass, distance between axles,
primary suspension and stiffness of the suspension, of the vehicle are
the most relevant, and crucial specifications/information for
Lahore Orange Line Metro Train Project
76
evaluating the transit induced vibration. However, despite request
from TYPSA Asia, data regarding the unsprung mass and the
dynamic stiffness of the relevant elements was not furnished to
them. It was because of lack of information that many
specifications and details were assumed to be similar to a model
used in a study/paper known as XIA.H.Zhang. N, which was feed by
NESPAK in the Structural Analysis Computer Program, SAP2000, to
simulate the excitation of the Metro train as supposedly being
compatible to âChinese standard BI trainâ. However absolutely no
information has been laid, and no explanation submitted before us,
as to the basis of the assumed compatibility between the said train
and the XIA model and therefore, it cannot be said with any
certainty that the specification values and configuration used to
assess and evaluate the amplitude of the vibration generated by
the subject train are in fact the same as that of the XIA model train,
relevant details of which model also have not been placed before
us and the result thus achieved cannot be sanctified by this Court.
27.
It may be relevant to observe here that Typsa-Asia who
were appointed as experts to verify the credibility of the Nespak
reports, have in their report proceeded to endorse the Nespak
reports without analysing the same properly and by ignoring the
various deficiencies, discrepancies, inadequacies and anomalies
therein, as discussed in detail hereinbefore. It can also be seen from
the Typsaâs report that certain very crucial information and details
sought by Typsa from Nespak were either not provided or where
provided were incomplete or inadequate, and as acknowledged in
the report itself, in respect of some issues, Typsa had to proceed on
assumptions. Typsaâs report is therefore of no avail in the matter.
Lahore Orange Line Metro Train Project
77
28.
As discussed in detail in the following passages from a
World Bank publication titled, âThe Economic of Uniqueness,
investing in historic city cores and cultural heritage assets for
sustainable developmentâ, which is a collection of research papers
authored by leading scholars and practitioners in heritage
economics. It is now well recognised that âheritage is a public
goodâ, and âyields public good benefitsâ. It provides âcrucially
needed continuity and stabilityâ, helps in âpoverty alleviationâ and
that heritage âanchors people to their roots, builds self esteem and
restores dignityâ, and serves as a âdriver of local economic
development and prosperityâ. Heritage âmight deteriorate or
depreciate if not maintained and impose on the present
generation a duty of care so they can be handed to future
generationâ. âThe positive influence of cultural heritage on
liveability, economic growth and local economic development is
also now well established. Whereas undoubtedly liveability is not a
middle class luxury. It is an economic imperative:
âIn a world where more than half of the
population now lives in cities and more than
ninety 90 percent (90%) of urban growth occurs
in the developing world, cities try hard to
modernize without losing their unique character,
embodied in their historic cores and heritage
assets. As cities expand rapidly, conservation and
continued use of heritage can provide crucially
needed continuity and stability. In other words,
the past can become a foundation for the
futureâ.
âCities that are the most successful at attracting
investment
and
businesses
to
meet
the
aspirations of their citizens, while alleviating
poverty and promoting inclusion are those that
harness all of their resources, including their
Lahore Orange Line Metro Train Project
78
heritage. In addition, heritage anchors people to
their roots, builds self-esteem, and restores
dignity. Identity matters to all vibrant cities and all
peopleâ.
âHeritage is a public good and the economic
justification for public sector investment is well
establishedâ.
âThe good news is that there is an increasing
trend toward financing projects aimed at
conserving and incorporating heritage into
development strategies. All countries, developed
and developing, are indeed investing more into
conserving their city cores and heritage, with
projects focusing particularly on landmarks and
other major assetsâ.
âIn economics, heritage can be seen as an asset,
with the theoretical basis in capital theory. The
concept of capital has then been extended into
the field of culture and heritage, with the
definition of cultural capitalâ.
âLike any other form of capital, both cultural and
natural capital have been inherited from the
past, might deteriorate or depreciate if not
maintained,
and
impose
on
the
present
generation a duty of care so they can be
handed down to future generationsâ.
âIt is widely acknowledged that heritage has a
value to the community in which it is located.
Among the resources that these cities need to
harness are their heritage assets, which are
unique features that differentiate them from
other citiesâ.
âTourism has emerged as one of the fastest-
growing sectors of the world economy. The
average growth of tourism arrivals, as the world
economy recovers, is likely to continue to grow in
the decades to come. This is especially due to
Lahore Orange Line Metro Train Project
79
growing interest in visiting and enjoying vibrant
cities and heritage assetsâ.
âTourism, by virtue of being a labour intensive
activity, can allow the large pool of unemployed
and underemployed individuals in developing
countries to get jobs and in turn create the
conditions for a sustained and broad-based
growthâ.
âTourism has spill over effects in other economic
sectors: the foreign direct investment associated
with it can in fact bring managerial skills and
technology with potential benefits to other
sectors. Policies designed to foster tourism
âĻâĻâĻâĻ can enhance growth in other sectors
and distribute wealth more widelyâ.
âInvestment in heritage was driven by the need
to conserve and upgrade specific endangered
assets in the phase of rapid urbanization, and to
prevent and mitigate the possible adverse
impacts of large infrastructural projectsâ.
âHeritage yields public good benefits that can
be classified in the same ways as environmental
non-market benefitsâ.
âThis book takes inspiration from Nobel Prize
Laureate Robert Merton Solowâs quotation: âOver
the long term, places with strong, distinctive
identities are more likely to prosper than places
without them. Every place must identify its
strongest, most distinctive features and develop
them or run the risk of being all things to all
persons and nothing special to any.
[âĻ]
Liveability is not a middle-class luxury. It is an
economic imperative.â
âThe positive influence of cultural heritage on
liveability,
economic
growth,
and
local
economic development has been increasingly
studied and discussed in the last few decadesâ.
Lahore Orange Line Metro Train Project
80
âHistoric city cores and their cultural heritage
assets
can
have
an
effective
role
in
differentiating a city from its competitors and in
improving liveability and attractivenessâ.
âIn a context of rapid urbanization, old cities
struggle to modernize without completely losing
their character. In the absence of a strategic
public intervention to steer their transformation,
many of them simply drift into a haphazard mix of
demolition,
new
construction,
and
building
upgrading
âĻâĻâĻâĻâĻâĻâĻâĻâĻ
The
level
of
economic activity these cities can sustain
typically increases, sometimes substantially, but in
the process these places also lose their distinctive
traits and become less liveable. This is not merely
a concern of culture-loving intellectuals in the
rich world, who may be too privileged to fully
value the benefits of rapid urbanization. In many
cases, the inhabitants of these cities also regret
the
loss
of
a
sense
of
place
and
the
disappearance of the physical markers of their
identityâ.
âThe frantic transformation of centuries-old Asian
cities into soulless agglomerations of generic
architecture is an obvious illustration of this trend.
Moreover, there is an element of irreversibility in
transformations of this kind, as recovering what
was lost is enormously more expensive than it
would have been to preserve it in the first placeâ.
âAdmittedly, there is also an increasing trend
toward financing heritage projects, aimed at
protecting and restoring unique buildings or
architectural ensemblesâ.
29.
Heritage has to be preserved and protected in all
respects, all of it virtue, qualities, facets and characteristics are to
be secured from all kinds of harms, including impairment of its visual
integrity. According to Dr. Pamela Rogers, the concept of visual
Lahore Orange Line Metro Train Project
81
integrity is frequently considered crucial in relation to the
preservation of a heritage sites. Visual integrity may pertain
specifically to vistas, panoramas, viewpoints, and silhouettes. Visual
Integrity can also be taken to mean the capacity of a heritage to
maintain its visual distinctiveness, and to visually demonstrate its
relationship with its surroundings.
30.
The importance of and significance attached to the
protection of important views, and their contribution, and
relevance in building an image for a historic town, and also in
promoting the welfare of the people, can be well appreciated from
the following passage of a research paper:
âPreservation of the character of historic towns
and mitigating the impacts of new development
has been a challenging task for spatial planning
authorities throughout the world. In preserving
the character of historic towns, protection of
important views of heritage buildings and
landmarks plays an important role. Most of these
heritage buildings strongly contribute in forming
an image for the historic town. The existence of
such
views,
often
containing
well
known
cherished landmarks and landscapes, enriches
our daily lives, attracts tourist and helps our
communities prosper. âViews play an important
part
in
shaping
our
appreciation
and
understanding of historic environment, in towns
and cities and in the countryside. Some views are
designed to be seen as a unity, more commonly;
a significant view is a historical composite, the
cumulative result of a long historyâ.
31.
It may, in the above context, be beneficial also to
reproduce certain extracts from an article authored by Leo Hollis,
titled âHow are protected views shaping citiesâ quoted in the
Lahore Orange Line Metro Train Project
82
impugned judgment, as being reflective of the emphasis that the
city planners put on protected views in order to preserve the
fundamentals of a city and to protect the character of the
landscape that characterizes the features of that city, and also the
emphasis laid on the significance attributed to preserving such
views, as follows:-
"In recent months, the council has been
responding to widespread concerns that the city
of "dreaming spires" was about to be swamped
by a rash of tall new buildings. As a result,
alongside English Heritage and other agencies,
the council has devised policies that create a
series of protected views, triangular sections that
cut across the map in order to preserve the
vertical skyline of the city."
"A section of city panoramas from particular
points of historic or local interest have been
protected, taking in, not just individual historical
buildings, but also the topography, the city as a
landscape
of
natural
features,
variegated
heights and forms, combining into a pleasing
imageâĻ"
"âĻSince the 1960s, different city governments
have looked at the preservation of views as a
way of controlling the shape, in particular the
vertical outline, of cities. How tall should a
building be and where should it fit in? Are
skyscrapers only for downtown? What kind of
building - office, monument, and apartment
block - should be allowed to rise into the sky?
What can it obscure and what must it not
overshadow?"
"âĻFor some, cities are changing too fast and in
the wrong places. They are losing their character
and being replaced by a ubiquitous glass and
steel architecture that offers no sense of location.
Lahore Orange Line Metro Train Project
83
Tall towers are replacing the human scale of the
city's heritage."
"âĻProtected views are ways of managing
change: restricting growth in some parts, ring -
fencing and preserving the significant aspects. It
prioritizes the ocular encounter with the city. The
metropolis must "look right to be right."
"âĻthere
was
public
concern
about
the
"Manhattanisation" of the financial district of San
Francisco that many people thought would
damage the "city pattern". This was developed
into a general plan passed into law in 1995,
including the preservation of "major views
whenever it is feasible, with special attention to
the characteristic views of open space and
water that reflect the natural setting of the city
and give a colorful and refreshing contrast to
man's development."
"For example, are protected views the best way
to preserve the heritage of the city? The 2006
Street View study conducted by Edinburgh city
council noted some places were "fundamental"
to the city, and key views were "precious" and
even "sacrosanct" in providing a "sense of the
city".
32.
In the case of Penn Central Transportation Co. v. City of
New York 438 U.S.104 (1978), the U.S. Supreme Court whilst
upholding the decision of the New York Cityâs landmark
Preservation Commission, denying permission to construct an office
tower on top of the Grand Central Terminal, a railroad station in
midtown Manhattan, endorsed the governmental restriction on
historic building, and upheld the historic preservation as a legitimate
governmental objective. The Court also sanctified the preservation
programs around the country by upholding New York Cityâs historic
Lahore Orange Line Metro Train Project
84
preservation laws, which restricted changes to the property
designated landmarks and historic preservation.
33.
The judgment recognized the fact that the municipal
laws to encourage or require preservation of the heritage building
were enacted in the back drop of the historic building being
destroyed as the same were not being valued as much as those
ought to have been, and also without exploring the possibility of
preserving them, and in view of a widely shared belief that the
heritage building enhance the quality of life for all and serve as an
example of quality for today, thus it was observed that:
"Over the past 50 years, all 50 States and over 500
municipalities have enacted laws to encourage
or require the preservation of buildings and areas
with historic or aesthetic importance. These
nationwide
legislative
efforts
have
been
precipitated by two concerns. The first is
recognition that, in recent years, large numbers
of historic structures, landmarks, and areas have
been destroyed without adequate consideration
of either the values represented therein or the
possibility of preserving the destroyed properties
for use in economically productive ways. The
second is a widely shared belief that structures
with special historic, cultural, or architectural
significance enhance the quality of life for all.
Not
only
do
these
buildings
and
their
workmanship represent the lessons of the past
and embody precious features of our heritage,
they serve as examples of quality for today.
âHistoric conservation is but one aspect of the
much larger problem, basically an environmental
one, of enhancing - or perhaps developing for
the first time - the quality of life for people."
Lahore Orange Line Metro Train Project
85
34.
The
conclusion
drawn
by
the
Commission
was
approved by the U.S. Supreme Court in the following words:-
"Landmarks cannot be divested from their setting
âĻâĻ..âĻâĻâĻâĻâĻâĻâĻ.. and we must preserve them
in a meaningful way - with alterations and
additions of such character, scale, materials and
mass as will protect, enhance and perpetuate
the original design rather than overwhelm it."
35.
In the case of South Lakeland District Council v.
Secretary of State for the Environment [1992] 2 Advisory Committee
141, his Lord Justice Bridge observed, that:
"Was it the Parliament's intention that the
decision-maker should consider very carefully
whether a proposed development would harm
the setting of the listed building (or the character
or appearance of the conservation area), and if
the conclusion was that there would be some
harm, then consider whether that harm was
outweighed by the advantages of the proposal,
giving that harm such weight as the decision-
maker thought appropriate; or was it Parliament's
intention that when deciding whether the harm
to the setting of the listed building was
outweighed by the advantages of the proposal,
the decision-maker should give particular weight
to the desirability of avoiding such harm? And
that
âthere is no dispute that the intention of section
[72(1)] is that planning decisions in respect of
development proposed to be carried out in a
conservation area must give a high priority to the
objective
of
preserving
or
enhancing
the
character or appearance of the area. If any
proposed development would conflict with that
objective, there will be a strong presumption
against the grant of planning permission, though,
Lahore Orange Line Metro Train Project
86
no doubt, in exceptional cases the presumption
may be overridden in favour of development
which is desirable on the ground of some other
public interest.
36.
Similar
views
were
expressed
in
the
case
of
Hetherington (UK) Ltd. v. Secretary of State for the Environment
[1996] 69. P & CR. 874.
37.
In the case of Barnwell Manor Wind Energy Ltd. v. East
Northamptonshire District Council etc. [2014] EWCA Civ 137, in an
appeal against the order quashing the decision of a Planning
Inspector, whereby the former granted planning permission for a
four-turbine wind farm on land north of Catshead Woods,
Northamptonshire, in the face of section 66 of the Planning (Listed
Buildings and Conservation Areas) Act 1990, which required that the
planning authority, while considering as to whether or not grant
planning permission for development which affects a listed building
or its setting, shall have special regard to the desirability of
preserving the building or its setting or any features of special
architectural or historic interest which it possesses, and in dealing
with the question as to what extent the visible presence of turbine
proposed to be erected in the wind farm site (which was around 1.3
KM from the boundary of the registered park and 1.7 KM from the
New Beild itself), would affect the significance of the heritage assets
concerned, the inspector observed that the tribune array would not
intrude on any obviously intended planned view out of the garden
or from the garden lodge, as in his view, a reasonable observer
would know that the turbine array was a modern addition to the
landscape, separate from the planned historic landscape or
building they were within, or considering or interpreting, and thus
Lahore Orange Line Metro Train Project
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held that the presence of the wind turbine array would not be so
distracting that it would prevent or make unduly difficult, an
understanding, appreciation or interpretation of the significance of
the elements that make up Lyveden New Bield and Lyveden Old
Bield, or their relationship to each other. And therefore, the effect
on the setting of these designated heritage assets would not reach
the level of substantial harm.
38.
His Lordship of the Court of appeal, referring to South
Lake and Hetherington (UK) Ltd. (supra) with approval, proceeded
to observe that:
"âĻIn my view, Glidewell LJ's judgment is authority
for the proposition that a finding of harm to the
setting of a listed building is a consideration to
which
the
decision-maker
must
give
"considerable importance and weight." And also
"That conclusion is reinforced by the passage in
the speech of Lord Bridge in South Lakeland to
which I have referred (paragraph 20 above). It is
true, as Mr. Nardell submits, that the ratio of that
decision is that "preserve" means do no harm".
However, Lord Bridge's explanation of the
statutory purpose is highly persuasive, and his
observation
that
there
will
be
a
"strong
presumption" against granting permission for
development that would harm the character or
appearance of a conservation area is consistent
with Glidewell LJ's conclusion in Bath. There is a
"strong presumption" against granting planning
permission for development which would harm
the character or appearance of a conservation
area
precisely
because
the
desirability
of
preserving the character or appearance of the
area
is
a
consideration
of
"considerable
importance and weight."
Lahore Orange Line Metro Train Project
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39.
Discussing the decision of Ouseley J. in Garner v.
Elmbridge Borough Council [2014] EWCA Civ 891, His Lordship
observed:
"âĻGarner is an example of the practical
application of the advice in policy HE9.1: that
substantial harm to designated heritage assets of
the highest significance should not merely be
exceptional,
but
"wholly
exceptional".
And
concluded that:
"For the reason I agree with Lang Jâs conclusion
that Parliament's intention in enacting section
66(1) was that decision-makers should give
"considerable importance and weight" to the
desirability of preserving the setting of listed
buildings when carrying out the balancing
exercise:â And that âthe Inspector did not give
considerable importance and weight to this
factor when carrying out the balancing exercise
in this decision. He appears to have treated the
less than substantial harm to the setting of the
listed buildings, including Lyveden New Bield, as
a less than substantial objection to the grant of
planning permission. The Appellant's Skeleton
Argument effectively conceded as much in
contending that the weight to be given to this
factor was, subject only to irrationality, entirely a
matter for the Inspector's planning judgment. In
his oral submissions Mr. Nardell contended that
the Inspector had given considerable weight to
this factor, but he was unable to point to any
particular passage in the decision letter which
supported this contention, and there is a marked
contrast between the "significant weight" which
the Inspector expressly gave in paragraph 85 of
the decision letter to the renewable energy
considerations in favour of the proposal having
regard to the policy advice in PPS22, and the
Lahore Orange Line Metro Train Project
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manner in which he approached the section
66(1) duly. It is true that the Inspector set out the
duty in paragraph 17 of the decision letter, but at
no stage in the decision letter did he expressly
acknowledge the need, if he found that there
would be harm to the setting of the many listed
buildings, to give considerable weight to the
desirability of preserving the setting of those
buildings. This is a fatal flaw in the decision even if
grounds 2 and 3 are not made out."
40.
In North Norfolk District Council v Secretary of State for
Communities and Local Government etc. [2014] EWHC 279 (Admin),
High Court of Justice, Queen's Bench Division where wind turbine
was to be erected in open countryside on the side of Cromer
Ridge, which is one of the highest points in North Norfolk with
implications both for visibility and for wind performance. There were
a number of listed buildings in the area. The application for
planning permission was revised by the Council on the ground of its
impact on landscape and heritage assets. The High Court of
Justice, Queenâs Bench Division, proceeded to hold as follows:
"But the question remains whether in substance
he did have that special regard to the desirability
of preserving the settings of the heritage assets as
part of the consideration that led to his decision,
notwithstanding that, as I find, in approaching
that question he did not expressly have regard to
the
statutory
requirement
as
such.
In
approaching that question I remind myself of the
helpful guidance in Garner that it is not
necessary for the decision maker to pass through
a particular series of legal hoops to comply with
Section 66(1) nor, I would add, does he have to
recite any particular mantra or form of words to
demonstrate that he has done so. However,
Lahore Orange Line Metro Train Project
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adopting the formulation of Mr Justice Ouseley
approved by the Court of Appeal in Garner, that
does not mean that the decision maker can
"treat the desirability of preserving the setting of a
listed building as a mere material consideration
to which (he) can simply attach the weight (he)
sees fit in (his) judgment. The statutory language
goes beyond that and treats the preservation of
the setting of a listed building as presumptively
desirable. So, if a development would harm the
setting of a listed building, there has to be
something of sufficient strength in the merits of
the development to outweigh that harm. The
language of presumption against permission or
strong countervailing reasons for its grant is
appropriate. It is an obvious consequence of the
statutory language rather than an illegitimate
substance for it."
"âĻHowever, the problem that it faces is that, on
the conclusion to which I have come, the
inspector did not in fact have regard to the
statutory duty but applied a simple balancing
exercise under paragraph 134 of the NPPF. In the
particular circumstances of this decision it is not
possible to know how the balance would or
might have been affected if he had special
regard to the desirability of the preservation of
the settings in accordance with the approach
helpfully summarized in Garner and set out in the
other authorities to which I have referred."
41.
Perusal of the following passage from Binay Kumar
Mishra v State of Behar and others (AIR 2001 Patna 148), may also
be relevant:
"It needs no emphasis to mention that protection
and preservation of our cultural property against
the dangers of damage and destruction resulting
from theft, vandalism, clandestine excavations
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and illicit traffic is our sacred duty, which we owe
to
posterity.
Cultural
heritage
along
with
environment is very essential to the well being
and to the enjoyment of man's basic rights- even
the right to life itself. This justifies on the statute
book, the aforesaid legislations aimed at taking
all possible measures to stop the impoverishment
of the cultural heritage. The concern for
protection of such heritage is not limited to India.
Governments of most of the countries in the
world today are addressing themselves to this
problem. The entire humanity is anxious about
itâĻ"
42.
The famous Taj Mehal case, reported as (1997) 2 SCC
353, which was a watershed case of supervision done by the
Supreme Court of India for three long years culminating into passing
of orders whereby the industries situated within the Taj Trapezium
Zone and emitting pollution by the use of Coal as fuel and causing
damage to the Taj Mehal were ordered to be dealt with in a
certain manner. The Court also appointed an expert committee,
whoâs report along with other reports of the committees were
considered by the Court before rendered the final judgment. The
expert advice through UNESCO was also sought. The case is
significant for its rulings that the objective behind the litigation was
to stop pollution while encouraging development of industry. It was
held that sustainable development was the answer. In the final
analysis the industries were directed to change over to natural gas
as an industrial fuel. Other industries were directed to be relocated
to other industrial areas.
43.
In EMCA Construction Co. v. Archaeological Survey of
India and others, (2009) 113 DRJ 446, the learned Delhi High Court
upheld the interim order passed by the court below, and directed
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the Central Government to remove the structures within 100 meters
of the Humayun's Tomb.
44.
As highlighted in the following passage from an
authenticated professional study/research paper, visual assessment
study and visual impact study have now become, integral and
significant part of designing and planning process, whereas view
scope analysis, and view protection are of crucial importance to
the discipline of visual assessment and impact study:
âThe importance of visual assessment study in
urban analysis has long been recognized. The
construction of the city of Rome and early Italian
hill-towns have been influenced by established
lines of sight (Bacon, E.1967), and the planned
development of visually prominent locations. The
visual impact studies have now become part of
urban design and planning process. Several cities
throughout world conduct similar studies related
to view scope analysis and view protection (for
example,
London
View
Management
Framework, 2010; Seattle View Protection Policy,
2001)â.
45.
The following passage may also be relevant to the
present discussion:
âIn the Indian context studies and research
specifically
focusing
on
views
of
historic
landmarks and their preservation were not given
importance. But there is a need for such research
to protect the views of large number of our
ancient
monuments,
which
are
constantly
threatened
by
the
surrounding
urban
development which obscure the traditionally
enjoyed views.â
46.
Dilating upon the approach, object and the purpose of
visual impact assessment, and the essential requirements, scope
Lahore Orange Line Metro Train Project
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and parameters of the study, it is stated that âThe assessment
process aims to be objective and to quantify effects as far as
possible. However, it is recognized that subjective judgment is
appropriate. If it is based upon training and experience, and
supported by clear evidence, reasoned argument and informed
opinion. Whilst changes to a view can be factually defined, the
evaluation of townscape and visual amenity does require
qualitative judgments on the significance of effects to be made.
The conclusions of this assessment therefore combine systematic
observation
and
measurement
with
informed
professional
interpretationâ.
47.
For
the
purpose
of
Viewscape
Assessment
for
Protecting the Views of Monuments, it is found âimportant to study
the visual relationship between sacred monuments and places from
where the views are available, so as to identify the most important
views for protectionâ.
48.
The results of the study demonstrate the method for
assessment of views so as to identify the significant viewscapes for
preservation and enhancement.
49.
In order to protect the important views, it was found
necessary to assess the factors which affect the quality of views,
and the quality of place from where the view is available and to
examine the following attributes of the view scope.
(a)
Visibility of the monument;
(b)
Classification of view, based on distance;
(c)
Type of view;
(d)
Dominance in skyline;
(e)
Background and Foreground of the viewing
plane;
(f)
Obstruction Type.
In case of the viewing place, the relevant
attributes being:
a)
Type of viewing place;
b)
Place characteristics of the view point, i.e.,
Lahore Orange Line Metro Train Project
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i.
location,
ii.
assessment view point,
iii.
place elevation,
iv.
activities,
v.
land use,
vi.
general ambience, and,
vii.
potential viewers.
50.
Using the methodological View Assessment Framework,
it was found that significance of views varies according to the
location, visibility, quality of view, quality of viewpoint, view type,
etc. Among the variety of criteria used for assessing the view
significance, the visibility of structure, its dominance in the skyline
and type of view has more weightage than the others. The visibility
of the structure is graded, based on the percentage of visibility in a
three point scale as Highly Visible, Moderately Visible and Poorly
Visible. In classifying the view based on distance, most of the
panoramic views are distant views. Among the various types of
views, the street end view gains significance due to its spatial
configuration. âĻâĻâĻâĻ Most of the street end views can be
appreciated under the immediate and intermediate view ranges.
51.
This study not only classifies the significant views,
viewpoints, visual corridors which need to be protected but also
identifies the obstructing elements which need to be removed from
the viewscape. The study has also revealed that the characteristics
of the viewing place have very little influence on the significance of
the view. Even if the general ambience of the viewing place is
poor, it is still appreciated and frequented if the point offers the best
view available. However, improving such view places will enhance
the viewing experience.
52.
In her HIA report Dr. Pamela Rogers has described the
concept of visual integrity as crucial to the preservation of a
heritage sites. She states that âVisual integrityâ may pertain
Lahore Orange Line Metro Train Project
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specifically to vistas, panoramas, viewpoints, and silhouettes, and
describes the Visual Integrity as the capacity of a heritage to
maintain its visual distinctiveness, and to visually demonstrate its
relationship with its surroundings.
53.
In relation to the OLMT project she submits that âTwo
points are of importance in assessing visual impacts; firstly, the
height of the elevated track in relation to the view-lines to and from
the heritage sites, and secondly, of the current Visual Character of
the heritage site in its setting. This refers to the value and character
of existing views of Sensitive Receivers within the visual envelope
(the area where views and viewers may be affected, the area
within which the proposed development is wholly or partly visible to
the visual receivers).
54.
Amongst the four key potential impacts on the subject
heritage as identified in Dr. Rogers HIA report, are Visual barriers and
intrusions created by the viaduct. Dr. Rogers claims that the various
potential impacts identified in the report, can bear directly on the
significance of the heritage buildings. As an illustration she submits
that a direct line between a visitor to Ziab-un-Nisa Tomb upwards
towards the elevated track may imply strong negative impact. She
opined that the nature of an elevated viaduct design inevitably
creates residual impacts that cannot be fully mitigated. As regards
Chouburji, she states that much of the significance of the said
monument lies in its value as a highly visible icon of the city of
Lahore, and that the setting of the building will be directly
impacted and will require reinstatement. Though she states that
visibility of the Shalimar Garden to a passerby as a landmark will not
be impacted by the operation of the train, as by definition the
garden within its peripheral wall is inward looking, she however
Lahore Orange Line Metro Train Project
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points out that the elevated viaduct shall cause visual intrusion from
the upper terrace of the garden which may have impact on its
significance. In her assessment the visual impact of the project on
Chouburji shall be âvery highâ, whereas in respect of Shalimar
Garden, Ghullabi Bagh gateway, Budhu Ka Awa and Lakshmi
building it shall be âhighâ, and the impact in respect of GPO, Aiwan-
e-Auqaf and Zaibun Nisa Tomb shall be âmediumâ. Such impact in
respect of Supreme Court, Branch Registry, Saint Andrew Church
and Mauj Darya Darbar has been assessed by her as âlowâ.
55.
According to her, threat to the significance to Gulabi
Bagh gateway from the impact of the elevated viaduct shall be by
way of visual intrusion. Regarding Chouburji, she further states that
the operational phase impact thereon shall primarily be by way of
visual impairment.
56.
Amongst
the
various
attributes
of
the
relevant
monuments recognized by Dr. Rogers as carrying their significance,
is the monuments visibility to a passerby as a landmark.
57.
Dr. Roger states that âDeciding on the acceptability of
impacts requires a professional value judgment about the severity
and importance of a caseâ and that âThe impact is acceptable if
the assessment indicates that there will be no significant effects on
the fabric, setting or values of a heritage place or on the function or
performance of intangible heritageâ. According to her, âthe impact
is unacceptable if the adverse effects are considered too excessive
and are unable to mitigate practicallyâ and that âthe impact is
undetermined if significant adverse effects are likely, but the extent
to which they may occur or may be mitigated cannot be
determined from the study, further detailed study will be requiredâ.
She however states that the âexisting impacts, need to be factored
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into the assessment of potential additional impacts from any
proposed development or actionâ. Though she envisages two
different, rather conflicting, scenario, one where the new
development, because of the earlier changes, may have a limited
effect, and the other, where it may worsen the situation further by
adding to and joining the earlier impairment, she however does not
prescribe any criteria and/or explain the phenomenon for the said
two conflicting scenarios in the stated situation.
58.
She however has found the impacts acceptable,
purportedly for three different reasons, the first being the existing
impairment. The second being, her view that the impact can be
mitigated, and the third, that the benefits of OLMT project to public
overweigh its harm to the monuments. We find the above analysis
and stances as misconceived and untenable. In the first place, as
noted above, no reason or explanation has been given in the
report, as to why the impact of the project will not worsen the
situation and will rather be mild, although as noted above,
according to her the situation may assume either of the two. She
has also not analyzed and evaluated the level of the existing
impact, in a scientific and detailed manner (the manner, approach
and methodology for such exercise has been discussed in the
earlier part of the judgment). We find it crucial to observe here that
the approach in relation to heritage should be that its view must not
be made worse even when it has suffered any past apathy, as even
if the general ambience of the viewing place is poor, it may still be
frequated and appreciated as being the best view available. There
can hardly be any qualm about the suggestion that efforts should
be made to improve the existing view rather than deteriorating it
further.
Lahore Orange Line Metro Train Project
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59.
It is crucial to note that it is no bodyâs case that there
exist any previous intrusion or obstruction directly in front of any of
the monuments blocking or impairing the front view or the façade
thereof. Whereas the elevated viaduct is being constructed not
only within the 200 ft. protective/ buffer zone, and in close proximity
to the monuments, but is being built right in front of the monuments,
with 2300 mm diameter, supporting piers within 30m of each other
throughout the length of the viaduct, which admittedly will cause
visual intrusion, break the view line, and grossly overwhelm the
monument. It is crucial to keep in mind, as noted above, that some
other obstructions which may presently be existing in the shape of
some over grown trees, encroachments, illegal/unauthorized
construction, signages, hoardings, roof projections, etc. (which may
be impairing some view, of some monuments, to some extent, and
some of which obstructions may not be of permanent nature, or
could be removed, or be amenable to correction), certainly do not
exist right in front of the monument and donât obstruct, overwhelm,
eclipse and/or temper their view as will the viaduct system. It may
be observed that the piers of the viaduct at some points and from
certain angles may possibility block almost the entire view of the
monument and that for someone moving in an automobile, the pier
may prove far more obstructive than for those not riding such
transport. As regards the view from the Metro Train, it may be
observed that it will be available to only those few amongst its
passengers who will be sitting along the windows, looking over the
monuments, and that their view too would be very limited and
restricted, as because of more than 12m height and a close
distance, (which distance, it may be noted will be shorter than the
distance between the raft of the viaduct and the monument
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because of the largely extended arms of the transoms), and also
because of the posture of the passengers, only some portion of the
monuments excluding much of it façade shall be visible, and that
too they will not be able to enjoy and appreciate properly because
of the speed of the moving train. As regards the contention that the
Shalamar Gardens being inward looking, the viaduct will harm the
visual impact from the Garden and not towards it, it may be
observed that it is the whole complex of the âShalamar Gardensâ
that presents a visual experience and pleasure, including its walls
gates, and other components, which clearly, rather mainly falls
within its visual envelope, form an integral part of the monument,
and are essential components of the majestic ambience and aura
of the complex, and undoubtedly the view and the visual impact of
these features of the complex shall be obstructed and impaired by
the elevated viaduct. However, as to whether or not the effect of
visual impairment in relation to these features would be of a
tolerable nature would be a value judgment to be made by some
independent, reputable and credible professional in the field.
60.
The so called mitigating measures suggested in the
report by way of âimproved exterior landscapingâ, âsympathetic
designâ, âgreening of the structureâ, âdesign and public art
opportunitiesâ besides being of generic nature, would hardly work
to mitigate the admitted adverse impacts and, may we respectfully
say, are in fact wholly inconsequential and irrelevant.
61.
No doubt OLMT project, being a mass transit project,
offers fast mobility facility to the people of Lahore and is planned to
cater to about 245,000 passengers everyday and as claimed, the
facility shall be an efficient, affordable and environment friendly
transport service, and shall help in reducing traffic congestion and
Lahore Orange Line Metro Train Project
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the travelling time between places. The vehicles to be employed
being electric trains will certainly cause reduction of hazardous
transport related emissions, but if we recall heritage also has its
immense significance, and offers lot of public goods and yields
public benefits and also help in poverty alleviation. Its positive
influence on liveability and economic growth and human
development is now well recognized. Heritage holds into its field
some finer graces of civilization. It anchors people to their root,
builds self esteem and restores dignity and provides an impetus for
local economic development and prosperity.
62.
However, it is crucial to understand that the present is
not a case of competing interest, and the concern all around
should be to achieve sustainable progress and development, and
more so when the same could have been, and can still be
successfully achieved with some effort, prudence and diligence.
Why should we allow irreversible damage to our priceless assets that
we have in the shape of centuries old heritage, like the elegant and
splendid master piece from the times of brilliant Mughal civilization,
the Shalamar Gardens, which, has been recognized as an âasset of
outstanding universal valueâ, having âsignificanceâ, which âis so
exceptional as to transcend national boundaries and to be of
common importance for present and future generations of all
humanityâ, deserving permanent protection as a âheritage of
highest importance to the international community as a wholeâ,
and has thus been inscribed on the world heritage list, and like the
monumental gateway known as âChauburjiâ because of its four
towers, which expand from the top, not present any where in the
sub-continent, which is a beloved urban landmark, and a highly
visible icon of Lahore.
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63.
It is no bodyâs case that the OLMT project be scrapped.
All that is required, is to ensure that no harm to the monuments is
caused by the impact of the project which is, not only our
obligation under the mandate of the aforesaid two statutes, but, as
shall be discussed later, also is our commitment to the international
community. It hardly needs any emphasis that the purpose, object,
intent, and spirit of the said two laws i.e. the 1975 Act and the 1985
Ordinance, are the preservation and protection of the âantiquitiesâ
moveable or immovable both, and the âspecial premisesâ
respectively. Both the laws contain elaborate arrangement and
provisions for carrying out the aforesaid intent and purpose,
including that of declaration and listing of particular properties as
antiquities,
for
enforcing
their
protection,
and
of
making
arrangements for custody, preservation and protection of the
antiquities, for examining and acquisition of any land containing
antiquities, for purchasing or taking on lease of the antiquities, for
exercising right of pre-emption in respect of any antiquity, for
declaring any antiquity to be a protected antiquity, for enforcing
compulsory
acquisition
of
any
antiquity,
for
prohibition
of
destruction/damage of the protected antiquity, for prescribing and
enforcing measures for protection and preservation of antiquity.
And by way of prescribing a 200 ft protective zone under section 22
of the 1975 Act and section 11 of the 1985 Ordinance which require
that no development plan or scheme or new construction shall be
undertaken or executed within the distance of two hundred feet
(200 ft.) of a protected moveable âantiquityâ and âspecial
premisesâ without the approval, in case of the former, of the
Director General, and in relation to the later, of the Government of
the Punjab. It may be relevant to mention here that the above two
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provisions are inconsonance with Article 103 of the âOperational
Guidelines for implementation of World Heritage Conventionâ,
issued by UNESCO, (of which convention Pakistan is a signatory),
which Article prescribes adequate buffer zone surrounding the
monuments, to give an added layer of protection to the
monuments, including its immediate setting, important view, and its
other important attributes. The answer as to why our laws, have
prescribed a limit of 200ft. for the preventive/ protective/buffer
zone, seems to lie in the scientific fact, as recorded and illustrated
by âCALTRONâ (annexure âDâ to CMA 196/2016), that it is at this
distance of 61m (200 ft) that the extenuation of PPV (Peak Particle
Velocity)/vibration is reduced to an almost imperceptible level.
64.
In view of the foregoing discussion, we are of the firm
view that in order to convert the statutory âNoâ as contained in the
above two provisions, into a âYesâ, the authorities concerned ought
to have undertaken a scrutiny of the highest order, and the
proposal ought to have undergone minute and thorough screening
and due diligence, after collecting, and on the basis of, accurate
relevant
scientific
data.
In
deciding
the
request
for
permissions/NOCs
for
construction
OLMT
project
within
the
protective/buffer zone, the statutory intent of preserving and
protecting the monuments, their views, attributes and character,
should have been of the foremost and overwhelming importance,
and the authorities ought to have satisfied themselves that the
option of avoiding intrusion into the protective zone have been fully
explored by the proponent, and the intervention was truly found to
be really inevitable, and in the event of proven inevitability of the
proposed intrusion, ought have satisfied themselves, on the basis of
precise and accurate calculations, assessment, and evaluations of
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the vibration induced by the Metro train proposed to be employed,
and the machinery specified for construction purposes shall
propagate safe level of vibration. Similarly, the measurements and
calculations of distances between the various points at which the
vibration was/is to generate and transmitted and upto the point
where they were to hit the monuments, as detailed hereinbefore,
ought to have been carried out with care and precision, and
preferably the soil layers contiguous to the monuments should also
have been tested and analyzed. The evaluation and analysis of the
transit induced vibration also ought to have been based on
detailed
information
of
the
relevant
specification
and
configuration, but all of the above is lacking in the present case.
65.
As noted above, many of the monuments are not just
unique and magnificent and reflective of our glorious past carrying
immense cultural, social and historical significance, and aesthetic
charm and artistic beauty. The monuments being many hundred
years old, admittedly bears signs of abuse and neglect, and suffers
from vagaries of weather. Some of these have already developed
cracks, however, unfortunately neither the endurance level of these
monuments been evaluated/ determined nor is the susceptibility of
their foundations and footings been measured. These foundations
and footings have also not been taken into account while
calculating the distance between the track and the monuments.
The heritage impact assessment as discussed and analyzed above,
clearly indicates and specifies various adverse impact the project
will have on the monuments.
66.
The statutory intent of protecting and preserving
heritage and avoiding any harm thereto is so strong and
overwhelming that potential harm to the heritage cannot be taken
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lightly even where the harm is outweighed by the advantages of
the proposed development. The authorities must give highest
priority to the objective of law by preserving or enhancing the
character and appearance of the heritage, and in case the
proposed development militates against the statutory objective,
the proposal will prevail only in exceptional cases.
67.
It is an admitted position that originally the track of
OLMT in front of Lakshmi building and Chauburji as planned by MV
Asia, was to be laid underground however in order to cut down the
cost of the project, the length of the underground section of the
project was reduced and thus in front of these two monuments also
the track is now being built on elevated viaduct instead, although
in respect of Chauburji the option of diverting the alignment to a
safe distance is admittedly available.
68.
It may be relevant to mention here that in terms of
Article 4 of âthe Convention for protection, conservation,
presentation and transmission to the future generations of the
cultural
and
natural
heritageâ
adopted
by
the
General
Conference of the United Nations Educational, Scientific and
Cultural Organization (UNESCO), to which convention Pakistan is a
signatory, we are obliged to ensure the âidentification, protection,
conservation, presentation and transmission to future generations of
the cultural and natural heritageâ, and to do all that we can
towards the said end to the utmost of our own resources and where
appropriate with any international assistance and cooperation, in
particular, financial, artistic, scientific and technical which we may
be able to obtain. Pakistan being a signatory to the above
convention, and a respectable and worthy member of the comity
of nations, is obliged to comply therewith, and to fulfil its obligation
Lahore Orange Line Metro Train Project
105
thereunder, more so for the reason that this country has also
benefited from the technical assistance and financial help
provided by UNESCO, in respect of Shalimar Garden and the
Lahore Fort inscribed on the world heritage list in 1981, and has as
per a UNESCO report, received through them a financial assistance
of US $ 121,000, out of which US $ 44,000, was for Lahore Fort and
the balance was for the Shalamar Gardens.
69.
During its 40th Session held in July 2016 the World
Heritage Committee of UNESCO adopted a resolution expressing its
serious concern about the construction of the OLMT project and
requested the State Party (the Government of Punjab) to prepare a
visual impact study of the Project to be presented to the World
Heritage Centre and the Advisory Bodies before pursuing the works
of the OLMT associated with the Shalamar Gardens, and also
requested them to submit to the World Heritage Centre, in
conformity with paragraph 172 of the Operational Guidelines,
Technical details, including Heritage Impact Assessment (HIA), for all
the proposed projects that may have an impact on the outstanding
universal value (OUV) of the property (Shalamar Gardens) prior to
their approval, for review by the advisory bodies. The Committee
also requested the State Party to invite ICOMOS Reactive
Monitoring Mission to the property at its earliest convenience to
examine the OLMT and to discuss the same with the relevant
Government authorities and to review the management and
protection arrangements of the property. A further request was
made to submit to the World Heritage Centre by 1st February 2017
an up-to-dated report on the state of conservation of the property
and the implementation of the various recommendations/proposals
made by the Committee as mentioned in the resolution for
Lahore Orange Line Metro Train Project
106
examination of the World Heritage Committee at its 41st Session in
2017 with a view to consider whether there is a certain or potential
danger to the outstanding universal value of the property.
70.
The latest report of the UNESCO World Heritage Centre
indicates that the conservation issues regarding Shalamar Gardens
was presented to the Heritage Committee this year, and that
despite efforts made by the World Heritage Centre and ICOMOS,
the Government of Punjab has not invited Reactive Monitoring
Mission as requested by the Committee at its last session (decision
40 COM 7B.43), instead the Government, on 29th March, 2017,
informed the World Heritage Centre that the Mission will be invited
only after the decision of the present case.
71
The report also notes that no visual impact study or
detailed report on the progress made regarding the enlargement
of the buffer-zone, has been submitted to the World Heritage
Centre, and that the report submitted by the Government discloses
very little information about OLMT Project. It is further noted that the
full potential impact of the project on the OUV of the Shalamar
Gardens goes beyond the potential impact of vibration. If is further
stated that the visual impact assessment has not been completed,
and that since no comprehensive heritage impact assessment (HIA)
in line with ICOMOS Guidelines has been carried out to address, not
only the issue of vibration, but also the visual and noise impacts, the
full impact of OLMT Project is yet to be formally defined and that
HIA submitted by the Government in 2016 was not in line with the
internationally recommended standards and has thus failed to
address the full range of impact of the Project. The report also
claims that the construction that has continued on both sides of the
Shalamar Gardens is already impacting on the setting and integrity
Lahore Orange Line Metro Train Project
107
of the Gardens and if the Project is allowed to be completed along
the Gardens it will irreversibly compromise the authenticity and
integrity of the property, thereby potentially threatening its OUV. The
Committee through its decision adopted in its 41st Session noted
that the Reactive Monitoring mission will be invited immediately
after the decision of this Court is announced and requested to
urgently complete and share with the World Heritage Centre the
Visual Impact Study as decided by the World Heritage Committee
at its 40th session as soon as possible, and at the latest on 1st
December 2017; and to invite a joint World Heritage Centre/
ICOMOS Reactive Monitoring Mission to the property immediately
after the announcement of the decision of this Court, to examine
the Orange Line Metro Train Project and to discuss the same with
the
relevant
Government
authorities
and
to
review
the
management and protection arrangements of the property and
that highest priority must be given to considering how the Shalamar
Gardens and their spiritual associations can be sustained alongside
any necessary measures to satisfy the needs of a growing city, by
setting out the precise and detailed nature of the potential impacts
of the Orange Line Metro project on the OUV of the property, and
whether and how mitigation measures can be undertaken.
72.
It is now well established that right to life as envisaged
by Article 9 of the Constitution includes all those aspects of life
which go to make a manâs life meaningful, complete and worth
living. In the case of Employees of Pakistan Law Commission vs.
Ministry of Works (1994 SCMR 1548), it has been laid down that
Article 9 of the Constitution which guarantees life and liberty
according to law, is not to be construed in a restrictive manner. Life
has larger concept which include the right of enjoyment of life,
Lahore Orange Line Metro Train Project
108
maintaining adequate level of living for full enjoyment of freedom
and rights.
73.
In the case of Siddharam Satingappa Mhetre vs. State
of Maharastra and others (2011 SCC 694), Indian Supreme Court
held that the protection against arbitrary privation of âlifeâ no longer
means mere protection from death, or physical injury, but also an
invasion of the right to âliveâ with human dignity, and would include
all those aspects of life which would go to make a manâs life
meaningful and worth living, such as his tradition, culture and
heritage.
74.
In the case of P. Rathinam/Nagbhusan Patnaik vs.
Union of India and another (AIR 1994 Supreme Court 1844), It was
held that word âlifeâ in Article 21 means right to live with human
dignity and the same not merely connote continued drudgery. It
takes within its fold, âsome of the finer graces of human civilization,
which makes life worth livingâ and that the expanded concept of
life would mean the âtradition, culture and heritageâ of the
concerned person.
75.
In the case of Ramsharan Autyanuprasi & Anr v. Union
of India (1988 SCR Supl. (3) 870; AIR 1989 Supreme Court 549), it was
held that it is true that life in its expanded horizons today includes all
that give meaning to a manâs life including his tradition, culture and
heritage and protection of that heritage in its full measure would
certainly come within the encompass of an expanded concept of
Article 21 of the Constitution.
76.
In the present case the relevant authorities have clearly
failed to take into account the various crucial relevant aspects of
the case, and have failed in their duty to enforce the mandate of
Lahore Orange Line Metro Train Project
109
law as discussed above, and have ignored the heritage interest
secured by law.
77.
In the circumstances, we would dispose of the present
appeals by directing the DG Archaeology, Government of Punjab
to ensure that the heritage impact assessment in the matter be
carried out afresh keeping in view the above discussion, preferably
with the assistance of UNESCO, who seems ready and willing, rather
keen to provide such assistance,
if need be felt, some
organization/body having expertise, experience and credibility like
âEnglish Heritageâ be also associated with the exercise. The exercise
be commenced at the earliest and preferably within 15 days from
today, and fullest endeavour be made that the same be
concluded expeditiously and preferably within one month from its
commencement,
and
within
15
days
thereafter
the
DG
Archaeology and the Government of Punjab shall decide the
request for the NOCs in the light of the report/findings of the fresh
heritage impact assessment, with an endeavour to find practicable
and viable solutions of the problems and issues that may be pointed
out in the said assessment so that the project may be completed as
early as possible.
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Lahore Orange Line Metro Train Project
110
Announced in open Court on _______________
Judge.
âAPPROVED FOR REPORTINGâ
Lahore Orange Line Metro Train Project
111
ORDER OF THE COURT
With majority of 4 against 1, Maqbool Baqar, J,
dissenting, we endorse and approve the NOCs/permission letters
issued by the competent authorities and the recommendations of
experts relating to execution, mitigation and remedial measures
required to be adopted by the executing agency and allow the
Project to proceed subject to the following conditions and directions:-
i)
The appellant shall make all necessary arrangements to
ensure that the monuments remain stable and undamaged
in all respects during the execution of the Project as
specified in the HIA and Study of Control of Vibration,
Noise and Foundation;
ii)
Vibration monitoring shall be undertaken as a part of the
monitoring plan using the crack measure devices such as
Avongard Standard Tell-Tale throughout the construction
period and for an additional period of 10 weeks from the
date of commencement of commercial operation of the
train or such further time as may be directed by the
Director General, Archaeology. In case, it is found that
vibration levels at any stage of the construction or
operation are exceeding safe limits, construction work /
operation shall immediately be discontinued and remedial
action shall be taken to ensure that such levels are brought
down to acceptable limits. Such actions may inter alia
include use of one piece of equipment at a time, during the
construction phase, adjustment of train speed, addition of
buffers and such other remedial and mitigating measures
as may be recommended by the experts;
iii)
Technical experts shall be present at the sites during the
construction phase in the vicinity of the antiquities and
special premises with all necessary equipment for
monitoring vibration levels. In case, vibration levels exceed
the acceptable limits, work shall immediately be stopped,
remedial measures taken to the satisfaction of experts and
further work shall not commence unless written clearance
for resumption of work is given by the experts;
iv)
An independent and experienced Conservation Engineer
shall be appointed to monitor the Project, both during the
construction and operation phases. He shall submit
monthly reports to the Advisory Committee which shall
Lahore Orange Line Metro Train Project
112
make such further recommendations to the Director
General, Archaeology as may be required to ensure that
the Project as a whole is meeting all technical
requirements meant to preserve, protect and conserve the
antiquities or protected premises;
v)
On completion of the project, the train shall be operated on
experimental basis for at least 2 weeks on the entire length
of the route and the vibration levels shall be monitored to
ensure that the same are within the acceptable limits.
Commercial operation shall not commence unless written
clearance is given by the experts confirming that vibration
levels have consistently been found to be within
acceptable limits;
vi)
The speed of the Train shall be reduced while passing
near the monuments as recommended by the Directorate
General of Archaeology from time to time on the basis of
data made available to it;
vii)
State of the art vibration measuring equipments shall
permanently be installed at suitable places in and around
the antiquities and special premises to monitor levels of
vibration created by operation of the train. Records of the
same shall be maintained and regularly checked by a
responsible officer deputed to do so;
viii)
Special teams consisting of qualified experts will be set up
which will periodically inspect all antiquities and special
premises to detect any damage or deterioration at the
sites. Proper records and logbooks shall be maintained for
this purpose;
ix)
Any damage or deterioration shall be reported to the
Director General, Archaeology in writing who shall take
remedial steps necessary to ensure safety of the buildings
and structures;
x)
Recommendations of the Advisory Committee (already set
up) shall be placed before the Directorate General of
Archaeology, who shall take necessary steps to ensure
that the same are complied with in letter and spirit by all
concerned agencies, contractors, sub-contractors and
operators;
xi)
Where excavation is necessary it shall be carried out in a
way that it would not affect any structure or foundation of
Lahore Orange Line Metro Train Project
113
the antiquities or special premises. Where necessary
special arrangements shall be made to stabilize and
strengthen the structure of the antiquities and special
premises. All necessary safety arrangements shall be
made in accordance with the best engineering expertise
during excavation, construction and execution phases of
the Project;
xii)
The executing agency shall install accelerometers, velocity
transducers, noise detectors and vibration measuring
equipment near the antiquities and special premises. The
appellant shall ensure implementation of additional
mitigation and remedial measures as mentioned in
vibration analysis report by NESPAK, Heritage Impact
Assessment (HIA) as well as in the reports submitted by
Dr. Uppal and Dr. Rogers;
xiii)
Excavation would be carried out in a way that would not
affect any of the exposed or buried structure of the Special
Premises;
xiv)
In case of any adverse impact to the antiquities or special
premises during excavation, construction or execution, the
appellant and all other related agencies shall immediately
and forthwith stop and discontinue further work, take all
possible actions to protect and conserve the antiquities
and special premises and in this regard, involve such
experts and consultants as may be necessary to ensure
that the causes and effects of the adverse impact are
effectively removed;
xv)
A dedicated hotline shall be set up, telephone numbers
whereof shall be prominently displayed in public areas
around all antiquities and special premises for reporting
damage or deterioration observed by members of the
public or tourists;
xvi)
In case, any information/report is received by the Director
General, Archaeology the same shall be investigated
within 7 days and after receiving recommendations (if any)
from experts repair/ renovation work shall be commenced
within 30 days;
xvii)
No
building
material
or
equipment
shall
be
stored/stockpiled within protected area of the monuments;
Lahore Orange Line Metro Train Project
114
xviii)
No change shall be made in the alignment of the track
which brings any part of it nearer to the monuments than
the distances set out hereinabove;
xix)
Dust pollution during construction shall be controlled
through extensive sprinkling of water on regular basis and
taking such other steps including but not limited to covering
the monuments with protective sheets in order to avoid any
damage from dust;
xx)
The design of the viaduct and nearby stations in terms of
colour and designing shall be in harmony with the setting
and appearance of the monuments;
xxi)
The Hydraulic Tank of Shalamar Garden shall be restored,
as far as possible, to its original position and the
surrounding area will be converted into a green area;
xxii)
Structures on the southern side of the Shalamar Garden
shall be camouflaged through construction of a wall in
consultation with the Directorate General of Archaeology.
All practicable efforts shall be made to create a buffer Zone
around Shalamar Garden as per proposal already pending
in the Directorate General of Archaeology and other
competent forums;
xxiii)
The decorative motifs of Shalamar Garden would be
replicated on the train station near the Shalamar Garden to
create harmony with the Garden;
xxiv)
The tile mosaic motifs of the Gulabi Bagh Gateway would
be replicated on the nearby station of the Gateway to
create harmony with the historic Gateway;
xxv)
The area around the Chauburji Gateway would be properly
attended and developed into a greenbelt;
xxvi)
The decorative motifs of the Chauburji Gateway would be
replicated on the nearby station of the Chauburji Gateway
to create a harmony with the historic Gateway;
xxvii) The area around the Zaib-un-Nisaâs Tomb would be
properly attended and developed;
xxviii) The decorative motifs of the Zaib-un-Nisaâs Tomb would be
replicated on the nearby station of the Zaib-un-Nisaâs
Tomb to create harmony with the historic;
Lahore Orange Line Metro Train Project
115
xxix)
The Respondents shall in consultation with UNESCO and
other international agencies prepare phase-wise plan to
control and monitor urban encroachments and the process
of creating buffer zone around the Shalamar garden;
xxx)
All future projects which directly, indirectly and incidentally
involve antiquities or heritage sites shall in the first
instance be widely publicized through print and electronic
media at least 6 months prior to proposed date of
commencement of the project and public hearings shall be
conducted to hear objections, if any against such project;
and
xxxi)
For all future projects, NOCs, licences, approvals and
permissions as required by law shall be obtained before
work on the project site is commenced.
2.
In addition to the above, we direct the Government of
Punjab within a period of 30 days from the date of this judgment to
take the following steps:-
e) Set up an Antiquity and Special Premises Fund with the sum
of Rupees One Hundred Million which shall be dedicated to
monitoring, renovation and reconstruction work of 11 protected
and special premises mentioned hereinabove. It shall be a
revolving fund and shall be replenished on yearly basis. It shall
be utilized firstly for the maintenance, preservation, restoration
and renovation work of the protected and Special Premises,
subject matter of this lis and thereafter on other Antiquities and
Special Premises situated in Lahore as may be recommended
by the special Committee of Experts constituted under this
Judgment;
f) A broad based Special Committee of Experts consisting of
Director General, Archeology Department; a Professor of the
Department of Archeology, University of the Punjab; Head of
Department
of
Structural
Engineering,
University
of
Engineering and Technology, Lahore; a Senior Professor
nominated by the Chairman of Board of Directors of National
College of Arts; chaired by a retired Judge of this Court
nominated by the Chief Justice of Pakistan shall be notified
which shall oversee implementation of the judgment of this
Court and the directions issued herein. This Committee shall
also make such further recommendations to the Chief Minister
Punjab to undertake such measures as may be necessary to
Lahore Orange Line Metro Train Project
116
implement and enforce the directions and recommendations
made in this judgment. The tenure of the Committee shall be
one year from the date of its notification;
g) The Government of Punjab shall retain the services of at least
three Experts having expertise in the field of archeology and
renovation, preservation and maintenance of antiquities and
special premises. One of the experts shall be a person having
expertise in structural engineering. All three experts will work
as a Technical Committee with tenure of one year. The
Technical Committee shall report to advise and assist the
aforesaid Special Committee of Experts. The Committee shall,
if required and with the approval of Director General,
Archeology retain services of such other experts as it may
consider necessary to undertake its work more effectively
regarding the steps required to be taken to monitor the
protected and Special Premises all over Lahore and suggest
remedial measures that may be necessary to ensure the
safety of all protected and special premises in Lahore; and
h) We also emphasize the fact that the present condition of the
protected and special premises calls for major preservation,
renovation, reconstruction and repair work. The Government
of Punjab shall take immediate steps and we have been
assured by learned Advocate General, Punjab that such steps
shall immediately be taken to start repair and renovation work
for which the requisite funds will be made available within thirty
days from the date of this judgment.
3.
In view of the foregoing discussion, the Impugned
Judgment of the Lahore High Court is set aside and the instant
appeals are allowed in terms noted above. Civil Petition No.3101-L
of 2016 is unanimously dismissed and Leave to Appeal is refused.
Judge
Judge
Judge
Judge
Judge
APPROVED FOR REPORTING
Announced in Open Court
On 08.12.2017.
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Jawwad S. Khawaja
Mr. Justice Mushir Alam
CMA No.908 of 2014 in Constitution Petition No.52 of 2013
[COMPLIANCE REPORT OF ORDER OF THIS COURT DATED 03.12.2013 PASSED IN
CONSTITUTION PETITION NO.52 OF 2013 REGARDING PRICE ESCALATION OF
ATTA/FLOUR]
Liaquat Baloch, Secretary Jamat-e-Islami
Applicant(s)
VERSUS
Secretary, M/o Commerce & Trade
Respondent(s)
For the Applicant(s):
Mr. Taufiq Asif, ASC
Mr. Saifullah Gondal, Advocate
Amicus Curiae:
Malik M. Rafique Rajwana, ASC
For the Federation:
Syed Attique Shah, Addl.AGP.
Dr. Shakeel Ahmed Khan,
Food Security Commissioner
Mr. Abdur Rauf Chaudhry, Chief,
Agricultural Policy Institute
Mr. M. Aslam Shaheen, Chief
Nutrition, Planning Commission
Mr. Ayazuddin, Dy. DG, PBS
Ms. Rabia Awan, CSO, PBS
Mr. Shaukat Zaman, Director, PBS
For Balochistan Govt:
Mr. M. Farid Dogar, AAG
For KPK Govt:
Mr. Zahid Yousaf Qureshi, Addl.AG
Mr. Asmatullah, Dy. Dir.
For Punjab Govt:
Mr. Razzaq A. Mirza, Addl.AG
For Sindh Govt:
Mr. Qasim Mirjat, Addl.AG
Date of Hearing:
22.04.2014
ORDER
On the last date of hearing, we had for our own
information constituted Committees for the four Provinces. The
Committees have made on ground visits. From their reports, it does
appear that fundamental rights to life as given in Article 9 and a life
of dignity as envisioned under Article 14 of the Constitution may not
be available presently to a substantial number of citizens. This
situation appears to be accepted by the learned Law Officers. It
would however, be appropriate if we can have empirical data before
us based on professionally and scientifically sound bases so that
further proceedings and orders are grounded in facts which have
been validated. For this purpose, the names of certain institutions
have been mentioned by some of the learned counsel before us. Dr.
Shakeel Ahmed Khan, Food Security Commissioner has also
provided some information. The same is for the purpose of our
tentative assessment but again it is necessary that a more
comprehensive survey is conducted by qualified professionals or
institutions having appropriate expertise.
2.
We would therefore, like to consider as to how relevant
data can be made available to us. Some information based on data
gathered by the Pakistan Bureau of Statistics has been provided to us
but the same is outdated. We also note that instances have been
provided by Dr. Shakeel Ahmed Khan which vary vastly. While in
one instance the price of essential food items per month has been
given as Rs.6,200/-, there is another case where this amount comes
to Rs.14,858/-. We may also add that these figures are in respect of
the bare, essential food items required for survival of a family of four
comprising 2 adults and 2 children. These figures do not even
consider the needs of such family in respect of electricity, water, gas,
traveling, school fees, clothing, shelter and a number of other items
which are necessary for a reasonable life with dignity.
3.
The Governments of the Provinces and the Federation
are charged with the responsibility of ensuring that the fundamental
rights of the citizens of the State are met. Even amongst the
principles of policy, it has been stipulated in Article 38(a) of the
Constitution that the State shall secure the well-being of the people.
We are listing this petition for hearing during the next week on
which date the Governments shall be heard and their actions to
alleviate the abject condition of the citizens will be taken into
account. We will also consider the possibility of seeking a study by
professionally/ scientifically sound bodies or individuals to assist us
in understanding if and to what extent, there may be deficiency in
assuring the fundamental rights of the citizens, noted above.
Adjourned to 02.05.2014.
Judge
Judge
ISLAMABAD, THE
22nd April 2014
Zubair
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ
Mr. Justice Khilji Arif Hussain
Mr. Justice Tariq Parvez
Civil Misc.Appeal No.1 of 2012
In
Const. Petition No.Nil of 2011
Against order of Registrar of this Court,
dated 30.12.2011.
F. K. Butt
Petitioner
VERSUS
President of Pakistan, etc
Respondents
For the Petitioner(s)
:
In person.
On Courtâs Notice
:
Maulvi Anwarul Haq, AGP.
Date of Hearing
:
07.02.2012
ORDER
Iftikhar Muhammad Chaudhry, CJ-. This Civil
Miscellaneous Appeal has been filed under Order V Rule 3 of the
Supreme Court Rules, 1980 against the following order of
Registrar of this Court, dated 30.12.2011:-
âThe above cited Constitution Petition filed by you
under Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973 is not entertainable on
the following grounds:-
1. President and Prime Minister of
Pakistan have been made party as
respondent No.1 & 2, however they
cannot be made party under Article
248 of the Constitution of Islamic
Republic of Pakistan.
2. That you have no locus standi to file
this Const. Petition.
3. That you have not provided the
certificate as required under Order
XXV rule 6 of the Supreme Court
Rules, 1980.
Civil Misc.Appeal No.1 of 2012
2
4. That apparently, none of your
Fundamental Right guaranteed by
Constitution, has been violated.
5. That you may approach the proper
forum
for
redressal
of
your
grievance.
This Constitution Petition is, therefore,
returned
herewith
in
original
being
not
entertainable along with its paper books.â
2.
Appeal against the above order is competent before a
learned Judge in Chambers in terms of Order V Rule 3 of the
Supreme Court Rules, 1980. However, instead of disposing of the
listed Civil Misc.Appeal in Chambers, it was ordered to be
enlisted in Court under Order V Rule 5 of the Supreme Court
Rules, 1980, which reads as under:-
â5.
The Registrar may, and if so directed by the
Judge in Chambers, shall at any time, adjourn any
matter and place it before the Judge in Chambers,
and the Judge in Chambers may at any time refer
any matter to the Court and the Court may direct
that any matter shall be transferred from the
Registrar or the Judge in Chambers to the Court.â
3.
The learned Attorney General for Pakistan has
stated that some of the objections have been removed. However,
when we have inquired from him as to whether the question of
maintainability or otherwise of the petition can be determined by
the Registrar, he replied in affirmative. In this behalf, his
attention has been drawn towards a judgment of this Court in the
case of All Pakistan Newspapers Society v. Federation of
Pakistan (PLD 2004 Supreme Court 600). On this, the learned
Attorney General has submitted that subject to all, just and legal
exceptions, the Appeal under Order V Rule 3 of the Supreme
Court Rules, 1980 may be entertained allowing the respondents
to raise the question of maintainability at the relevant time.
Civil Misc.Appeal No.1 of 2012
3
4.
As the petitioner is aggrieved from the objections
raised by Registrar of this Court, vide order dated 30.12.2011,
therefore, having examined the same in the light of the judgment
noted hereinabove as well as the relevant rules and also after
hearing the learned Attorney General for Pakistan, whom notice
was given, the listed Civil Miscellaneous Appeal is allowed,
subject to all, just and legal exceptions and the office is directed
to entertain the petition, in accordance with law.
Chief Justice
Judge
Judge
ISLAMABAD
07.02.2012
Zubair
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
Constitution Petition No.105/12 alongwith CMAs-3795 & 3798 of
2012, HRC No.23957-S/2012 and Const. P. 53/2012.
AND
Constitution Petition No.104 of 2012 & CMA 3464/12.
AND
Constitution Petition No.117/12.
Hamid Mir and another.
âĻ Petitioner (s)
VERSUS
Federation of Pakistan etc.
âĻ Respondent (s)
For the petitioners:
Hamid Mir & Absar Alam, in person.
(In Const. P.105/12)
For the petitioner:
Dr. Tariq Hassan, ASC
(In Const. P.53/12):
Syed Safdar Hussain, AOR
For the petitioners:
Mr. Tausif Asif, ASC
(in Const. P.104/12)
(regarding obscene and objectionable material in media)
For the petitioners:
Sheikh Ahsan ud Din, ASC
(Sh. Ahsan ud Din)(in Const.P.117/12):
Ch. Akhtar Ali, AOR
For the respondent-1:
Mr. Zulfiqar Khalid Maluka, ASC
Mr. Mehmood A. Sheikh, AOR
Mr. Nasir Jamal, DG & Rashid Ahmed (Secy.) and
Muhammad Azam (Press Information Officer)
For the respondent-2:
Mr. Hasnain Ibrahim Kazmi, ASC
Dr. Abdul Jabbar (Acting Chairman)
For the respondent-3:
Nemo.
For respondent-3:
Mr. Hasnain Ibrahim Kazmi, ASC
(Sh. Ahsan ud Din)(in Const.P.117/12):
Mr. Mehmood A. Sheikh, AOR
For the respondent-4:
Mr. Dil Muhammad Khan Alizai, DAG
(Sh. Ahsan ud Din)(in Const.P.117/12):
Mr. M. S. Khattak, AOR
For the respondent-5:
Mr. Jawwad Hassan, Addl.A.G.
(Sh. Ahsan ud Din)(in Const.P.117/12):
For the respondent-4&5:
Syed Zahid Hussain Bukhari, ASC
For the respondent-6:
Nemo
For the respondent-7:
Mr. Naveed Ihsan
Mr. Asif Hussain
For the respondent-8:
Nemo.
For the respondents:1,2,6&8:
Nemo. (Sh. Ahsan ud Din)(in Const.P.117/12)
Const. P. 105/12 etc.
2
For the respondent,9&10:
Mr. Jawwad Hassan, Addl. A.G.
Mr. Tahir Raza, Addl. Secretary Information Deptt:
Mr. Hassan Raza Khan, Dy. Director, ACE.
For the Province of KPK:
Syed Arshad Hussain Shah, Addl. A.G.
(In Const.P.105/12 & in Const.P.117/12)
For the Federation:
Mr. Dil Muhammad Khan Alizai, DAG.
For the respondent-11 & Value TV: Mr. Yasin Azad, ASC
Raja Muqsat Nawaz, ASC
Ch. Akhtar Ali, AOR
For the applicants:
Mr. Hashmat Ali Habib, ASC (CMA 4053/12 in Const.P.105/12)
Nemo (CMA 3820/12 in Const.P.105/12)
Mr. Arshad Sharif, Bureau Chief, DUNYA TV
(CMA 3428/12 in Const.P.105/12)
Mr. Ghulam Nabi, President Press Association SC (CMA
4063/12 in Const.P.105/12)
Mr. M. Hanif Awan, in person (CMA 3464/12 in Const.P.104/12)
Nemo (CMA 3631/12 in Const.P.105/12)
Nemo (CMA 4210/12 in Const.P.105/12)
Nemo (HRC 23957-S/12)
For M/s Vision Network:
Mr. Adnan Iqbal Chaudhry, ASC
For M/s AURORA:
Mr. Munir A. Malik, Sr. ASC
alongwith Faisal Siddiqi Advocate.
For AAJ TV, Kashash TV, AVT,
Mr. Mehmood A. Sheikh, ASC
DHOOM, APNA TV:
For Express TV:
Mr. Asad Kharl, (Reporter)
For VIVE TV:
Nemo.
For PTV:
Mr. Shahid Mehmood Khokhar, ASC
For PUNJAB TV:
Nemo
For PEMRA:
Hafiz S. A. Rehman, Sr. ASC
(in Const.P.104/12)
Mr. Mehmood A. Sheikh, AOR
(regarding obscene and objectionable material in media) Dr. Abdul Jabbar (Acting Chairman)
For Airways Media:
Mr. M. Bilal, Sr. ASC
Mr. Babar Bilal, ASC
For ARY:
Nemo
For Cable Operators:
Dr. Amjad Hussain Bukhari, ASC
For Pakistan Broadcasters:
Mian Gul Hassan Aurangzeb, ASC
(CMA 3521/12 in Const. P.104/12)
(regarding obscene and objectionable material in media)
For Cable Operators Association:
Dr. Amjad Hussain Bukhari, ASC
(in CMA 3464/12 of Const.P.104/12):
Mr. M. S. Khattka, AOR
(regarding obscene and objectionable material in media)
For Indus Television:
Tariq Ismail
Date of Hearing:
20.12.2012
Const. P. 105/12 etc.
3
ORDER
Jawwad S. Khawaja, J. These constitutional petitions have raised important issues
concerning the twin rights of freedom of speech and access to information protected by
Articles 19 and 19A of the Constitution. Since all petitions before us concern similar or
connected issues, these are being heard together.
2.
The brief particulars of the petitions are as follows: Constitutional Petition No. 53 of
2012 has been filed by three petitioners: Independent Media Corporation (Pvt.) Ltd. which
conducts business in the name of Geo TV Network; Independent Newspapers Corporation
(Pvt.) Ltd. which conducts business in the name of Jang Group and News Publications (Pvt.)
Ltd. which conducts business in the name of The News Group. Constitutional Petition No.
105 of 2012 has been filed by two media persons, namely Hamid Mir, presently Executive
Editor of Geo News, and Absar Alam, presently associated with Aaj News. Constitutional
Petition No. 117 of 2012 has been filed by two senior advocates: Sheikh Ahsan-ud-Din, and
Sajid Mehmood Bhatti. And Human Rights Case No. 23957-S of 2012 is based on a complaint
filed by Syed Adil Gilani of Transparency International.
3.
The Respondents in the various petitions are: Federation of Pakistan, PEMRA, PTA,
Bahria Town (Pvt.) Ltd., Malik Riaz Hussain, FBR, SECP, FIA and others. Notices were also
issued by the Court to a number of media houses who have filed replies and are now party to
these proceedings. Asad Kharral, a journalist, has also filed an application to be made a party.
4.
These petitions give rise to a large number of issues on which arguments have been
heard over the course of a number of hearings. In our order dated 16.10.2012, we identified 8
issues on which the hearings were focused. During subsequent hearings, some other
connected issues have also emerged. At this stage it is useful to re-state the key issues and
make certain prima facie observations. Documents which still need to be submitted have also
been identified. This order is meant to enable the various parties to present their concluding
arguments in an informed and effective manner and to ensure that necessary documents are
available on record.
I. Maintainability. Whether the petition raises questions of public importance in relation to
the enforcement of fundamental right? If so, what are these questions and what fundamental
rights are involved? Whether the allegations in the petition against the Respondents No. 4 &
No. 5 and M/s Midas (Pvt.) Limited merit examination by this Court in its jurisdiction under
Const. P. 105/12 etc.
4
Article 184(3) of the Constitution? And if so, what should be the extent, scope and
methodology of such an inquiry?
5.
Most parties before us are in agreement that these petitions, as a whole, do raise
questions of public importance with reference to the enforcement of fundamental rights,
particularly the right to information (needless to say correct information) guaranteed under
Article 19A and the right to free speech guaranteed under Article 19. As such, the jurisdiction
of this Court under Article 184(3) is attracted.
6.
However, prima facie, some issues arising in these cases require detailed probe into
facts. These issues raised in the petitions do not require the Court to exercise its extraordinary
jurisdiction under Article 184; instead, it would be more appropriate for aggrieved parties to
seek their legal remedy at some other competent forum. Some general principles in respect of
these issues can, however, be settled at the conclusion of the hearing.
II. Constitutionality of Federal Ministry of Information. Whether after the enactment of the
18th Amendment to the Constitution, the legislative competence of Parliament extends to the
print and electronic media so as to justify the retention of the Federal Ministry of Information
and Broadcasting?
7.
Since this is an important constitutional issue any parties wishing to address
arguments on the same may do so on the next date of hearing.
III. Principles of Media Regulation. Is this a case where the Court should lay down the
contours of the fundamental rights contained in Articles 19 and 19A of the Constitution in the
context of the electronic media? If so, what are the boundaries of these rights in the context of
the electronic media and are there any corresponding duties owed by such media to the
general public?
IV. Content Regulations and the Authorityâs proper constitution. Whether the Content
Regulations framed by PEMRA under the PEMRA Rules, 2009 are consistent with the
fundamental rights contained in Article 19 and 19A of the Constitution and the mandate
conferred by the PEMRA Ordinance, 2002? If not, whether it is appropriate for the Court to
formulate Content Regulations or would it be more appropriate to constitute a Commission
for this purpose? Assuming that a Commission is to be constituted, what should be its terms
of reference and the manner and character of its composition?
Const. P. 105/12 etc.
5
8.
During the proceedings of this case, PEMRA issued a notification titled PEMRA
(Content) Regulations, 2012. These regulations contain a number of affirmative obligations
which are to be discharged by the licensees. However, the petitioners have raised challenges
against the substantive as well as procedural validity of the regulations.
9.
Prima facie, at this stage a full review of the substance of these regulations does not
seem warranted by the facts before us. In line with the common law method, it would be
better that as and when any party feels aggrieved by the various provisions of the
regulations, it may invoke the jurisdiction of the appropriate forum. The constitutionality of
the provisions and the proper interpretation thereof can then be ascertained. To do so now by
attempting to envision all future possibilities is not necessary.
10.
The procedural challenges lodged by the petitioners are more serious. The petitioners
contend that the Regulations were formulated without the necessary consultation with all
relevant stakeholders. Furthermore, the Regulations were notified in a period when the
Authority was improperly constituted, since Dr. Abdul Jabbar, who claimed to be Acting
Chairman and actually chaired the Authorityâs meetings, had no legal authority to hold this
office. Also, since he had notice of this defect, PEMRA may not be able to rely on de facto
exercise of authority.
11.
The issue of the appointment process for key statutory offices is of the utmost
importance in ensuring the integrity and independence of statutory institutions. Therefore, on
18.12.12, the Court directed Mr. Hasnain Ibrahim Kazmi, counsel representing PEMRA, to
produce the full record relating to the process whereby Dr. Abdul Jabbar claims to have been
appointed Acting Chairman. The Court also directed Mr. Kazmi and the learned Deputy
Attorney General, to present the record of the appointment process of all other members of
the Authority. The Court also directed the DAG to present similar record for the appointment
to the Board of APP and PBC, the major recipients of the budget of the Ministry of
Information. Some documents in this regard have been filed. However, the complete record is
still awaited and may be submitted within one week.
V. Secret Funds. Whether the Federal Budgets have allocated from time to time to the Federal
Ministry of Information and Broadcasting any funds that may be spent in its absolute
discretion or that may be spent in secrecy without disclosing the purpose of the
Const. P. 105/12 etc.
6
disbursements or the identity of its recipients? If so, did the said Ministry have a
constitutional basis for such disbursements?
12.
Mr. Zulfiqar Khalid Maluka, ASC, representing the Ministry of Information and
Broadcasting addressed the court about the details of the Ministryâs budget. He apprised the
Court that the bulk of the Ministryâs budget is spent on statutory corporations: Pakistan
Broadcasting Corporation, Associated Press of Pakistan, Press Council of Pakistan and a few
other. He contended that there were only two â âSpecial Publicity Fundâ and âSecret Service
Fundâ â which contain a total of around Rs. 14.3 crore in FY-2011-2012, details of which
could not be disclosed during the course a public hearing. The Court clarified that in line with
Article 19A, it is not inclined to accept this argument. At this point, Mohammad Azam, the
Principal Information Officer, Ministry of Information, stated that the Secretary Information
is willing to disclose the details of these funds to the Court by submitting the details in sealed
cover.
13.
Prima facie, while the Ministry may claim privilege from making public disclosure of
certain parts of its budget, such privilege is not automatically available to the Government. It
must be claimed from the Court. Information for which secrecy is sought must be clearly
marked and the reasons for seeking secrecy must also be clearly stated. The Court can then
make a determination on this point in line with the law and the Constitution.
VI. Fiscal Misappropriation. On 18.12.12, Mr. Asad Kharal, contended that the budgets of 27
other Ministries also contain secret funds similar to the ones which are in place in the
Ministry of Information. This is a disturbing disclosure since secrets funds may potentially be
a tool for undermining the right of citizens protected under Articles 19 and 19A. Since all
public authorities are fiduciaries of the public and receive their funds from the public, the
Auditor General or other constitutionally authorized bodies must have access to ensure
transparency in the manner in which they spend the allocated budget.
VII. Commission. Some petitioners urge the Court to appoint a Commission which may
examine issues IV, V and VI at length and propose appropriate content regulations, and
record findings about the manner in which government advertisement spending is being
made and determine whether it is in line with Article 19A. While we do not find it
appropriate to give any finding on this issue at the present stage, the parties pressing this
point are directed to suggest Terms of Reference of the proposed Commission.
Const. P. 105/12 etc.
7
14.
The case is now fixed for hearing on 9.1.2013. Within 7 days from today all documents
specified in this order, or anything else which the parties deem necessary for determination of
the above-mentioned issues, must be filed in Court so that the hearing of this case can be
concluded.
15.
Having gone through the PEMRA Ordinance, 2002 and the various notifications
presented in Court including Notifications dated 27.9.2008, 27.7.2009 and 14.5.2011 and also
having heard the learned counsel on the question of Dr. Abdul Jabbar purporting to represent
himself and to act as Chairman PEMRA, we are prima facie, of the view that Dr. Abdul Jabbar
has no authority to act as, or to represent himself as Chairman or acting Chairman PEMRA.
This aspect was also highlighted in our order dated 17.9.2012 passed in Constitution Petition
No. 104 of 2012, in the following terms:-
âIt has also been pointed out to us that there is no permanent Chairman of
PEMRA and incumbent is an acting Chairman for the last about two years.
Relevant provisions of PEMRA i.e. section 6 of the PEMRA does not contain
any such provision, however, it is understandable that temporarily for a shortest
possible period acting Chairman can be appointed to find suitable person to be
appointed as permanent Chairman. In this behalf notice be issued to the
Secretary, Ministry of Information and Broadcasting to appear and explain on
behalf of the Government as to why the permanent Chairman has not been
appointed so farâ.
16.
Despite the above, no Chairman of PEMRA has been appointed in accordance with
the provisions of PEMRA Ordinance and particularly section 6 thereof. Consequently, Dr.
Abdul Jabbar is restrained from acting as or representing himself as Chairman or acting
Chairman of PEMRA. The questions as to the validity of acts taken in the name of PEMRA
during the period starting 13.05.2011 when it had no Chairman, will be considered on the
next date of hearing.
Judge
Judge
Islamabad
20.12.2012.
A. Rehman
Not approved for reporting.
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
Const.P.No.10 of 2013
Against the violence in Christian Colony in Badami
Bagh area over alleged blasphemy
For the Applicant (s)
(in CMA No.1380/13)
: Ch. Naeem Shakir, ASC
In Attendance
:
For Govt. of Punjab
: Mr. Ashtar Ausaf Ali, A.G.Punjab
Mr. Asjad Javed Ghurral, Addl.P.G.
Mr. Jawwad Hassan, Addl.A.G.
Mr. Khan Baig, Acting IGP, Punjab
Mr. Muhammad Amlish, CCPO, Lahore
Mr. Noor-ud-Din Mengal, DCO, Lahore
Mr. Babar Bakht Qureshi, SSP (Inv)
Mr. Multan Khan, Former SP (Inv)
Syed Muhammad Amin Bukhari, SP.,
City (Inv), Lahore
Date of Hearing
: 25.03.2013
ORDER
CMA No.1548/13
This report has been submitted by the CCPO, Lahore,
the following paras (j) and (k) mentioned under the caption of
causes/reasons for putting quarters on fire are reproduced herein
below: -
(j)
On 09.03.2013 at 09:30 am to 10:30 am, the aggressive
crowd started pelting stones at the police. On which SP
Multan Khan ordered DSP and SHO to collect all the police
officers available in the area at one place which was
Const.P.No.10/13
2
resisted by SHO and DSP as they had deployed them at
the gates of Joseph Colony. But on insistence of SP, the
police force was collected and SP Multan Khan ordered
them to carry out lathi charge and tear gas on the un-ruly
mob. Then the crowd started stone pelting on the police
on which the police started retreating. In the meantime,
Javed and Yousaf Kandawala Godowns opened the gates
for the police and police entered into their Godowns and
closed the doors. SP Multan Khan took refuge on third
floor of the Godown and SHO, DSP alongwith the force
closed the main gate. On this, the crowd returned to
Joseph Colony and set ablaze the quarters of Christians.
They also brought their households/equipments on the
main road and put them on fire.â
(k)
Police reinforcement started arriving around 11:30 am
alongwith officers which included SSP Operations Sohail
Sukhera, SSP Investigation, Babar Bakht Qureshi, SP
Cantt:, Maroof Safdar Wahla, SP Iqbal Town Imtiaz
Sarwar, SP Civil Lines, Dr. Farukh Raza alongwith DSPs
and SHOs with reserves. On arrival of this force, SP
Multan Khan and his force which had taken refuge in
godowns came out. By that time, the damage had been
done.
2.
It has also been admitted that the incident is the result
of the instigation by the instigators/leaders of two groups,
namely, Aman Group and Ittehad Group. Their names have been
mentioned in the caption of investigation which are reproduced
herein below: -
Name of Group
Leaders
Aman Group
1.
Tariq Mehmood
2.
Usman Butt
3.
Ch. Shabbir Ahmed
4.
Malik Yasir Anwar
5.
Mian M. Saleem
6.
Bao Sajjad
7.
Bao Fayyaz
Ittehad Group
1.
Amir Siddique
2.
Saddian Butt
3.
Ch. M. Younis
4.
Haji Shaukat
Const.P.No.10/13
3
3.
The conclusion of the report is also reproduced herein
below: -
âIt is submitted that the blasphemy case has been proved
to be true against accused Sawan Masih. The investigation of
case FIR No.114/13 (burning of Christian Colony) is in progress
in which 48 accused have been arrested. The case in which
Bishop was man-handled is also being investigated. Main
culprits have been identified and efforts for their arrest are
being made. Vacation of quarters of Christians was outcome of
fear and charged atmosphere as well as persuasion by the SHO.
Right from SHO to SP took the event of 08.03.2013 lightly and
failed to convey gravity of the situation to their seniors. The
senior officers including DIG Operations, DIG Investigation and
the then CCPO too could not assess the gravity of the situation.
Incident of blasphemy, instigation by business community and
presence of labour class (Pathans) a large scale and strike call
were the main causes of putting the Joseph Colony on fire.
Nothing solid has come on record so far, to show that the
godown owners or any other group had planned these events to
occupy the land of the Joseph Colony. The investigation of cases
is being carried out on merits under my supervision which will
be finalized within shortest possible time and real culprits will be
brought to book.â
4.
Without prejudice to the case of either of the parties at
this stage, we refrain from making any comments except making
reference to paras (j) and (k) mentioned in the causes/reasons of
the incident from which any one can draw inference thus we
leave to the high-ups of the police to draw inference in this
behalf. In a situation like this where the police officers
themselves had taken shelter in a godown, no one else could
Const.P.No.10/13
4
protect to the life and property of the inhabitants of the Joseph
Colony and their failure to do so is sufficient to prima facie
hold that the Fundamental Rights of the citizens of Joseph Colony
were not protected as enshrined under Articles 9 and 14 of the
Constitution.
5.
Learned Advocate General on our query stated that the
Federal Government despite repeated requests by the Provincial
Government so far has not posted an Inspector General of Police
and the command is still with the Acting Inspector General of
Police, Mr. Khan Baig with effect from 01.01.2013, after the
retirement of the then Inspector General of Police.
6.
We may observe that under Article 148 (3), it is also
the duty of the Federation to protect every Province against
external aggression and internal disturbances and to ensure that
the Government of every Province is carried on in accordance
with the provisions of the Constitution. According to the rules and
practice, the Inspector General of Police is required to be
appointed by the Federation after providing a panel enabling the
Provincial Government to make a choice out of the same. A
similar situation was also prevailing in the Province of Sindh,
where the post of Inspector General of Police was lying vacant
from 06.03.2013, ultimately this Court has to pass an order
directing to the Federal Government through Establishment
Const.P.No.10/13
5
Division to appoint the Inspector General of Police enabling him
to ensure the maintenance of law and order situation and we
believe that here in the Province of the Punjab in view of the facts
and circumstances, noted in this case, it is necessary to issue
direction to the Secretary, Establishment Division, Government of
Pakistan to do the needful otherwise it would not be possible for
the Provincial Administration to maintain the law and order
situation in the Province and post a competent person, as
Inspector General of Police so he may protect the life and
property of the citizens, instead of allowing the police force to be
commanded by the Acting Inspector General of Police.
7.
The Registrar of this Court is directed to deliver the
copy of this order to the Secretary, Establishment Division,
Government of Pakistan as well as to the Chief Secretary of the
Province of the Punjab so they may with the consultation of each
other take steps for the appointment of Inspector General of
Police after due consultation with the competent authority.
CMA No.1549/13
8.
The DCO, Lahore has submitted a report, which is to be
examined on the next date of hearing as it is already 4:00 P.M.
9.
The case is adjourned for a date in office after 7 days
enabling Mr. Muhammad Amlish, CCPO to further probe into the
Const.P.No.10/13
6
matter as according to him the report, which he has placed
before this Court, is a tentative one.
CJ.
Islamabad
J.
25.03.2013
*Rabbani*
J.
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, CJ
Mr. Justice Sh. Azmat Saeed
Mr. Justice Umar Ata Bandial
Constitution Petitions No. 10, 11 and 12 of 2019
(Regarding the allegations leveled through a media briefing against
Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad)
Ishtiaq Ahmed Mirza
(in Const. P. No. 10 of 2019)
Sohail Akhtar
(in Const. P. No. 11 of 2019)
Tariq Asad
(in Const. P. No. 12 of 2019)
âĻPetitioners
versus
Federation of Pakistan, etc. (in all cases)
âĻRespondents
For the petitioners:
Ch. Munir Sadiq, ASC
Syed Ali Imran, ASC
Ch. Zubair Ahmed Farooq,
ASC
Syed Rifaqat Hussain Shah,
AOR
(in Const. P. No. 10 of 2019)
Mr. Muhammad Ikram Ch.,
ASC
(in Const. P. No. 11 of 2019)
In person (in Const. P. No. 12
of 2019)
For the respondents:
Mr. Anwar Mansoor Khan,
Attorney-General for Pakistan
Mr.
Sajid
Ilyas
Bhatti,
Additional
Attorney-General
for Pakistan
Mr. Sohail Mehmood, Deputy
Attorney-General for Pakistan
(in all cases)
Dates of hearing:
16.07.2019,
23.07.2019
&
20.08.2019
Constitution Petitions No. 10, 11 and 12 of 2019
2
ORDER
Asif Saeed Khan Khosa, CJ.: On 06.07.2019 a media
briefing was held by Ms. Maryam Nawaz, Vice President of
the Pakistan Muslim League (N) and a daughter of a former
Prime Minister of Pakistan namely Mian Muhammad Nawaz
Sharif who had been convicted and sentenced by Mr.
Muhammad Arshad Malik, Judge, Accountability Court-II,
Islamabad in connection with a Reference filed by the
National Accountability Bureau and whose appeal is
presently pending before the Islamabad High Court,
Islamabad, and in that media briefing she, while flanked by
some stalwarts of her political party, disclosed that the
learned Judge mentioned above had contacted his old friend
namely Nasir Butt, a worker of the political party of the
former Prime Minister, and had asked for a meeting so as to
express his remorse on having convicted Mian Muhammad
Nawaz Sharif under pressure from âcertain individualsâ.
According to that media briefing a meeting then took place
between the learned Judge and Nasir Butt at the Judgeâs
residence and in that meeting a stenographer of the said
Nasir Butt was also present. The said meeting was allegedly
recorded through a video camera and some parts of the video
so made were displayed in the media briefing showing the
learned Judge dictating grounds of appeal which could be
utilized for the benefit of Mian Muhammad Nawaz Sharif in
his appeal filed against his conviction and sentence. In the
said video the learned Judge was shown to be maintaining
that Mian Muhammad Nawaz Sharif was convicted and
sentenced by him without there being concrete evidence
produced against him. The learned Judge was also shown in
that video revealing that âcertain individualsâ confronted him
with an embarrassing video from his past and required him
to decide the case against Mian Muhammad Nawaz Sharif
and, thus, the learned Judge succumbed to the pressure
and convicted and sentenced him. The learned Judge was
Constitution Petitions No. 10, 11 and 12 of 2019
3
also shown in that video to be admitting that the said
conviction and sentence weighed heavily on his conscience
and, therefore, he wanted to help Mian Muhammad Nawaz
Sharif in order to rectify the wrong. On the very next day, i.e.
07.07.2019 the learned Judge namely Muhammad Arshad
Malik issued a press release claiming that the conversation
shown to be taking place in the above mentioned video had
been distorted and twisted. In the said press release the
learned Judge maintained that he knew Nasir Butt and his
brother Afzal Butt for a long time and that during the course
of the trial of Mian Muhammad Nawaz Sharif he was offered
bribe and was also threatened with dire consequences in
case he failed to cooperate and acquit Mian Muhammad
Nawaz Sharif. It was further claimed by the learned Judge in
that press release that he did not yield to those temptations,
pressures or threats and that although he had acquitted
Mian Muhammad Nawaz Sharif in one of the cases being
tried by him yet he had convicted and sentenced him in the
other case purely on merits and in accordance with the facts
and evidence brought on the record. On 11.07.2019 the
learned Judge swore an affidavit containing his detailed
assertions in the above mentioned regard which affidavit was
presented by him before the Honourable Acting Chief Justice
of the Islamabad High Court, Islamabad who had then
ordered the said affidavit to be placed on the record of the
pending appeal filed by Mian Muhammad Nawaz Sharif
against his conviction and sentence. The said affidavit
contained some more details of the pressures applied and
the temptations and bribe offered to the learned Judge for
rendering a judgment acquitting Mian Muhammad Nawaz
Sharif. It was also claimed by the learned Judge in the said
affidavit that even after rendering the final verdict in the case
against Mian Muhammad Nawaz Sharif he was approached
by the above mentioned Nasir Butt and one Khurram Yousaf
who referred to a video of the learned Judge which was
followed by a visit to the learned Judge paid by one Mian
Constitution Petitions No. 10, 11 and 12 of 2019
4
Tariq and his son who showed him âa secretly recorded
manipulated immoral video in a compromising position.â
According to the learned Judge the purpose of showing that
video to him was to blackmail and coerce him through one
Nasir Janjua to record an audio message of the learned
Judge for the satisfaction of Mian Muhammad Nawaz Sharif.
The learned Judge had revealed in the said affidavit that
thereafter while using the said video as a threat he was made
to visit Jati Umrah where he met Mian Muhammad Nawaz
Sharif who was on bail at the relevant time and in that
meeting when the learned Judge tried to justify his verdict
Mian Muhammad Nawaz Sharif was displeased. It was
maintained by the learned Judge in the affidavit that in
order to remove displeasure of Mian Muhammad Nawaz
Sharif the above mentioned Nasir Butt had sought
assistance of the learned Judge in the matter of preparing
grounds of appeal for the benefit of Mian Muhammad Nawaz
Sharif in his appeal against conviction and sentence pending
before the Islamabad High Court, Islamabad. It was further
revealed in the affidavit that the learned Judge had, during
performance of Umrah, met a son of Mian Muhammad
Nawaz Sharif namely Hussain Nawaz Sharif in Madina and
on that occasion a hefty sum was offered to him as bribe
besides requiring the learned Judge to resign from his office
on the ground that he had to convict Mian Muhammad
Nawaz Sharif under duress when there was no convincing
evidence available against him on the record of the case. The
learned Judge had statedly resisted all such temptations and
threats not only in the said meeting in Madina but even
subsequently when Nasir Butt and Khurram Yousaf had
repeated the same threats and inducements.
2.
After the above mentioned media briefing held by Ms.
Maryam Nawaz there was an uproar in the country and
different
sections
of
the
society
started
demanding
immediate probe into the allegations leveled through the said
Constitution Petitions No. 10, 11 and 12 of 2019
5
briefing. The subsequent press release issued by the learned
Judge and the affidavit sworn by him had compounded the
controversy and had deepened the anxiety felt by people
belonging to all walks of life including politicians and the
legal fraternity. It was in that backdrop that the present
Constitution Petitions had been filed before this Court. The
first hearing of these petitions took place on 16.07.2019
when we heard the learned counsel for two of the petitioners
and one of the petitioners appearing in person whereafter it
was found by us to be appropriate to seek assistance of the
learned Attorney-General for Pakistan on diverse issues
raised through these petitions and the options available in
those regards. The learned Attorney-General for Pakistan
was, thus, directed to appear before the Court on
23.07.2019 for the purpose of rendering such assistance.
3.
On 23.07.2019 the learned counsel for the petitioner
in Constitution Petition No. 10 of 2019 maintained that an
Inquiry Commission comprising of an Honourable Judge of
this Court should be constituted so as to find out the truth
of the allegations and counter allegations leveled through the
above mentioned media briefing held by Ms. Maryam Nawaz
and the press release and the affidavit sworn by the learned
Judge. The learned counsel for the petitioner in Constitution
Petition No. 11 of 2019 submitted that contempt proceedings
ought to be initiated against all the relevant persons who
had tried to malign the judiciary of this country and a probe
should also be ordered to be conducted by an Honourable
Judge of this Court into the allegations leveled from the two
sides. The petitioner appearing in person in Constitution
Petition No. 12 of 2019 argued that different institutions
were interfering in the working of the judiciary of this
country and the allegations and the counter allegations
leveled in the present matter required constitution of a
Judicial Commission comprising of a retired Honourable
Judge of this Court in order to inquire into the matter and to
Constitution Petitions No. 10, 11 and 12 of 2019
6
dig out the truth so that dignity and grace as well as
independence of the judiciary of this country remain
unblemished. He further maintained that the Islamabad
High Court, Islamabad ought to initiate an inquiry or
investigation into the matter so that reality of the matter
might be unearthed and the stain or slur on the name of the
judiciary could be removed.
4.
On the same date, i.e. 23.07.2019 the learned
Attorney-General for Pakistan also appeared before the Court
and straightaway informed us that on the basis of a
complaint lodged by the learned Judge FIR No. 24 of 2019
had already been registered by the Federal Investigation
Agency, Cyber Crime Reporting Centre, Islamabad in respect
of commission of offences under sections 13, 20, 21 and 24
of the Prevention of Electronic Crimes Act, 2016 read with
sections 34, 109 and 500, PPC. He further informed the
Court that a person named Mian Tariq had already been
arrested in connection with investigation of the said case and
from the said accused person a land cruiser and a video had
been recovered and he had claimed that he had been given
the land cruiser and a sum of money through a cheque,
which had been dishonoured by the concerned bank, as
consideration for sale of the video which had been used to
blackmail the learned Judge. The said accused person had
further maintained before the investigating agency that he
had sold the relevant video to one Mian Saleem Raza who
had then handed the same over to Nasir Butt. We were
informed that the said Mian Saleem Raza and Nasir Butt had
already left the country surreptitiously. The learned
Attorney-General for Pakistan had maintained that different
laws in force in the country adequately took care of the
allegations and the counter allegations leveled in the matter
and, therefore, it might not be appropriate for this Court to
probe into the matter itself or to get the matter probed into
by somebody else through a Commission. In this respect the
Constitution Petitions No. 10, 11 and 12 of 2019
7
learned Attorney-General for Pakistan had referred to section
16-B of the National Accountability Ordinance, 1999 read
with section 34 of the Contempt of Court Ordinance, 2003
and had maintained that the National Accountability Bureau
as well as the relevant Accountability Court were competent
to take notice of the matter under the said laws. He had also
referred to sections 177, 186, 189, 192 and 503, PPC to
maintain that even the police could take notice of the matter
and then to inquire into and investigate the offences
mentioned in the said provisions of the Pakistan Penal Code.
He had further pointed out that section 20 of the Pakistan
Electronic Media Regulatory Authority Ordinance, 2002 and
particularly clauses 3, 4, 5, 17, 22 and 23 of the Electronic
Media Code of Conduct, 2015 empowered the said Authority
(PEMRA) to take cognizance of the issue and to hold
appropriate proceedings. According to the learned Attorney-
General for Pakistan an option available with this Court was
to constitute a Commission to look into the matter and for
constitution of such a Commission this Court was
empowered under the Supreme Court Rules, 1980. He had
further pointed out that under the Pakistan Commissions of
Inquiry Act, 2017 even the Government of Pakistan could
constitute a Judicial Commission to probe into the matter.
He
had,
however,
maintained
that
as
the
Federal
Investigation Agency had already embarked upon an
inquiry/investigation into the whole affair, therefore, this
Court might not like to interfere in such a matter at such a
premature stage. He had submitted that no commission of
inquiry or any other authority could set at naught the
judgment of conviction passed against Mian Muhammad
Nawaz Sharif and his conviction and sentence could be
interfered with only by the Islamabad High Court, Islamabad
which was already seized of an appeal filed by him in that
regard. He had maintained that the convicted person in that
case could apply under section 428, Cr.P.C. for recording of
additional evidence in the pending appeal either by the High
Constitution Petitions No. 10, 11 and 12 of 2019
8
Court itself or by the trial court upon an order of the High
Court in that regard and it was only when authenticity,
relevance and admissibility of the relevant video were
established before the High Court through such additional
evidence then the effects of the facts disclosed through the
said video on the conviction of Mian Muhammad Nawaz
Sharif could be examined by the High Court. He had,
however, hastened to add that the conduct of the learned
Judge in the distasteful affair did call for a proper inquiry to
be conducted by the Lahore High Court, Lahore which was
the parent High Court of the learned Judge and no matter
what the consequences of the relevant video were on the
conviction of the relevant convicted person the conduct of
the learned Judge ought to be attended to by the said High
Court
through
appropriate
departmental
disciplinary
proceedings. On the said date of hearing, i.e. 23.07.2019 we
had adjourned the hearing of these maters for a period of
three weeks so as to be apprised of the result of the
inquiry/investigation being conducted into the matter by the
Federal Investigation Agency.
5.
On 20.08.2019 the learned Attorney-General for
Pakistan submitted before us a report prepared by the
Federal Investigation Agency and according to the said report
the investigation into the matter is already underway, some
arrests have been made, some recoveries have been affected
and many persons have been quizzed. The said report
reveals that there are two videos relevant to the present
issues, i.e. the âobjectionable videoâ through which the
learned Judge was blackmailed and which has already been
recovered from the custody of the arrested accused person
namely Mian Tariq and the âsubject videoâ which was
displayed in the media briefing and which has not so far
been
recovered.
The
report
shows
that
a
forensic
examination of the âobjectionable videoâ has already been
conducted and the same has been found to be authentic and
Constitution Petitions No. 10, 11 and 12 of 2019
9
genuine. The learned Attorney-General has informed that
Ms. Maryam Nawaz and all those sitting on the stage when
the âsubject videoâ had been displayed during the news
briefing have maintained during the investigation that the
said video is not with them and they do not even know where
the same is at present. They had also expressed ignorance
about who had made that video and when and where the
same had been prepared. He has, however, undertaken that
the relevant laboratory or expert shall be approached by the
Federal Investigation Agency for forensic examination and
audit of a copy of that video, if technically possible, as copies
of the same can be found and made available.
6.
After hearing the learned counsel for two of the
petitioners, one of the petitioners appearing in person and
the learned Attorney-General for Pakistan and after perusal
of the report submitted by the Federal Investigation Agency
we have found that the following issues need to be attended
to by us in these matters:
(i)
Which is the Court or forum that can presently
attend to the relevant video for any meaningful
consideration in the case of Mian Muhammad
Nawaz Sharif?
(ii)
How is the relevant video to be established as a
genuine piece of evidence?
(iii)
How is the relevant video, if established to be a
genuine piece of evidence, to be proved before a
court of law?
(iv)
What is the effect of the relevant video, if
established to be a genuine piece of evidence
and if duly proved before the relevant court,
upon the conviction of Mian Muhammad Nawaz
Sharif?
(v)
The conduct of the learned Judge namely Mr.
Muhammad Arshad Malik in the episode.
We now proceed to discuss these issues one by one.
Constitution Petitions No. 10, 11 and 12 of 2019
10
7.
Issue No. (i):
Which is the Court or forum that can presently attend
to the relevant video for any meaningful consideration
in the case of Mian Muhammad Nawaz Sharif?
After having been convicted and sentenced by the trial
court after a full-dressed trial an appeal filed by Mian
Muhammad Nawaz Sharif against his conviction and
sentence is presently pending before the Islamabad High
Court, Islamabad and there cannot be two opinions about
the legal position that it is that Court alone which can at
present maintain, alter or set aside such conviction and
sentence on the basis of the evidence brought on the record.
Any Commission constituted by the Government or by this
Court, any inquiry or investigation conducted by the police
or by any other agency and any probe into the matter by any
other institution or body can only render an opinion in the
matter of the relevant video which opinion is treated by the
law as irrelevant and it cannot per se be treated as evidence
for the benefit of Mian Muhammad Nawaz Sharif in his
appeal pending before the Islamabad High Court, Islamabad.
The relevant video cannot be of any legal benefit to Mian
Muhammad Nawaz Sharif unless it is properly produced
before the Islamabad High Court, Islamabad in the pending
appeal, its genuineness is established and then the same is
proved in accordance with the law for it to be treated as
evidence in the case. In the case of Asif Ali Zardari and
another v The State (PLD 2001 SC 568) some audio tapes
and their transcripts were produced before this Court when
this Court was hearing an appeal against convictions and
sentences and such material was produced to establish bias
of the learned Judges of the High Court who had dismissed
the appeal of the convicts. As the said audio tapes and their
transcripts had never been duly proved in accordance with
the law, therefore, the said material was neither allowed by
Constitution Petitions No. 10, 11 and 12 of 2019
11
this Court to be brought on the record of the appeal nor was
such material relied upon by the Court at the time of
rendering its final judgment.
8.
Issue No. (ii):
How is the relevant video to be established as a
genuine piece of evidence?
With the advancement of science and technology it is
now possible to get a forensic examination, audit or test
conducted through an appropriate laboratory so as to get it
ascertained as to whether an audio tape or a video is
genuine or not and such examination, audit or test can also
reasonably establish if such audio tape or video has been
edited, doctored or tampered with or not. In the present case
the learned Judge had asserted through his press release
that the conversation shown to be taking place in the above
mentioned video (the âsubject videoâ) had been distorted and
twisted. The advancement of science and technology has now
made it very convenient and easy to edit, doctor,
superimpose or photoshop a voice or picture in an audio
tape or video and, therefore, without a forensic examination,
audit or test of an audio tape or video it is becoming more
and more unsafe to rely upon the same as a piece of
evidence in a court of law. It must never be lost sight of that
the standard of proof required in a criminal case is beyond
reasonable doubt and any realistic doubt about an audio
tape or video not being genuine may destroy its credibility
and reliability.
9.
Issue No. (iii):
How is the relevant video, if established to be a
genuine piece of evidence, to be proved before a court
of law?
Article 164 of the Qanun-e-Shahadat Order, 1984 provides
as follows:
Constitution Petitions No. 10, 11 and 12 of 2019
12
164. Production of evidence that has become available
because of modern devices, etc. In such cases as the Court may
consider appropriate, the Court may allow to be produced any
evidence that may have become available because of modern
devices or techniques:
Provided that conviction on the basis of modern devices or
techniques may be lawful.
Admissibility of an audio tape or video in evidence before a
court of law and the mode and manner of proving the same
before the court are issues which have been discussed in
many a case in this country and abroad and a summary of
the case-law on the subject may advantageously be recorded
here chronologically.
Islamic Republic of Pakistan through Secretary, Ministry of
Interior and Kashmir Affairs, Islamabad â Applicant/Referring
Authority v Abdul Wali Khan, M.N.A., former President of
defunct National Awami Party
(PLD 1976 SC 57)
âSo far as tape records of speeches of some of the N.A.P.
leaders are concerned, they stand on firmer ground. They
are actual record of the speech as and when it was made.
The officer recording the speech has been produced. He
has produced the necessary tape and the tapes have been
played in the Court. The officer concerned has identified
the voice of the person speaking. Therefore, we see no
reason not to accept these reports. They stand on the
same footing as the transcripts of speeches personally
recorded by officers attending the meetings at which the
speeches complained of were delivered. The learned
amicus curiae have also conceded that such tape records
are admissible in evidence and that they have been so
admitted by the Courts in this Country.â
Hakim Ali Bhatti v Qazi Abdul Hakim and others
(1986 CLC 1784)
âThe evidence relating to first respondent and his
supporterâs speeches consisted of cassette or tape-record
and transcripts of tape record speeches prepared after
tape-recording and the statement of P.W. Haji Taj Din
present at the meeting who had actually heard what was
said by the first respondent and his supporters.
The learned counsel for the petitioner has relied on Yousaf
Ali Ismail Nagrea v. State of Maharashtra AIR 1968 SC
147 at 149 and N. Shri Rama Reddy v. V.V. Giri AIR 1971
SC 1162, R.V. Maqsud Ali v. R.V. Ashiq Hussain 1965 (2)
AER 464 PL.
Constitution Petitions No. 10, 11 and 12 of 2019
13
The first respondent raised objection to the admissibility
of this type of evidence.
In the case of S. Pralap Lenjh v. State of Punjab AIR 1964
SC 72. The Supreme Court of India accepted conversation
or dialogue recorded on a tape-recording machine as
admissible evidence.
In the case of Yousuf Ali Ismail Nagrea v. State of
Maharashtra. The facts are that the appellant had walked
into a pre-arranged trap. Mahajan and other police officer
had hidden themselves in the inner rooms. Sh. Nagrea
knew that the police officers were recording conversation
and was naturally on the guard while talking to the
appellants. The evidence of conversation was tendered at
the trial of the offence. The contemporaneous dialogue
between them formed part of the res gestae and is relevant
and admissible under section 8 of the Evidence Act. The
dialogue is proved by Sheikh. The tape-record of the
dialogue corroborates his testimony.
In the case of N. Shri Rama Reddy v. Shri V.V. Giri AIR
1971 SC 1162. In this case the election petitioner had
recorded on tape the conversation that had taken place
between a witness Jagal Narain and petitioner. Objection
was taken to admissibility of the recorded conversation. It
was held by the Supreme Court of India that it was
admissible.
In the case of R.M. Malkani v. State of Maharashtra AIR
1973 SC 157. It was held by the Supreme Court of India
that the tape-recorded conversation was admissible in
evidence.
In the case of R.V. Maqsud Ali 1965 (2) AER 464. In that
case a conversation which took place in Punjab dialect
between two persons and which had been recorded on the
tape was played before the Jury and was admitted in
evidence by the trial Judge. Objection was taken before
the Court of Appeal regarding the admissibility in evidence
of the tape-recorded conversation between the accused.
Therefore, the point that specifically arose before the
Court of appeal was âIs a tape-recording as such
admissible in evidence, as a matter of law?â After referring
to the observation in Mills Case 1962 (2) AER 298 the
Appellate Court noted that the question regarding the
admissibility of a tape-record was not actually decided in
that case. The decision of High Court of Judiciary in
Hopes Case 1960 Scots Law Times 264 was referred to
and it was noted that the evidence of the police officer who
listened to the tape-recorded was held to be admissible.
The Court laid at p. 469:-
âWe think that the time has come when this Court should
state its views of the law on a matter which is likely to be
increasingly raised as time passes. For many years now
photographs have been admissible in evidence on proof
that they are relevant to the issues involved in the case
and that the prints are taken from negatives that are
untouched. The prints as seen represent situations that
have been reproduced by means of mechanical and
chemical devices. Evidence of things seen through
telescopes or binoculars which otherwise could not be
picked up by the naked eye have been admitted, and now
Constitution Petitions No. 10, 11 and 12 of 2019
14
there are devices for picking up, transmitting and
recording, conversations. We can see no difference in
principle between a tape-recording and a photograph. In
saying this we must not be taken as saying that such
recordings are admissible whatever the circumstances,
but it does appear to this Court wrong to deny to the law
of evidence advantages to be gained by new techniques
and new devices, provided the accuracy of the recording
can be proved and the voices recorded properly identified;
provided also that the evidence is relevant and otherwise
admissible, we are satisfied that a tape-recording as
admissible in evidence. Such evidence should always be
regarded with some caution and assessed in the light of all
the circumstances of each case. There can be no question
of laying down any exhaustive set of rules by which the
admissibility of such evidence should be judged.â
In consequence, the Court held that the tape-recorded
conversation was admissible in evidence, subject to the
limitation mentioned in the above extract.
In the case of Islamic Republic of Pakistan v. Adul Wali
Khan PLD 1976 SC 57, the Honâble Supreme Court laid
down the following dictum:
âSo far as tape records of speeches of some of the N.A.P.
leaders are concerned, they stand on firmer ground. They
are actual record of the speech as and when it was made.
The officer recording the speech has been produced. He
has produced the necessary tape and the tapes have been
played in the Court. The officer concerned has identified
the voice of the person speaking. Therefore, we see no
reason not to accept these reports. They stand on the
same footing as the transcripts of speeches personally
recorded by officers attending the meetings at which the
speeches complained of were delivered. The learned
amicus curiae have also conceded that such tape records
are admissible in evidence and that they have been so
admitted by the Courts in this Country.â
I hold that the tape-record and its transcript are not
admissible in evidence for the following reasons namely:-
(1)
The tape-record had been prepared and preserved
by the nephew of the petitioner. He is not an independent
person and he does not belong to independent authority.
(2)
The transcript from the tape-record was not
prepared under independent supervision and control. The
P.W. Haji Taj Din who prepared the tape-record stated in
his affidavit that he handed over the cassette or tape-
record to the petitioner. It was not annexed to the petition
but it was produced before me by the witness himself.
(3)
The voice of the person alleged to be speaking must
be duly identified by the maker of the record or by others
who know it.
(4)
Accuracy of what was actually recorded had to be
proved and satisfactory evidence, direct or circumstantial
had to be there so as to rule out possibilities of tampering
with the record.
Constitution Petitions No. 10, 11 and 12 of 2019
15
(5)
The witness who had made the tape-record was not
part of his routine duties in relation to election speeches
but it was actually made for the purpose of laying trap to
procure evidence.
(6)
The first respondent disputed that the tape-
recorded voice was his and stated that there had been
interpolation in the record.
The issue is decided in the negative and against the
petitioner.â
Muhammad Zahir Shah Khan and another v Nasiruddin and
others
(1986 CLC 2463)
â3.
One of the petitioners Zahir Shah has filed his
affidavit of evidence in support of the petition on 20th
April, 1985 while the other petitioner Malik Munsif did not
file any affidavit of evidence. It may be mentioned here
that although the petitioner mentioned names of as many
as four private witnesses in the list of witnesses submitted
alongwith his petition but affidavits of these witnesses
were not filed alongwith the petition as required under the
Rules. Therefore, in support of the petition, there was only
one affidavit of Zahir Shah. The petitioner No. 1 was cross-
examined by respondent No. 10 on 16th of October, 1985
and after close of his cross-examination the learned
counsel for the petitioners made an oral request that he
may be allowed to produce in evidence the four witnesses
mentioned in the list of witnesses but this oral request of
the learned counsel was disallowed by me on the ground
that their affidavits of evidence were not submitted by the
petitioners alongwith the petition as required under the
Rules framed under section 62 of the Act published on
16th of March, 1985, vide notification No. F1(7)/85 Cord.,
dated 16th March, 1985. It may also be mentioned here
that at the same time the learned counsel for the
petitioners made a further oral request that he may be
allowed to produce a video cassette alleged to have been
prepared during the election campaign of respondent No.
10 but that prayer was also disallowed by me on the
ground that neither this document is mentioned in the
petition nor the date of acquiring the said cassette is
disclosed anywhere by the petitioner. I also noted while
declining the above request of the learned counsel in my
order, dated 16th October, 1985, that no formal
application was moved or filed by the petitioners in this
behalf. The case was adjourned on 16th October, 1985
after closing the side of the petitioner to 19th October,
1985 for evidence of respondent No. 10. Respondent No.
10 was cross-examined by the learned counsel for the
petitioner at length on 29th October, 1985 and respondent
No. 10 closed his side on that date. On the same date,
namely, 29th October, 1985 the learned counsel for the
petitioner submitted an application under section 151,
C.P.C. praying that the petitioner may be permitted to
produce the video cassette in Court and that the petitioner
is prepared to bear the expenses of playing that video
cassette for consideration by the Tribunal. Notice of this
application was given to the counsel for the respondent
and the case was adjourned to 19th November, 1985 for
Constitution Petitions No. 10, 11 and 12 of 2019
16
hearing of application as well as arguments on the main
case. Before considering the two issues framed in the case
I will first decide the application, dated 29th October, 1985
filed by the learned counsel for the petitioner under
section 151, C.P.C. praying for permission to produce the
video cassette as a document in the case. The application
is vehemently opposed by the respondent No. 10 who in
his counter-affidavit besides alleging that no ground has
been made out for its production had denied that any
video cassette was prepared during his election campaign.
In the application filed on 29th October, 1985 the
petitioner has sought permission to produce video cassette
on the ground that this material was not within the
knowledge of the petitioner prior to 14th October, 1985
when for the first time he was told about the existence of
this video cassette by one Tamana Shah Warsi. It may be
mentioned here that the petitioner appeared for cross-
examination in Court on 16th October, 1985 i.e. after
about two days of allegedly acquiring the knowledge about
the existence of the video cassette. It is pertinent that the
petitioner when produced in Court for cross examination
made no attempt to make any further addition to his
affidavit of evidence which was already filed in the Court
alongwith the petition on 20th April, 1985. The learned
counsel for the petitioner also made no request that he
may be allowed to put further question in examination-in-
chief as a result of discovery of some new material with
regard to the controversy before the Tribunal. No doubt
some questions were put to respondent No. 10 in cross-
examination on 29th October, 1985 with regard to the
video cassette which he denied but nothing was brought
in evidence to establish that the denial made by
respondent No. 10 in his cross-examination was incorrect.
It may further be mentioned here that neither in the
application under section 151, C.P.C. moved by the
learned counsel for the petitioner on 29th October, 1985
nor in the supporting affidavit filed by petitioner Zahir
Shah anything is disclosed to show that the contents of
video cassette are relevant to the controversy in the
petition. It is also not alleged either in the application or in
the affidavit that the contents of the video cassette are
relevant to prove any of the issues involved in the petition.
The learned counsel for respondent No. 10 also rightly
contended that the oral request of the petitioner having
been declined by the Tribunal on 16th October, 1985 a
written prayer in that regard was not maintainable. The
learned counsel for the petitioner was unable to point out
any provision of law under which the Tribunal after having
once declined the oral request of the party could entertain
a second request through a written application. Therefore,
both on the legal plane as well as on merits no case is
made out for allowing production of video cassette in
evidence. I, therefore, reject the application of the
petitioner filed on 29th October, 1985 seeking permission
to produce the video cassette recorder in evidence in this
petition.â
Mst. Rukhsana Begum v District Judge, Karachi (East), etc.
(NLR 1987 Civil 799)
âThis Constitutional Petition is directed against an
order dated 26-11-1986 passed by the District Judge
Constitution Petitions No. 10, 11 and 12 of 2019
17
Karachi East in Civil Revision Application No. 34/86
allowing the respondentâs revision and rejecting the
present petitionerâs application under Section 151, CPC
for permission to produce the cassette allegedly containing
conversation between the parties as to the settlement talk
after filing of the suit No. 221/85 which is pending in the
Court of IVth Senior Civil Judge Karachi East.
2.
I have enquired from the learned counsel for the
petitioner as to the provision under which the above
cassette was admissible as a piece of evidence. His reply
was that Section 164 of the Qanun-e-Shahadat, 1984
(Presidentâs Order No. X of 1984) allows the production of
cassette as a piece of evidence being a modern device.
Section 164 of the Qanun-e-Shahadat 1984 (Presidentâs
Order No. X of 1984) reads as follows:-
Sec. 164.
Production of evidence that
has become available because of modern
devices, etc. â In such cases as the Court
may consider appropriate, the Court may
allow to be produced any evidence that may
have become available because of modern
devices or techniques.â
3.
(a) A perusal of the above section indicates that it
confers discretion on a Court to allow the production of
any evidence that may have become available because of
modern devices or techniques.
(b) In the instant case the learned Civil Judge has
allowed the above application of the petitioner but the
learned District Judge in revision took a contrary view on
the basis of the two judgments of the two learned Single
Judges of this Court in the cases of Hakim Ali Bhatti v.
Qazi Abdul Hakim & others reported in 1986 CLC 1784
and Muhammad Zahir Shah Khan & another v.
Nasiruddin and others, reported in 1986 CLC 2463.
4.
Mr. Abdul Aleem K. Talib, learned counsel for the
petitioner has vehemently submitted that since the
learned trial Court has allowed the production of the
cassette, the learned Revisional Court was not justifying in
reversing the order. However, the fact remains that the
petitioner has not been able to point out any infringement
of any provision of law by the impugned order. In my view
it is not a fit case for a Constitutional Petition. The petition
is, therefore, dismissed in limine.â
Asfandyar and another v Kamran and another
(2016 SCMR 2084)
âThe record reveals that during investigation the petitioner tried
to produce the footage of some C.C.T.V. which were produced by
the petitioner/accused before the investigating officer. No doubt
the trial Court, under section 164 of the Order, 1984, may allow
to produce the said footage of C.C.T.V. but it is incumbent upon
the defence to prove the same in accordance with the provisions
of the Order, 1984. The defence had ample opportunity to
produce in his defence, the concerned person who had prepared
the said footage from the C.C.T.V. system in order to prove the
same. In that eventuality, the adverse party would be given an
Constitution Petitions No. 10, 11 and 12 of 2019
18
opportunity to cross-examine the said witness regarding the
genuineness or otherwise of the said document. Any document
brought on record could not be treated as proved until the same
is proved strictly in accordance with the provisions contained in
the Order, 1984. While discussing these aspects of the case, the
High Court restricted the admissibility only to the extent of Article
79 of the Order, 1984 whereas there are certain other
provisions/Articles in the Order, 1984 for proving the documents
which are procured through the modern devices and techniques.
Mere producing any footage of C.C.T.V. as a piece of evidence in
the Court is not sufficient to be relied upon unless and until the
same is proved to be genuine. In order to prove the genuineness
of such footage it is incumbent upon the defence or prosecution
to examine the person who prepared such footage from the
C.C.T.V. system. So we modify the impugned judgment to the
extent that the accused is at liberty to produce evidence and
prove the same strictly in accordance with the provisions of the
Order, 1984 and it will not confine only to the Article 79 of the
Order, 1984.â
10.
Apart from the precedent cases mentioned above a video
recording or footage was held to be admissible in evidence upon
fulfillment of some conditions in the following reported cases:
Ammar Yasir Ali v The State
(2013 P.Cr.L.J. 783)
(Mere producing of CCTV video as piece of evidence and its
watching in open court was not sufficient to be relied upon unless
and until corroborated and proved to be genuine; as a proof of
genuineness of such CCTV video, it was incumbent upon
prosecution to examine the person who recorded the video to
testify the same; prosecution even failed to point out the source of
providing CCTV video; investigating officer who received CCTV
video stated in his evidence that he received it from a person who
did not want to disclose his name or identity being a man of some
surveillance; investigating officer admitted that nothing was
visible and identifiable in the video as such the CCTV was not
reliable piece of evidence)
Akhtar Ali Ghowda v The State
(2015 MLD 1661)
Munas Parveen v Additional Sessions Judge/Ex-Officio Justice of
Peace, Shorkot and others
(PLD 2015 Lahore 231)
(Information conveyed over modern devices such as SMS validly
accepted all over the world; however the witnesses in whose
presence such information was conveyed or received are always
important to prove a fact through its verification)
Shahid Zafar and others v The State
(2015 P.Cr.L.J. 628)
Constitution Petitions No. 10, 11 and 12 of 2019
19
Sikandar Ali Lashari v The State and another
(2016 YLR 62)
Muhammad Sadiq @ Husnain and others v The State and others
(2016 P.Cr.L.J. 1390)
Zakir Hussain v The State
(2017 P.Cr.L.J. 757)
Babar Ahmad v The State
(2017 YLR 153)
Hasham Jamal v The State and another
(2018 YLR Note 105)
Muhammad Irfan v The State and another
(2018 P.Cr.L.J. 1319)
(Forensic report prepared qua a video by an analyst could be
looked into without reservation in view of S. 9(3) of the Punjab
Forensic Science Agency Act, 2007; reliance placed upon forensic
data, procured through technical system, which was not
amenable to human interference)
Yasir Ayyaz and others v The State
(PLD 2019 Lahore 366)
(Qualification is that of integrity of the procedure/process)
Muhammad Jawad Hamid and another v Mian Muhammad Nawaz
Sharif and others
(2019 P.Cr.L.J. 665)
(Newspaper cuttings or video recordings have to be proved by the
author or creator)
11.
The precedent cases mentioned above show that in the
matter of proving an audio tape or video before a court of law the
following requirements are insisted upon:
*
No audio tape or video can be relied upon by a court until
the same is proved to be genuine and not tampered with or
doctored.
*
A forensic report prepared by an analyst of the Punjab
Forensic Science Agency in respect of an audio tape or video is
Constitution Petitions No. 10, 11 and 12 of 2019
20
per se admissible in evidence in view of the provisions of section
9(3) of the Punjab Forensic Science Agency Act, 2007.
*
Under Article 164 of the Qanun-e-Shahadat Order, 1984 it
lies in the discretion of a court to allow any evidence becoming
available through an audio tape or video to be produced.
*
Even where a court allows an audio tape or video to be
produced in evidence such audio tape or video has to be proved in
accordance with the law of evidence.
*
Accuracy of the recording must be proved and satisfactory
evidence, direct or circumstantial, has to be produced so as to
rule out any possibility of tampering with the record.
*
An audio tape or video sought to be produced in evidence
must be the actual record of the conversation as and when it was
made or of the event as and when it took place.
*
The person recording the conversation or event has to be
produced.
*
The person recording the conversation or event must
produce the audio tape or video himself.
*
The audio tape or video must be played in the court.
*
An audio tape or video produced before a court as
evidence ought to be clearly audible or viewable.
*
The person recording the conversation or event must
identify the voice of the person speaking or the person seen or the
voice or person seen may be identified by any other person who
recognizes such voice or person.
*
Any other person present at the time of making of the
conversation or taking place of the event may also testify in
support of the conversation heard in the audio tape or the event
shown in the video.
*
The voices recorded or the persons shown must be
properly identified.
*
The evidence sought to be produced through an audio
tape or video has to be relevant to the controversy and otherwise
admissible.
*
Safe custody of the audio tape or video after its
preparation till production before the court must be proved.
*
The transcript of the audio tape or video must have been
prepared under independent supervision and control.
*
The person recording an audio tape or video may be a
person whose part of routine duties is recording of an audio tape
or video and he should not be a person who has recorded the
audio tape or video for the purpose of laying a trap to procure
evidence.
*
The source of an audio tape or video becoming available
has to be disclosed.
Constitution Petitions No. 10, 11 and 12 of 2019
21
*
The date of acquiring the audio tape or video by the
person producing it before the court ought to be disclosed by
such person.
*
An audio tape or video produced at a late stage of a
judicial proceeding may be looked at with suspicion.
*
A formal application has to be filed before the court by the
person desiring an audio tape or video to be brought on the
record of the case as evidence.
12.
As the trial court in the case of Mian Muhammad Nawaz
Sharif has already become functus officio and as his appeal against
his conviction and sentence recorded by the trial court is presently
pending before the Islamabad High Court, Islamabad, therefore,
the only Court which can take the relevant video in evidence of
that case is the Islamabad High Court, Islamabad. An appellate
Court can take additional evidence under section 428, Cr.P.C.
which provides as follows:
428. Appellate Court may take further evidence or direct it
to be taken. (1) In dealing with any appeal under this Chapter,
the Appellate Court, if it thinks additional evidence to be
necessary, shall record its reasons, and may either take such
evidence itself, or direct it to be taken by a Magistrate, or, when
the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
(2)
Where the additional evidence is taken by the Court of
Session or the Magistrate, it or he shall certify such evidence to
the Appellate Court, and such Court shall thereupon proceed to
dispose of the appeal.
(3)
Unless the Appellate Court otherwise directs, the accused
or his pleader shall be present when the additional evidence is
taken.
(4)
The taking of evidence under this section shall be subject
to the provisions of Chapter XXV, as if it were an inquiry.
Under this section an appellate court can take additional evidence
on its own or upon an application of a party to the appeal, i.e. the
appellant, the State or the complainant but in both such cases the
appellate court has to record its reasons why it thinks that taking
of additional evidence is necessary. The necessity of taking
additional evidence at the appellate stage must be felt by the
appellate court itself and the same is not to depend upon what a
party to the appeal thinks of such necessity. After feeling the
necessity of taking additional evidence and after recording reasons
Constitution Petitions No. 10, 11 and 12 of 2019
22
for such necessity the appellate court may either take such
evidence itself or direct it to be taken by a Magistrate or, when the
appellate court is a High Court, by a Court of Session or a
Magistrate. Where the additional evidence is taken by the Court of
Session or the Magistrate it or he shall certify such evidence to the
appellate court and the appellate court shall then proceed to
decide the appeal on the basis of the pre-existing evidence as well
as the additional evidence lawfully becoming a part of the record. It
is, thus, obvious that in the context of the present matter if the
Islamabad High Court, Islamabad, either on its own motion or on
an
application
submitted
by
the
appellant
namely
Mian
Muhammad Nawaz Sharif, feels the necessity of taking additional
evidence in the form of the relevant video then it may record its
reasons for feeling such necessity and may then follow the steps
mentioned in section 428, Cr.P.C. It goes without saying that in
such a case the relevant video may be taken as (additional)
evidence only after complying with the requirements detailed above
for proving a video before a court of law.
13.
Issue No. (iv):
What is the effect of the relevant video, if established to be a
genuine piece of evidence and if duly proved before the
relevant court, upon the conviction of Mian Muhammad
Nawaz Sharif?
If upon due fulfillment of the preconditions mentioned in the
preceding paragraphs the relevant video is taken as additional
evidence by the Islamabad High Court, Islamabad under section
428, Cr.P.C. either on its own motion or on an application
submitted by the appellant namely Mian Muhammad Nawaz Sharif
or any other party to the case then the High Court shall have to
decide as to whether the conduct of the learned Judge of the trial
court depicted through the said video, if found to be objectionable,
had caused any prejudice or not. If the High Court comes to the
conclusion that the process of trial and the evidence recorded
during the trial were not affected by the conduct of the learned
Constitution Petitions No. 10, 11 and 12 of 2019
23
Judge of the trial court then the Islamabad High Court shall have
the option either to reappraise the evidence itself and decide the
appeal on its merits after reaching its own conclusions on the
basis of the evidence available on the record or to remand the case
to the trial court for re-deciding the case after hearing of
arguments of the parties on the basis of the evidence already
recorded. We would not like to comment on these aspects any
further as the choices available with the High Court in the above
mentioned eventualities would lie within the jurisdiction and
discretion of the High Court and such choices would be exercised
by it on the basis of the facts found and the conclusions reached
by it.
14.
Issue No. (v):
The conduct of the learned Judge namely Mr. Muhammad
Arshad Malik in the episode.
The pivot of the matter before us is the learned Judge of the
trial court namely Mr. Muhammad Arshad Malik who had tried
and decided the relevant criminal cases against Mian Muhammad
Nawaz Sharif. He serves under the Lahore High Court, Lahore, was
on deputation at the relevant time and was serving as a Judge,
Accountability Court-II, Islamabad. We have been informed that he
has already been relieved of that position and has been made an
Officer on Special Duty (OSD) but he has not so far been
repatriated to the Lahore High Court, Lahore and that is why no
departmental disciplinary proceedings have been initiated against
him so far. However, the press release issued by him on
07.07.2019 and the affidavit sworn by him on 11.07.2019 are
themselves damning indictments against him. His admitted
conduct emerging from that press release and the affidavit stinks
and the stench of such stinking conduct has the tendency to bring
bad name to the entire judiciary as an institution. He had
unabashedly admitted in the press release and the affidavit that he
had a shady past and had skeletons in his cupboard for which he
was vulnerable to blackmail, during the trial being conducted by
Constitution Petitions No. 10, 11 and 12 of 2019
24
him he had been holding private meetings with sympathizers of the
accused person being tried by him, he was threatened and
inducements were offered to him during the trial but he had not
reported the same to any superior authority and had never
considered recusing from the trial, after convicting the accused
person in the trial he had met the convict at his residence in a
different city, he had even met a son of the convict in a different
country and finally he had tried to help the convict in his appeal
filed against his own judgment by dictating some grounds of
appeal and pointing out some stated weaknesses in the case
against the convict convicted by him. Such admitted conduct of the
Judge was shocking, to say the least, besides being abhorrent and
offensive to the image of a Judge in the society. His sordid and
disgusting conduct has made the thousands of honest, upright,
fair and proper Judges in the country hang their heads in shame.
The learned Attorney-General has assured the Court that the said
Judge shall be repatriated to the Lahore High Court, Lahore
immediately and we expect that after his repatriation appropriate
departmental disciplinary proceedings shall be initiated against
him by the Lahore High Court, Lahore forthwith.
15.
In the end we find that it may not be an appropriate stage for
this Court to interfere in the matter of the relevant video and its
effects, particularly when the said video may have relevance to a
criminal appeal presently sub judice before the Islamabad High
Court, Islamabad. A criminal investigation is already being
conducted into the matter by the Federal Investigation Agency,
some other offences or illegalities under some other laws referred
to by the learned Attorney-General might also entail inquiries or
investigations by the competent agencies or fora and any probe
into the matter by a Commission to be constituted by the
Government or by this Court may end up only with an opinion
which may have no relevance or admissibility in the relevant
appeal pending before the Islamabad High Court, Islamabad. In
Constitution Petitions No. 10, 11 and 12 of 2019
25
this view of the matter all these petitions are disposed of with the
observations made above.
Chief Justice
Judge
Judge
Announced in open Court at Islamabad on 23.08.2019.
Chief Justice
Islamabad
23.08.2019
Approved for reporting.
Arif
| {
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE SH. AZMAT SAEED
CONSTITUTION PETITION NO.115 OF 2011
Abdul Raheem Ziaratwal and another
âĻPetitioners
Versus
Federation of Pak. etc.
âĻRespondents
For the petitioners:
Syed Iftikhar Hussain Gillani, Sr. ASC
Mr. M. S. Khattak, AOR, assisted by:
Barrister M. Saad Buttar, Advocate
For Rspdt. Nos.1-4:
Nemo.
For Rspdt. Nos.5-6:
Kh. Haris Ahmed, Sr. ASC
Mr. Arshad Ali Chaudhry, AOR
For Rspdt. Nos.7-8:
Mr. Shakeel Ahmed Baloch, A.G. Balochistan.
Date of hearing:
16-18 & 22.7.2013.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- Constitution
Petition No.115 of 2012 has been initiated under Article 184(3) of the
Constitution of Islamic Republic of Pakistan, 1973.
2.
Abdul Rahim Ziaratwal, General Secretary along with
other office bearers of Pashtoonkhwa Milli Awami Party (PMAP), filed
this petition, highlighting the poor living conditions of the people of
Balochistan. It was averred in the petition that the Government of
Balochistan
(GoB)
conducts
an
annual
development
program
Const.P.115/12 etc.
2
throughout the Province of Balochistan called the âPublic Sector
Development Programâ (PSDP), which covers all development
schemes, both ongoing and newly commenced. In this regard, the
government follows the Manual for Development Projects (MDP)
prepared and designed by the Planning Commission of Pakistan (PCP).
In pursuance whereof, five programs were prescribed for preparation
and implementation of the development schemes. As per the
Development Manual, the Planning Division/Planning Department
directs departments of the Provincial Government during the months
of October/November to provide details of the proposed projects for
inclusion in the PSDP after obtaining feasibility report, etc. The
information so provided is then placed before a Committee of the
Planning Department, which is supposed to scrutinize each and every
scheme and approve all information for inclusion in the PSDP. The
grievance in this case is that no such process has been adopted by the
Planning Department and the PSDP was prepared in a very mechanical
manner; therefore, public money was plundered by the holders of
public office who were not open to any accountability. A number of
schemes in various sectors of the PSDP were earmarked with 100%
allocation; however, all such schemes were unapproved. According to
the Petitioners, the government had been making public statements
from time to time to the effect that they had spent 100% amount of
PSDP for the year 2011-2012, whereas the fact remains that no
amount had been spent in about 154 schemes and the government
functionaries had embezzled and misappropriated an amount of Rs.
6171.00 million. The non-development expenses were brought under
the umbrella of development schemes, which is a clear violation of all
Const.P.115/12 etc.
3
settled norms of planning. Moreover, every MPA/Minister of the
Province had been allocated an unprecedented amount of funds to the
tune of Rs.300.00 million. The schemes against the allocated funds
were selected by the MPA/Minister concerned without consent of the
administrative departments to which the said schemes pertained. With
the exception of a few parts of the province, the Petitioners contend,
the MPAs have been provided excess funds but without any tangible
development outcome. The Petitioners averred that there were many
schemes in PSDP which were specific to individuals, rather than being
designed and launched to benefit the community at large. The
Petitioners believe that such schemes have been included to lure the
prospective voters to vote in favour of these benefactors. Therefore,
the Petitioners claim that public money was being spent in violation of
the constitutional provisions and various laws enacted thereunder,
including the General Financial Rules (GFR) of the Federal Government
as well as MDP designed by the PCP. Lastly, it was prayed to declare
as under:-
(a)
That the respondents are under obligation to spend the public
money fairly, honestly and in accordance with constitutional
guarantees to safeguard the interest of general public.
(b)
Due to shortage of water, priority of new schemes allocation
should be given for water storage dames.
(c)
That the Government of Balochistan and its departments may
be restrained from spending any amount shown in the PSDP of
2012-13.
3.
On 22.10.2012, when the matter came up for hearing
before this Court, learned counsel for the Petitioner as well as the
Advocate General, Balochistan were asked to examine the matter to
Const.P.115/12 etc.
4
the extent of development work vis-Ã -vis the public funds which had
been spent on the same, by getting them verified by involving a third
party
belonging
to
the
Province
of
Balochistan
including
experts/engineers from the University of Balochistan, University of IT,
Agricultural University, etc. In compliance of the said order, two
notifications dated 25.10.2012 and 30.10.2012 were placed on record.
However, learned counsel for the Petitioner expressed reservations in
respect of notification dated 30.10.2012 and stated that in order to
ensure transparency, the official persons i.e. the Chairman CMIT and
Member Technical CMIT should be excluded. In light of this, the
Government was asked to issue a revised notification. The committee
was required to exercise their discretion to select schemes of a specific
area. Furthermore, at least 25 projects/schemes in respect whereof
the amount has been paid since formation of the government till that
time were to be examined and report thereof to be submitted to the
Court. By means of the same order, it was directed that allocated
amounts would not be distributed with regard to unapproved schemes
identified in PSDP 2012-2013 till further orders.
4.
On 04.12.2012, the learned counsel for the GoB filed a
reply stating therein that in compliance of the order dated 02.11.2012,
the departments had stopped work on the approved and unapproved
schemes However, it was requested that the aforementioned order
may be withdrawn. On 06.12.2012 the Court, after hearing both sides,
passed the following order:-
(1)
The Government of Balochistan is allowed to utilize the funds for
the schemes, which have already been indentified in PSDP
2012-2013 and after completion of the process, now have been
Const.P.115/12 etc.
5
approved by the Planning and Development (P & D) Department
against the budgetary allocation.
(2)
The amount shall be spent only to the extent of the budgetary
allocation without making any increase in the same.
(3)
Similarly, the departments, which have indentified the schemes,
shall be responsible to execute the same and no scheme shall
be transferred from one department to another department at
the behest of any Minister or political functionaries.
(4)
As reportedly, there is no Provincial Public Accounts Committee,
therefore, we direct the Chief Secretary, Government of
Balochistan to implement this order and ensure that no rule is
violated and the schemes are properly executed to the extent of
the budgetary allocation, which have been made, till the final
disposal of this petition.
(5)
As this matter is of an important nature, therefore, partiesâ
counsel are required to exchange their pleadings, enabling this
Court to dispose of the same on the next date of hearing.
(6)
It has been informed by Mr. Saleem Raza, Chairman of the
Committee, constituted to ascertain as to whether funds have
been utilized against the development schemes or otherwise,
that primarily sufficient time is required for the completion of
the task.
5.
The Inspection Committee undertook inspection of 55
projects/schemes situated in various parts of the province and
submitted report by means of CMA No.136/2013, which was made
public vide order dated 11.01.2013. The GoB filed scheme-wise
reply/comments on the report.
S.
#
Name
of
Schemes
Observations Raised by Supreme
Court
Inspection
Committee
(SCIC)
Comments
by
Various
Executing Agencies
1
Construction of
Road from N-
50 to Murgha
Faqirzai
(99
Km).
ID
No.
Z2003.1153
I. The scheme has been revised
five times by adding new link
roads which is not a good
practice and has affected the
completion of the scheme since
last 10 years.
I. Scheme was originally
approved
during
FY
2003 -2004, later on
during
execution
of
work;
scheme
road
length was increased at
different stages, so that
Const.P.115/12 etc.
6
Executing
Agency:
C&W
Deptt.
Implementatio
n
Status:
Ongoing
II. Before
completion
of
the
assigned
works,
the
flood
damages contracts of the same
road have been awarded.
scheme
can
be
concluded with a logical
end.
a. Link
roads
were
added
to
the
scheme,
for the reason, to
extend better road
communication
network facilities to
nearby
villages
falling in the vicinity
of
the
road
alignment, which was
also
demand
of
general public since
long. This inclusion
of
link
roads
has
facilitated
general
public of the area.
b. Delay in completion
of scheme is due to
insufficient
releases
during
course
of
scheme
implementation. The
releases
against
scheme
are
not
proportionate
with
the approved cost of
scheme. If required
level of funding i.e.
Rs
100.000
Million
additional
funds
during
CFY
2012-
2013
are
provided
and
Rs
142.946
Million
during
FY
2013 â 2014, are
provided
then
the
scheme
can
be
completed by 30th
June 2014.
II. During Execution of
work, flash flood was
encountered,
which
damaged
already
complemented
components of the
scheme. Since under
contract
agreement
there is no provision
that flood damaged
work
on
ongoing
scheme
will
be
reflected
by
the
contractor,
since
being
a
natural
disaster.
Therefore
flood
damages
contract
was
awarded to reflective
Const.P.115/12 etc.
7
III.
Neither
planning
nor
execution in a professional way
has been carried out.
IV. The works are in progress.
Discrepancies were observed in
dimension of the road as the
width varied at different places.
This
omission
should
be
removed by adopting a uniform
alignment
and
payments
be
adjusted in the Final Bill.
the
damaged
components and to
ensure that damages
are
not
repeated
during floods.
a. Work
on
damaged
components
could
not
be
left
unattended
as
scheme
completion
could
not
be
achieved
and
remaining
road
components
could
not be carried out.
b. If damages were not
reflected, there were
ample of room that
in any future flash
floods,
already
damaged
portion
could
be
severely
damaged
and
reflection cost could
be
increased
by
many folds.
III.
Scheme
was
planned
for
completion
within
three years and the
same was approved,
but funds were not
released
in
the
approved manner as
specified in approved
PC
-
I.
Due
to
insufficient
releases
the
planning
schedule has been
revised repeatedly.
a. Rate
of
funds
releases
have
a
direct bearing over
physical
progress,
due to less releases
and increase in scope
of work, scheme is
under
execution
since
FY
2003
â
2004. Under the said
circumstances,
fund
releases
dominate
the planning.
IV. Dimension
of
road
various depending of
traffic
volume.
However the width of
road should not have
been varied on main
trunk
road.
This
discrepancy will be
addressed
by
the
Const.P.115/12 etc.
8
department.
a. To
adopt
uniform
width on main truck
road, estimates are
to
be
reviewed.
Apparently
uniform
width on alignment
cannot be adjusted in
final bill as approved
estimates are as per
approved scope and
item rates are as per
CSR 1998. In case
revision of scheme is
required
due
to
adoption of uniform
width, revised PC â I
will be submitted to
competent authority
for consideration and
approval.
2
Pitav
Valley
Development
Project
Qilla
Saifullah.
ID No. Z2004-
0915
Executing
Agency:
BDA.
Implementatio
n
Status:
Ongoing
I.
The drilling of 160 tube wells
has been completed.
II. Only 49 tube wells have been
installed with machines and
energized.
III. The stake holders complained
about
silting
up
sizeable
number of tube wells, and
demanded for thorough probe
in to the matter through some
investigating agency.
IV. The QESCO has informed that
33 tube wells for which the
Demand
Notes
have
been
deposited will be energized by
15th February, 2013.
Out of 160 tube wells, only
49 tube wells have been
energized. These tube well
were drilled in 2006- 2007.
Since
2007,
BDA
is
requesting
QESCO
for
providing
connection,
but
they delayed. Due to this
reason the already drilled
tube wells got silted at
minor level. Furthermore,
the soil texture of Dolatzai,
Ghabzai,
Santozai
and
Batozai
is
sandy
zone
according
to
geologist
report. The demand note of
remaining
78
no.s
tube
wells is not submitted by
QESCO,
whereas;
the
minutely silted portions of
Tube Wells would easily be
cleaned through compressor
testing.
3
Construction of
Zhob
Mir
Ali
Khel Road.
ID No: Z2010-
0845
Executing
Agency:
Initially C&WD
but transferred
to BDA by the
P&DD
Implementatio
n
Status:
Ongoing
i.
Original
contract
being
one
package was awarded to M/s.
Hasnain
Cotex
Ltd.,
who
proceeded with the works at
snail's pace and hardly achieved
some 30% progress till complete
suspension
which
led
to
abandoning of the Contract on
18-12-07.
ii.
Following withdrawal of ADB from
the Project the BDA entered in
the scene critically and reviewed
the scope of works resulted in
gigantic increase in the cost
instigating the executants to split
the contract into three distinct
packages duly approved by the
The scheme after clearance
by the relevant approving
forum may be started as
recommended
by
the
committee.
Const.P.115/12 etc.
9
P&DD with the cost allocation as
under:
a. Rs. 4.521 Billion
b. Rs. 2.816 Billion
c. Rs. 3.669 Billion
Total : Rs. 11.006 Billion
iii.
It was utmost surprise of the
Committee
that
despite
of
mammoth increase in the cost of
the Project (i.e. Rs. 1.447 billion
to Rs. 11.036 Billion) it was
somewhat
binding
upon
the
Executing
Agency
to
get
it
approved by the CDWP/ECNEC
but this could not happened
which is considered to be a
serious omission and currently
being
investigated
by
NAB,
Balochistan and the construction
works have been put to halt.
iv.
Although, the scheme was not
inspected by the Committee yet
one
of
its
members
(Engr.
Usman
Babai)
inspected
the
works at different time and
shared his knowledge about the
scheme with other Committee
members.
v.
The Scheme was initially split up
into two packages vis: Road and
Bridges awarded to M/s. NPI and
M/s.
MN
Construction.
Respectively. Later on, a further
split
in
the
road
package
emerged but the number of
contractors remained two.
vi.
The
scheme
may
be
got
approved
at
the
appropriate
forums
so
that
it
can
be
implemented as soon as possible
4
Construction of
Roads
&
Drainage
System
Zhob
Town City Area
PSDP No. 428
â 2004-05
Executing
Agency:
BDA
Implementatio
n
Status:
Ongoing
i. The
works
have
not
been
executed in professional manner
and
the
scheme is
still
in
progress even after 8th year of
its implementation starting from
2004-05
ii. Bituminous
surface
of
these
roads was found worn out at
various locations.
iii. Drainage channels in some area
are
not
functioning
in
an
efficient manner. Major lengths
are choked and without required
I. The
work
has
been
executed
by
professional
engineers
who
are
regular
employees of BDA. In
respect
of
delay
in
completion
of
the
project, it is due to
piece meal provision of
funds to the executing
agency.
II. The deficiencies pointed
out will be rectified at
the risk and cost of
contractor.
III.
Drainage channel is
100%
complete
and
functioning
properly.
Garbage and refuse is
Const.P.115/12 etc.
10
joints.
iv. The
poor
quality/below
specification works attributed to
the gross negligence on part of
the
supervisory
staff
which
needs to be rectified soon and
the remaining works should be
completed expeditiously.
thrown in the channel
which adversely affects
its
functioning.
The
town
committee
is
responsible
for
its
cleaning.
IV. The work is still in
progress. Defects will
be removed.
5
Construction of
Additional
Class
Rooms
at
Various
Schools,
P8-
19.
PSDP No 600
Implementing
Agency: BDA
Implementatio
n Status:
Out
of
144
class rooms to
be construction
104 have been
completed.
i.
02 schools in Zhob town were
inspected and the quality of
works was found far below the
acceptable level.
ii.
Doors
and
Windows
erected
were found below specifications
iii.
Flooring was also found below
specification.
iv.
The remaining schools included
in the project require detailed
inspection and the defects found
in the executed works should be
rectified at the risk and cost of
the Contractors concerned.
I. The
building
was
completed 4 to 5 years
age and still there are no
cracks in roof, walls and
other
structures;
however the deficiencies
will
be
removed
accordingly.
II. Doors are made of pine
wood (Chalghoza) which
is locally available and
windows are made of Z
angle
iron
by
local
manufactures
which
though do not give good
finishing but are durable.
III.
Flooring
will
be
repaired at the risk and
cost of contractor.
IV.
Noted
for
compliance.
6
Musa Khail to
Drug
Road
Dakian-
Walwasta
Project
KM
10.80 to KM
20.8 (10KM)
ID
No.
Z2003.0074/3
0 (2008-09)
Executing
Agency: C&WD
Implementatio
n
Status:
Ongoing
i.
More or less all the structures
have failed. Payment for 10 KM
road Premix work has been
made, but on site hardly 1 KM
length
of
road
was
found
premixed. Despite the inquiries
already conducted, the field staff
has
not
been
punished.
Opportunity has been provided
to get the Premix carpeting work
done now, but they were hardly
able to complete 01 KM premix
work only.
I. Scheme from start runs
into
implementation
problems.
Firstly
a
Departmental
inquiry
team was held regarding
said scheme in March
2010. The finding of the
inquiry team were that
âwork done at site be got
measured and deducted
from the total cost, the
balance
amount
be
recovered
from
the
contractor, officers and
staff involved in making
the payments may be
reverted and not posted
in future for assignments
involving
financial
mattersâ.
Said
inquiry
report was processed for
Const.P.115/12 etc.
11
ii.
Observations
made
by
the
Inquiry
Committee
must
be
implemented in letter and spirit
and defective structures should
be reconstructed at the risk and
cost
of
the
Contractor/Supervisory Staff.
approval of competent
authority.
a. P&D
Department
asked CMIT to carry
out inquiry of subject
road.
CMIT
submitted report in
August 2011. CMIT
recommended
that
within four months
scheme
be
completed.
b. Concerned field staff
was given time to
complete the scheme
as
per
CM1T
recommendations.
But concerned staff
took
considerable
time to start work
and
are
presently
carrying out work as
reported
by
supervisory staff.
c. NAB
(B)
is
conducting an inquiry
or subject road from
August
2012.
Relevant documents
are
provided
to
NAB(B). Outcome of
NAB(B)
inquiry
is
awaited.
II. 32
Culverts
including
pipe
culverts
were
constructed
under
the
project as per approved
scope. Some of culverts
were
damaged
as
indicated in CMIT and
Departmental
inquiry
reports.
a. Defective structures
will
be
demolished
and reconstructed at
the risk and cost of
the
contractor
/
supervisory staff.
7
Establishment
of
Women
Hospital
in
Zhob.
ID No Z2010-
0692/961
Executing
Agency: C&WD
Implementatio
n Status:
i.
The works are in progress in a
satisfactory manner.
ii. Should some sincere efforts are
poured this vital project can be
made functional even within this
financial year.
I. Department will make
efforts to sustain & gain
work
momentum,
so
that
project
is
completed
within
allowed time frame.
II. Department realizes the
importance
of
this
public utility project and
is
making
genuine
efforts
for
early
Const.P.115/12 etc.
12
completion
of
the
hospital, but since being
a
building
work,
requiring time for curing
and
settlement,
work
items
are
interlinked
and cannot be squeezed
being time bound work
items.
Secondly
six
months of CFY 2012 â
2013
have
already
passed and remaining
approved scope cannot
be
completed
in
remaining six months.
a. Hospital
can
be
completed
by
30th
June
2014,
in
all
respect, if additional
funds to the tune of
Rs 20.000 Million are
provided during CFY
2012 â 2013 and
balance
completion
funds i.e. Rs 21.397
Million are provided
during
FY
2013
-
2014.
8
Development
Plans of Loralai
PSDP
No.
1417-2011-12
Executing
Agency: BDA
Implementatio
n
Status:
Ongoing
i.
Out of 16 Flood Protection
Schemes
one
namely
Shah
Karez costing Rs. 2,108,889/-
was
inspected
and
found
completely damaged.
ii.
The
Executing
Agency/BDA,
however,
failed
to
produce
detailed design/drawings of the
Scheme.
iii.
Out of 31 number bores, 3 were
checked. Bore at Shah Karez
was
found
operational
for
individual agriculture use. Stone
masonry circular water tank
was
neither
completed
nor
connected. The other 2 bores
were
not
operational/
energized.
iv.
Out of 5 Community Halls, 2
were inspected. The one at
Circuit House Loralai was of
acceptable quality whereas the
second one at Killi Khan Karez
was found in A-1 condition. The
beneficiary has invested his
I. The
scheme
with
its
appropriate
scope
of
work stands complete.
But damages caused by
catastrophic
floods
of
August, 2012. According
to Pakistan history last
year's rains and floods
broke
records
of
15
years.
II. The requisite information
is
available
with
the
department and can be
furnished
to
any
authority as and when
required.
III.
Noted
for
Compliance.
IV.
The
executing
agency i.e. BDA accepts
the observation of the
committee; however, it
is
assured
by
the
department that these
community halls will be
Const.P.115/12 etc.
13
own money here. This Hall will
be in use of hardly 2 - 3
families.
v.
Dispensaries
and
Boundary
Walls
of
Schools
etc:
A
Dispensary and a Boundary
Wall was inspected, and found
ok, keeping in view the non
workable
CSR
of
1998.
Transformers and Electric poles
were found installed,
vi.
Change of executing agency
has
caused
the
above
mentioned problem which could
have been avoided if the line
department was involved in
implementation process.
vii.
The shortcomings observed and
pointed out by the Inspection
Team in the executed works
should
rectify
in
adequate
manner at the risk and cost of
the respective contractors and
the
site
supervisory
staff
involved in execution process.
used for the benefit of
general
public/community.
V. No
comments
are
required in this regard.
VI.
Noted
for
future
compliance
VII.
Noted
for
future
compliance
9
Construction of
50 Bedded
Hospital
at
Mach.
ID No. Z2009-
0333
Executing
Agency: C&WD
Implementatio
n
Status:
Ongoing
i.
The quality of works was not at
acceptable level.
ii.
The
contract
comprises
the
specifications in executing such
works.
iii.
The Supervisory staff should
redouble
their
vigilance
to
ensure quality works.
I. Matter regarding quality
of
work
has
been
seriously viewed by the
Department.
Chief
Engineer, Sibi Zone and
Superintending Engineer
Kachhi will be directed to
carry
out
detailed
inspection and rectify all
works which are not as
per
required
approved
specifications.
II. Field
Staff
is
being
directed
to
vigilantly
supervise the work and
approved / laid down
specification
must
be
followed at all cost and
quality of work should
not be compromised at
any cost.
III.
The
SCIC
observation is well taken
and Department will be
strictly
following
the
same.
a. Department
will
ensure
that
Field
Staff will be extra
vigilant
to
ensure
quality of work and
Department internal
monitoring
system
Const.P.115/12 etc.
14
will be beefed up to
have
checks
over
quality of works and
counter ensure that
executed works are
of
required
specification
and
quality
10
Construction of
Government
Girls
Intermediate
College Mach
ID No. Z2003-
0763
Executing
Agency: C&WD
Implementatio
n
Status:
Ongoing
i.
The quality of works was not at
acceptable level.
ii.
The contractor is compromising
the specifications in executing
of such works.
iii.
Top floor roof work is simply
not acceptable.
iv.
Since the scheme is ongoing,
the defective works may be got
rectified at the risk and cost of
the Contractor
I.
Matter regarding quality
of
work
has
been
seriously viewed by the
Department.
Chief
Engineer, Sibi Zone and
Superintending Engineer
Kachhi will be directed
to carry out detailed
inspection and rectify all
works which are not as
per required approved
specifications.
II. Field
Staff
is
being
directed
to
vigilantly
supervise the work and
approved / laid down
specification
must
be
followed at all cost and
quality of work should
not be compromised at
any cost.
III. Chief
Engineer,
Sibi
Zone
and
Superintending Engineer
Kachhi will be directed
to carry out detailed
inspection of the top
floor roof and suggest
rectify work, in case it is
beyond rectification, top
floor
roof
will
be
dismantled and roof slab
will be relayed at the
cost of contractor.
IV.
Chief
Engineer,
Sibi
Zone
and
Superintending Engineer
Kachhi will be directed
to carry out detailed
inspection and rectify all
works which are not as
per required approved
specifications at the risk
and
cost
of
the
contractor.
11
Construction of
Community
Hall
at
Kurd
Camp, Dhadar.
Executing
Agency: C&WD
Implementatio
i. Extremely
poor
works.
Structural cracks in the bath
room.
I. Chief Engineer, Sibi
Zone
and
1
Superintending
Engineer Kachhi will
be I directed to carry
out
detailed
Const.P.115/12 etc.
15
n Status:
Ongoing
ii. Bath
room
drainage
work
hopeless.
iii. Boundary
wall
has
been
constructed by one beneficiary,
and may take possession of this
community hall.
iv. Steps needs to be taken by the
Administrative
Department
to
avoid trespassing.
inspection
of
the
Community Hall at
Kurd Camp Dhaddar
and suggest rectify
work, in case it is
beyond rectification,
bath rooms will be
dismantled
and
reconstructed at the
cost of contractor.
II. Bath room drainage
work will be relayed
at the risk and cost
of contractor.
III.
Field Staff of
the Department will
make a reference to
District
Administration
Dhaddar,
in
this
reference.
IV. SCIC observation will
be
forwarded
to
District
Administration
for
implementation.
12
Construction of
Community
Hall for Shah
Sahiban,
Dhadar.
Executing
Agency: Local
Government
Department
Implementatio
n
Status:
Ongoing
i.
The structure work has
been completed and fixtures and
finishing works left un-attended.
Fate of completion could not be
ascertained.
ii.
District
Administration
may be directed to get the
remaining works done
Considering the important
nature of task, the Deputy
Commissioner Kachhi has
been directed to follow the
observations of SCIC and
submit
compliance
report
within 15 days positively.
13
Construction of
Bit Road
Nighari to Kot
Kahl, Dhadar.
08 Km Length
and Arif Bridge
650 Rft.
Executing
Agency: C&WD
Implementatio
n Status:
Ongoing
i.
Social unrest due to tribal rivalry
coupled with non availability
funds has remained a cause of
the slow progress and these
issues
must
be
resolved
to
ensure
smooth
and
un-
interruptible
implementation
process
leading
to
timely
completion of the Scheme
I. District Administration
is in picture and tribal
rivalry
has
to
be
resolved
by
District
Administration.
II. Funds are not being
released as work is not
in
progress
and
is
stopped.
III. If tribal disputes are
resolved
by
District
Administration,
work
can be resumed by the
Department
and
if
required
funds
are
provided project can be
completed
by
30th
June 2014.
14
Construction of
i.
The quality of works is not up to
I. Chief
Engineer,
Sibi
Const.P.115/12 etc.
16
B/T
Road
linking
NHA
Road to Khair
Wah via Shan
Gola
Wah
Tehsil
Lehri
(14
KM
length).
Executing
Agency: C&WD
Implementatio
n
Status:
Ongoing
the mark.
ii. Instead of fetching soils from the
specified borrow area located at
a distance of 100ft distance the
Soil available just adjacent to the
alignment of the road is being
used for embankments, inviting
flood water to develop channels
which is the root cause of the
damages to the road.
iii. Works are in progress as such
the defects pointed out can
easily be rectified through the
contractor
engaged
for
implementation of the contract
Zone
and
Superintending
Engineer Sibi will be
directed to carry out
detailed inspection and
rectify all works which
are not as per required
approved specifications
at the risk and cost of
the contractor.
II. Observation has been
taken. The Department
Material testing Field
Laboratory staff will be
deployed to check the
material
condition
of
borrow area at 100 ft
as pointed out by SCIC,
whether it is fit to be
used as borrow area or
not, if found suitable,
the same will be used
for
remaining
embankment works.
a. Material
taken
for
embankment
adjacent
to
road
alignment
is
not
acceptable, but since
road
traverses
through
cultivated
fields and as such
land owners do not
allow for borrowing
material from there.
Under said condition
material
for
earthwork
/
embankment has to
be taken from road's
right
of
way.
However, field staff
will be directed to fill
the
channel
along
the road alignment
with suitable material
and
carry
its
compaction, so that
flood water is not
channelized through
it and road is not
damaged
due
to
flood water.
III.
Chief
Engineer, Sibi Zone
and
Superintending
Engineer Sibi will be
directed to carry out
detailed
inspection
and rectify all works
which are defective
through
engaged
contractor.
Const.P.115/12 etc.
17
15
Drainage
&
Sewerage
System
at
Dera
Murad
Jamali
Executing
Agency: BDA
Implementatio
n
Status:
Ongoing
i. The works have been shown
completed, but the Manholes
covers were found missing at a
number of points and stagnant
water is visible all around.
ii. The Pumps were operated
and found in order.
iii. As reported in the field that
the
Sewage
of
03
days
collected in the Sump can be
emptied in 01 hour operation
of the Pumps.
iv. In this Project the control of
the invert levels is of prime
importance.
Therefore
a
thorough Probe is required to
be carried out in this project.
The manholes covers have
been
stolen
by
the
inhabitants of the area. The
project has already been
scrutinized
by
the
NAB,
CMIT and IGDP Balochistan.
However,
the
said
deficiencies will be removed
at the risk and cost of the
contractor.
16
Drainage of
400 acres of
Dar-ul- Ulma
Madressa/Masji
d, Hairdin
area.
Executing
Agency:
Irrigation
Department
Implementatio
n Status:
Completed
i.
Against the allocated/released
funds to the tune of Rs. 10.00
million,
the
works
with
designed/approved
scope
of
works
were
completed
in
satisfactory manner with good
quality at a cost of Rs. 3.60
million. The unspent funds have
been
surrendered
by
the
Irrigation Department.
Work already stands
completed and the
remaining funds have
already 1been surrendered.
17
Construction of
Flood
Protection of
Sohbatpur
Town,
Executing
Agency:
Irrigation &
Power
Department.
Implementatio
n Status:
C&WD
i.
The scheme with its approved
scope of works stands completed
but the damages caused to the
structures by the catastrophic
floods of August 2012 persist
and need to be repaired to make
the scheme operational.
Work completed. However
damages caused to the
structures by the
catastrophic flood of 2012
are proposed to be restored.
18
Construction of
06 KM Road in
Sohbatpur
Area,
Executing
Agency: BDA
Implementatio
n Status:
Completed
i. Works claimed to have been
completed in a road width of 24
feet, but on many points it was
hardly 14-18 feet wide. This
aspect
needs
to
be
further
probed.
Noted for compliance. The
deficiencies will be
investigated by the CMIT.
19
Construction of
Detoxification
Center Goth
lshfaq Gola-
Sohbatpur,
Executing
Agency: BDA.
Implementatio
i. Poor
quality
and
below
specifications works were found
in progress.
ii. Defective works need to be
dismantled
and
reconstructed
strictly in accordance with laid
down specification and conceived
Noted for compliance.
Const.P.115/12 etc.
18
n Status: In
progress
design/drawings at the risk and
cost of the Contractor.
20
Community
Hall
Goth
lshfaq
Gola-
Sohbatpur,
Executing
Agency: Local
Government
Department.
Implementatio
n Status: Not
known
i. Scheme
was
inspected
on
request
of
the
potential
beneficiaries.
ii. Total
wastage
of
Public
money. Scheme has been left
incomplete and was giving a
deserted look.
iii. Works should be completed
at the risk and cost of the
Contractor concerned and the
Site
Supervisory
Staff
deployed at the site of works.
The remaining work of the
scheme will be completed
within a month's time and
compliance report will be
submitted by the executing
agency.
21
Construction
of BIT Road
from
Main
Chattan
Patti
to Shahi Wah
including Link
Road
(16.5
KM).
Executing
Agency:
C&WD
Implementatio
n
Status:
Completed
i. The
road
although
recently
completed
but
portrays
a
gloomy picture.
I. Scheme was approved
at a cost of Rs 74.165
Million
against
which
16.50 KM of road was to
be constructed. Scheme
was started in FY 2005
â
2006
and
was
completed in June 2010
except for a portion /
reach of 2.5 KM were
only Premix carpeting
was
not
allowed
by
inhabitants of area due
to
dispute
over
alignment.
a. After completion the
subject road was hit
by
unprecedented
flood
of
2010
(August
I
September).
The
road
was
also
exposed to massive
flood of 2012 (June).
Both
floods
left
permanent marks on
the
roads
by
destruction. It is also
pointed out that road
remained submerged
in flood water for
months during both
above
said
floods.4KM of road
was damaged during
said floods.
b. Dispute
over
alignment has been
resolved
now
and
work on remaining
2.5 KM for Premix
carpeting has been
started / resumed.
Withheld amount of
Rs
4.000
Million
lying
with
the
Department
as
Const.P.115/12 etc.
19
ii. The beneficiaries available at
site stated that the flood events
of 2010 badly damaged the
incomplete road and no longer in
use of public.
iii. 4 KM of out of 10 KM of road
has been included in the
Flood Damages Programme
but no funds received so far.
iv. Contractor claimed that the
people are not allowing to
proceed
with
construction
works and an FIR has been
lodged with the Sohbat Pur
Police Station.
v. Contractor's Security of Rs.
4.0 million lying with the
security is sufficient
for
completion
of
remaining work.
II. As indicated above that
road
was
seriously
damaged and remained
submerged for months,
therefore road was not a
utility for public but in a
stretch of 4 KM which
was damaged by floods,
remaining 10 KM i.e.
minus
2.5
KM
uncompleted road.
III. During floods of 2012,
road
was
further
damaged and as such
estimates
were
prepared and forwarded
to competent authority
by
the
Department
through
an
umbrella
project
for
flood
damages
restoration.
The
project
stands
approved by PDWP &
PC-I
submitted
to
Federal Government for
approval.
IV. As already indicated
above
inhabitants
of
area due to dispute over
alignment in a portion /
reach of 2.5 KM stopped
the
work
for
Premix
carpeting,
although
embankment had been
prepared
and
base
course laid. Rs 4.000
Million
were
withheld
from contractor bill for
Premix carpeting in a
reach of 2.5 KM.
a. Now
the
dispute
over alignment has
been resolved and
work on remaining
2.5 KM for Premix
carpeting has been
started / resumed.
Withheld amount of
Rs
4.000
Million
lying
with
the
Department
as
security is sufficient
for
completion
of
remaining work.
V. Noted for compliance.
Const.P.115/12 etc.
20
Department and has been
retained
till
satisfactory
completion
of
the
repair/
restoration of flood damages.
vi. District Administration may
intervene to get the works
done.
VI. Noted for compliance.
22
Construction of
43
KM
Road
from
Jhal
Magsi â Kot
Maasi Road to
Mithazai
to
Abad Waryam
to
Mut
Banglani
(43
KM),
Executing
Agency C&WD.
Implementatio
n
Status:
Ongoing
i.
The work is in progress but in a
clumsy
manner
with
unacceptable quality.
ii. Timely funds have not been
made available.
I. Observation has been
taken. The Department
Material
testing
Field
Laboratory staff will be
deployed
to
check
quality
of
work
throughout
length
of
road and unacceptable
reaches
will
be
removed and relayed as
per
required
specification.
a. After
start
of
scheme
from
FY
2005 -2006, subject
road has been hit I
exposed by flood of
2007,
unprecedented flood
of 2010 (August /
September)
and
massive
flood
of
2012 (June). Said
three floods left a
permanent
marks
on
the
roads
by
destruction.
b. Estimates for floods
damages
were
prepared
and
forwarded
to
competent authority
by the Department
through an umbrella
project, but funds
have
not
been
released
for
flood
damages
ratification.
Some
restoration
works
have been carried
out
by
the
Department to keep
the road functional,
but
payments
to
contractor has not
been made, which
will be cleared once
funds are received.
II. Scheme
is
ongoing
from FY 2005 â 2006.
Releases of funds do
not
tally
with
requirement.
If
balance
completion
Const.P.115/12 etc.
21
iii. Earthen
embankment
constructed from the borrow
material available just adjacent
to the road, Inviting flood water
to develop flood channel along
the
road
which
has
badly
damaged the road embankment.
iv. Scheme being in progress, more
vigilance is required on part of
supervisory staff and damages
got repaired at the risk and cost
of the Contractor.
funds
are
made
available by providing
additional release to
the tune of Rs 81.208
Million,
the
scheme
can be completed.
III. Subject road traverses
through
cultivated
fields and as such land
owners do not allow
for borrowing material
from there. Under said
condition material for
earthwork
/
embankment has to be
taken from road's right
of way.
a. Nearest borrow pit
is approximately 50
to 60 KM from the
site
of
work.
In
approved PC â I,
lead
for
borrow
material
has
not
been provided.
b. The
subject
road
has been time and
time
again
tested
during
three
unprecedented
floods
and
road
withstood the floods
even with material
borrowed from road
sides.
IV. The SCIC observation
is
well
taken
and
Department
will
be
strictly following the
same.
a. Department
will
ensure
that
Field
Staff will be extra
vigilant
to
ensure
quality of work and
Department internal
monitoring
system
will be beefed up to
have
checks
over
quality of works and
counter ensure that
executed works are
of
required
specification
and
quality.
b. Chief Engineer, Sibi
Zone
and
Superintending
Engineer
Nasirabadwill
be
directed to carry out
detailed
inspection
and rectify all works
Const.P.115/12 etc.
22
which are defective
through
engaged
contractor at his risk
and cost.
23
Construction of
Agriculture
Model
Research Farm
with
Residential
Quarters, Goth
Miral Khan at
Sohbatpur.
Executing
Agency
BDA
Implementatio
n
Status:
Ongoing
i. The Construction work has not
reached the Plinth level.
ii. Progress
at
site
does
not
commensurate with expenditure
incurred.
iii. Agriculture Department has not
started so far the procurement
of fixtures and furniture. Needs
further probe.
The progress of work is
slowed down due to bad
law and order conditions,
however
the
observations raised by
the
committee
have
been noted and will be
referred to the CMIT for
detail probe.
24
Extension
of
Lai
Minor
(Remaining
Portion) in Jhal
Magsi
area,
Executing
Agency:
Irrigation
Department
(PID)
Implementatio
n Status:
Ongoing
i. The work claimed as completed
but, in fact, lot of work was
found incomplete.
ii. Money
is
being
spent
for
extension of Lal Minor, which will
become
operational
upon
completion
of
Patfeeder
Extension Project whilst fate of
completion of this Project is not
known.
iii. The quality of work is not up to
the mark.
iv. There is a lot of room to improve
both
quality
and
pace
of
progress.
v. Works should be completed at
the
risk
and
cost
of
the
Contractor and Supervisory Staff
Noted for compliance. The
rectification
process
is
already been initiated.
25
Construction of
Black Topping
road at Jungle
Pir Alizai
Quetta
Chaman Road
to Killi Kutab
Gul
Muhammad,
Killi Khamat,
Haji Abdul
Qayyum Street
Length: 13.73
km)
ID No. Z2005-
0618
Executing
Agency: BDA
Implementatio
n Status:
Ongoing
i. The
following
PSDPs
were
discussed in detail with Mr.
Qahar Wadan the Petitioner and
his colleagues on January 06th
2013 and two other occasions.
Z2009-0046 Rs. 55.00 M
Z2011-0381 Rs. 115.00 M
Z2009-0184 Rs. 40.00 M
Z2005-0618 Rs. 94.291 M
Z2010-0552 Rs. 60.00 M
Z2012-0069 Rs. 30.00 M
Z2012-0129 Rs. 30.00 M
ii. During Inspection of Gulistan,
Black top Road of Killi Ahmed
Khan Ghaibizai (04 Km) was
inspected, and found out of the
jurisdiction of the MPA Engr.
Zamrak Khan i.e. PB-12.The
road work was found in order
except the berms which required
further improvement.
Noted for compliance. The
shortcomings
will
be
removed at the earliest.
Const.P.115/12 etc.
23
iii. Jungle
Pir
Alizai
road
had
already been inspected in the
capacity of member CMIT, and
the position was the same as
explained for Killi Ahmed Khan
Ghaibizai road. Since this is on-
going
work,
therefore
shortcomings can be removed
without any problem.
6.
Vide order dated 10.04.2013, the learned counsel for GoB
was asked to furnish the statement containing reply to the following
questions:-
(i)
list of persons against whom both criminal and civil
proceedings
have
been
initiated
for
alleged
misappropriation of the funds on receipt of the Inspection
Report;
(ii)
As the Inspection Report has covered only 25% of the
development schemes and whether GOB on its own has
got prepared the reports in respect of 75% development
schemes;
(iii)
What
action
has
been
initiated
against
the
persons/officers
etc.
responsible
for
the
alleged
misappropriation in the development schemes.
The learned counsel was also asked to furnish the details in respect
of:-
(i)
The amount received from National Finance Commission
(NFC) from the year 2008 to 2013;
(ii)
The receipt of other amounts during this period;
(iii)
Year-wise statements about the expenditures out of
above sources on development and non-development
schemes;
(iv)
Approximate status of completion and the masses who
have or likely to have the benefits and the amounts spent
for development or their welfare etc.
7.
It is important to note that after constituting a Committee
to evaluate and inspect at least 25% of the development schemes, the
Const.P.115/12 etc.
24
P&D Department notified a committee on 15.04.2013 in the light of
the order of the Supreme Court comprising the following:-
1.
Haji Muhammad,
Chief Economist, P & D Department
(Chairman)
2.
Manzoor Ahmed Sarparah,
Director General (M&E) P&D
Department
(Member)
3.
Barkatullah Khan,
Director General (Implementation),
P&D Department
(Member)
The terms of Reference of the Committee were as follows:-
1.
To visit important/problematic development schemes
all over the province.
2.
The process of Monitoring will continue as regular
function, however, team will have to present its
preliminary report within fifteen days.
3.
The concerned departments shall ensure regular
monitoring and progress reporting of all development
projects/schemes executed by them.
8.
The Committee held a series of meetings to discuss
different schemes. Agendas of the meetings were as follows:-
1.
To discuss problematic schemes.
2.
To give recommendations (Slash/protect) for the
schemes in PSDP 2012-13.
3.
Any other important issue.
The Committee discussed 125 schemes with cost of Rs.3.325 billion
and allocation of 2.211 billions. A detailed summary of each section
along with recommendations are provided in CMA No. 4387/13. Details
of some of the projects are reproduced hereinbelow for reference:-
LIST OF SCHEMES TO BE SLASHED FROM PSDP 2013-14
S.
No.
PSDP ID
District
Name of Scheme
Cost
Allocation
2012-13
Recommendation
Culture Sector
Const.P.115/12 etc.
25
5.
105
Z2012.0732
Kohlu
Various Culture
Activities In
Different Areas In
District Kohlu
5.000
5.000
Various
components
of the project were
discussed in details
with the authorities
concerned
of
the
department
and
finally decided that
the scheme may be
slashed.
However
final
responsibility
rests
on
the
authorities concerned
i.e. Additional Chief
Secretary (Dev;).
PP&H Sector
6.
149
Z2012.0036
Quetta
Construction /
Establishment of
Women and
Juvenile Jail at
Quetta
30.000 30.000
-do-
Communication Sector
16
474
Z2012.0542
Gwadar
Cutting of
Kanddasore Road,
Gwaddar (UP&D)
90.000 10.000
-do-
BDA Sector
22.
624
Z2012.0676
Quetta
Const of various
roads, Drains &
PCC Street at PB-
6 Quetta.
16.000 16.000
-do-
Irrigation Sector
24.
669
Z2012.0105
Khuzdar
Complete local
bore for
Agriculture
Purpose Near
Khalq Jhalawan
District Khuzdar.
2.500
2.500
-do-
25.
680
Z2012.0181
Kech
Extension of Sami
Bund in PB-49
District Turbat.
1.000
1.000
-do-
9.
In response to above referred directions, report was filed
on 19.07.2013 through CMA No.4387/13, under the signatures of M/s
Dostain Khan Jamaldin, Secretary Finance, Government of Balochistan
and Aslam Shakir Baloch, Additional Chief Secretary (Dev.), stating
therein that in the light of findings of Inspection Report, the concerned
departments have been asked to submit initial findings so that future
course of action can be decided. It has been further stated that GoB
has not prepared any report on its own regarding the remaining 75%
of the development schemes. However, periodic inspections are being
Const.P.115/12 etc.
26
carried out. During previous inspection visits conducted by different
departments, some cases of misappropriations/negligence were
pointed out. Consequently, preliminary departmental inquiries were
referred to NAB and action was initiated against concerned officers.
Detail of the same is reproduced hereinbelow:-
1. Road Barchore-Toba Kakari, Road Baroshore-
Khanozai and Road Kut Muhammad Shah â
Killa Haji Khan (Case No.5034)
NAB (B) Case
2. PRP â Construction of Local Bore for Killi
Azamabad, Tehsil Bori District Loralai
(Case No.6926)
-do-
3. Construction of Community Hall Building
Union Council Kharos Wah Tehsil Tamboo
District Naseerabad (Case No.7063)
-do-
4. Complaint against Mr. Abdul Aziz, XEN and
Haji Javed, SDO, C&W Department (Non-
Payment & Liabilities) (Case No.7023)
-do-
5. Complaint against B&R Provincial-II Quetta
(Case No.6976)
-do-
6. Construction of Road Musakhail â Drug
(Dakian â Wahwasta Portion) Case No. 6970
-do-
7. Construction of Kuchlak Bypass Project
-do-
8. Construction of Road Harnai Bazar â Bazo
Bungalow
-do-
9. Scheme executed by B&R District Harani
(Case No.6635)
-do-
10. Sports Ground Kohlu (Case No.7056)
-do-
11. 13 Schemes executed (Mr. Jaffar George)
through MPAs Fund
-do-
12. 10 Schemes executed through MPAs Funds
(Mr. Sana Ullah Zehri) (Case No.7040)
-do-
13. Schemes executed by Provincial B&R Kohlu
during 2011-2012 and 2012-2013 (Case
No.6855)
-do-
14. Technical Education (Civil Works) only
-do-
15. Construction of Road from Main Chattan Patti
to Shabi Wah (Case No.5036)
-do-
16. Preliminary Inquiry
Cont: of Road Shahrag to PMDC and Road
Kach to Harnai
Chief Minister
Directive
17. Inquiry âConstruction of Road from N-50 to
Balozai Khanozai Town Dilsora, Tora Khula,
Walgai and Balaniganda via Surkhah Road
District Pishin
SCIC Report
18. Inquiry âVarious Roads in Punjgurâ
-do-
19. Department Committee for inspection of
Development Schemes.
-do-
20. Complaint against Embezzlement of funds &
Sub Standard construction District Kachhi
(Mr.Mohammad Saleem Harifal) (B-18)
S&GAD
21. Inquiry of Mekhtar Chamalang Road District
Loralai
CMIT
Const.P.115/12 etc.
27
22. Disciplinary Proceeding against Mr. Sabir Ali
Baloch Ex-XEN Dera Bugti
Departmental
Inquiry
23. Financial Irregularities in B&R Khuzdar
Case finalized
24. Registration of case in Anti Corruption
Establishment against Saddaruddin Buladi
Anti
Corruption
25. Inquiry No.8/Q/2011 against Niamat Ali XEN
and Anwar SDO C&W Department Musakhail
Anti
Corruption
26. Conducting of inquiry against Mr. Abdullah
Khan Mandokhel Ex-XEN B&R District Zhob
Departmental
27. Payment to Jogezai Petroleum Service Loralai
amounting to Rs.1,261,695/-
Departmental
28. Cost: /Cutting/Blasting/Black topping of
Musakhel to Drug Road Dakian Walwasta
Project Km 10.8 to 20.8 (10Km)
Embezzlement/ Misappropriation of funds.
Departmental
10.
It has been further stated in the reply that after receipt of
Committeeâs report, no such action has been taken because reports
from concerned departments are still awaited. The report also contains
the detail of funds transferred under NFC Award, which is reproduced
hereinbelow:-
Federal Transfers under NFC Award
2008-09
2009-10
(Actual)
Last year of
6th NFC)
2010-11
(Actual)
(First year
of 7th NFC)
2011-12
(Actual)
(2nd year of
7th NFC)
2012-12
(estimated)
48.050
54.855
83.121
94.963
114.206
11.
In addition to above said amount, the Government of
Balochistan also received Rs.12.00 billion annually as arrears of Gas
Development Surcharge claims made prior to 1991 and for the period
2003-09. Year-wise statement of the expenditures has also been
provided in the said report, which is reproduced as under:-
Budget
2008-
09
2009-
10
(Last
year of
6th NFC)
2010-11
(First
year of
7th NFC)
2011-
12
(2nd
year of
7th NFC)
2012-12
(estimated)
Non-
Development
55.446
77.534
112.755
129.35
144.112
Development
12.745
13.618
26.491
33.918
35.819
Total
68.191
91.152
139.246
163.268
179.931
Const.P.115/12 etc.
28
12.
It is to be noted that despite directions of the Court and
receipt of the aforementioned report vide CMA No.136 of 2013, no
action has been initiated against any of the delinquent persons
responsible
for
the
commission
and
omission
of
illegalities,
irregularities as well as criminal negligence. Inasmuch as, no action
has been taken regarding left over 75% projects and schemes. A
solitary scheme matter was referred to NAB for initiating proceedings
but no final report has been submitted and the payment to the
executing agencies involved in the development programme had not
been made.
13.
As per overall findings of the Inquiry Committee, the
progress of development projects seems to be unsatisfactory.
However, without undertaking a thorough probe by a competent law
enforcing agency, both civil and criminal liabilities cannot be fixed, as
such judicial restraint is being exercised lest it should hamper/bring to
a standstill the development activities in the Province. We are
cognizant of the fact that these development activities are being
carried out at very slow pace because prima facie we are of the
opinion that despite availability of considerable funds, reference of
which
has
been
made
hereinabove,
no
visible
development
proportionate to the same has taken place in the province of
Balochistan; particularly, relating to enforcement of Fundamental
Rights of the general public to provide them basic amenities of life,
including
education,
health
cover,
infrastructure,
etc.,
Most
importantly, a major portion of the population is not getting clean
drinking water, as is evident from the data provided by both the sides
Const.P.115/12 etc.
29
to justify their respective claims. However, it is admitted that the
criteria known as Project Management Life Cycle (PMLC) has not been
followed, although the government had taken specific stand in this
regard. As a result, considerable public money has been wasted due to
corruption and corrupt practices during the last five years i.e. 2003 to
2008.
14.
There is yet another painful aspect of the matter, namely,
the Provincial Government under PWPâI allocated an amount of
Rs.30.00 million per year for each MPA. This constituted a hefty
budgetary provision, which was to be spent strictly in accordance with
the guidelines for Project Management issued by P&D Department,
Government of Balochistan, under which a PMLC comprising five
distinct phases had to be completed, which included:-
1.
Project Identification and Preparation (PC-II)
2.
Project Proposal and Approval (PC-I)
3.
Project Authorization
4.
Project Implementation (PC-III)
5.
Project Completion of Closer of PC IV and V.
However, as per the material available on record, such amount was
spent by the departments in a non-transparent and illegal manner. In
some of the cases, as is evident from the contents of the report,
concerned authorities entrusted the funds of PSDP or those arising out
of the fund/budget allocated to MPAs to the Departments or the
executing agencies of their choice without any justification.
15.
On having gone through all the material brought on record
in respect of allocation of funds and expenditures incurred on the
projects/schemes, it is prima facie held that the poor citizens of the
Const.P.115/12 etc.
30
Province of Balochistan are being deprived of the fundamental right to
life as envisaged under Article 9 of the Constitution. It is pertinent to
note that the present situation also runs contrary to Article 3 of the
Constitution, which provides that the State shall ensure the elimination
of all forms of exploitation.
16.
The functionaries of Province of Balochistan, prima facie,
are responsible for spending the huge funds contrary to the guidelines
issued by the P&D Department, Government of Balochistan, thus are
accountable, as the money which was spent has clearly not proved
beneficial to the inhabitants of the far flung areas of Balochistan. Even
according to the petitioner, who represents one of the political parties,
there is no impact of such development out of PWP-I or from PSDP on
the poor condition of general public. The report of the Committee as
mentioned hereinabove categorically supports the case of the
petitioner.
17.
It may not be out of context to note that the Chief Minister
of the Province also sanctioned specific funds for the purpose of using
PWP-II. Reportedly, funds meant for this programme had also not
been used in a transparent manner and a thorough inquiry is also
called for in this behalf.
18.
On having thoroughly examined all the aspects of the case it
has been noticed that the Petitioner has brought a case of serious
irregularities, illegalities and alleged misappropriation of funds mainly for
the reasons that incidentally all the political parties or individual
Members of the Provincial Assembly of Balochistan had joined the
treasury benches, so there was no effective opposition except one or two
Const.P.115/12 etc.
31
Members. This fact is evident from the information provided on official
website of the Balochistan Assembly, which is as under:-
Party Affiliation
Government Alliance
Opposition Alliance
Pakistan People's Party
Parliamentarians
15
Like Minded Group
13
Jamiat-e-Ulema Islam
10
Balochistan National Party
(Awami)
7
Independent
6
Pakistan Muslim League (Q) 5
Awami National Party
3
Pakistan Muslim League (N) 1
National Party
1
Jamiat-e-Ulema Islam
(Idealogical)
1
Total
62
Independents
(Opposition)
2
Belongs to Pakistan
Muslim League (Q) Opted
Opposition Benches
1
Total
Consequently, there was no Provincial Public Accounts Committee,
primarily responsible to undertake scrutiny of the public funds from
time to time being spent by the Government of the time.
19.
It is to be noted that as per Rules of Procedure of the
Balochistan Assembly a comprehensive mechanism has to be evolved
to ensure that funds belonging to public exchequer/taxpayers are not
misappropriated by way of corruption or corrupt practices. However,
for any reason, with reference to the province of Balochistan, in view
of the circumstances narrated hereinabove, no Public Accounts
Committee was constituted to have oversight, particularly on
development schemes, both approved and unapproved. To this effect,
the provisions of Articles 169, 170 and 171 of the Constitution read
with sections 8 and 12 of the Auditor-General's (Functions, Powers and
Const.P.115/12 etc.
32
Terms and Conditions of Service) Ordinance, 2001, (which pertains to
the functioning and powers of the Auditor General) have to be strictly
invoked.
20.
Learned counsel appearing for the parties, however, had
no objection on utilization of funds for the development purposes in a
transparent manner and on adopting any mechanism to avoid
corruption
and
corrupt
practices
during
execution
of
such
projects/schemes. We are of the opinion that to achieve such a noble
cause and to ensure that the funds are being utilized for the protection
of fundamental rights of the citizens ensured in the Constitution, a
heavy burden has to be shouldered by the Executive/Government
itself, because the Chief Minister and the Cabinet have the first and
foremost duty to ensure that the funds are used to promote the
welfare of the citizens strictly in accordance with the Constitution and
the law.
21.
In the instant case, as noted hereinabove, an independent
Committee was constituted pursuant to the order of this Court, which
submitted its report through CMA No.136/2013. The reaction to the
same has also been shown by filing of CMA No.533/2013. Therefore,
further
proceedings
are
required
to
be
initiated
by
the
Executive/Government.
It
is
incumbent
upon
the
Executive/
Government to examine/evaluate left over schemes i.e. 75% of the
total, and if it is found that schemes/projects meant for community
development have instead provided a golden opportunity to the
respondent officials/officers/representatives to misappropriate the
Const.P.115/12 etc.
33
public money by indulging into corruption and corrupt practices, then
the Government must proceed against them in accordance with law.
22.
It is to be noted that in the meanwhile, after the General
Elections held on 11.5.2013, the Petitionerâs political party i.e.
Pakhtoonkhawa Mili Awami Party is one of the collation partners of the
Provincial Government of Balochistan. Therefore, we feel that it has
become all the more necessary for the Petitioners and their political
parties to cooperate with other components of the coalition
Government to check each and every scheme in the light of relevant
rules, regulations and instructions issued by the Planning Commission
of Pakistan and the Provincial Government to ensure the protection of
Fundamental Rights of the citizens. Ultimately, the whole exercise is
to be undertaken to ensure that the funds which were provided to the
representatives annually for the purpose of identifying schemes
through concerned departments are spent in transparent manner,
without indulging in corruption and corrupt practices.
23.
Thus, the Provincial Government of Balochistan, being the
executive authority, must, under the law, undertake an exercise to
ensure forensic audit of leftover 75% projects/schemes. On receipt of
the audit report, the matter should be taken up with the civil and
criminal law enforcing agencies to ensure that delinquents, who have
allegedly indulged in corruption and corrupt practices, are dealt with
strictly in accordance with law so that it may serve as a deterrent for
such like minded persons in future as well.
Const.P.115/12 etc.
34
24.
The order 10.4.2013 has already been modified because of
the disposal of this petition; however, any other restraining order
operating against the Provincial Government, is hereby withdrawn.
25.
These are the detailed reasons, with regard to Constitution
Petition NO.115 of 2012, of short order dated 22.07.2013, passed
jointly in Constitution Petition No.115 of 2012 and Constitution No.20
of 2013, contents whereof are reproduced hereinbelow:-
âAs far as the judgment in listed Constitution Petition
No.115 of 2011 instituted by petitioner Abdul Rahim
Ziaratwal and connected Constitution Petition No.20/2013
on the subject âAction against Distribution of Development
Funds by Ex-Prime Minister of Pakistan Raja Parvez
Ashrafâ, is concerned, the same is reserved.
2.
However, in the meanwhile, with regards to the
Schemes initiated out of the funds allocated to the PWP-II,
the Executing Agencies are directed to undertake an
exercise and examine across the board all the Schemes so
as to ascertain as to whether the PEPRA Rules have been
strictly followed and whether the development works were
assigned to the Contractors in a transparent manner
keeping in view the recognized standards for award of
execution of such works; and whether the said schemes
were based on feasible reports. If such Schemes are found
to be in accordance with the conditions and observations
made hereinabove the payments to the Contractors may
be released to the extent of the work already completed.
Const.P.115/12 etc.
35
3.
As far as the left over work is concerned, it
should be examined as to whether the same is in the
public interest and is feasible to continue execution of the
said schemes. If such schemes are found not to be in the
public interest or feasible, the same shall be abandoned
subject to the approval of the Competent Authority i.e. on
whose behalf the Schemes were initiated; and the funds so
made available shall be deposited with the public
exchequer. The said Competent Authority shall also
examine the possibility of proceeding further against such
persons or agencies, who had allowed the execution of the
works/schemes contrary to the PEPRA Rules, proper
feasibilities or without following a transparent manner;
before the Forums having jurisdiction to deal with such
issues both civil as well as criminal, as the case may be.
Chief Justice
Judge
Judge
Announced in open Court on 5.12.2013
At Islamabad
Chief Justice
Approved For Reporting
| {
"id": "C.P.115_2011.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Sh. Azmat Saeed
CONSTITUTION PETITION NO.115 OF 2011
Abdul Raheem Ziaratwal and another
Versus
Federation of Pak. etc.
For the petitioners: Syed Iftikhar Hussain Gillani, Sr. ASC
Mr. M. S. Khattak, AOR
assisted by Barrister M. Saad Buttar, Advocate
For rspdt. Nos.1-4:
Nemo.
For rspdt. Nos.5-6:
Kh. Haris Ahmed, Sr. ASC
Mr. Arshad Ali Chaudhry, AOR
For rspdt. Nos.7-8: Mr. Shakeel Ahmed Baloch,
A.G. Balochistan.
Alongwith
CONSTITUTION PETITION NO.20 OF 2013
(Action against Distribution of Development
funds by Ex-Prime Minister Raja Parvaiz
Ashraf)
AND
HUMAN RIGHTS CASE NO.11504-G OF 2013
(News clipping from daily Al-Akhbar dated 25.3.2013
regarding alleged corruption of Ex-Government.)
AND
CIVIL MISC. APPLICATION NOS.2960, 3566, 3579,
3649, 3865, 4022, 4135, 4208, & 4498/2013
(Applications for impleadment as party)
For the Applicants:
Mr. Tariq Mehmood, Sr. ASC
Const.P.No.115/2012.
2
(CMA-2960 & 3566/13)
Mr. M. Munir Peracha, Sr. ASC (Absent)
(In CMA No.3579/13)
Syed Tayyab Jaffri, ASC (Absent)
(In CMA-3649/13)
Syed Zafar Abbas Naqvi, AOR with
Mr. Irfanullah, Adv./SVP, DBA Lucky Marwat
(CMA-3865/13)
Mr. Asif Fasihuddin Virdag, ASC
(CMA-4022/13)
Mr. M. Siddique Khan Baloch, ASC (Absent)
(CMA-4135/13)
Mr. Shahid Mahmood Khokhar, ASC
(In CMA No.4208/13)
On Courtâs Notice:
Mr. Muneer A. Malik,
Attorney General for Pakistan, assisted by
Mr. Faisal Siddiqui, Adv.
For AGPR:
Mr. Tahir Mehmood, AGPR
For Auditor
Malik Manzoor Akhtar, D.G. Audit
General of Pakistan:
Rana Sahakeel Asghar, Director Audit
Mr. M. Munawwar Rana, A.O.
For M/o H & W:
Mr. Sajid Ilyas Bhatti, DAG
Mr. M. S. Khattak, AOR with
Mr. Aurangzeb Marral, Deputy Secretary
For Pak PWD:
Sardar Asmatullah Khan Niazi, ASC
Mr. Sarwar Awan, D.G.
Mr. Ata ul Haq, CE
For M/o Finance:
Mr. Sajid Mehmood Butt, ASC
Mr. Arshad Ahmed, F.A. (Cabinet)
Dr. G. M. Mahmoodi, Sr. JS
Mr. Seerat Asghar, former
SSPM/
Secy NFS & R
For Cabinet Div.:
Ch. Zafar Amin JS(PWP)
Mr. Masood Ahmed , JS (NPS)
Mr. Muhammad Asif Khan,
Chief Finance & Accounts Officer.
For SSGCL:
Mr. Asim Iqbal, ASC
Mr. Asif Fateh Sheikh, GM (Legal)
Const.P.No.115/2012.
3
Mr. Shahir Aleem, GM (Sales)
For SNGPL:
Mr. Uzair Karamat Bhandari, ASC
Mr. Arif Hameed, MD, SNGPL
For PEPCO:
Mr. Zaigham Ishaq, MD, PEPCO
Mr. Amjad Manan, Chief Engr. (RE)
For Parliamentarians: Mr. Wasim Sajjad, Sr. ASC
(On behalf of Raja Parvaiz Ashraf, Ex-PM)
Mian Abdul Rauf, ASC
(On behalf of Mr. Ghias Mela, Ex- MNA, Mr. Anwar
Ali Cheema, Ex-MNA, Mr. Amir Sultan Cheema, Ex-
MPA)
Mr. Moula Bakhsh Chandio,
Ex-Law Minister, In person
Mr. Liaqat Ali Shabab, Mr. Muhammad
Hamayat Khan, Syed Muhammad Ali
Shah Bacha, Ex-MPAs, KPK Assembly.
Ex-MPA, KPK
(All in person)
Date of hearing:
16-18 & 22.7.2013.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- As far as the
judgment in listed Constitution Petition No.115 of 2011 instituted by
petitioner Abdul Rahim Ziaratwal and connected Constitution Petition
No.20/2013 on the subject âAction against Distribution of
Development Funds by Ex-Prime Minister of Pakistan Raja Parvez
Ashrafâ, is concerned, the same is reserved.
2.
However, in the meanwhile, with regards to the Schemes
initiated out of the funds allocated to the PWP-II, the Executing
Agencies are directed to undertake an exercise and examine across the
board all the Schemes so as to ascertain as to whether the PEPRA Rules
Const.P.No.115/2012.
4
have been strictly followed and whether the development works were
assigned to the Contractors in a transparent manner keeping in view the
recognized standards for award of execution of such works; and
whether the said schemes were based on feasible reports. If such
Schemes are found to be in accordance with the conditions and
observations made hereinabove the payments to the Contractors may be
released to the extent of the work already completed.
3.
As far as the left over work is concerned, it should be
examined as to whether the same is in the public interest and is feasible
to continue execution of the said schemes. If such schemes are found
not to be in the public interest or feasible, the same shall be abandoned
subject to the approval of the Competent Authority i.e. on whose behalf
the Schemes were initiated; and the funds so made available shall be
deposited with the public exchequer. The said Competent Authority
shall also examine the possibility of proceeding further against such
persons or agencies, who had allowed the execution of the
works/schemes contrary to the PEPRA Rules, proper feasibilities or
without following a transparent manner; before the Forums having
jurisdiction to deal with such issues both civil as well as criminal, as
the case may be.
Chief Justice
Judge
Islamabad, the
22nd July, 2013
Not approved for reporting
Judge
M. Safdar Mahmood/*
| {
"id": "C.P.115_2012.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,HCJ
MR. JUSTICE JAVED IQBAL
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE RAJA FAYYAZ AHMED
MR. JUSTICE MUHAMMAD SAIR ALI
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE RAHMAT HUSSAIN JAFFERI
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE GHULAM RABBANI
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY
CONSTITUTION PETITIONS NOS. 11-15, 18-22, 24, 31, 35, 36, 37 &
39-44/2010,
CM APPEAL NO. 91/2010, HRC Nos.20492-P &22753-K/10
and
Civil Petition. No. 1901/2010
(On appeal from the order of PHC, Peshawar
dt:16.6.10 passed in W.P. No. 1581/10)
Nadeem Ahmed Advocate
âĻ.
PETITIONER
In Const. P. 11/2010)
Distt. Bar Association, Rawalpindi
âĻ.
PETITIONER
(In Const. P. 12/2010)
Watan Party through its Chairman
âĻ.
PETITIONER
(In Const. P. 13/2010)
Supreme Court Bar Association
âĻ.
PETITIONER
(In Const. P. 14/2010)
Muhammad Ijazul Haq
âĻ.
PETITIONER
(In Const. P. 15/2010)
Const.P.11/2010 etc.
2
Lahore High Court Bar Association
âĻ.
PETITIONER
(In Const. P. 18/2010)
Lahore High Court
Rawalpindi Bench Bar Association
âĻ.
PETITIONER
(In Const. P. 19/2010)
Pakistan Lawyers Forum
âĻ.
PETITIONER
(In Const. P. 20/2010)
Sardar Khan Niazi
âĻ.
PETITIONER
(In Const. P. 21/2010)
Shahid Orakzai
âĻ.
PETITIONER
(In Const. P. 22/2010)
M. Kowkab Iqbal
âĻ.
PETITIONER
(In Const. P. 24/2010)
Al-Jehad Trust
âĻ.
PETITIONER
(In Const. P. 31/2010)
District Bar Association Sangarh
âĻ.
PETITIONER
(In Const. P. 35/2010)
District Bar Association Gujrat
âĻ.
PETITIONER
(In Const. P. 36/2010)
District Bar Association Sialkot
âĻ.
PETITIONER
(In Const. P. 37/2010)
Arshad Mahmood Bago etc.
âĻ.
PETITIONER
(In Const. P. 39/2010)
Dr. Abdul Hafeez Pirzada
âĻ.
PETITIONER
(In Const. P. 40/2010)
Dr. Muhammad Aslam Khaki
âĻ.
PETITIONER
(In Const. P. 41/2010)
Shamshad Ahmed Mangat
âĻ.
PETITIONER
(In Const. P. 42/2010)
Julious Salik
âĻ.
PETITIONER
(In Const. P. 43/2010)
Concerned Citizens of Pakistan etc.
âĻ.
PETITIONER
(In Const. P. 44/2010)
Application by Lawyers of Hazara DivisionâĻ.
APPLICANT
(In HRC No. 20492-P/10)
Application by Baba Sardar Haider ZamanâĻ.
APPLICANT
(In HRC No. 22753-K/10)
âĻ.
Const.P.11/2010 etc.
3
Shahid Orakzai
âĻ.
PETITIONER
(In C.P. 1901/10)
âĻ.
Watan Party through its Chairman
âĻ.
APPELLANT
(In CM Appeal No. 91/2010
in Const. P. NIL/2010)
VERSUS
Federation of Pakistan and others
âĻ.
RESPONDENTS
For the petitioner:
Mr. Muhammad Akram Sheikh, Sr. ASC,
(Const. P. 11/2010)
Mr. M.A. Zaidi, AOR
Assisted by
Barrister Sharjeel Adnan Sh., Adv.
Barrister Natalia Kamal, Adv.
Barrister Sajeel Shehryar, Adv.
Barrister Ahmed Kamran, Adv.
M. Ishaque Shah, Adv
Hafiz Muhammad Naeem, Adv
Ms. Sameen Khan, Adv
For the petitioner:
Mr. Muhammad Ikram Ch., Sr. ASC
(Const. P. 12/2010)
Mr. Arshad Ali Chaudhry, AOR
Assisted by
Syed Masood Hussain, Adv.
Ch. Muhammad Bashir, Adv.
Mr. Mudassar Ikram Ch.,Adv.
Mr. Shoaib Shahid, Adv.
For the petitioner:
Barrister Zafarullah Khan,Sr. ASC
(Const. P. 13/2010 &
CM Appeal No. 91/2010)
For the petitioner:
Mr. Hamid Khan, Sr. ASC
(Const. P. 14, 18, 35 & 36,
Mr. Rashid A. Rizvi, Sr. ASC
37 & 39/2010)
Mr. Ahmed Awais, ASC
Mr. M.S. Khattak, AOR
Assisted by
Mr. Waqar Rana, Adv.
Mr. Sikandar Khan, Adv.
Mr. Taimur Inayat Malik, Adv.
For the petitioner:
Mr. M.A. Ghaffarul Haq, ASC
(Const. P. 15/2010)
Mr. Arshad Ali Chaudhry, AOR
For the petitioner:
Syed Zulfiqar Abbas Naqvi, ASC
(Const. P. 19/2010)
Mr. Arshad Ali Chaudhry, AOR
Petitioner:
Mr. A.K. Dogar, Sr. ASC.
(Const. P. 20/2010)
Const.P.11/2010 etc.
4
Petitioner:
Sardar Khan Niazi, In Person
(Const. P. 21/2010)
Petitioner:
Mr. Shahid Orakzai, In Person
(Const. P. 22/2010 &
C.P. 1901/10)
Petitioner:
Mr. M. Kowkab Iqbal, ASC, In Person
(Const. P. 24/2010)
Petitioner:
Mr. Habib-ul-Wahab-ul-Khairi, ASC,
(Const. P. 31/2010)
In Person
For the petitioner:
Dr. Abdul Hafeez Pirzada, Sr. ASC,
(Const. P. 40/2010)
In Person
Barrister Mian Gul Hasan Aurangzeb, ASC
Mr. M.S. Khattak, AOR.
Assisted by
Mr. Sikandar Bashir Mohmand, ASC
Mr. Hamid Ahmed, Adv.
Ms. Saleha Hyat, Adv.
Barrister Abdul Sattar Pirzada, Adv.
Petitioner:
Dr. Muhammad Aslam Khaki, ASC,
(Const. P. 41/2010)
In Person
For the petitioner:
Mr. Hashmat Ali Habib, ASC
(Const. P. 42/2010)
Mr. M.S. Khattak, AOR.
Assisted by
Mr. Zahid Hussain Malik, Adv.
For the petitioner:
Mr. Zulfiqar Ahmed Bhutta, ASC
(Const. P. 43/2010)
Mr. Ejaz Muhammad Khan, AOR.
For the petitioner:
Mr. Rasheed A. Rizvi, Sr.ASC
(Const. P. 44/2010)
Mr. M.S. Khattak, AOR.
For the Applicant:
Nemo
(HRC. 20492-P/10)
For the Applicant:
Nemo
(HRC. 22753-K/10)
On Court notice:
Moulvi Anwarul Haq
Attorney General for Pakistan
Assisted by
Mr. Salman Faisal, Adv.
Syed Ali Mustafa Gillani, Adv.
Ms. Shafaq Mohsin, Adv.
Mr. Yousaf Leghari, A.G. Sindh
With Raja Abdul Ghafoor, AOR
Dr. Salahuddin Mengal, A.G. Balochistan
Const.P.11/2010 etc.
5
Mr. Mahmood Raza, Addl. A.G. Balochistan
Khawaja Haris Ahmed, A.G. Punjab
Ch.
Khadim
Hussain
Qaiser,
Addl.
A.G.Punjab
Assisted by
Mr. Raza Qureshi, Adv.
Barrister Syeda Maqsooma Zahra Bokhari,
Adv.
Kh. Isaam Bin Haris, Adv.
Mr. Asadullah Khan Chamkani, A.G. KPK
Syed Arshad Hussain Shah, Addl. A.G. KPK
For the Federation:
Mr. Wasim Sajjad, Sr. ASC
(Const. P. 11,14 & 40/10) Mr. Mehmood A. Sheikh, AOR
Assisted by
Mr. Idrees Ashraf, Adv.
Barrister Ali Hassan Sajjad, Adv.
Barrister Qamar Hassan Sajjad, Adv.
Ms. Sambara Arbab Mungrani,Adv.
(Const. P. 12/2010):
Sardar Muhammad Ghazi, ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 13,19, 35/10 &
Raja Muhammad Ibrahim Satti, Sr. ASC
C.M.Appeal No. 91/10):
Mr. Mehmood A. Sheikh, AOR
Assisted by
Ms. Shazia Yasin Hashmi, Adv.
Mr. Usman Ibrahim Satti, Adv.
(Const. P. 15/2010):
Barrister Bacha Khan, ASC
(For Federation)
Mr. Mehmood A. Sheikh, AOR
(Const. P.18,21,22,37,39
Mr. K.K.Agha, Adl. AGP
& 42/2010):
Mr. Mehmood A. Sheikh, AOR
(Const. P. 24 & 41 /2010): Ch. Nasrullah Warraich, ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 31/2010):
Mr. Salahuddin Gandapur, ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 35/2010):
Mr. Iftikhar-ul-Haq Khan,ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 36/2010):
Mr. Mushtaq Masood, ASC
Mr. Naeem Masood, ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 39/2010):
Mr. Iftikhar Ahmed Mian, ASC
Mr. Mehmood A. Sheikh, AOR
(Const. P. 43/2010):
Mr. Khurshid Ahmed Sodi, ASC
Mr. Mehmood A. Sheikh, AOR
Const.P.11/2010 etc.
6
(For the Govt. of KPK:
Syed Iftikhar Hussain Gillani, Sr. ASC
(Const. P.13,15,20 &
Mr. Shaukat Hussain, AOR (Absent)
24/2010)
For the Govt. of Punjab:
Mr. Shahid Hamid, ASC
(Const. P. 14,18,35,36
Mr. Abid Aziz Sheikh, ASC
& 37/2010)
Assisted by
Mr. Shujaat Ali Khan,Asst. A.G. Punjab
Mr. Tahir Mahmood Khokhar, Adv.
Ms. Aysha Hamid, Adv.
For the Applicant
Sahibzada Ahmed Raza Khan Qasuri,
(in CMA No.1599/10)
Sr.ASC, In Person
For the Applicant
Mr. Salman Akram Raja, ASC
(in CMA Nos. 1859 &
Assisted by
1959/10)
Syed Shahab Qutub, Adv.
Mr. Waqas Mir,Adv.
Ms. Aneesa Agha, Adv.
Mr. Wasif Majeed, Adv.
Ms. Sahar Bandial, Adv.
Mian Bilal Ahmed, Adv.
Malik Ghulam Sabir, Adv.
For the Applicant
Dr. Syed A. S. Pirzada, In person
(in CMA No. 2681/10)
Dates of hearing:
24-31/5, 1â3, 7-10/6, 5-8, 12-15, 19-
22, 26-29/7 , 2-5, 9-12, 16-19 & 23-
25,30,31/8, & 1-2,6-7,27-30/9, 2010.
ORDER
Through these petitions, various petitioners have called in question
the provisions of Articles 1, 17, 17(4), 27, 38, 45, 46, 48, 51, 58(2)(b), 62, 63, 63A, 91,
106, 148, 175, 177, 193, 203C, 209, 219, 226, 245, 260 and 267A and insertion of
Article 175A brought about through 18th Amendment in the Constitution.
2.
It has been argued that the amendments made are violative of the
salient features of the Constitution which according to them, are as under:
(i)
Parliamentary form of government;
(ii)
Democracy blended with Islam;
(iii)
Provision of fundamental rights;
Const.P.11/2010 etc.
7
(iv)
Independence of Judiciary; and
(v)
Federalism.
3.
Petitioners mostly have challenged the vires of Article 175A of the
Constitution, a reference to which would be in order:-
â175A. Appointment of Judges to the Supreme Court, High Courts
and the Federal Shariat Court.â(1) There shall be a Judicial
Commission of Pakistan, hereinafter in this Article referred to as the
Commission, for appointment of Judges of the Supreme Court, High
Courts and the Federal Shariat Court, as hereinafter provided.
(2) For appointment of Judges of the Supreme Court, the Commission
shall consist of---
(i)
Chief Justice of Pakistan;
Chairman
(ii)
two most senior Judges of
the Supreme Court;
Member
(iii)
a former Chief Justice or
a former Judge of the
Supreme
Court
of
Pakistan to be nominated
by the Chief Justice of
Pakistan, in consultation
with the two member
Judges, for a term of two
years;
Member
(iv)
Federal Minister for Law
and Justice;
Member
(v)
Attorney-General
for
Pakistan; and
Member
(vi)
a Senior Advocate of the
Supreme
Court
of
Pakistan nominated by
the Pakistan Bar Council
for a term of two years.
Member
(3) Notwithstanding anything contained in clause (1) or clause (2), the
President shall appoint the most senior Judge of the Supreme Court as the
Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the Commission in clause
(2) shall also include the following, namely:-
(i)
Chief Justice of the High
Court
to
which
the
appointment
is
being
made;
Member
(ii)
the most senior Judge of
that High Court;
Member
(iii)
Provincial Minister for
Law; and
Member
Const.P.11/2010 etc.
8
(iv)
a senior advocate to be
nominated
by
the
Provincial Bar Council
for a term of two years:
Member
Provided that for appointment of the Chief Justice of a High Court,
the most senior Judge of the Court shall be substituted by a
former Chief Justice or former Judge of that Court, to be
nominated by the Chief Justice of Pakistan in consultation with
the two member Judges of the Commission mentioned in
clause(2):
Provided further that if for any reason the Chief Justice of High
Court is not available, he shall also be substituted in the manner
as provided in the foregoing proviso.
(6) For appointment of Judges of the Islamabad High Court, the
Commission in clause (2) shall also include the following, namely:-
(i)
Chief
Justice
of
the
Islamabad High Court;
and
Member
(ii)
most senior Judge of that
High Court:
Member
Provided that for initial appointment of the Judges of the
Islamabad High Court, the Chief Justices of the four Provincial
High Courts shall also be members of the Commission.
Provided further that subject to the foregoing proviso, in case of
appointment of Chief Justice of Islamabad High Court, the provisos
to clause (5) shall, mutatis mutandis, apply.
(7) For appointment of Judges of the Federal Shariat Court, the
Commission in clause (2) shall also include the Chief Justice of the Federal
Shariat Court and the most senior Judge of that Court as its members:
Provided that for appointment of Chief Justice of Federal Shariat
Court, the provisos to clause (5) shall, mutatis mutandis, apply.
(8) The Commission by majority of its total membership shall nominate to
the Parliamentary Committee one person, for each vacancy of a Judge in
the Supreme Court, a High Court or the Federal Shariat Court, as the case
may be;
(9) The Parliamentary Committee, hereinafter in this Article referred to as
the Committee, shall consist of the following eight members, namely:-
(i)
four members from the Senate; and
(ii)
four members from the National Assembly.
(10) Out of the eight members of the Committee, four shall be from the
Treasury Benches, two from each House and four from the Opposition
Benches, two from each House. The nomination of members from the
Treasury Benches shall be made by the Leader of the House and from the
Opposition Benches by the Leader of the Opposition.
Const.P.11/2010 etc.
9
(11) Secretary, Senate shall act as the Secretary of the Committee.
(12) The Committee on receipt of a nomination from the Commission may
confirm the nominee by majority of its total membership within fourteen
days, failing which the nomination shall be deemed to have been
confirmed:
Provided that the Committee may not confirm the nomination by
three-fourth majority of its total membership within the said
period, in which case the Commission shall send another
nomination.
(13) The Committee shall forward the name of the nominee confirmed by it
or deemed to have been confirmed to the President for appointment.
(14) No action or decision taken by the Commission or a Committee shall
be invalid or called in question only on the ground of the existence of a
vacancy therein or of the absence of any member from any meeting thereof.
(15) The Committee may make rules for regulating its procedure.â
4.
It has been argued that this provision is violative of one of the
salient features of the Constitution i.e. independence of judiciary; that the judicial
independence has nexus with the appointment process; that it is unworkable and
impracticable inasmuch as the nominations made by the Judicial Commission are
subject to scrutiny by the Parliamentary Committee which is empowered to
confirm and forward the nominations of the Commission to the President for
appointment under clauses (12) and (13) of Article 175A; that the Parliamentary
Committee has been given veto powers and even a unanimous recommendation
made by the Judicial Commission can be vetoed by six out of eight members
selected from the Parliament; that the insertion of this new Article is a product of
mala fides and that the process of appointment of Judges will have an adverse
effect on judicial independence as it is likely not only to make the appointment
process political but would even otherwise affect its structural insularity which is
an essential element of judicial independence. It was argued that this Court has
power of judicial review of constitutional amendments, if the basic
structure/features or the core values have been tinkered with.
Const.P.11/2010 etc.
10
5.
While praying for striking down the provisions under challenge,
the concept of basic structure was pressed into service and it was maintained that
the principle of substantive limits on the power to amend the Constitution has
become a part of constitutional law in several liberal democracies. Reference was
made to the judgments rendered by the Supreme Courts of India and Bangladesh
where the amendments were struck down on the touchstone of basic structure. It
was submitted that the basic structure of the Constitution of Pakistan was even
acknowledged by this Court in Mahmood Khan Achakzai v. Federation of
Pakistan (PLD 1997 SC 426) and Syed Zafar Ali Shah v. General Pervez
Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and even in Wukala
Mahaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) but
the Court did not deem it proper to make it a touchstone to strike down a
constitutional provision. These judgments, it was further argued, needed
re-visiting.
6.
Learned Attorney General for Pakistan, Maulvi Anwar-ul-Haq,
learned Additional Attorney General, Mr. K. K. Agha and the learned counsel
appearing for the Federation Mr. Wasim Sajjad, ASC defended the impugned
provisions by submitting that the concept of basic structure as a touchstone to
strike down a constitutional provision is alien to our jurisprudence and this
Court may not like to review its own judgments as no good grounds have been
canvassed so far, to warrant re-visiting. Learned counsel appearing for the
Province of Punjab Mr. Shahid Hamid, ASC defended the impugned
amendment. He, however, in all fairness, admitted that the enforcement of
Article 175A may raise certain issues and it would be in fitness of things if the
matter is referred to the Parliament for re-consideration in terms of Article 267A
of the Constitution.
7.
We have considered the submissions made and have held extensive
deliberations qua all the Articles under challenge. The Court at this stage would
Const.P.11/2010 etc.
11
not like to express its opinion on the merits of the issues raised and arguments
addressed and would rather, in the first instance, defer to the parliamentary
opinion qua Article 175A on reconsideration by it in terms of this order. We
would thereafter decide all these petitions adverting to all the issues raised
therein.
8.
The Court is conscious that it is a creation of the Constitution which
envisages, inter alia, a structure of governance based on trichotomy of powers in
terms of which the functions of each organ have been constitutionally delineated
keeping in view the seminal concept of separation of powers. The political
sovereign i.e. the people, being trustees of a âsacredâ trust in the distribution of
powers under the Constitution, did not make Judges supreme arbiters on issues
purely political. But they wanted the Judges to do âright to all manner of people
according to law, without fear or favour, affection or ill-willâ (Oath under the
Constitution). While examining the vires of Article 175A of the Constitution and
its judicial enforcement, we are mindful of the mandate of the oath of office, its
constraints
and
the
fundamental
principles
which
underpin
judicial
independence in the constitutional scheme envisaged by the founding fathers.
Judicial independence is one of the core values of our Constitution because it is
inextricably linked with the enforcement of fundamental rights [Article 184 (3)
and Article 199 of the Constitution] and the rule of law. According an exalted
position to this value, the Constitution in its very Preamble laid down that, "the
independence of the judiciary shall be fully secured". The judiciary has not been made
part of the Executive or the Legislature (Article 7), its separation from the
executive was made a constitutional command [Article 175(3)] and right to âfair
trialâ is acknowledged as one of the fundamental rights (Article 10A). To further
buttress this objective, the process of appointment of judges (Article 177) and
their removal (Article 209) was kept insulated from legislature and the opinions
of the Chief Justice of Pakistan and Chief Justices of High Courts were given
Const.P.11/2010 etc.
12
weight which now stand judicially defined by this Court in Al-Jehad Trust case
(PLD 1996 SC 324). Judiciaries in all democratic setups are vulnerable to the
power of legislatures to create, alter or impair judicial structures including the
mode of appointing, removing and remunerating the Judges. In our country, like
in some others as well, this power is tampered with constitutional guarantees
that restrict legislative control over the judiciary. The Parliament was conscious
of this scheme, because other than inserting Article 175A, it did not amend any
other provision on which is built the edifice of judicial independence or the
provisions relating to the functions of judiciary. Only the appointment process
has been changed and the avowed objective seems to be to strike a balance
between judicial independence and democratic accountability/parliamentary
oversight.
9.
It was maintained by the learned counsel appearing for the
Federation that the Parliament was motivated by higher considerations of liberal
democracy, the rule of law and the independence of judiciary in passing the
Eighteenth Amendment. Notwithstanding these noble objectives, serious
apprehensions have been expressed that this provision may compromise judicial
independence which require serious consideration. Following aspects of Article
175A, according to the petitioners, are likely to disturb the overall constitutional
scheme qua judicial independence and the balance sought to be achieved
through it, may be tilted in one way. Because:
(i)
The Chief Justice of Pakistan is pater familias i.e. the head of
judiciary. His opinion under the unamended provision was
held by this Court [in Al-Jehad Trust case (PLD 1996 SC 324)] to
have primacy in the consultative process initiated by the
President for appointment of Judges. But under the newly
inserted provision, the consultative process has been done away
with and the Chief Justice has just one vote in the Judicial
Commission whose recommendations can be rejected by the
Parliamentary Committee.
(ii)
The Law Minister and Attorney General who represent the
Executive have been made members of the Judicial Commission
with weightage equal to judicial members.
Const.P.11/2010 etc.
13
(iii)
In the Parliamentary Committee in the name of parliamentary
oversight, the Committee has been given the power to reject the
recommendations of the Judicial Commission which would be
tantamount to granting veto powers to it.
(iv)
Four out of eight members of the Parliamentary Committee,
though members of the Parliament are nominees of the Chief
Executive i.e. the Prime Minister. The inclusion of the executive
members in the afore-referred bodies has not only minimized
the role of the judiciary in the appointment process but is likely
to politicize the entire exercise and thereby impinge on the
constitutional guarantees provided to ensure its insularity and
to restrict the legislative and executive control over it.
(v)
The issues of elevation of a Chief Justice of a High Court or
Judge of the said Court to the Supreme Court, if brought before
the Parliamentary Committee and discussed is likely to be
violative of Article 68 of the Constitution, which stipulates that:
âNo discussion shall take place in [Majlis-e-Shoora
(Parliament)] with respect to the conduct of any Judge of
the Supreme Court or of a High Court in the discharge of
his duties.â
(vi)
There is a serious omission in clauses (9) & (10) of Article 175A
as in the event of dissolution of the National Assembly, the
composition of the Parliamentary Committee would be
incomplete and there is no provision in pari materia to the third
proviso to clause (2B) of Article 213 of the Constitution which
stipulates that,
âWhen the National Assembly is dissolved and a vacancy
occurs in the office of the Chief Election Commissioner, the
Parliamentary Committee shall comprise the members from
the Senate only and the foregoing provisions of this clause
shall, mutatis mutandis, apply.â
10.
Most of the petitioners who had challenged Article 175A of the
Constitution raised serious issues regarding the composition of the Judicial
Commission and Parliamentary Committee and veto power given to the latter. It
was contended that there was a well known practice, when the unamended
provision was in vogue that Chief Justice would consult most senior Judges of
the Supreme Court before finalizing the recommendations. Instead of bringing
any drastic change, the said practice should have been formalized. It was,
therefore, suggested during arguments that to ensure that the appointment
process is in consonance with the concept of independence of judiciary,
Const.P.11/2010 etc.
14
separation of powers and to make it workable, Article 175A may be amended in
following terms:-
(i)
That instead of two most senior Judges of the Supreme
Court being part of the Judicial Commission, the number
should be increased to four most senior Judges.
(ii)
That when a recommendation has been made by the Judicial
Commission for the appointment of a candidate as a Judge,
and such recommendation is not agreed/agreeable by the
Committee of the Parliamentarians as per the majority of
3/4th, the Committee shall give very sound reasons and
shall refer the matter back to the Judicial Commission for
reconsideration. The Judicial Commission upon considering
the reasons if again reiterates the recommendation, it shall
be final and the President shall make the appointment
accordingly.
(iii)
That the proceedings of the Parliamentary Committee shall
be held in camera but a detailed record of its proceedings
and deliberations shall be maintained.
11.
Mian Raza Rabbani, Advisor to the Prime Minister (Chairman of
the Special Committee of the Parliament for Constitutional Reforms) while
speaking on the floor of the National Assembly reiterated the resolve not to alter
the core values of the Constitution when he said:
âMadam Speaker! Before I go into the details of this Article, let me
once again reiterate that one of the essential purposes rather two or
three of the essential purposes which made up the basis for these
constitutional reforms was to ensure that the fundamental
principles of the Constitution are not altered.â
12.
He was conscious of the apprehensions which some may have
about the provision when at a subsequent occasion he stated that under the new
Const.P.11/2010 etc.
15
system (Article 175A), a name for appointment as a Judge shall originate from
the Chief Justice of Pakistan. Even learned Attorney General for Pakistan in his
written submission affirmed this and stated, "the names of the recommendees will be
initiated in the Judicial Commission by the Hon'ble Chief Justice of Pakistan in
consultation with the other members/Hon'ble Judges of the Commission" and that "in
case of rejection of nomination by the Parliamentary Committee, the said Committee shall
have to state reasons which shall be justiciable." But such fair concessions, it was
argued, were not enough to fully allay the reservations expressed regarding this
provision.
13.
In view of the arguments addressed by the learned counsel, the
criticism made with regard to the effect of Article 175A on the independence of
judiciary and the observations made in paragraphs-8, 9 & 10 as also deferring to
the parliamentary mandate, we would like to refer to the Parliament for
re-consideration, the issue of appointment process of Judges to the superior
courts introduced by Article 175A of the Constitution, inter alia, in the light of the
concerns/reservations
expressed
and
observations/suggestions
made
hereinabove. Making reference to the Parliament for reconsideration is in accord
with the law and practice of this Court as held in Hakim Khan v. Government of
Pakistan (PLD 1992 SC 595 at 621).
14.
This is for the first time ever in our national, judicial and
constitutional history that such a serious challenge has been thrown by a cross
section of society including some premier Bar Associations of the country to a
legislation which was no ordinary piece of legislation but was a constitutional
amendment. By making this unanimous reference to the Parliament for
re-consideration, we did not consider the sovereignty of the Parliament and
judicial independence as competing values. Both the institutions are vital and
indispensable for all of us and they do not vie but rather complement each other
so that the people could live in peace and prosper in a society which is just and
Const.P.11/2010 etc.
16
wherein the rule of law reigns supreme. We can also not lose sight of the fact that
we, as a nation, are passing through testing times facing multidimensional
challenges which could be best addressed only through measures and methods
where societal and collective considerations are the moving and driving force.
We had two options; either to decide all these petitions forthwith or to solicit, in
the first instance, the collective wisdom of the chosen representatives of the
people by referring the matter for reconsideration. In adopting the latter course,
we are persuaded primarily by the fact that institutions may have different roles
to play, but they have common goals to pursue in accord with their
constitutional mandate.
15.
Notwithstanding the pendency of these petitions, the constitutional
provisions under challenge have come into effect. Prior to the Eighteenth
Amendment, several appointments of Additional Judges have been made in
various High Courts and the issue of fresh appointments is likely to come up in
near future. In these circumstances and till such time these petitions are decided,
Article 175A has to be given judicial enforcement by way of a construction which
is in consonance with the other constitutional provisions underpinning judicial
independence. While doing so we take note of the fair stand taken by Mian Raza
Rabbani, Chairman of the Special Committee of the Parliament for Constitutional
Reforms and the Attorney General for Pakistan to which reference has been
made in Para-12 above and hold that Article 175A shall be given effect to in the
manner as under:-
(i)
In all cases of an anticipated or actual vacancy a meeting of the
Judicial Commission shall be convened by the Chief Justice of
Pakistan in his capacity as its Chairman and the names of
candidates for appointment to the Supreme Court shall be
initiated by him, of the Federal Shariat Court by the Chief
Justice of the said Court and of the High Courts by the
respective Chief Justices.
Const.P.11/2010 etc.
17
(ii)
The Chief Justice of Pakistan as head of the Judicial Commission
shall regulate its meetings and affairs as he may deem proper.
(iii)
The proceedings of the Parliamentary Committee shall be held
in camera but a detailed record of its proceedings and
deliberations
shall
be
maintained.
The
Parliamentary
Committee shall send its approval of recommendations of the
Judicial Commission to the Prime Minister for onward
transmission to the President for necessary orders. If the
Parliamentary
Committee
disagrees
or
rejects
any
recommendations of Judicial Commission, it shall give specific
reasons and the Prime Minister shall send copy of the said
opinion of the Committee to the Chief Justice of Pakistan and
the same shall be justiciable by the Supreme Court.
16.
All cases of fresh appointments of Judges of the Supreme Court, of
the Federal Shariat Court, of the High Courts and of Additional Judges of the
latter Courts shall be processed forthwith under Article 175A.
17.
To enable the Parliament to proceed and re-examine the matter in
terms of the observations made above, these petitions are adjourned to a date in
the last week of January, 2011.
18.
The Registrar of this Court shall send a copy of this order to the
Chairman Senate, the Speaker of the National Assembly, Mian Raza Rabbani,
Advisor to the Prime Minister/Chairman of the Special Committee of the
Parliament for Constitutional Reforms and to the Secretary Law & Justice,
Human Rights Division of Pakistan.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
JAVED IQBAL, J.
MIAN SHAKIRULLAH JAN, J.
Const.P.11/2010 etc.
18
TASSADUQ HUSSAIN JILLANI, J.
NASIR-UL-MULK, J.
RAJA FAYYAZ AHMED, J.
MUHAMMAD SAIR ALI, J.
MAHMOOD AKHTAR SHAHID SIDDIQUI, J.
JAWWAD S. KHAWAJA, J.
ANWAR ZAHEER JAMALI, J.
KHILJI ARIF HUSSAIN, J.
RAHMAT HUSSAIN JAFFERI, J.
TARIQ PARVEZ, J.
MIAN SAQIB NISAR, J.
ASIF SAEED KHAN KHOSA, J.
GHULAM RABBANI, J.
KHALIL-UR-REHMAN RAMDAY, J.
Announced in Open Court on
the of October, 2010.
CHIEF JUSTICE
ISLAMABAD
Khurram Anees P.S./*
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Khilji Arif Hussain
Mr. Justice Tariq Parvez
Mr. Justice Ejaz Afzal Khan
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
CONSTITUTION PETITION NO.126 OF 2012
[UNDER ARTICLE 184(3) OF THE CONSTITUTION OF ISLAMIC
REPUBLIC OF PAKISTAN, 1973]
Nadeem Ahmed, Advocate
Petitioner(s)
VERSUS
Federation of Pakistan
Respondent(s)
For the Petitioner
:
Mr. M. Akram Sheikh, Sr.ASC
For the Respondent
:
Mr. Irfan Qadir, AGP.
Date of Hearing
:
14.12.2012
ORDER
Khilji Arif Hussain, J-. Through this petition, filed under
Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973
[hereinafter referred to as âthe Constitutionâ], the petitioner seeks following
relief:-
âa)
to issue appropriate directions to the Respondent for issuance of
notifications;
b)
to declare that till issuance of the notifications, being a mere
clerical/ministerial
formality,
the
Honourable
Judges
of
Honourable High Court mentioned at (a) and (b) of paragraph
above, may continue to function as Judges of Honourable
Islamabad High Court without having to depend on issuance of
notification(s);
c)
Any other better or more appropriate consequential relief may
also be granted in the interest of justice, especially to ensure that
in future, the Respondent may not use this kind of hindrance to
the smooth functioning of judicial organ.â
2.
From the perusal of material made available before us, it
appears that the Judicial Commission of Pakistan [hereinafter referred to as
âthe Commissionâ] in its meeting held on 22.10.2012, under the provisions
of Article 175-A of the Constitution, recommended Mr. Shaukat Aziz
Siddiqui, as a Judge and Mr. Noor-ul-Haq N. Qureshi, as an Additional
Judge for a period of six months, of Islamabad High Court, Islamabad,
from the date of expiry of their tenure as Additional Judges of the said
Constitution Petition No.126 of 2012
2
High Court. The Parliamentary Committee on receipt of the aforesaid
nominations from the Commission, in terms of Article 175-A(13) of the
Constitution, after unanimously confirming the same, sent the matter to
the Prime Minister of Pakistan to forward the same to the President of
Pakistan for appointment. The President of Pakistan apparently not issued
orders for appointment allegedly for the reason that one of the
participants out of ten was not qualified to attend the meeting of the
Commission.
3.
We are of the view that even if it is assumed that one of the
members, being non entity sat, voted and took part in the proceedings
culminating in nomination, but it would not vitiate the proceedings when
the Judicial Commission in view of Clause 8 of Article 175A of the
Constitution has nominated by majority of its membership. We are
supported in our view from the judgment reported as Managing Director,
Sui Southern Gas Company LTD, Karachi v. Ghulam Abbas and Others
(PLD 2003 SC 724).
4.
After hearing Mr. Muhammad Akram Sheikh, learned
Sr.ASC, representing the petitioner and the learned Attorney General for
Pakistan, and for the reasons to be recorded later, we accept this petition
and direct the concerned authorities to issue notifications, thereby
appointing Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High
Court, Islamabad, and Mr. Noor-ul-Haq N. Qureshi, as an Additional
Judge of Islamabad High Court, Islamabad, for a period of six months
giving effect from the date of expiry of their earlier notifications.
Judge
Judge
Judge
Judge
Judge
ISLAMABAD
M.Zubair/*
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In the Supreme Court of Pakistan
(Original Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Mian Saqib Nisar
Mr. Justice Ejaz Afzal Khan
Mr. Justice Muhammad Ather Saeed
Mr. Justice Iqbal Hameedur Rahman
Constitution Petition No.127 of 2012
(Regarding pensionary benefits of the Judges of
Superior Courts from the date of their respective
retirements, irrespective of their length of service as
such Judges)
AND
H.R.C No. 40927-S of 2012.
(Application by Abdul Rehman Farooq Pirzada)
AND
Civil Miscellaneous Appeal No.176/2012 in
Constitution Petition No.Nil of 2012
(Begum Nusrat Ali Gonda Vs. Federation of Pakistan etc.
Attendane:
For Mr. Justice (R) Rustam Ali Malik
Mr. Justice (R) Rana M. Arshad Khan
Mr. Justice (R) Ghulam Sarwar Sheikh
Mr. Justice (R) Farrukh Latif
Mr. Justice (R) Pervez Ahmed
Mr. Justice (R) Muhammad Jehangir Arshad
Mr. Justice (R) Ahmed Farooq Sheikh
Mr. Hamid Khan, Sr. ASC.
Mr. M. S. Khattak, AOR.
For Justice (R) Mrs. Majida Rizvi
Mr. Justice (R) Nadeem Azhar Siddiqui
Mr. Justice (R) Tariq Mehmood
Justice (R) Mrs. Qaiser Iqbal
Mr. Munir A. Malik,Sr.ASC.
Mr. Faisal Kamal Alam, ASC.
For Mr. Justice (R) Shah Abdul Rashid
Mr. Rafiq Rijwana, ASC.
For Mr. Justice (R) Khan Riaz-ud-Din Khan
Mr. Justice (R) Saeed-ur-Rehman Farrukh
Mr. M. Akram Sheikh, Sr. ASC.
For Mr. Justice (R) Amjad Ali
Mr. Farhat Nawaz Lodhi, ASC
For Mr. Justice (R) Riaz Kiani
Mr. Justice (R) Aqil Mirza
Mr. Justice (R) Sharif Hussain Bokhari
Mr. Justice (R) Ghulam Muhammad Qureshi
Mr. Justice (R) Abdul Hafeez Cheema
Mr. Justice (R) Munir Ahmed Mughal
Mr. Justice (R) Rao Iqbal Khan
Mrs. Shahida Khurshid,
w/o Mr. Justice (R) Raja M. Khurshid
Syed Iftikhar Hussain Gillani,
Sr. ASC.
For Mr. Justice (R) Raza A. Khan
Mr. Afnan Karim, Kundi, ASC.
For Mr. Justice (R) Syed Najam-ul-Hassan Kazmi
Mr. M. Afzal Siddiqui, ASC
For Mr. Justice (R) Mansoor Ahmed.
Raja M. Ibrahim Satti, Sr. ASC.
Mr. Mehmood A. Sheikh, AOR.
Const. Petition No.127 of 2012
2
For Mr. Justice (R) Sh. Javaid Sarfraz
Mr. Justice (R) Fazal-e-Miran Chohan
Mr. Justice (R) Syed Asghar Haider
Mr. Justice (R) Tariq Shamim
Mr. Justice (R) M. Nawaz Bhatti
through widow Mrs. Perveen Nawaz
Mr. Amir Alam Khan, Sr. ASC
For Mr. Justice (R) Aslam Arian
Mr. Mehmood A.Sheikh,ASC
For Mr. Justice (R) Abdul Ghani Sheikh:
Mr. Abdul Rahim Bhatti, ASC
Mr. Justice (R) Tanvir Bashir Ansari
Through widow Mrs. Shahnaz Ansari
Mr. Zaheer Bashir Ansari,ASC
Mr. Justice (R) Sheikh Abdul Rashid
Mr. Justice (R) Ch. Mushtaq Ahmad Khan
Mr. Justice (R) Sh. Abdul Manan
Mr. Justice (R) Munib Ahmed Khan
Mr. Muhammad Munir Peracha, ASC
For Mr. Justice (R) Muhammad Muzamil Khan
Mr. Gulzarin Kiani, Sr. ASC
Ch. Akhtar Ali, AOR
For Mr. Justice (R) Sher Bahadur
Mr.Abdul Aziz Kundi,ASC
For Mr. Justice (R) Iftikhar Ahmed Cheema
Mr. Justice (R) M.K.N. Kohli
Sardar Muhammad Aslam, ASC.
Raja Abdul Ghafoor, AOR.
For Widow of Mr. Justice (R) M. Khayar Khan
Ms. Asma Jehangir, ASC
For Mr. Justice (R) Ghous Muhammad:
Rana M. Shamim, ASC.
For Mr. Justice (R) G.M. Kourejo
Mr. Justice (R) Ali Sain Dino Metlo
Nemo.
Mr. Justice (R) Salim Khan
Mr. Justice (R) M. Sadiq Laghari
Mr. Justice (R) Abdul Aziz Kundi
Mr. Justice (R) Azam Khan
Mr. Justice (R) Hamid Farooq Durani
In person.
Mr. Justice (R)Abdul Ghafoor Khan Ladhi
Mr. Justice (R) Mian Ghulam Ahmad
Mr. Justice(R)Muhammad Ismail Bhatti
Mr. Justice (R) Ch. Shahid Saeed
Mr. Justice (R) Sagheer Ahmed Qadri
Late Justice (R) Abdul Rehman Khan Kaif
Mr. Justice (R) Abdul Khaliq Khan
Mr. Justice (R) Qazi Hamid-ud-Din
Mr. Justice (R) Raja Muhammad Khan
Mr. Justice (R) Muhammad Raza Khan
Mr. Justice (R) Said Maroof Khan
Mr. Justice (R) Attaullah Khan
Mr. Justice (R) Salim Dil Khan
Mr. Justice (R) Amanullah Abbasi
Mr. Justice (R) S.A. Rabbani
Mr. Justice (R) Shahid Anwar Bajwa
N.R.
Applicant in HRC-40927-S/2012
(Mr. Justice (R) Abdul Farooq Pirzada)
Absent
For the applicant in CMA No.176/2012
in Const. P. No.Nil/2012:
Sardar Muhammad Aslam, ASC
Const. Petition No.127 of 2012
3
On Court notice
Mr. Irfan Qadir, Attorney General for Pakistan.
Mr. Azam Khan Khattak, Addl. AG., Balochistan.
Mr. Muhammad Qasim Mirjut, Addl. AG, Sindh.
Mr. Muhammad Hanif Khatana, Addl. AG Punjab
Syed Arshad Hussain Shah, Addl: AG, KPK
On Court notice
(amici curiae):
Khawaja Haris Ahmed, Sr. ASC
Mr. Salman Akram Raja, ASC
On Courtâs Call:
Mr. Abdul Qadeer Ahmed,
Deputy Accountant General, Sindh.
Dates of Hearing:
26th , 27th, 28th, 29th March, 2013 and
2nd, 3rd , 8th , 9th , 10th & 11th April, 2013.
JUDGMENT
Anwar Zaheer Jamali, J.- By our short order
announced in open Court on 11.4.2013, this case and the other
connected cases were disposed of in the following manner:-
ââĻ..we hereby, in exercise of all the enabling powers vested in
this Court, hold and declare that the law enunciated in the case
of Accountant General Sindh and others versus Ahmed Ali U.
Qureshi and others (PLD 2008 SC 522) is per incuriam and
consequently this judgment is set aside. The titled appeal is
accepted and the judgment impugned therein is also set aside.
Other miscellaneous applications moved therein and in these
proceedings are dismissed accordingly.â
In support of above short order, now we proceed to record our
detailed reasons as under:-
2.
This Petition, for suo moto review of judgment dated
6.3.2008, passed in Civil Appeal No.1021 of 1995, other connected
petitions and miscellaneous applications, emanates from the office
note dated 21.11.2012 submitted by the Registrar of the Supreme
Court of Pakistan for the perusal of Honourable Chief Justice,
which reads thus:-
âIt is submitted that the Civil Petition for Leave to
Appeal No. 168-K of 1995 was filed in this Court by the
Accountant General Sindh, challenging the validity of
the judgment of High Court of Sindh, at Karachi, dated
02.02.1995, wherein the Court had granted the relief of
pension to the respondent (since dead), a former judge
Const. Petition No.127 of 2012
4
of the High Court of Sindh, who while holding the post
of District and Sessions Judge was posted as Secretary
to the Government of Sindh, Law Department and was
elevated as Additional Judge, High Court of Sindh in
1985. He retired on 25.10.1988 and was allowed
pension at the rate of Rs.4,200 per month with the
benefit of commutation, gratuity and additional sum of
Rs.2,100 per month as cost of living allowance payable
to a retired Judge of the High Court under paragraph
16-B of President's Order No.9 of 1970, as amended by
P.O. No.5 of 1988. In pursuance of the Constitution
(Twelfth Amendment) Act, 1991 (Act XIV of 1991), the
pension of the respondent was revised and fixed as
Rs.6300 per month and thereafter by virtue of P.O. No.2
of 1993, the pension of retired Judges of superior
judiciary was again revised, wherein the pension of High
Court Judges was fixed with minimum and maximum
ratio of Rs.9.800 and Rs.10,902 per mensum but this
increase in pension was declined to the respondent on
the
basis
of
departmental
interpretation
of
the
President's Orders referred to above read with Fifth
Schedule
of
the
Constitution.
The
respondent
thereafter, invoking the Constitutional jurisdiction of
the High Court, filed a constitution petition wherein he
sought a declaration that he was also entitled to the
benefit of P.O. No.2 of 1993. Relief was granted to him
by the Sindh High Court. The Accountant General,
Sindh feeling aggrieved approached this Court by filing
said Civil Petition for Leave to Appeal.
2.
Leave to appeal was granted by this Court
vide order dated 28th August 1995, on the following
terms:
"2. So far the main petition is concerned, it is
submitted by the learned Deputy Attorney General for
the petitioner that respondent No.1 was a District and
Session Judge and was elevated as Judge of the
High Court in July, 1985 and retired after completing
tenure of three years two months and twenty-seven
days in that capacity, hence for the purpose of
pension his case is covered by Article 15 of the High
Court Judges (Leave, Pension and Privileges) Order,
1970, which is applicable to such judges of the High
Court who retire before completion of five years
service in the High Court and are entitled to draw
pension as having retired from the service they were
taken from for elevation to the High Court.
Const. Petition No.127 of 2012
5
3. Leave is granted to examine the following
questions. Firstly, whether for claim of respondent
No.1 for extra/maximum pension writ petition before
the High Court was competent to and maintainable.
Secondly, whether P.O.9/70 is to be read in
conjunction with P.O.2/93, P.O.3/95 and Article 205
read with Fifth Schedule to the Constitution, if yes,
what will be its effect on the claim of respondent.
Thirdly, whether the President can only increase or
decrease the amount of pension with altering the
terms and conditions as contemplated under Article
205 read with the Fifth Schedule to the Constitution.
Fourthly, whether respondent No.1 is entitled to the
minimum and maximum amount of the pension as
contemplated under P.O.2/93."
3.
Pending disposal of the Appeal, a number of
other retired Judges of the High Courts, who were not
allowed pension on the ground that they having been
not put minimum service of five years in terms of
paragraph 3 of Fifth Schedule to the Constitution were
not entitled to the grant of pension, moved a joint
representation to the President of Pakistan, through the
Ministry
of
Law,
Justice
and
Human
Rights,
Government of Pakistan and having received no reply,
filed direct petitions before this Court under Article
184(3) of the Constitution, whereas, some of the retired
Judges filed miscellaneous applications to be impleaded
as party in the proceedings before this Court.
Constitution Petition No.40 of 2002 filed by Mr. Justice
(Retd) S.A. Manan was disposed of as withdrawn, but in
view of the nature of right claimed in these petitions,
this withdrawal was inconsequential to the right of
pension of the judges. The appellant in the main appeal
and the petitioners in the other constitution petitions
sought declaration, as under:
a.
The provision of President's Order No.3 of
1997 was in derogation to Article 205 of the
Constitution read with Fifth Schedule of the
Constitution wherein the right of pension of
only those Judges who have put minimum five
years of service as Judge of the High Court,
was recognized.
b.
The retired Judges of the High Court,
irrespective of their length of service were
entitled to the grant of pension, as per their
entitlement under Article 205 read with
paragraph 2 of the Fifth Schedule of the
Constitution.
4.
On 06.3.2008, the Civil Appeal No. 1021 of
1995 and the connected constitution petitions involving
Const. Petition No.127 of 2012
6
common question of law and facts, were disposed of
through the single judgment (PLD 2008 SC 522) by
three member Bench of this Court comprising Mr.
Justice Nawaz Abbasi, Mr. Justice Muhammad Qaim
Jan Khan and Mr. Justice Muhammad Farrukh
Mahmud in the following terms:
â34. In consequence to the above discussion,
the
Constitution
Petitions
Nos.
8/2000,
10/2001, 26/2003, 34/2003, 04/2004 and
26/2007, filed by the retired Judges of the
High
Courts
are
allowed
and
the
petitioners/applicants in these petitions and
miscellaneous applications, along with all
other retired Judges of the High Courts, who
are not party in the present proceedings, are
held entitled to get pension and pensionary
benefits with other privileges admissible to
them
in
terms,
of
Article
205
of
the
Constitution read with P.O.No.8 of 2007 and
Article 203-C of the Constitution read with
paras 2 and 3 of Fifth Schedule and P.O. No.2
of 1993 and P.O.3 of 1997 from the date of
their respective retirements, irrespective of
their length of service as such Judges.â
5.
It is evident from the above that the matter
was decided on the basis of High Court Judges
(Pensionary Benefits) Order, 8 of 2007. This Order was
promulgated on 14.12.2007 and at the time of decision
of the matter was considered as a valid piece of
legislation.
But
subsequently,
vide
this
Court
Judgment dated 31.07.2009 (Sindh High Court Bar
Association V. Federation of Pakistan), reported as (PLD
2009 SC 879) this P.O 8 of 2007 was declared
unconstitutional, illegal, ultra vires and void ab initio.
The relevant paragraph of said judgment is reproduced
as under:
â179. All the acts/actions done or taken by General
Pervez Musharraf from 3rd November, 2007 to 15th
December, 2007 (both days inclusive), that is to say,
Proclamation of Emergency and the subsequent
'acts/actions done or taken in pursuance thereof,
having been held and 'declared to be unconstitutional,
illegal, ultra vires and void ab initio are not capable of
being condoned. These include Proclamation of
Emergency and the PCO No.1 of 2007 issued by him
as Chief of Army Staff and Oath Order, 2007 issued
by him as President of Pakistan in pursuance of the
aforesaid two instruments, all dated 3rd November,
2007; Provisional Constitution (Amendment) Order,
2007
dated
15th
November,
2007;
Constitution
(Amendment) Order, 2007 (President's Order No.5 of
2007 dated 20th November, 2007); Constitution
(Second Amendment) Order, 2007 (President's Order
No.6 of 2007 dated 14th December, 2007);, Islamabad
Const. Petition No.127 of 2012
7
High Court (Establishment) Order 2007 (President's
Order No.7 of 2007 dated 14th December 2007); High
Court Judges (Pensionary Benefits) Order, 2007
(President's Order No.8 of 2007 dated 14th
December, 2007) and Supreme Court Judges
(Pensionary Benefits) Order, 2007 (President's
Order No.9 of 2007 dated 14th December, 2007).
The aforesaid actions of General Pervez Musharraf are
also shorn of the validity purportedly conferred upon
them by the decisions in Tikka Iqbal Muhammad
Khan's case. The said decisions have themselves been
held and declared to be coram non judice and nullity
in the eye of law. The amendments purportedly made
in the Constitution in pursuance of PCO No. 1 of 2007
themselves
having
been
declared
to
be
unconstitutional and void ab initio, all the actions of
General Pervez Musharraf taken on and from 3rd
November, 2007 till 15th December, 2007 (both days
inclusive) are also shorn of the validity purportedly
conferred upon them by means of Article 270AAA.â
6.
It is further submitted that the issue in hand
has far reaching implications. The practical effect of the
judgment is that Judges of the superior courts are
being granted pension and pensionary benefits without
any consideration of tenure or length of service.
7.
It is pointed out that Supreme Court in the
case of Province of Punjab v. Dr. Muhammad Daud
Khan Tariq (1993 SCMR 508) held that it is not against
any principle for the Courts of this country to protect
the interest of the tax-payers as well as the public
exchequer notwithstanding the follies or illogical and
some times even casual attitude of the custodians of the
public exchequer. Furthermore, this Court in the case
of Secretary, Board of Revenue, Punjab v. Khalid Ahmad
Khan (1991 SCMR 2527) held that the Government has
chosen to spend much more on the litigation instead of
paying Rs. 15,000 as judgment-debt to the respondent
towards the discharge of the decree in case where
substantial justice has been done. Further, although
the law point has been decided in favour of the
appellants yet in the interest of justice we do not want
to inflict further heavy burden on the public exchequer;
which would indeed be burdened with more expenses.
8.
The matter is therefore of great public
importance as huge public money is being expended
without any legal justification despite the fact that the
basis of judgment itself has lost its validity. It is
therefore a fit case for Suo Moto Review.
Const. Petition No.127 of 2012
8
9.
There are precedents, when this Court took
up issues suo moto in the interest of justice. In the case
of rowdysim in the Supreme Court premises titled
Shahid Orakzai v PML(N) (2000 SCMR 1969), a Bench of
three
Judges acquitted
the
contemnor.
Criminal
Original Petition was filed by the Petitioner and the
same was heard by a Bench of 5 Judges and the same
was converted into Appeal. It was objected that the
matter could not be reviewed by filing a Criminal
Original Petition by a third person who was not party in
the matter. However, the Counsel for the Contemner
conceded that this Court is not precluded from recalling
of its earlier order by taking Suo Moto action on coming
to know that such miscarriage of justice had occurred
due to the Court having proceeded on wrong premises.
It was held that under Article 187(1) of the Constitution,
Supreme Court can recall its earlier order by taking Suo
Moto action on coming to now that sum miscarriage of
justice has occurred. In yet another judgment, when
two different interpretations by two Benches of the
Supreme Court taking contrary views of the judgment of
Shariat Appellate Bench passed in a pre-emption case
of Said Kamal Shah, a Suo Moto Review (PLD 1990 SC
865) was taken by the Shariat Appellate Bench to clarify
the effect of its judgment given in the said case. Again,
it was held in the case State v. Zubair (PLD 1986 SC
173) that if a Judge of High Court had heard a bail
application of an accused person, all subsequent
applications for bail of the same accused or in the same
case, should be referred to the same Bench/Judge
wherever he is sitting and in case it was absolutely
impossible to place the second or subsequent bail
application before the same Judge, who had dealt with
the earlier bail application of the same accused or in the
same case in such cases, the Chief Justice of the
concerned High Court may order that it be fixed for
disposal before any other Bench/Judge of that Court.
The Supreme Court by taking suo moto action of the
difficulties arising out of the strict implementation of
the ratio in the State v. Zubair and on receipt of the
reports from the High Courts and hearing the Attorney
General of Pakistan and Advocates-Generals of the
Const. Petition No.127 of 2012
9
Provinces it was observed (2002 SCMR 177) that the
spirit underlying the said case which still held the filed
was not intended to create difficulties/bottlenecks or to
work prejudicially to the interest of all concerned. It was
held that the rule laid down in the above case shall
continue but due to exigency of service or any other
sufficient cause departure can be made in the large
interest of justice and may be referred to any other
bench for reason to be recorded in writing by the Chief
Justice. Recently, a Constitution Petition filed for
revisiting of this Court judgment dated 13.9.2011
passed in Constitution Petition No. 50/2010 for
declaratory judgment regarding existence of Article
186A of the Constitution was treated as Civil Misc
Application (CMA No. 4711/2012 in Constitution
Petition No. 50/2010) for the purpose, which awaits
hearing before the Court.
10.
In view of the above, if approved, Suo Moto
action may be taken in the matter for review of
judgment dated 6.3.2008 passed in Civil Appeal No.
1021 of 1995 etc and the matter may be fixed before a
Larger Bench comprising minimum five members.
Registrar
21.11.2012
HCJ
22
3.
Taking notice of the facts and circumstances disclosed in
the above reproduced submission note, coupled with the legal
position canvassed therein for taking cognizance in the matter, on
23.11.2012, following order was passed by the Honourable Chief
Justice of Pakistan:-
âPerusal of above note prima facie makes out a case
for examination of points raised therein. Therefore,
instant note be registered as Suo Motor Misc.
Petition and it may be fixed in Court in the week
commencing from 03.12.2012. Notice to Honâble
Retired
Judges,
who are beneficiaries
of
the
judgment dated 6.3.2008 be issued. Office shall
Const. Petition No.127 of 2012
10
provide their addresses. Notice to Attorney General
for Pakistan may also be issued.â.
It is in this background that subsequently this petition came
up for hearing before this five member larger Bench:-
4.
At the commencement of the proceedings in the matter,
Syed Iftikhar Hussain Gillani, learned senior ASC, representing
eight of the honourable retired judges of the High Court, M/s Riaz
Kiyani, Muhammad Aqil Mirza, Sharif Hussian Bukhari, Ghulam
Mehmood Qureshi, Abdul Hafeez Cheema, Dr. Munir Ahmed
Mughal, Tariq Shamim and Rao Iqbal Ahmed Khan, JJ and the
widow of one honourable retired Judge Raja Muhammad Khurshid,
who have been issued notices of these proceedings, came at the
rostrum and made his submissions as one of the lead counsel for
these judges.
5.
At the outset, he gave a brief summary of the relevant
facts regarding the services rendered by the judges represented by
him, to show their actual period of service as judge of the High
Court before becoming entitled for pensionary benefits in the light
of judgment dated 6.3.2008, passed in civil appeal No.1021/1995
and other connected petitions (PLD 2008 SC 522), (hereinafter
referred to as the âjudgment under challengeâ). In the same
context, he also made reference of C.M.A No.802/2013, which
contains relevant facts as regards their respective service as judge
of the High Court. He further made reference to the statement in
writing
subsequently
submitted
by
him,
containing
the
formulations of his arguments, which read as under:-
âa.
Entitlement to the remuneration of the Judges of the Superior
Courts are guaranteed by the Constitution and no Sub-
Constitutional legal instrument can take away such entitlement.
Const. Petition No.127 of 2012
11
b.
Para 2 in the Vth Schedule is an independent provision and is not
to be âgovernedâ by Para 3.
c.
Dictum of Qureshiâs judgment reported in PLD 2008 SC 522 was
not decided âon the basisâ of the Presidential Order 8 of 2007, as
observed in para 5 of learned Registrarâs note, but founded on the
mandate of the Constitution.
d.
That High Court Judges (Leave, Pension and Privileges) Order,
1997 (Presidentâs Order 3 of 1997) is violative of Article-205 and
Schedule V of the Constitution.â
6.
The learned Sr.ASC referring to some legal aspects of the
controversy involved in the present petition, made specific
reference to all the relevant statutes starting from the Government
of India Act, 1935 upto the Constitution of 1973 as well as various
orders and Presidentâs Orders issued in this regard from time to
time. Making reference to the language of Article 205 read with
paragraph-2 of its Fifth Schedule, relating to High Court judges, he
emphasized that the language of paragraph-2 of the Fifth
Schedule, commencing from the word âEvery judgeâ makes it
abundantly clear that irrespective of his length of service, every
judge, once elevated to the High Court is entitled, inter alia, for the
pensionary benefits while the authority for determination vested
with the President in terms of this para is only confined to the
quantum of such pension and nothing more. He added that
paragraph-3 of the Fifth Schedule to Article 205 of the
Constitution, which was available in the original text of the
Constitution of 1973, and subsequently amended in the year 1991,
was to be read independent and separate from paragraph-2, which
provides for pensionary benefits for the two categories of the
honourable retired judges, depending upon their length of service,
when read in conjunction with it. He reiterated that every judge of
the High Court is entitled for pensionary benefits, but for the
determination of quantum of such benefit, they are categorized
Const. Petition No.127 of 2012
12
into two; one, who have served as such for a period of five years or
more and, the others, having served for less than five years.
According to Mr. Gillani, insofar as the entitlement of pensionary
benefits of those judges of the High Courts is concerned, who have
rendered more than five years of service, there is no dispute or
controversy at all about their entitlement of pensionary benefits.
However, for the other category of judges, having rendered less
than
five
years
actual
service,
till
date
no
independent
determination, as required by law and under the Constitution, has
been made by the President. At this stage, he also made reference
to the judgment under challenge to show that it was in this
background of the controversy that this Court resolved the issue of
pensionary benefit of all the retired judges, including those, who
have rendered less than five years service, and such conclusion
based on valid reasonings is not open to interference in any form.
More so, in a situation when such judgment was passed more than
four years ago; it has already been implemented in its letter and
spirit, and not challenged by the Government or from any other
corner.
7.
Touching to the moral side of this controversy relating to
payment of pension, he further argued that all judges of the
superior judiciary, including those who have retired from their
office before rendering complete five years actual service as High
Court Judge, are highly respected segment of the society, who need
to maintain special protocol befitting to their earlier status and
office; further in terms of Article 207 of the Constitution, they are
disqualified to practice in the same High Court. In such
circumstances, merely due to the fact that they have rendered less
Const. Petition No.127 of 2012
13
than five years of service in the said position, they cannot be
discriminated and deprived of such benefit, which in turn would,
in many cases, result in leaving them at the mercy of the society
for the purpose of meeting their financial needs in the old age. In
order to gain support to his submissions, learned Sr. ASC further
made reference to 12th Constitutional Amendment; Presidentâs
Order No.2 of 1993 (PLD 1994 C.S 192) and Presidentâs Order No.5
of 1996 (PLD 1997 C.S 199) and relied upon the cases reported as
M.A Rashid v. Pakistan (PLD 1988 Quetta 70), Ahmed Ali U.
Qureshi v. Federation of Pakistan (PLD 1995 Karachi 223) and I.A
Sharwani v. Government of Pakistan (1991 SCMR 1041). Amongst
these cases, in the 1st case decided by learned Division Bench of
Balochistan High Court on 08.5.1988, a dispute was agitated by
honourable retired Justice M.A Rashid, as regards the entitlement
of his pensionary benefits under the High Court Judges (Leave,
Privileges and Pension) Order, 1970 qua the effect of amending
order 5 of 1983, of which benefit was refused to him. In this case,
the honourable Judge of the Balochistan High Court had initially
adorned the office in that position on 07.10.1974, after being
elevated to the High Court of Sindh and Balochistan. Thereafter he
ceased to hold the office as Judge of the Balochistan High Court
w.e.f. 25.3.1981, after having served for a period of more than six
years. The Court, while holding him entitled for the benefit of
amending order 5 of 1983, concluded that Constitution is a
fundamental document and while interpreting a provision of the
Constitution, article thereof must receive a construction which
would be beneficial to the widest maximum extent. Moreover,
making reference to some Presidential Orders, the Court observed
that such Orders nowhere stipulate that the benefit of these
Const. Petition No.127 of 2012
14
Presidential Orders would not be available to the Judges who had
retired before the dates mentioned in the two orders, as the Orders
are clear and admit of no ambiguity, therefore, the necessary
conclusion would be that the benefit of these Orders would be
available to all the Judges irrespective of their date of retirement.
The 2nd case of Ahmed Ali U. Qureshi (supra), need not be
discussed here as it was against the same judgment that an appeal
was preferred before this Court, which was decided vide judgment
under challenge dated 6.3.2008. The 3rd case of I.A Sharwani
(supra) is also not being discussed here as it will be discussed in
detail in some later part of the judgment.
8.
At the conclusion of his arguments, Mr. Gillani also made
reference to Article 260 of the Constitution to show the definition of
âremunerationâ, which includes the word âpensionâ, however, when
confronted with other definitions contained in this Article, he
conceded that since âpensionâ has been separately defined therein,
therefore, its inclusion in the definition of âremunerationâ will not
make much difference.
9.
After conclusion of arguments of Mr. Iftikhar Hussain
Gillani, Mr. Munir A. Malik, learned Sr. ASC, who is representing
four other honourable retired judges M/s Majida Rizvi, Nadeem
Azhar Siddiqui, Mrs. Qaiser Iqbal and Tariq Mehmood, JJ, came at
the rostrum and made his submissions. In the first place, he made
reference of C.M.Aâs No.867 to 869 of 2013, to give some details
about the services rendered by each one of them as honourable
judge of High Court, particularly the dates of their appointment as
an additional judge, permanent judge; and retirement/resignation,
with total length of their respective service. Before commencing his
Const. Petition No.127 of 2012
15
arguments on legal footing, Mr. Malik, frankly stated that none of
the retired judge of the High Court represented by him has
rendered actual service as such for a period of five years, but less
than five years. In the context of entitlement of pensionary
benefits, he gave brief history of constitutional legislation and
other
provisions
of
law
including
the
Presidentâs
Orders
promulgated/ issued in the sub-continent before and after the
independence of Pakistan from time to time and reiterated that
paragraph-2 of the Fifth Schedule to Article 205 of the Constitution
of 1973 is to be read independently; it covers the right of âevery
judgeâ of the High Court for the purpose of pensionary benefit to be
determined by the President, therefore, irrespective of the fact
whether no such determination has yet been made by the
President for the category of those honourable retired judges of the
High Court, who have rendered service as such for less than five
years, they are entitled for the pensionary benefits. When
confronted with the query as to how and in what manner the
quantum of such pension for these judges could be determined, if
no mode of determination in this regard is available before us in
any form, he candidly stated that as yet no such determination has
been made by the President even once, nor this matter was earlier
agitated by any of the honourable retired judge of the High Court,
who had rendered less than five years of service in the said office,
since the promulgation of the Constitution of 1973 or even before
that under the Constitution of 1956 or 1962 etc. The pith and
substance of his submissions was that âevery judgeâ as mentioned
in paragraph-2 of the Fifth Schedule to Article 205, has its own
connotation and significance which makes it abundantly clear that
they all are entitled for pensionary benefits, but only the question
of determination of quantum of pension is left with the President in
Const. Petition No.127 of 2012
16
line with the spirit of paragraph-2 and nothing more. For this
reason, in either of the two situations when paragraph-2 is read
separately, independently and hermetically or together with
paragraph-3, the claim of every retired judge of the High Court for
pensionary benefits is fully established. In order to add force to his
submissions about the entitlement of every judge of the High Court
for pensionary benefits, he also laid stress upon Article 207 of the
Constitution, which places an embargo on every honourable retired
judge of the High Court from practicing within the territorial limits
of the same High Court, wherein he has served as a permanent
judge even for a single day. In between the lines, his submission
was that when such an embargo becomes operative against
honourable retired judges soon after their confirmation then the
condition of five years minimum length of service for their
entitlement to pension as judge of the High Court seems to be
inconsistent, illogical, harsh and violative of Article 18 of the
Constitution. He also made reference to the National Judicial
Policy 2009 and 2012 and contended that even after retirement,
honourable judges of the High Court are required to maintain
befitting standard of living in the society, which may not be
possible for them under financial constraints, thus, their claim for
entitlement of pension even for less than five years actual service is
fully justified and in accordance with law. However, he added that,
indeed, retired judges of the High Court, who have rendered less
than five years service as such and those who have rendered five
years or more service, cannot be placed in the same category for
the purpose of pensionary benefits. He also conceded to the
position that as yet, not even once any determination regarding
pensionary benefits of honourable retired judges, who have
rendered less than five years service, has been made by the
Const. Petition No.127 of 2012
17
President and such purported inaction on his part has never been
challenged earlier in the history of the Sub-continent and our
Country either under the dispensation of Government of India Act,
1935 or the Constitutions of 1956, 1962 and 1973, except the
present litigation emanating from the case of Ahmed Ali U.
Qureshi. In his further submissions learned ASC also dilated upon
the concept of independence of the judiciary as a third pillar of the
State, which, according to him, also covers its financial
independence qua right to pension for every judge of the High
Court irrespective of his length of service in the office.
10.
Mr. Munir A. Malik, learned Sr. ASC in his further
arguments, made reference to the office note dated 21.11.2012,
submitted by the Registrar of Supreme Court of Pakistan for the
perusal of Honourable Chief Justice of Pakistan, which formed
basis of these proceedings and contended that no doubt vide
judgment in the famous case of Sindh High Court Bar Association
v. Federation of Pakistan (PLD 2009 SC 879), Presidentâs Orders
No.8 of 2007 dated 14.12.2007 and Judges Pensionary Benefits
Order 9 of 2007, have been declared to be coram non judice and
nullity in the eyes of law, but on the basis of this case alone, the
judgment under challenge cannot be set aside, as many other
strong independent reasons have been recorded in its paragraphs
1 to 19, which still hold the field as alternate grounds for grant of
pensionary benefits. Further submissions of Mr. Malik was that
even if the Court comes to the conclusion about the non-
entitlement of pensionary benefits for the honourable retired
judges of the High Court, having rendered less than five years
service, keeping in view their high status in the society and
bonafide implementation of the judgment under challenge, any
Const. Petition No.127 of 2012
18
order contrary to it, if passed, should be made operative
prospectively
and
not
retrospectively.
During
his
further
arguments, Mr. Munir A. Malik, made detailed reference of P.O
No.9/1970, PO No.7/1991, P.O No.2/1993, P.O No.3/1995, P.O
No.5/1995, P.O No.3/1997 and 12th Constitutional Amendment in
an effort to show that it will be a legitimate and holistic approach if
the claim of honourable retired judges of the High Court, who have
rendered less than five years actual service, is looked into
pragmatically and liberally in order to determine their right and
quantum of pension, which exercise has not yet been undertaken
by the President, though required under the mandate of the
Constitution. Making reference to the case of one of the honourable
retired judge of Sindh High Court Ms. Majida Rizvi, he also brought
to our notice the judgment dated 1.7.2008 in C.P No.D-24/2002,
which remained unchallenged till this date and has, thus,
according to him, attained finality. In the end, he made reference
to the principles of locus poenitentiae etc and cited the following
cases:-
a)
Attiyya Bibi Khan v. Federation of Pakistan
(2001 SCMR 1161).
b)
M/s Haider Automobile Ltd v. Pakistan
(PLD 1969 SC 623).
c)
Elahi Cotton Ltd. v. Federation of Pakistan
(PLD 1997 SC 582).
d)
Amir Khatoon v. Faiz Ahmad (PLD 1991 SC 787).
e)
R v. A [2001 (3) All England Reporter 1 (17)].
11.
In the case of Attiyya Bibi Khan, relating to some dispute
between the students of a medical college and the educational
institutions, the provisions of Article 25 of the Constitution were
dilated upon and in that context it was held that the judgment
Const. Petition No.127 of 2012
19
would be operative from the date of its announcement and would
have no retroactive legal implications. In the case of M/s Haider
Automobile Ltd (supra) and other connected case titled Province of
West Pakistan versus Manzoor Qadir Advocate and another,
dispute revolved around the availability of right of practice to a
retired judge of the High Court of West Pakistan in view of the bar
imposed by Ordinance II of 1964. The Court held that the
legislature is competent to make a law and has full and plenary
powers in that behalf and can even legislate retrospectively or
retroactively. There is no such rule that even if the Legislature has,
by the use of clear and unambiguous language, sought to take
away a vested right, yet the Courts, must hold that such a
legislation is ineffective or strike down the legislation on the
ground that it has retrospectively taken away a vested right. After
detailed discussion, the learned five members Bench of the apex
Court unanimously held that the two learned former judges were
debarred by Ordinance No. II of 1964 from practicing in the High
Court of West Pakistan or any Court or tribunal subordinate to it.
In the case of Elahi Cotton Ltd, discussing some broad principles
of interpretation of statutes qua constitutional provisions view
expressed by the Court was that the law should be saved rather
than be destroyed and the Court must lean in favour of upholding
the Constitutionality of a legislation, keeping in view that the rule
of Constitutional interpretation is that there is a presumption in
favour of the Constitutionality of the legislative enactments unless
ex facie it is violative of a Constitutional provision. It was further
held that where power is contained in the Constitution to legislate,
one's approach while interpreting the same should be dynamic,
progressive and oriented with the desire to meet the situation,
Const. Petition No.127 of 2012
20
which has arisen, effectively. The interpretation cannot be narrow
and pedantic, but the Court's efforts should be to construe the
same broadly; so that it may be able to meet the requirements of
an ever changing society. The general words cannot be construed
in isolation but the same are to be construed in the context in
which they are employed. In other words, their colour and contents
are derived from their context. In the case of Amir Khatoon, in
criminal proceedings, principle of interpretation of statute was
discussed and it was held that if a provision of law is presenting
some difficulty in interpretation, it has to be so interpreted as to
harmonise with the other provisions of the Act of which it is a part
and it is only when there is a manifest and established failure to
harmonise it with the other provisions that it either prevails over
other provisions or yields to the other provisions. It was further
observed that provisions of any particular Act are to be so
interpreted as to harmonise and to remain consistent with the
other laws having a relevance or nexus with the law sought to be
interpreted. In the case of R v A, involving criminal proceedings
relating to some sexual offence, expressing his view on the
principle of reading down, it was observed by a learned Member of
the Bench that this principle is at least relevant as an aid to the
interpretation of section 3 of the 1998 Act against the executive. As
in accordance with the will of parliament reflected in section 3, it
will sometimes be necessary to adopt an interpretation which
linguistically may appear strained. The techniques to be used will
not only involve the reading down of express language in a statute
but
also
the
implication
of
provisions.
A
declaration
of
incompatibility is a measure of last resort. It must be avoided
unless it is plainly impossible to do so. If a clear limitation on
Const. Petition No.127 of 2012
21
convention rights is stated in terms, such an impossibility will
arise.
12.
At this stage, Mr. Rafique Rijwana, learned ASC, who is
representing honourable retired Justice Shah Abdul Rasheed in
these proceedings, made his submissions. He gave relevant dates
of his appointment and retirement to show that at the time of
retirement on 11.2.1986, he had served as a judge of the High
Court for 04-years, 07-months and 05-days. He did not advance
any further arguments except adopting the arguments of Syed
Iftikhar Hussain Gillani, learned senior ASC, who has already
made his submission in this case, as noted above.
13.
Mr. Hamid Khan, learned Sr. ASC, who is representing
seven honourable retired judges of the High Court, at the
commencement of his submissions, made reference to the material
placed on record by him alongwith C.M.As No.847 to 853 of 2013
to give details regarding the service of each of the honourable
retired judges represented by him, so as to show their actual
length of service as judges of the High Court. For the purpose of
clearity in his arguments, he divided the honourable retired judges
represented by him into two categories i.e. Rana Muhammad
Arshad Khan and Muhammad Jehangir Arshad, two honourable
retired judges, who were elevated to the Bench from the bar and
the remaining five retired judges, who before their elevation, had
rendered about thirty years service in the District judiciary in
different capacities. Details of these honourable retired judges and
other judges in similar position, regarding service rendered by
them, is being provided in the judgment separately in the form of a
chart.
Const. Petition No.127 of 2012
22
14.
Mr. Hamid Khan, during his arguments, also placed on
record written formulations, which read as under:-
1. âPara 2 of the schedule 5 has an independent existence
from that of para 3 and cannot be read as superfluous
or redundant, therefore, under the recognized principles
of independence of the Constitution, the Court is called
upon to give comprehensive meaning to this para.
2. Despite having independent existence para 2 has to be
read with para 3 in order to give meaning of the former
para, if read together they would cater for two distinct
classifications, one of those who had put in five or more
years of service and the other of those who have put in
less than five years of service and finally within this
formulation that those, who belonged to each of the
classification, are entitled to pension and none of them
can be deprived thereof.
3. Reading of two paragraphs together, it can also be
construed that para 3 lays down a bench mark for those
who are entitled to pension under para 2, this would
lead to the exercise of principle of proportionality
nevertheless if will not apply to the petitioners because
such a principle can only be applied prospectively.
4. That
having
received
pension
under
a
judicial
determination rights have been vested in favour of the
petitioners which cannot be taken away at this stage
under the established exception to the principle of locus
poenitentiae.
5. Having once received pension under the judicial
determination there is legitimate expectancy on the part
of the petitioner to continue to receive such pensionary
amounts, any deprivation at this stage would lead to
privation and financial problems to the petitioners who
are of advanced age.
6. There is a special case relating to judges elevated from
the subordinate judiciary because:-
a. They had put a long service before they become
Judges of the High Court;
b. They cannot be relegated to the position of those
who retired as District Judges and so they cannot
be given the pension of District and Session
Judges.
Const. Petition No.127 of 2012
23
c. Doing so would be against the independence of
Judiciary and would undermine the office of a
Judge of a High Court.â
15.
He contended that paragraph-2 of Fifth Schedule to
Article 205 has an independent existence from paragraph-3,
otherwise
this
paragraph
would
become
superfluous
and
redundant, which status cannot be attributed to any piece of
legislation, as under the well recognized principle of interpretation,
every provision of law is to be given its comprehensive meaning.
Following the arguments of earlier two learned ASCs, who have
argued the case before him, he insisted that paragraph 2 of Fifth
Schedule to Article 205 visualizes two categories of judges, but
both of them are equally entitled for pensionary benefits under the
Presidentâs Orders and in this regard power of determination
conferred to the President is only confined to the quantum of
pensionary benefits and not the determination of right to pension
or otherwise. He further contended that reading of paragraph-2
together with paragraph-3 lays down benchmark for those who are
entitled under paragraph-2 and in case no determination has been
made by the President for entitlement of pension of retired judges
of the High Court who have rendered less than five years of actual
service, the principle of proportionality could be applied, but that
too only prospectively, as the rights accrued and benefits already
drawn by the honourable retired judges of the High Court through
judgment under challenge cannot be withdrawn, being stare
decisis and past and closed transaction under a judicial
pronouncement. He further submitted that on account of such
judicial determination, vested rights have accrued in favour of
honourable retired judges, which cannot be taken away or
withdrawn,
being
protected
under
the
principle
of
locus
Const. Petition No.127 of 2012
24
poenitentiae. To a question posed to him, whether on the principle
of locus poenitentiae, retired judges represented by him seek
protection of only those benefits which have already been drawn by
them or also continuation of such benefits in future, his reply was
that the principle of legitimate expectancy has accrued in their
favour to continue receiving such pensionary benefits, which are
even otherwise very necessary for them to meet their financial
needs at this advanced age. Therefore, such benefits in their favour
(honourable retired judges of the High Court) shall be continued,
irrespective of any adverse pronouncement by this Court in the
present proceedings. Making his further submissions, he also
attempted to press into service the principle of past and closed
transaction based on the premise that the judgment under
challenge was announced on 6.3.2008 i.e. more than four years
ago and has already been followed and implemented by the
concerned government functionaries without any objection.
16.
As to the claim of five honourable retired judges of the
High Court, who were elevated to the bench after rendering more
than thirty years service in District Judiciary in each case, before
their elevation to the High Court, he further submitted that for
grant of pensionary benefits, they cannot be relegated to the
position of retired District and Sessions Judges as it will be a step
against the independence of judiciary which will be undermining
the status and office of the judge of a High Court. Making reference
to Fifth Schedule to Article 205 of the Constitution of 1973,
Learned senior ASC submitted that the original paragraph-3 in the
Fifth Schedule was borrowed from the Presidentâ Order 9 of 1970,
though in the different form, which was subsequently amended
and introduced in the present form in the year 1991. When
Const. Petition No.127 of 2012
25
confronted with a query that in case paragraph-2 (ibid) is to be
read independently and separately, then it contains and denotes
only one category of judges and not two, the learned Sr. ASC
conceding to this position, criticized the language of paragraph-3
(ibid) by submitting that it has been grafted and drafted in the
Constitution of 1973 in a crude form so as to leave the honourable
retired judges, who have served the institution for a period of less
than five years, without entitlement of any pensionary benefits. In
this regard, he also made reference to some relevant Indian
provisions of law and contended that there is no specific
prohibition regarding the entitlement of payment of pension to the
judges who have rendered less than five years service in the High
Court before their retirement either in paragraph-2 or paragraph-3
of the Fifth Schedule to Article 205, therefore, the principle that
whatever is not prohibited is permissible shall be applied on the
principles of equity and fair-play to address the unforeseen
difficulties of the honourable retired judges of the High Court. The
pith and substance of his arguments was that looking to the
constitutional provisions, status of honourable retired judges of
the High Court in the society and their old age, a pragmatic
approach may be followed by the Court in order to accommodate
them for the purpose of granting them pensionary benefits, which
is lacking determination in specific terms by the President under
any of the earlier Presidentâs Orders issued from time to time.
17.
Mr. Amir Alam Khan, learned ASC, who is appearing in
this matter for five other honourable retired judges of High Court
M/s Muhammad Nawaz Bhatti, Fazal-e-Miran Chohan, Syed
Asghar Haider, Sheikh Javed Sarfraz and Tariq Shamim, JJ, in his
arguments made reference of C.M.As No.803, 855, 856, 857 and
Const. Petition No.127 of 2012
26
858 all of 2013, filed in the form of concise reply and also got
recorded their respective dates of appointments as additional
judge/permanent
judge
of
the
High
Court,
date
of
retirement/resignation as judge of the High Court, date of
superannuation and the actual period of their respective length of
service as judge of the High Court. He candidly stated before us
that all the five honourable retired judges represented by him, are
those, who, for one or the other reason, have not rendered actual
service as a High Court Judge for five years or more and thus for
the purpose of pension, they have availed the benefit of judgment
under challenge.
18.
As first limb of his arguments, Mr. Amir Alam Khan
challenged the maintainability of this petition on the ground that
adjudication made by a three member Bench of this Court in
exercise of its appellate jurisdiction under Article 185(3) of the
Constitution, has attained finality in all respect, rather it has been
implemented by the concerned government functionaries in its letter
and spirit more than four years ago. Thus, on any legal premise
these proceedings cannot be subjected to interference, if considered
to be proceedings under Article 184(3) of the Constitution, which
confers only limited jurisdiction to this Court relating to the issues
involving question of public importance and for the enforcement of
fundamental rights guaranteed under the Constitution. He
reiterated and added that the judgment under challenge is stare
decisis, thus, final in all respect, and not open for reconsideration
in any manner, therefore, these proceedings are not maintainable
in the present form. Discussing the fallout of judgment under
challange, he also made reference of Article 203C(9) of the
Constitution to show that not only retired judges of the High Court
Const. Petition No.127 of 2012
27
having less than five years actual service to their credit have
become entitled for pensionary benefits, but the Chief Justice and
other honourable retired judges of the Federal Shariat Court have
also become eligible and entitled for pensionary benefits despite
being contract employees for a fixed term of three years. His
further submission was that since a pragmatic and liberal
approach has been followed by the Court in the judgment under
challenge, its spirit may not be negated only on technical grounds
or the fact that while interpreting the relevant provisions of the
Constitution and Presidentâs Orders, another view of the matter
prejudicial to the interest of the retired judges of the High Court,
was also possible. Mr. Amir Alam Khan, when confronted with the
question that in case judgment under challenge is found to be per
incuriam then what will be its legal position, candidly stated that
in that eventuality it will be a judgment liable to be ignored for all
intent and purposes, thus, the ground urged by him for
challenging the maintainability of these proceedings will not be an
obstacle for the Court from adjudicating the case on merits.
19.
Learned ASC also made reference to paragraph 178 of the
judgment in the case of Sindh High Court Bar Association (supra)
in support of his arguments that the judgment under challenge
has been already protected by application of doctrine of de facto
exercise of jurisdiction, and as such judgment has been passed by
a 14 members Bench of the apex Court, therefore, such protection
cannot be taken away by a five member Bench for denying its
benefit to the retired judges of the High Court. Dilating upon the
moral side of these proceedings, learned ASC also argued that all
the honourable retired judges of the High Court, irrespective of
their length of service, are highly respected segment of society, who
Const. Petition No.127 of 2012
28
deserve extra compassionate consideration in the matter of grant
of pension and other benefits, therefore, once a judgment of this
Court has remained in the field for a period over four years and
fully acted upon, it shall not be withdrawn so as to take away all
its benefits retrospectively, being past and closed transaction.
Advancing his further arguments with reference to the case of
Fazal-e-Miran Chohan, J., learned ASC pointed out that after his
elevation to the Bench as Additional Judge of the High Court w.e.f.
1.12.2004 and confirmation vide notification dated 30.11.2005, he
resigned from the service under very special circumstances on
11.10.2009, though otherwise his date of superannuation was
25.12.2010. Leaving apart these facts, which need sympathetic
consideration for extending him the pensionary benefits, in this
manner he has actually served as Judge of the High Court for a
period of 04-years, 10-months and 09-days. Thus, upon reading
para 29 of Presidentâs Order No.3 of 1997, together with service
regulation No.423 of the Civil Service Regulations (in short âCSRâ),
providing for automatic relaxation/concession of six months in
case of short service of a civil servant, he is otherwise also entitled
for pensionary benefits, independent to the ratio of judgment
under challenge. In this context, he also placed reliance upon the
cases Secretary Finance Division, Islamabad v. Muhammad
Zaman, Ex-Inspector, I.B., Islamabad (2009 SCMR 769) and
Muhammad Aslam Khan v. Agricultural Development Bank of
Pakistan (2010 SCMR 522). In the first case of Secretary Finance
Division (supra), with reference to regulation No.423 of CSR, of
which benefit was claimed by the legal heirs of a deceased
government employee/pensioner, it was held that regulation
No.423 of CSR is without any qualification and is not restricted to
Const. Petition No.127 of 2012
29
pensionary benefit of a widow. Of course, regulation No.423(2)
empowers the competent authority to condone the deficiency of
more than 6 months but less than one year where an officer has
died while in service, or has retired under circumstances beyond
his control. In this context, the case of Postmaster-General Eastern
Circle (E.P.) Dacca and another v. Muhammad Hashim (PLD 1978
SC 61) was also refered wherein it was held that if the Rules were
capable of bearing a reasonable interpretation favourable to the
employee then that interpretation should be preferred. In the
second case of Muhammad Aslam Khan (supra), again the scope of
regulation No.423 of CSR was discussed with reference to the facts
of the case, where a retired government servant, who had served
for 31 years, 11 months and 14 days and was short of 17 days
towards completion of 32 years, was claiming pensionary benefits
for 32 years. The Court held that regulation No.423(1) of CSR
under Chapter XVII with the heading "Condonation of
Interruptions and Deficiencies" would undoubtedly suggest that
the shortage of period not exceeding six months become
automatically condoned, rather shortage of period exceeding six
months was also condonable by competent authority, provided
the conditions under regulation No.423(2) of CSR were fulfilled.
20.
At the conclusion of his arguments he also pointed out
the incident of plane crash, which took the life of honourable
Justice Muhammad Nawaz Bhatti in the line of his duty on
10.7.2006, who otherwise would have reached the date of his
superannuation on 31.8.2009, after rendering service of roughly
04-years and 09-months. In this context, he stressed for a merciful
and lenient view in the matter for the widow and orphans of the
deceased judge.
Const. Petition No.127 of 2012
30
21.
Mr. Muhammad Akram Sheikh, who is representing
before us M/s Saeed-ur-Rehman Farrukh and Khan Riaz-ud-Din
Ahmed, JJ, at the commencement of his arguments made
reference of C.M.A No.871 and 872 of 2013 to give relevant dates of
their appointment as Additional Judges/permanent judges of the
High Court and date of their retirement on 31.7.1998 and
31.12.1997 respectively. According to his calculations, the actual
period of service rendered by them, including the period of gap in
their service, both of them have served as a Judge of the High
Court for a period of more than five years and thus, their cases are
not covered by the ratio of judgment under challenge and they are,
therefore, not its beneficiary. Further, according to learned ASC,
issuance of notice of these proceedings to them is uncalled for and
liable to be withdrawn/set aside. However, when we have looked
into some relevant factual aspects of the case in the context of
their actual period of service as judge of the High Court, we have
noticed that they have served as such for a period of about 03-
years, 06-months and 12-days; and 04-years, 02-months and 28-
days respectively, if the period when they remained out of service
as Judge of the High Court is excluded from consideration in line
with the definition of actual period of service given under
paragraph-2 of Presidentâs Order No. 3 of 1997, which provides for
only computing the actual service for eligibility and payment of
pensionary benefits. Learned ASC making reference to Fifth
Schedule to Article 205 of the Constitution, also attempted to show
the element of discrimination in the matter of entitlement of
pensionary benefits for a retired judge of the High Court and a
retired judge of the Supreme Court, as separately provided in the
said Schedule. In this regard, his submission was that no
Const. Petition No.127 of 2012
31
minimum period of service as a judge of the Supreme Court is
prescribed in the first part of the Schedule relating to right to
pension while the condition of minimum five years service for
entitlement of pensionary benefits has been discriminately made
applicable for the retired judges of the High Court. Learned ASC,
during his arguments, also made reference to the case of I.A
Sharwani (supra), to lay stress to his arguments upon the right of
pension to a retired civil servant.
22.
In addition to the above, in his written submissions,
learned ASC further reiterated as under:-
a.
Notice issued to the retired judges represented by him is
not only uncharitable from its language, but also based
on wrong premise.
b.
Pensionary benefits paid to the retired judges on the basis
of judgment under challenge is past and closed
transaction and stare decisis, thus, no order for its
recovery can be made even if the said judgment is
reviewed and put at naught.
c.
Though the principle of stare decisis has very limited
application to the proceedings before the Supreme Court,
being apex Court, but the rights and obligations
determined under any proceedings shall be considered as
a past and closed transaction, which has created vested
rights under the judicial pronouncement in favour of
some party.
d.
Suo moto exercise of jurisdiction in the present
proceedings in any form are not maintainable under the
law as held in the cases of Asif Saeed v. Registrar Lahore
(PLD 1999 Lahore 350), Nusrat Elahi v. Registrar, Lahore
Const. Petition No.127 of 2012
32
High Court (PLJ 1991 Lahore 471), Abdul Rehman
Antulay v. Union of India (AIR 1984 SC 1358). In case the
present proceedings are being entertained under Article
184(3) of the Constitution, then no violation or breach of
any fundamental right of any citizen of this Country has
been urged, which is sine qua non for exercise of such
jurisdiction.
e.
Principle of res judicata is squarely applicable after lapse
of five years of pronouncement of judgment in the case
under consideration, as held in the cases of Abdul Jalil v.
State of U.P. (AIR 1984 SC 882), Virundhunagar S.R.
Mills v. Madras Govt. (AIR 1968 SC 1196) and
Amalgamated Coalfields v. Janapada Sabah (AIR 1964 SC
1013).
f.
The honourable retired judges of the High Court received
the pensionary benefits on the basis of judgment under
challenge in good faith and the bonafide orders of the
apex Court, therefore, question of its refund does not
arise, even if the said judgment is reviewed or revisited.
23.
At the conclusion of his arguments, with reference to the
plea of stare decisis, Mr. Sheikh also read some passage from the
book titled as âFundamental Law of Pakistanâ authored by Mr. A.K.
Brohi, a prominent jurist of this country. In the context of past and
closed transaction, he also placed reliance upon the cases of Miss
Asma Jilani v. Government of the Punjab (PLD 1972 SC 139),
Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504),
Jamat-i-Islami Pakistan versus Federation of Pakistan (PLD 2000
SC 111).
Const. Petition No.127 of 2012
33
24.
In the case of Miss Asma Jillani (supra), dealing with a
criminal appeal wherein question arose, whether the High Court
had jurisdiction under Article 98 of the Constitution of Pakistan
(1962) to enquire into the validity of detention under the Martial
Law Regulation No.78 of 1971 in view of the bar created by the
provisions of the Jurisdiction of Courts (Removal of Doubts) Order,
1969 and the doctrine of law enunciated in the case of State versus
Dosso (PLD 1958 S.C. (Pak.) 533), the successive manoeuvrings for
usurpation of power under the Pseudonym of Martial Law were
justified or valid, the Court while discussing various principles of
interpretation of statutes held that: no duty is cast on the Courts
to enter upon purely academic exercise or to pronounce upon
hypothetical questions: Courtsâ judicial function; is to adjudicate
upon real and present controversy formally raised before it by the
litigant; Court would not suo moto raise a question or decide it;
doctrine of stare decisis is not inflexible in its application; law
cannot stand still nor can the Courts and Judges be made mere
slaves of precedent. In this case finally upholding the doctrine of
necessity it was further observed that the transactions which are
past and closed may not be disturbed as no useful purpose can be
served by reopening them.
25.
In the case of Sh. Liaqat Hussain (supra) reviewing the
jurisdiction of the Apex Court under Article 184 (3) of the
Constitution, it was held that law if validly enacted cannot be
struck down on the ground of malafide but the same can be struck
down on the ground that it was violative of Constitutional
provision. Further with reference to Article 6 of the Constitution,
application of doctrine of necessity was rejected. Moreover, the
concept of public importance within the meaning of Article 184 (3)
Const. Petition No.127 of 2012
34
of the Constitution was discussed in detail and it was held that
under Article 9 of the Constitution right of access to justice to all is
a fundamental right guaranteed to every citizen of the country.
However, in the end this petition and other connected petitions
under Article 184(3) of the Constitution, challenging the Pakistan
Armed Forces (Acting in Aid of the Civil Power) Ordinance 1998
promulgated on 20th November, 1998, thereby empowering the
Military Courts to try civilians for civil offences, were dismissed in
the terms as detailed in the short order dated 17.2.1999.
26.
In the case of Jamat-i-Islami Pakistan (supra), it was held
that a statute must be intelligibly expressed and reasonably
definite and certain and it is the duty of the Court to find out the
true meaning of a statute while interpreting the same. In the same
context the underlining principle of doctrine of âejusdem generisâ
was also enumerated. Finally it was held that where the words
used in a statute are ambiguous and admit of two constructions
and one of them leads to a manifest absurdity or to a clear risk of
injustice and the other leads to no such consequence, the second
interpretation must be adopted. It may also be added here that the
other cases referred to by the learned Sr. ASC in paragraph âdâ and
âeâ relating to the subject of maintainability and res judicata are
premised on entirely different facts and circumstances, and thus
have no relevancy or applicability to the present proceedings.
27.
Mr. Gulzarin Kiyani, learned Sr. ASC, who is representing
Mr. Muhammad Muzammal Khan, J., another honourable retired
judge of the High Court and beneficiary of the judgment under
challenge, in his arguments firstly made reference to C.M.A
No.801/2013, and gave relevant dates of appointment of Justice
Justice Muhammad Muzammal Khan as additional Judge and
Const. Petition No.127 of 2012
35
permanent Judge of the High Court and the date of his retirement,
to show that admittedly before retirement he rendered actual
service as a judge of the High Court for a period of 04-years, 05-
months and 27-days. In his further arguments, learned Sr. ASC
firmly disagreed with the submissions of many other learned ASCs,
who earlier to him have argued the case, on the point of
maintainability of this petition as well as about the interpretation
of paragraphs-2 and 3 of Fifth Schedule to Article 205 of the
Constitution. He contended that this Court, being the apex Court,
has wide jurisdiction to exercise suo moto review powers and the
principle of stare decisis is not application in this regard. To fortify
his submissions in this regard, he placed reliance upon the case of
Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363).
28.
Again, making reference to the language of paragraph-2 of
Fifth Schedule to Article 205 of the Constitution, he strongly
contended that there is only one category of judges of the High
Court i.e. âEvery judgeâ mentioned in this paragraph, either read it
separately and independently or together with paragraph-3, whose
right to pension are to be determined by the President from time to
time and until so determined, they are entitled to the privileges,
allowances
and
rights,
to
which
immediately
before
its
commencing day, the judges of the High Court were entitled. For
this purpose, he also made reference to High Court Judges Order
No.7 of 1937, Presidentâs Order No.9 of 1970 and Presidentâs Order
No.3 of 1997, to show that even before partition of the sub-
continent, the rights, qualifications and entitlement of the judges
of the High Court for the purpose of pension were being regularly
determined, but at no point in time, any judge of the High Court
Const. Petition No.127 of 2012
36
who had served as such for a period of less than five years, was
ever found eligible or entitled under any dispensation for payment
of pension. It is only for this reason that right from the pre-
partition days, till the decision by way of judgment under
challenge, no retired judge of the High Court was found entitled for
payment of pensionary benefits if he has served in the High Court
for any period less than five years. He added that it looks strange
and ridiculous that in case such right to pension was ever
available to the retired judge of the High Court at any time during
the last sixty years, still all of them, who were jurists in their own
rights and adjudicators of law at the highest level, could not dare
to interpret such Constitutional provisions or Presidentâs Orders
issued in furtherance thereof in their favour, so as to avail the
benefit of pension upon their retirement before completing actual
service of less than five years. He also argued that paragraphs-2
and 3 of the Fifth Schedule to Article 205 of the Constitution are to
be read together and in conjunction with the Presidentâs Orders
issued under the said constitutional mandate from time to time
and this scheme of law makes it clear beyond any shadow of doubt
that there is no entitlement to pension for a judge of the High
Court, who has served as such for actual period of less than five
years.
29.
Reverting to the case of his own client, learned senior
ASC read before us paragraph 14, 15, 16 and 29 of the Presidentâs
Order No.3 of 1997, the definition clause (b) and (g) from paragraph-
2, relating to âactual serviceâ and âservice for pensionâ respectively,
relevant for determination of pensionary rights of a High Court
Judge, read with regulation No.423(b) of CSR, which in the first
place provides automatic dispensation of deficiency upto six months
Const. Petition No.127 of 2012
37
and further visualizes, subject to fulfillment of other conditions, the
discretion for dispensation and relaxation of such period upto one
year by the President. According to Mr. Kiyani, in such eventuality,
by pressing into service these constitutional and sub-constitutional
provisions of the law, having rendered service of four years, five
months and twenty-seven days, his client has become entitled for
the pensionary benefits, more so, as benefit of addition of another
30 days service period to his credit in terms of definition clause (g)
of Presidentâs Order No. 3 of 1997 cannot be denied to him. He also
cited the two earlier referred cases of Secretary Finance Division v.
Muhammad Zaman and Muhammad Aslam Khan v. ADBP.
30.
At the conclusion of his arguments, learned Sr. ASC
submitted that in case the arguments advanced by him are not
sustained and the judgment under challenge is reviewed/revisited,
still
the
application
of
such
judgment
should
be
made
prospectively, so as to save the benefits, which his client has
already availed in the form of pension etc on the basis of judgment
under challenge.
31.
Raja Muhammad Ibrahim Satti, learned Sr. ASC,
representing in these proceedings one honourable retired judge of
the High Court, Mr. Mansoor Ahmed, J., also made reference of
C.M.A No.873/2013, which is a reply on his behalf. He provided
relevant details about the date of his appointment as additional
judge of the High Court and the date of his retirement, which
shows his actual period of service as 03-years, 02-months and 04-
days. Learned ASC in his arguments strongly challenged the
maintainability of this review petition on account of the fact that it
has emanated from a note of the Registrar of the Supreme Court in
Const. Petition No.127 of 2012
38
this regard, who has no judicial or administrative jurisdiction or
authority at all to undertake such critical examination of an earlier
judgment of the Supreme Court, which has become final, following
the doctrine of stare decisis, and become past and closed
transaction. He, however, in the same breath also candidly
conceded about the unbridled jurisdiction of this Court to correct
any legal error and submitted that indeed where there is a wrong
there is a remedy is a well recognized principle of jurisprudence, so
also the fact that when superstructure is built on wrong legal
foundation,
then
upon
its
removal
in
any
form,
such
superstructure is bound to collapse. The learned counsel further
placed on record written formulations of his argument, which read
as under:-
â1.
Whether the Registrar of this Court as defined in Order 1
Rule 2(1) and has been assigned certain powers and
functions under Rule 1 of Order III and also Under Order
V Rule 1, could in any way authorized or competent to
monitor, supervise, scrutinize or having a watch over the
Judicial Function of the Court and particularly to
comment/point out legal flaws or defects in the judgments
finally passed by the Court or any Bench of the Court.
2.
Whether the Registrar who is Executive head of the Office
has any role to get reopen the Final judgments of this
Court which have attained finality and if this course is
adopted it will disturb whole the Scheme of Constitution.
3.
Whether even the note of Registrar is not misleading as
apparently he based the note on total misconception as
mentioned in para 5 of the Note that the judgment (PLD
2008 SC 522) is based on PO.NO.8 of 2007 and that
PO.No.8 of 2007 has been declared void ab-initio in PLD
2009 SC 879, in fact the judgment is otherwise and it
mainly based on interpretations of Article 25, 205, 207(3)
Schedule V of the Constitution read with PO 2 of 1993, PO
3 of 1997 and reference has been made to PO 8/2007 in
judgment which in fact removed the anomaly and Retired
judges were entitled to pension even independent of P.O
No.8 of 2007 and the said judgment is valid for other
reasons as mentioned in judgment.
Const. Petition No.127 of 2012
39
4.
What prompted the Registrar to put up a note on judicial
side after lapse of almost four years of the passing of
judgment which had attained finality.
5.
Whether it was not proper to place the matter before an
appropriate Bench to proceed with the matter if at all it
was necessary whereas the Honâble Chief Justice had
himself decided the fate of note that prima facie the note
make out case of examination and accordingly issued
Notices straightaway to the Retired Judges.
6.
Whether when a judgment is passed in regular jurisdiction
under Article 185 the same can be reopened by recourse
to other jurisdictions under Article 184, 186 of the
Constitution, Human Right Forum or even Suo Moto.
7.
Whether the judgment is also not sustainable on
additional ground qua discrimination amongst Judges of
Superior Courts.
8.
Whether the retired Judge who never applied or party to
the judgment can suffer for the Act of Court through
which benefit is extended to them and at any rate recovery
could be made for no fault of them.
9.
Whether in any case the re-visitation of the judgment
would be operative retrospectively or prospectively.
10.
What should be effects and consequences and way-out
regarding inaction of President of Pakistan for not
determining the pension according to the schedule
regarding the Judges of the High Court who had not
completed five years as permanent service though he was
empowered under the Constitution to do so.â
32.
In addition to the above, he contended that in case
present proceedings are deemed to be in exercise of powers of
review conferred upon this Court under Article 188 of the
Constitution, read with Order XXVI of the Supreme Court Rules,
1980, in that eventuality the guiding principle for determining the
parameters of review as laid down by this Court in the case of
Abdul Ghaffar - Abdul Rehman (supra) are to be strongly adhered
to. Reiterating his stance on the point of maintainability of this
petition, he stated that in case the note of the Registrar is taken
out of consideration and upon perusal of the judgment under
challenge this Court feels it appropriate to proceed further with
Const. Petition No.127 of 2012
40
this matter on its own conclusion, then of course, he has no legal
objection as to the maintainability of these proceedings. In his
submissions, Mr. Satti also placed reliance upon the case of Noor
Jehan v. Federation of Pakistan (1997 SCMR 160) (paragraph-10)
to show the limited scope of power of review available under the
law. In this case, examining the scope of exercise of jurisdiction by
the apex Court under Article 184(3) of the Constitution, while
refusing to exercise such jurisdiction in that case for the detailed
reasons incorporated in the judgment, it was held that the
provisions of Article 184(3) of the Constitution indicate that the
Supreme Court has been conferred with the power to entertain a
petition under the above provision directly if the following two
conditions are fulfilled:
(i)
The case involves a question of public importance; and
(ii)
The question so involved pertains to the enforcement
of any of the Fundamental Rights contained in
Chapter I of Part II of the Constitution.
In the end, he submitted that in case the judgment under
challenge is reviewed by this Court and set at naught, then it
should only be made applicable with prospective effect and not
retrospectively, so as to protect the benefits already drawn by the
retired judges, who have throughout acted in a bonafide manner
and have received such pensionary benefits on the basis of judicial
pronouncement of this Court and for no fault of their own.
33.
Rana M. Shamim, learned ASC for another honourable
retired Judge of the High Court Dr. Ghous Muhammad, J., during
his submissions made reference to the contents of C.M.A
No.742/2013, which is the reply of this petition on his behalf. He
also gave details of services rendered by Dr. Ghous Muhammad as
Const. Petition No.127 of 2012
41
judge of the District judiciary before his elevation as judge of the
High Court of Sindh w.e.f. 10.5.1995 and confirmation on
30.9.1996. Advancing the case of his client, Rana M. Shamim,
pointed out that the date of superannuation of Dr. Ghous
Muhammad was 09.4.2001, by which time he would have easily
completed actual period of his service of more than five years and
six months, but to his misfortune, through an extra-constitutional
measure i.e. P.C.O 1 of 2000, he was un-ceremonially removed
from his office on 26.1.2000, when he was not invited to take oath
under the new extra constitutional set up.
34.
Learned ASC also placed reliance upon the language of
para 29 of Presidentâs Order No.3 of 1997, read with regulation
No.423 of CSR to show that despite shortage of less than two
months in his actual length of service as Judge of the High Court,
his case for retirement pension is fully matured on the strength of
these provisions of law. In addition to it, he also made reference of
Article 270AA(3)(b), which, according to him, provides complete
redress to the grievance of his client relating to grant of pensionary
benefits and protection of all other benefits, even in a situation
when judgment under challenge is reviewed by this Court on any
other legal premises. For ease of reference, the relevant part of this
Article of the Constitution is reproduced as under:-
âDeclaration and continuance of laws etc.
270AA. (l) âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
(2) âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ. âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
(3) Notwithstanding anything contained in the Constitution or
clause (1), or judgment of any court including the Supreme Court
or a High Court,---
(a)
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
(b)
Judges of the Supreme Court, High Courts and
Federal Shariat Court who not having been given
Const. Petition No.127 of 2012
42
or taken oath under the Oath of Office of (Judges)
Order, 2000 (I of 2000), and ceased to hold the
office of a Judge shall, for the purposes of
pensionary benefits only, be deemed to have
continued to hold office under the Constitution till
their date of superannuation.â
35.
Mrs.
Asma
Jehangir,
representing
Justice
Tariq
Mehmood, honourable retired judge of the High Court and the
widow of late Justice Khiyar Khan, former Judge of the High Court,
in her arguments firstly furnished relevant details about their
career as a judge of the High Court, which reveal that the former
served as a Judge of the High Court from 06.9.2000 to 6.4.2002
i.e. 01-year, 07-months and 04-days, while the late husband of
latter, who was elevated as additional judge of the High Court on
16.9.1990 and reached the age of superannuation on 18.11.1994,
had served for 04-years and 03-days. Arguing the case, she firmly
questioned the maintainability of the petition in the present form
as according to her, note of the Registrar cannot be taken as suo
moto review petition against the judgment under challenge before
this Court. Rather, such conduct of the Registrar is to be
deprecated. She further argued that even if the discussion and
observations contained in the judgment under challange, with
reference to Presidents Order No.8 of 2007, are totally discarded,
still the said judgment on the basis of other sound reasons is
sustainable in law and not open to interference under the limited
scope of review. She further argued that in paragraph-2 of the Fifth
Schedule to Article 205 of the Constitution word âevery judgeâ also
includes additional judges for the purpose of pensionary benefits.
Lastly, supporting the judgment under challenge on the principle
of stare decisis, she placed reliance upon the judgment in the case
Const. Petition No.127 of 2012
43
of Bengal Immunity Co. v. The State of Bihar (AIR 1955 SC 661),
which, inter alia, lays down that:-
âThis Court has never committed itself to any rule or
policy that it will not âbow to the lessons of experience and the
force of better reasoningâ by overruling a mistaken precedentâĻâĻ.
This is especially the case when the meaning of the Constitution
is at issue and a mistaken construction is one which cannot be
corrected by legislative action. To give blind adherence to a rule or
policy that no decision of this Court is to be overruled would be
itself to overrule many decisions of the Court which do not accept
that view.
But the rule of âstare decisisâ embodies a wise policy
because it is often more important that a rule of law be settled
than that it be settled right. This is especially so where as here,
congress is not without regulatory powerâĻâĻ The question then is
not whether an earlier decision should ever be overruled, but
whether a particular decision ought to be. And before overruling a
precedent in any case it is the duty of the court to make certain
that more harm will not be done in rejecting than in retaining a
rule of even dubious validity.â
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
It would be seen that in this case the Court acted upon
the limitations which they have laid down in the course of their
decisions, that reconsideration and overruling of a prior decision
is to be confined to cases where the prior decision âis manifestly
wrong andâ its maintenance is productive of great public mischief.
The second is the case in ââG. Nkambule v. The Kingâ, 1950 AC
379 (Z37), where the Privy Council declined to follow its prior
decision in â âTuumahole Bereng v. R.â, 1949 AC 253 (X38). In this
case, the Privy Council, while it reaffirmed the proposition that a
prior decision upon a given set of facts ought not to be reopened
without the greatest hesitation, explained why they, in fact,
differed from the previous one in the following passage:
âFrom a perusal of the judgment in âTumaholeâs caseâ,
(Z38), it is apparent that the history of the adoption and
promulgation of the various statutes and proclamations dealing
with the effect of the evidence of accomplices in South Africa was
only partially put before the Board, and much material which has
now been ascertained was not presented to their Lordships on
that occasion. The present case, therefore, is one in which fresh
facts have been adduced which were not under consideration
when Tumaholeâs case (Z38) was decided, and accordingly it is
one in which, in their Lordshipsâ view, they are justified in
reconsidering
the
foundations
on
which
that
case
was
determinedâ.
Const. Petition No.127 of 2012
44
âĻâĻâĻ It will be noticed that the overruling of the prior
decision in this case was based on the fact that important and
relevant material was not placed before the Judicial Committee in
the earlier case. These cases emphasis under what exceptional
circumstances a prior decision or the highest and final court in a
country is treated as not binding on itself.â
36.
Mr. Sadiq Leghari, another honourable retired judge of
the High Court, who appeared in person, invited our attention to
C.M.A No.686/2013, which is his reply to this petition. He gave
relevant details of his appointment as a judge of the High Court
before having served the District judiciary in Sindh for a period of
over thirty years to show that his actual period of service as judge
of the High Court is 03-years, 10-months and 04-days. He made
reference to the operative part of the judgment under challenge to
show that by this judgment, no unrestricted or open ended relief
has been granted to the retired judges of the High Court, but only
to those retired judges of the High Court, who have retired in terms
of Article 195 of the Constitution. As per his formulations, para 33
of the judgment under challenge excludes the additional judges of
the High Court from availing its benefit. He, while making
reference to Article 188 of the Constitution, candidly stated that
vast powers of review are available with this Court, which are
aimed to foster the cause of justice and to undo any injustice or
irregularity, legal or factual. Mr. Leghari also made reference to the
judgment in the case of Muhammad Mubeen-us-Salam v.
Federation of Pakistan (PLD 2006 SC 602) to fortify his
submissions that benefit of judgment under challenge once
received by him and other retired judges of the High Court has
created a vested right in their favour and now it is a past and
closed transaction, which can not be reopened; more over, the two
parts of Fifth Schedule to Article 205 of the Constitution, relating
Const. Petition No.127 of 2012
45
to the Supreme Court Judges and the High Court Judges, are
discriminatory, thus, violative of Article 25 of the Constitution.
37.
Sardar Muhammad Aslam, learned ASC for M/s M.K.N
Kohli and Iftikhar Ahmed Cheema, two honourable retired judges
of the High Court; and also for Mst. Begum Nusrat, widow of late
Justice Muzaffar Ali Gondal, in his submissions made reference to
C.M.As No.875/2013 and 1404/2013, which are their replies to
these
proceedings
and
also
civil
miscellaneous
appeal
No.176/2012, to show that retired Justice M.K.N Kohli, before his
resignation, had served superior judiciary as a judge of the High
Court for 04-years, 08-months, and 28-days. Therefore, besides
the implication of judgment under challenge, his case was also
qualified for pension in terms of paragraph-29 of the Presidents
Order No.3 of 1997, read with Service Regulation No.423, and on
the principle of rounding up of length of service. As regards the
case of other retired judge, Justice Iftikhar Ahmed Cheema, he
gave relevant dates of his joining of service as a Judge of the High
Court and date of his retirement to show that after having served
the District judiciary for over two/three decades, he also served the
superior judiciary for 02-years, 07-months and 07-days, while late
justice Muzaffar Ali Gondal, who retired as judge of Peshawar High
Court on 06.5.1995, served as judge of the High Court for 04-years
and 05-months. He conceded that as per the position as it stands
today, all retired judges represented by him are beneficiaries of
judgment under challenge, but for that, he adopted the arguments
of other senior ASCs, who have earlier argued the scope of Article
205 read with Fifth Schedule to the Constitution regarding the
pensionary rights of the judges of the High Court, who have retired
Const. Petition No.127 of 2012
46
from their offices after having served for a period less than five
years.
38.
Mr. M. Afzal Siddiqui, learned ASC representing Mr.
Najam-ul-Hassan Kazmi, honourable retired judge of the High
Court, in his brief submissions made reference of CMA
No.392/2013, filed in these proceedings and for the purpose of
defending the pensionary right of his client, placed reliance upon
the judgment in the case of Justice Hasnat Ahmed Khan v.
Federation of Pakistan/State (PLD 2011 SC 680), at page 734,
paragraph-43, which reads as under:-
â43.
It is a matter of great satisfaction and encouragement
for all the right men, who believe in the constitutionalism and
are of the affirmed commitment that in our beloved country
there should not be any rule except one under the
Constitution, that is why the Parliament had not granted
legitimacy or validity to the actions of 3-11-2007. In view of the
past history and on plain reading of the constitutional
provisions relating to the Armed Forces i.e. Articles 243, 244
and 245, discussed hereinbefore it is abundantly clear that
Chief of Army Staff, who has been appointed by the President
in consultation with the Prime Minister has no authority to
hold the Constitution in abeyance, therefore, condonation has
to be sought by adopting a legislative intervention, as per past
practice, from the parliament. In absence of such validation,
indemnification or legitimization, unconstitutional actions
taken by a dictator would continue to charge not only to the
person who had imposed Martial Law (Emergency) but also to
others as well who had accepted new order imposed in the
country beneficially. There is no cavil with the proposition that
unconstitutional actions of General Pervez Musharraf (Retd.)
taken on 3-11-2007 were declared unconstitutional on 31-7-
2008 but still their consequences continue to exist because by
no legislative intervention through Parliament, the legitimacy,
indemnity or validity had been granted by the Parliament. It is
to be seen that at the time of such unconstitutional Martial
Law in the name of Emergency on 3-11-2007, the Parliament
(National Assembly + Senate) was duly functioning until 15-11-
2007 when the National Assembly completed its tenure but no
legitimacy, validity or indemnity was obtained from the said
Const. Petition No.127 of 2012
47
parliament. However, after dissolution of National Assembly,
elections were held on 18-2-2008 and new National Assembly
commenced its functions from 3rd week of March, 2008
onward. Meanwhile, Eighteenth and Nineteenth Constitutional
Amendments were made by the parliament in pursuance
whereof legislative actions of the Eighth Constitutional
Amendment and Seventeenth Constitutional Amendments were
also considered and all those legislative instruments, which
found to be contrary to the Constitution, were weeded out of
the Constitution. Interestingly the question of granting validity,
indemnity
and
legitimacy
in
respect
of
Seventeenth
Constitutional Amendment was also thoroughly examined and
the Parliament unanimously indemnified, legitimized and
validated the oath made by the Judges, under the PCO and
Oath Order, 2000 by inserting sub Article 3 of the Article
270AA, which reads as under:--
"(3)
Notwithstanding
anything
contained
in
the
Constitution or clause (1), or judgment of any court
including the Supreme Court or a High Court, -
(a)
Judges of the Supreme Court, High Courts and Federal
Shariat Court who were holding the office of a Judge or
were appointed as such, and had taken oath under the
Oath of Office (Judges) Order, 2000 (1 of 2000), shall be
deemed to have continued to hold the office as a Judge or
appointed as such, as the case may be, under the
Constitution, and such continuance or appointment, shall
have effect accordingly.
(b)
Judges of the Supreme Court, High Courts and Federal
Shariat Court who not having been given or taken oath
under the Oath of Office (Judges) Order, 2000, (I of
2000), and ceased to hold the office of a Judge shall, for
the purposes of pensionary benefits only, be deemed to
have continued to hold office under the Constitution till
their date of superannuation."
The above provision in fact has replaced Article 270C inserted
by the Seventeenth Constitutional Amendment, legitimizing,
validating and condoning the oath taken by the then Judges
under the PCO and Oath Order, 2000. Inasmuch as pensionary
benefits were also extended to the Judges who had declined to
take oath in pursuance of Emergency and PCO, 2000 read with
Oath Order, 2000. A perusal whereof clearly indicates that by
legislative intervention through Parliament, the Judges of the
Supreme Court, High Courts and Federal Shariat Court who
were holding the office of a Judge or were appointed as such,
and had taken oath under the Oath of Office (Judges) Order,
2000 were deemed to have continued to hold the office as a
Judge or appointed as such, as the case would be, under the
Constitution, and such continuance or appointment, would
have effect accordingly. However, Judges of the Supreme
Court, High Courts and Federal Shariat Court who were not
Const. Petition No.127 of 2012
48
given or taken oath under the Oath Order, 2000, and ceased to
hold the office of a Judge were, for the purposes of pensionary
benefits only, were deemed to have continued to hold office
under the Constitution till their date of superannuation.â
He added that in view of this clear enunciation of law by a six
member Bench of the apex Court, pensionary rights of Mr. Najam-
ul-Hassan Kazmi as a retired judge of the High Court are fully
safeguarded like the case of honourable retired Justice Dr. Ghous
Muhammad from the High Court of Sindh, whose case is identical
and at par to his case.
39.
Mr. Abdul Aziz Kundi, a former judge of the Peshawar
High Court, who appeared before us in person and also for Mst.
Roshan Bibi, widow of late Justice Sher Bahadur Khan, a former
judge of the Peshawar High Court, contended that every
permanent judge of the High Court is entitled for the pensionary
benefits under paragraph-2 of Fifth Schedule to Article 205 of the
Constitution, subject to determination by the President and until
then, as per earlier arrangements. He also argued that when he
was elevated to the Bench as a judge of the Peshawar High Court,
the judgment under challenge was applicable and followed with full
force in favour of all the retired judges of the High Courts for grant
of pensionary benefits irrespective of their length of service,
therefore, he had legitimate expectancy for grant of all the
pensionary benefits upon his retirement, which had taken place on
31.10.2010, after he having served as a Judge of the Peshawar
High Court for a period of 01-year, 03-months and 24-days. He
also outlined the difficulties faced by him upon elevation as
additional judge of the High Court as a result whereof, he had to
close down his office and wind up his flourishing practice. He,
therefore, while adopting the arguments of other learned senior
Const. Petition No.127 of 2012
49
ASCs, urged that in his case retrospective application of the
judgment of this Court, in case it decides to review the judgment
under challenge, shall not be made as his case is distinguishable
on the principle of legitimate expectancy. Arguing the case of Mst.
Roshan Bibi, widow of late Justice Sher Bahadur Khan, he
mentioned that the deceased was appointed as additional judge of
the High Court on 7.4.1967 and he retired as confirmed Judge of
the High Court on 1.7.1970, after having served for 03-years, 08-
months and 14-days, and thereafter he passed away on
30.12.1970, but in view of the ratio of the judgment under
challenge, his widow has been found entitled for all the pensionary
benefits in terms of paragraph-4 of Fifth Schedule to Article 205 of
the Constitution.
40.
Mr. Mehmood A. Sheikh, learned ASC on behalf of Justice
Muhammad Aslam Arain, honourable retired judge of the High
Court, in his arguments made reference of C.M.A No.1829 of 2013.
He also gave relevant dates to show that before his retirement as
Judge of the High Court on 11.5.1995, retired Justice Muhammad
Aslam Arain had served as such for 04-years and 06-months,
thus, apart from the implication of judgment under challenge, he is
entitled for pensionary benefits in terms of paragraph-29 of the
Presidentâs Order No.3/1997, read with Service Regulation No.423,
which provides for automatic rounding up and relaxation of such
short period of service upto six months to make it five years of
service for entitlement of pensionary benefits.
41.
Mr. Salim Khan, another honourable retired judge of the
High Court, who appeared in person to argue his case, made
reference to C.M.A No.1274/2013, filed by him and also gave
Const. Petition No.127 of 2012
50
relevant dates of his joining as Additional Judge of the High Court
and date of his retirement as 31.1.2008, to show that he, before
his retirement, had served as judge of the High Court for a period
of 03-years and thus entitled for the benefit of judgment under
challenge on the basis of arguments advanced in this regard by
other senior ASCs, which he also adopts.
42.
Mr. Hamid Farooq Khan, honourable retired judge of the
High Court, who also appeared in person, gave relevant dates of
his joining as Additional Judge/permanent judge of the High Court
and date of his resignation/retirement to show that he actually
served as judge of the High Court for a period of 03-years and 07-
months before his resignation under compelling circumstances,
otherwise his date of superannuation was upto 15.10.2020. He
pointed out that as a result of unforeseen circumstances resulting
in his resignation/retirement, now he is barred under Article 207
of the Constitution from practicing in the Peshawar High Court. In
the end, adopting the arguments of other senior ASCs, he placed
reliance upon the case of Sindh High Court Bar Association
(supra). It will be worthwhile to mention here that during the
proceedings in the above cited case before a fourteen member
Bench of the apex Court, almost all the judgments/case law cited
in the present proceedings, was discussed at length in the manner
that eventually, as detailed therein, all illegal actions of a dictator
General Pervez Musharraf so also the earlier judgment of the Court
in Tikka Iqbal Muhammad Khan case, were struck down/set aside.
Not only this, but a review petition against such judgment tilted
Justice Khurshid Anwar Bhinder and others v. Federation of
Pakistan (PLD 2010 SC 483), heard by equal number of judges,
Const. Petition No.127 of 2012
51
was also dismissed with the observation that the Supreme Court
has unfettered powers under Article 187 and 188 of the
Constitution, read with Order XXVI of the Supreme Court Rules, to
do ultimate justice for which earlier review petitions were very
much maintainable.
43.
Mr. Muhammad Munir Peracha, learned ASC, who is
appearing in this case on behalf of M/s Sheikh Abdul Rashid,
Chaudhry Mushtaq Ahmed Khan, Chaudhry Abdul Mannan and
Munib Ahmed Khan, JJ, honourable retired judges of the High
Court, at the commencement of his arguments made reference to
C.M.As No.724, 836 and 835 of 2013, filed on behalf of these
honourable retired judges of the High Court, containing their
respective dates of appointment as additional judges/permanent
judges and of their retirement/date on which they ceased to hold
the office as High Court Judges. He stated that insofar as Mr.
Justice Munir Ahmed Khan is concerned, he has not filed any CMA
in reply to these proceedings. From the submissions made before
us, we have noted that Sheikh Abdul Rashid, before his retirement
on 31.5.2006, had served as a High Court Judge for 02-years, 08-
months and 28-days; Chaudhry Mushtaq Ahmed Khan, who was
affectee of the fallout of Al-Jehad Trust v. Federation of Pakistan
(PLD 1996 SC 324) case, ceased to remain a judge of the High
Court w.e.f 30.9.1996, but by that time, he had served the
judiciary for 04-years, 01-month and 04-days; Chaudhry Abdul
Mannan, who never remained permanent judge of the High Court,
had served as High Court Judge for a period of 03-years, 02-
months and 15-days; before his resignation and its acceptance by
the President on 19.10.2009; while Mr. Munib Ahmed Khan had
Const. Petition No.127 of 2012
52
served as a High Court Judge for 03-years, 11-months and 25-
days. Learned ASC, making reference to Article 205 and Fifth
Schedule to the Constitution qua the judgment under challenge,
submitted that it is a judgment in rem through which all the
honourable retired judges, who have rendered less than five years
service as a High Court Judge, are entitled to avail its benefit,
thus, no exception could be taken to the claim of respondents
represented by him. In the same context, he also made reference of
Article 25 of the Constitution and the case of Hameed Akhtar Niazi
v. Secretary, Establishment Division, Government of Pakistan
(1996 SCMR 1185), which in its terms prohibit discrimination
amongst the persons placed in the similar position and entitle
others the benefit of earlier judgment, when applicable to their
case. He further submitted that judgment under challenge is one
which is not fit to be reviewed by this Bench for any technical
reasons and if this Court still comes to a contrary conclusion and
forms its view about the maintainability of these proceedings in the
positive, then it should be made applicable only prospectively and
not retrospectively to save the benefits which have been already
availed by the honourable retired judges of the High Court in a
bonafide manner. In order to gain support to the case of Chaudhry
Abdul Mannan, J., who never remained permanent judge of the
High Court, he also made reference to the definition of âJudgeâ,
under Article 260 of the Constitution, which also includes an
additional judge. He summed up his submissions on the note that
all the honourable retired judges, who have rendered less than five
years actual service as a High Court Judge, being respectable class
of the society, having held constitutional post, deserve a
Const. Petition No.127 of 2012
53
sympathetic and lenient view in the matter, which may not be
prejudicial to their interest.
44.
Mr. Afnan Karim Kundi, learned ASC for honourable
retired Justice Raza Ahmed Khan, before making his submissions,
in order to give relevant dates of his appointment as additional
judge, permanent judge and retirement of his client, made
reference of C.M.A No.1419/2013, to show that he had actually
served as High Court judge for a period of 03-years, 05-months
and 04-days, before his retirement on attaining the age of
superannuation on 05.3.1992. He contended that law relating to
pensionary benefits is now well developed and provides that such
benefit to a retired government servant is his hard earned right
and no more a bounty of the State for certain individuals,
therefore, an additional judge of the High Court is not entitled for
any pensionary benefit, but only the permanent judges. He also
made reference to the language of paragraph-2 of Fifth Schedule to
Article 205 of the Constitution and argued that opening words of
this paragraph âevery judgeâ are to be given widest meaning in
order to extend pensionary benefits to all the honourable retired
judges of the High Court, irrespective of their length of service as
such. He added that for fair determination of quantum of pension,
any reasonable and equitable formula can be drawn by the
President on the basis of rationalization of pensionary benefits to
those honourable retired judges of the High Court, who have
rendered less than five years service, as right now no such scheme
is provided either in the Presidentâs Order No.9 of 1970 or
Presidentâs Order No.3 of 1997.
Const. Petition No.127 of 2012
54
45.
Justice Muhammad Azam Khan, another honourable
retired judge of the High Court, who appeared in person, made
reference of C.M.A No.743/2013 to show that he was appointed as
additional judge of the High Court on 13.6.1998 and was made to
retire under the PCO of 2000 w.e.f 26.1.2000, after rendering total
service of 01-year, 07-months and 12-days, thus, he is entitled for
the benefit of Article 270AA(3)(b), which adequately protects his
right to pension as affectees of PCO of 2000, resulting in his un-
ceremonial and unconstitutional removal from service as High
Court Judge. He, however, conceded that even if he had not been
removed
under
the
said
PCO,
on
attaining
the
age
of
superannuation he would have retired on 17.3.2001 after
rendering total service of less than 03 years. He also made
reference of C.M.A No.940/2008, to show that he was one of the
contesting party before the Supreme Court in the earlier
proceedings wherein the judgment under challenge was passed. In
the end, he stated that on other legal aspects of the matter, he
adopts the arguments advanced by senior ASC Mr. Iftikhar
Hussain Gillani.
46.
Mr.
Abdul
Rahim
Bhatti,
learned
ASC,
who
is
representing Justice Abdul Ghani Sheikh, honourable retired judge
of the High Court, made reference of C.M.A No.854/2013, to show
various relevant dates of appointment and retirement of Mr.
Sheikh after rendering actual service of 03-years and 15-days in
aggregate. He made reference to the cases reported as Muhammad
Mubeen-us-Salam (supra) and Muhammad Idrees v. Agricultural
Development Bank of Pakistan (PLD 2007 SC 681) in support of
his submission that even if the judgment under challenge is set
Const. Petition No.127 of 2012
55
aside, then its applicability can only be made prospectively and not
retrospectively. More so, when it is a past and closed transaction
as the judgment under challenge has been fully implemented by
the official respondents.
47.
Mr. Farhat Nawaz Lodhi, learned ASC for retired Justice
Amjad Ali Sheikh, a honourable retired judge of the High Court,
also gave relevant dates of his appointment and retirement to show
that at the time of his retirement on 22.6.1999, retired Justice
Amjad Ali Sheikh, has served as a judge of the High Court for a
period of 02-years, 06-months and 10-days. He further adopted
the arguments of Mr. Amir Alam Khan, learned ASC on the
question of maintainability of these proceedings emanating from
the note of the Registrar, being malicious.
48.
At this stage, with leave of the Court, M/s Gulzarin Kiyani
and Iftikhar Hussain Gillani, learned Sr. ASCs, made their further
submissions wherein Mr. Kiyani, dilating upon the powers of
review vested with this Court, made reference to the judgment in
the case of Pir Bakhsh v. Chairman Allotment Committee (PLD
1987 SC 145) and also briefly discussed the principles of res
judicata, stare decisis and prospective and retrospective application
of various judgments announced by this Court to show that these
principles are not attracted in the present case, which is to be
adjudicated upon its own merits, more particularly, when these
proceedings relate to public exchequer, thus, falling within the
domain of public interest litigation. He also contended that in a
case where constitutional provisions are clear in language, no
doctrine of legitimate expectation can be applied in order to
support or protect some wrong doing. For this purpose, he also
Const. Petition No.127 of 2012
56
made reference to the High Court Judges Pension Order, 1937,
Presidentâs Order No.9/1970 and Presidentâs Order No.03/1997, to
show that earlier to the adjudication vide judgment under
challenge, it was otherwise also a convention religiously followed
by all the retired judges of the High Court having rendered less
than five years service that no claim for pension for such short
period of service was to be made. In the end, to fortify his
submissions, he cited following cases.
a.
Abdul Ghaffar-Abdul Rehmanâs case (supra).
b.
State of West Bangal v. Corporation of Calcutta
(1967 AIR SC 997)
c.
Bengal Immunity Co.âs case (supra)
d.
A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531.)
In the case of State of West Bengal (supra), examining the effect of
Article 141 of the Constitution of India, it was held by a nine
member Bench of the Indian Supreme Court that there is nothing
in the Constitution which prevents Supreme Court from departing
from its previous decision, if it is satisfied of its error and its
baneful effect on general interests of public. In Constitutional
matters which effect evolution of countryâs polity, Supreme Court
must more readily correct itself than in other branches of law as
perpetuation of a mistake will be harmful to public interest, while
continuity and consistency are conductive to smooth evolution of
rule of law, hesitancy to set right deviation will retard its growth.
To fortify this view, reference to the case of Bengal Immunity Co.
(supra) was also made.
In the case of A.R Antulay (supra), with reference to the facts of the
case, it was held that where the relevant statutory provisions were
not brought to the notice of the Supreme Court, which precluded it
Const. Petition No.127 of 2012
57
to exercise power in a case, than it cannot be said that the
judgment was not per incuriam. In this context reference was also
made to the case of State of West Bengal v. Anwar Ali (AIR 1952 SC
75). In addition to it, the maxim âActus Curiae Neminem Gravabitâ
(an act of the Court shall prejudice no man) was discussed and it
was held that this maxim is founded upon justice and good sense
and affords a safe and certain guide for the administration of the
law; this maxim is not a source of general power to reopen and
rehear adjudications which have otherwise assumed finality, as
this maxim operates in a different and narrow area. It was
illustrated that if owing to the delay in what, the Court should,
otherwise, have done earlier but did later, a party suffers owing to
events occurring in the interregnum, the Court has the power to
remedy it.
49.
Mr. Iftikhar Hussain Gillani, in his further submissions
reiterated that the judgment under challenge cannot be termed as
a judgment per incuriam, therefore, the benefits already drawn or
claimed by the honourable retired judges of the High Court,
though they having rendered less than five years actual service,
cannot be reclaimed from them.
50.
Khawaja Muhammad Haris, learned senior ASC, one of
the
amici
curiae
in
this
case,
strongly
supported
the
maintainability of these suo moto proceedings and contended that
it may be that these proceedings have emanated from the note of
the Registrar of this Court, but for according legitimacy to these
proceedings it is the knowledge or notice taken by the Court, which
is material and not its source. Once this Court finds that some law
has been wrongly enunciated, it is its prime duty to correct the law
irrespective of its fallout or effect upon its beneficiaries. He, while
Const. Petition No.127 of 2012
58
criticizing the judgment under challenge, strongly contended that
there are many legal mistakes floating on the surface of the record
with reference to the judgment under challenge, thus, it can be
termed nothing but a judgment per incuriam, and by applying the
principle of stare decisis, it cannot be saved. He added that even
otherwise, the rule of stare decisis is not strictly applicable to the
Supreme Court. Making reference to the High Court Judges
Pension
Order,
1937,
Presidentâs
Order
No.09/1970
and
Presidents Order No.03/1997, he argued that no holistic or fair
view was taken by this Court while passing its judgment under
challenge and in this regard even prevalent convention and usage
since the year 1937, having the force of law, were overlooked. He
further argued that Fifth Schedule to Article 205 of the
Constitution is not a sub-constitutional legislation, but a part of
the Constitution in terms of Article 205 of Constitution, thus, it is
to be read as such and when it is read in the context of prevalent
Presidentâs Orders from time to time, it makes it very clear that
length of service of High Court judges has always remained prime
consideration for grant of pensionary benefits to them or otherwise.
He also dilated upon the language of paragraph-3 of the Fifth
Schedule to Article 205 of the Constitution to show its relevancy
and importance in the matter of determining the entitlement for
pension of judges of the High Court, who have served for less than
five years as such. He conceded that of course, paragraph-3 of the
Fifth Schedule to Article 205 of the Constitution will not control its
paragraph-2, but at the same time when the whole Schedule is
read in conjunction with the Presidentâs Order inforce at the
relevant time, there remains no ambiguity that all those
honourable retired judges, who have rendered less than five years
Const. Petition No.127 of 2012
59
actual service, excluding those cases which are found entitled for
the benefit of paragraph-29 (ibid), read with Service Regulation
No.423, are not entitled for any pensionary benefits. He again
made reference to various provisions of Judges Order/Presidentâs
Orders right from the year 1937 till date to show undisturbed
convention of over 75 years that no judge of the High Court, having
served less than five years, ever objected to or raised the claim of
pensionary benefit for a lesser period of service by advancing the
interpretation of the relevant provisions of law in the manner as
accepted in the judgment under challenge. Re-agitating the
applicability of principle of per incuriam to the judgment under
challenge, learned ASC read before us its paragraphs No.9 to
paragraph No.22, one by one, to highlight several patent
deficiencies in it, which brings it within the ambit of judgment per
incuriam as per the law laid down by this Court in its various
judgments. He further argued that since the very language of
judgment under challenge gives its benefit to many others, who
were not even party to such proceedings before the apex Court,
therefore, the judgment under challenge is a judgment in rem and
not a judgment in personam. In the same context, he also made
reference to Article 203C, paragraph-9 of the Constitution, which
has widened the applicability of the judgment under challenge to
the judges of the Federal Shariat Court also. Here he also made
reference to the case of Mahmood Khan Achakzai v. Federation of
Pakistan (PLD 1997 SC 426) to express his point of view on the
scope and application of âDe factoâ doctrine. In this case âDe factoâ
doctrine was discussed as under:-
âThe doctrine of de facto is a well recognized doctrine
embedded in our jurisprudence. Under this doctrine bona fide
acts in public interest performed by persons assuming authority,
Const. Petition No.127 of 2012
60
which turns out to be illegal, are assumed to have been
performed by a de jure authority/person and binding. This
doctrine is intended to avoid dislocation, instability and confusion
while declaring a de facto authority illegal. In order to create
stability, regularity and to prevent confusion in the conduct of
public business and in security of private rights the acts of the
officers de facto are not suffered to be questioned because of want
of legal authority except by some direct proceeding instituted for
the purpose by the State or someone claiming office de jure.
The doctrine of de facto is based on considerations of
policy and public interest. For good order and peace of- society
the title of persons in apparent authority is to be respected and
obeyed until their title is investigated in some regular mode
prescribed by law.
The acts of the officers de facto performed by them within
the scope of their assumed official authority in the interest of the
public or third persons and not for their own benefit are generally
as valid and binding as if they were the acts of officers de jure.
This doctrine can be applied if the Parliament is declared to be
illegally constituted and Enactment passed by such Parliament is
declared unconstitutional. It is only in such situation that to
preserve continuity, prevent disorder and protect private rights,
this doctrine can be pressed in service.â
51.
In the context of paragraph-29 of the Presidentâs Order
No.03/1997, he supported the claim of those former judges of the
High Court, who have though rendered less than five years service,
but are entitled for the benefit of paragraph-29 read with Service
Regulation No.423. In support of his other submissions,
particularly on the point of per incuriam, he further cited following
cases.
i)
Sindh High Court Bar Associationâs case (supra)
ii)
Gulshan Ara v. State (2010 SCMR 1162)
iii)
Fasih-ud-Din Khan v. Government of Punjab
(2010 SCMR 1778)
iv)
Abdul Ghaffar-Abdul Rehmanâs case (supra).
v)
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161)
vi)
Federation of Pakistan v. Qamar Hussain Bhatti
(PLD 2004 SC 77).
Const. Petition No.127 of 2012
61
In the case of Gulshan Ara (supra) relating offence under the
Control of Narcotic Substances Act, 1997, the principle of per
incuriam was discussed with reference to its dictionary meaning in
Halsburyâs Laws of England, Fourth Edition, volume 26 in paras
557-558, and comments on the judgment per incuriam were
recorded as under:-
"A decision is given per incuriam when the Court has acted in
ignorance of previous decision of its own or of a Court of
coordinate jurisdiction which covered the case before it in
which case it must decide which case to follow or when it has
acted in ignorance of House of a Lords' decision, in which case
it must follow that decision or when the decision is given in
ignorance of the terms of statute or rule has statutory force."
In the case of Fasih-ud-Din Khan (supra), also, the meaning of
phrase per incuriam were dilated with reference to the case of
Sindh High Court Bar Association (supra) and it was observed that
connotation of per incuriam is âcarelessnessâ. In the case of Asad
Ali (supra), the scope of Article 184(3) of the Constitution was
discussed in detail and, inter alia¸ it was held that Constitutional
Convention once established has the same binding effect as a
Constitutional provision, therefore, any breach of such Convention
can be treated by the Court as a breach of the Constitution to
which the Convention relates. It was further held that Constitution
being the basic organic document, which is of a permanent
character and is not subject to frequent changes, such a basic
document is necessarily a reflection of the aspirations of its people.
The Constitution, therefore, is not an imprisonment of the past but
it takes care of the present and is also alive to the future. The
cardinal rule of interpretation of a basic document like
Constitution is that it should be liberally construed and unless the
context clearly implies a restricted construction, the words and
Const. Petition No.127 of 2012
62
expressions used in the Constitution are to be given widest
connotation. Moreover, discussing the legal implication of
retrospectivity or prospectivity of a statute touching the vested
rights of the parties, it was observed that a new or amending
statute touching the vested rights of the parties operates
prospectively unless the language of the legislation expressly
provides for its retrospective operation. However, the presumption
against the retrospective operation of a statute is not applicable to
statutes dealing with the procedure as no vested right can be
claimed by any party in respect of a procedure. The only exception
to the retrospective operation of a procedural law is that if by
giving it a retrospective operation, the vested right of a party is
impaired then to that extent it operates prospectively. The above
principle applicable to a new or an amending statute, however,
cannot be applied strictly to the law declared by the Courts
through interpretative process. The Courts, while interpreting a
law, do not legislate or create any new law or amend the existing
law. By interpreting the law, the Courts only declare the true
meaning of the law which already existed. Therefore, to that extent
the law declared by the Court is applicable from the date the law is
enacted.
In the case of Federation of Pakistan (supra) dealing with the case
of civil servant qua the concept of judgments in âremâ and
âpersonamâ, reference to the definition of these phrases was made
from Black's Law Dictionary Sixth Edition; the ratio of Hameed
Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR
1185) was also discussed with reference to the scope and
applicability of Article 25 of the Constitution and based on these
reasons/legal principles, benefit was also extended to those other
Const. Petition No.127 of 2012
63
persons who were equally placed and found entitled for similar
benefit through an earlier pronouncement of the Court.
52.
Mr. Salman Akram Raja, the other amicus curiae
appointed by the Court, during his submissions read before us
second part of Fifth Schedule to Article 205 of the Constitution,
relating to High Court Judges and contended that indeed in terms
of paragraph-2 every judge of the High Court is entitled for
pensionary benefits, but subject to determination of such right by
the President, which is the basic requirement and only thereafter
the question of quantum of pensionary benefits could be
considered/decided by the President for determination. After
reading paragraph-2 and 3 of the Fifth Schedule to Article 205 of
the Constitution word-by-word, he contended that the word
âdetermination by the Presidentâ has two facets; one about the right
of every judge; and, the other about the quantum of pensionary
benefits of every judge. When in this background, the Fifth
Schedule relating to High Court Judges is read in line with the
language of either High Court Judges Order, 1937 or Presidentâs
Order No.09/1970 or Presidentâs Order No.03/1997, it clearly
shows that determination made by the President regarding
pensionary benefit of the honourable retired judges of the High
Court, who have served as such for less than five years, is zero
pension, for which no further clarification or illustration is needed
in case Presidentâs Order is read harmoniously with the Fifth
Schedule. Making reference to the principle of rationality or
proportionality in the matter of pensionary benefits, he further
contended that this Court cannot sit over or regulate the powers of
the President in this regard, therefore, no such observation or
Const. Petition No.127 of 2012
64
directions can be issued to the President, who has already
determined the right of the judges of the High Court, having
rendered less than five years service as âZeroâ. He also made
reference to the judgment in the case of Sindh High Court Bar
Association (supra) to show that the judgment under challenge is
mainly based on the Presidentâs Order No.08/2007 dated
14.12.2007, which has been already declared ultra vires and void
ab initio, and it also contain relevant observations striking down
the opinion of the Attorney General for Pakistan in that case. He
further made reference of Article 184(3), 187 and 188 of the
Constitution in support of his arguments that suo moto
proceedings in the present form are very much competent,
particularly in the circumstances when question of public
exchequer is involved and the fallout of judgment under challenge
is huge burden over it, which has brought this case within the
domain of public interest litigation. In the end, he referred the case
of Hussain Badshah v. Akhtar Zaman (2006 SCMR 1163) to
conclude his submissions that if the judgment under challenge is
reviewed, its applicability shall be made prospectively so that the
pensionary benefits already availed by the former/retired Judges of
the High Court, having less than five years service to their credit,
are not disturbed. He also made a statement before the Court that
he will further provide written synopsis of his arguments to show
number of glaring deficiencies in the judgment under challenge,
which makes it a judgment per incuriam.
53.
Mr. Azam Khan Khattak, Additional Advocate General,
Balochistan, when came at the rostrum, simply adopted the
arguments of learned Attorney General for Pakistan, although by
Const. Petition No.127 of 2012
65
that time, the learned Attorney General for Pakistan has not even
made his arguments in the case. When confronted with this
position, he submitted that he knows that what the learned
Attorney General for Pakistan is going to argue in this case,
therefore, without waiting for his submissions, he is making such
statement before the Court.
54.
Mr.
Muhammad
Qasim
Mirjat,
learned
Additional
Advocate General Sindh argued that only confirmed/permanent
judges of the High Court are entitled for pensionary benefits and
not those who had performed only as additional judges of the High
Court. He further argued that the scheme under the Constitution
with reference to Article 205 of the Constitution, read with its Fifth
Schedule and the Presidentâs Order 9 of 1970 or 3 of 1997, is quite
clear, therefore, he would not support the claim of the honourable
retired judges of the High Court, who have rendered less than five
years service as such and now claiming pensionary benefits on the
basis of the judgment under challenge.
55.
Mr. Hanif Khatana, learned Additional Advocate General,
Punjab conceded to the jurisdiction of this Court in entertaining
and deciding the present petition on merits, however, making
reference to the language of paragraph-2 of Fifth Schedule to
Article 205 of the Constitution, he submitted that every judge of
the High Court, irrespective of his length of service is entitled for
pensionary benefits.
56.
Mr. Zaheer Bashir Ansari, ASC, who appeared in this
case on behalf of his late brother Justice Tanvir Bashir Ansari,
retired judge of the High Court, was unable to give exact date of his
appointment and retirement, but pointed out that on his
Const. Petition No.127 of 2012
66
retirement date i.e. 25.6.2005, late Justice Tanvir Bashir Ansari
has served as a Judge of the High Court for a period of 04-years,
01-month and few days. He further adopted the arguments
advanced by other senior ASCs in this case.
57.
Syed Arshad Hussain Shah, Additional Advocate General,
KPK in his arguments, stressed upon the definition of word âeveryâ
and in this context, referred the case of Abrar Hassan v.
Government of Pakistan (PLD 1976 SC 315). In this case, in a
petition in the nature of quo warranto, one of the question involved
was that whether a writ of such nature could be issued against a
High Court Judge. In that context, it was observed that often terms
"Judge" and "Court" are used interchangeably as synonymous yet
this does not obliterate distinction between a Judge as an
individual and Court as seat of justice as an institution. In the
end, prayer for grant of writ of quo warranto against the judge was
declined and the petitioner was, therefore, dismissed. He
contended that these suo moto proceedings in order to examine the
legality and propriety of the judgment under challenge on the
touchstone of per incuriam, etc are very much maintainable,
however, in the peculiar facts and circumstances, he supported the
judgment under challenge as well as the claim of every retired
judge of the High Court for pensionary benefits, irrespective of his
actual length of service as such.
58.
Mr. Irfan Qadir, learned Attorney General for Pakistan, in
his arguments boldly asserted that judges cannot be made judge of
their own cause for the purpose of determining their pensionary
benefits. Thus, neither he is supporting these suo moto
proceedings, nor the judgment under challenge, as determination
Const. Petition No.127 of 2012
67
of right to pension in terms of the clear language of paragraph-2 of
the Fifth Schedule to Article 205 of the Constitution is exclusive
domain of the President of Pakistan. He further contended that
from the definition of word âJudgeâ given under Article 260 of the
Constitution, even the additional judges of the High Court, if the
President so determines, could be entitled for pensionary benefit
irrespective of the bar under Article 207 of the Constitution.
Expressing his view about some other legal aspects of the
judgment under challenge, he firstly argued that even wrong law
declared
by
this
Court
cannot
be
corrected
under
any
constitutional jurisdiction vested with the Supreme Court,
however, at a later stage, he conceded that Supreme Court has
unfettered powers under the Constitutional mandate to ensure
correct interpretation of law and its applicability to all the citizen of
the Country and no palpable wrong pronouncement of law could
hold the field once it has come to the notice of the Court and
necessary proceedings have been initiated for this purpose. He
further argued that judgment under challenge is not entirely
dependent upon the discussion made in its paragraph-20, relating
to Presidentâs Order No.08/2007, which has been set at naught
and declared to be void ab initio in the case of Sindh High Court
Bar Association (supra). He also brought to our notice that as per
his information, another Presidentâs Order based on the summary
of Ministry of Law for determining the right to pension of the
honourable retired judges of the High Court, having rendered less
than five years service, is in the pipeline. However, till the
conclusion of these proceedings and announcement of our short
order in Court on 11.4.2013, no such Presidentâs Order has seen
the light of the day.
Const. Petition No.127 of 2012
68
59.
For a short while, Justice Abdul Ghani Sheikh, with the
permission of the Court, also came at the rostrum to make his
submissions. He read before us paragraph-2 & 3 of the Fifth
Schedule to Article 205 of the Constitution to advance his case for
pensionary benefits irrespective of his length of service and in
support of his submission, placed reliance upon the cases of State
Bank of Pakistan v. Mst. Mumtaz Sultana (2010 SCMR 421) and
Pakistan through Secretary Ministry of Finance v. Muhammad
Himayatullah Farukhi (PLD 1969 SC 407). In the case of State of
Bank of Pakistan (supra), dealing with some dispute relating to
Voluntary Golden Handshake Scheme floated by the State Bank
of Pakistan through Circular No.9 of 1997, dated 23.10.1997,
while outlining the distinction between a judgment in rem and
judgment in personam as also highlighted in the case of Pir
Bakhsh and others v. The Chairman, Allotment Committee and
others (PLD 1987 SC 145), it was held that the benefit allowed to
one group of employees cannot be denied to another group of
employees in similar position, even if they were not party to the
earlier proceedings, as the State Bank of Pakistan was bound by
the earlier decision to redress their grievance accordingly. In the
other case of Pakistan through Secretary Ministry of Finance
(supra), in depth discussion as regards the Principle of locus
poenitentiae (power of receding till a decisive step taken) was made
and it was held that the authority that has power to make an order
has also the power to undo it, but subject to the exception that
where the order has taken legal effect, and in pursuance thereof
certain rights have been created in favour of any individual, such
order cannot be withdrawn or rescinded to the detriment of his
rights.
Const. Petition No.127 of 2012
69
60.
It may be mentioned here that some other senior
ASCs/ASCs and honourable retired judges, who appeared during
the proceedings of this case on some dates, did not come forward
to make their submissions, though before conclusion of the
proceedings on 11.4.2013, right to audience was extended to all,
that if any one of them intends to argue the case, he may come at
the rostrum to make his submissions.
61.
When we look at the detailed submissions of the learned
senior ASCs, ASCs, the Additional Advocate Generals of four
Provinces, the Attorney General for Pakistan, some of the retired
judges of the High Court, who appeared in person and the two
amici curiae, as noted above, we find that for proper adjudication of
all these factual and legal controversies, framing of three moot
points for consideration covering the gamut of these submissions
will be useful, which are accordingly framed as under:-
(a)
Whether the present suo moto proceedings, emanating
from the office note of the Registrar dated 21.11.2012, are
not maintainable on the basis of various legal contentions
raised before us qua the powers of this Court vested
under Articles 184, 185, 187 and 188, in Chapter-1, Part-
VII of our Constitution?
(b)
What could be the correct interpretation of Article 205, its
Fifth Schedule in the Constitution, read with applicable
Presidentâs Orders No.09 of 1970 / 03 of 1997?
(c)
Whether under any legal principle, pensionary benefits,
etc, already availed by the honourable retired judges of
the High Court on the basis of judgment under challenge
could be retained by them, or they are liable to
Const. Petition No.127 of 2012
70
return/restore/refund all such benefits to the public
exchequer?
62.
As to the question of maintainability of this petition, from
the arguments advanced by the learned ASCs etc, we find that the
first objection as to its maintainability is raised in the context of
jurisdiction and powers of the Registrar of this Court for
submission of the note dated 21.11.2012, which formed basis for
the subsequent order of the Honourable Chief Justice for fixation
of this petition before the larger Bench. The other objections as to
the maintainability are with reference to the powers of this Court
under Articles 184(3), 187 and 188 of the Constitution qua
applicability of the principles of âstare decisisâ, âres judicataâ,
âlocus poenitentiaeâ and âpast and closed transactionâ. In this
regard, when we have confronted the learned ASCs with a simple
but important question, that if for any reason the note of the
Registrar dated 21.11.2012 is improper and its contents are
discarded, but at the same time when the issue in relation to the
illegality of a judgment, which has taken the form of a precedent
laying down an incorrect law, and its colossal fallout on the public
exchequer, which has brought it within the domain of public
interest litigation, has come to our notice in any form, whether for
some technical reasons alone, the Court should still desist from
exercising its jurisdiction vested under Articles 184(3), 187 and
188 of the Constitution, the unanimous answer to this question
was in the negative i.e. in exercise of powers under the
constitutional provisions, this Court has unlimited jurisdiction to
reopen, revisit or review, and for this purpose examine any
judgment earlier pronounced by this Court to set the law correct,
Const. Petition No.127 of 2012
71
to cure injustice, save it from becoming an abuse of the process of
law and this judicial system. The Attorney General for Pakistan,
during his arguments, at one stage stated that under no
circumstances does this Court have jurisdiction to examine or review
the judgment under challenge, but later on, he also conceded to this
legal position. Although some of the learned ASCs still reiterated their
arguments for pressing into service the principle of stare decisis, res
judicata and âpast and closed transactionâ and cited some judgments
in support thereof, but at the conclusion of the proceedings, none of
them could dispute that the principle of stare decisis, res judicata, or
past and closed transaction in their literal form are not applicable to
the proceedings before the apex Court in a situation when the very
judgment under challenge is found âper incuriamâ.
63.
In order to exhibit some of the powers of this Court, which
could be exercised to consider a question of public importance with
reference to enforcement of any fundamental right; for doing
complete justice in any case or matter pending before it, and powers
of review available to the Supreme Court, it will be useful to
reproduce hereunder Articles 184(3), 187 and 188 of the Constitution
respectively and also to discuss few celebrated judgments,
enunciating some broad principles of law in this regard. For this
purpose, reference is made here to the judgments in the cases of
Abdul Ghaffar- Abdul Rehman (supra), Sindh High Court Bar
Association (supra) and Justice Khurshid Anwar Bhinder (supra).
Article 184(3) of the Constitution.
â184. Original jurisdiction of Supreme Court.-(1) The Supreme Court
shall, to the exclusion of every other Court, have original jurisdiction in
any dispute between any two or more Governments.
Explanation.-In
this
clause,
âGovernmentsâ
means
the
Federal
Government and the Provincial Governments.
Const. Petition No.127 of 2012
72
(2)
In the exercise of the jurisdiction conferred on it by clause (1), the
Supreme Court shall pronounce declaratory judgments only.
(3)
Without prejudice to the provisions of Article 199, the Supreme
Court shall, if it considers that a question of public importance with
reference to the enforcement of any of the Fundamental Rights conferred
by Chapter I of Part II is involved, have the power to make an order of the
nature mentioned in the said Article.â
Article 187 of the Constitution.
â187. Issue and execution of processes of Supreme Court.-(1)
Subject to clause (2) of Article 175, the Supreme Court shall have
power to issue such directions, orders or decrees as may be
necessary for doing complete justice in any case or matter
pending before it, including an order for the purpose of securing
the attendance of any person or the discovery or production of
any document.
(2) Any such direction, order or decree shall be enforceable
throughout Pakistan and shall, where it is to be executed in a
Province, or a territory or an area not forming part of a Province
but within the jurisdiction of the High Court of the Province, be
executed as if it had been issued by the High Court of that
Province.
(3) If a question arises as to which High Court shall give effect to
a direction, order or decree of the Supreme Court, the decision of
the Supreme Court on the question shall be final.â
Article 188 of the Constitution.
â188. Review of judgments or orders by the Supreme Court.-
The Supreme Court shall have power, subject to the provisions of
any act of Majlis-e-Shoora (Parliament) and of any rules made by
the Supreme Court, to review any judgment pronounced or any
order made by it.â
Excerpt from the Abdul Ghaffar-Abdul Rehman (supra)âs case.
(PLD 1998 SC 363).
â14.
âĻ.. Article 188 of the Constitution confers power on this
Court subject to the provisions of any Act of the Parliament and
any rules made by the Supreme Court to review any judgment
pronounced or any order made by it. Whereas' Order XXVI, rule 1
of the Rules lays down that subject to the law and practice of the
Court, the Court may review its judgment, order of any civil
proceeding, on ground similar to those mentioned in Order XLVII,
rule 1 of C.P.C. and any criminal proceeding on the ground of an
error apparent on the face of the record.
It may be observed that Order XLVII, rule 1 of C.P.C. gives
a right to a party to apply for review if he is aggrieved by the
orders or decrees, or decisions mentioned in sub-clauses (a), (b),
Const. Petition No.127 of 2012
73
(c) of rule 1 on the three grounds, namely, discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced
by him at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason.
15. We may now refer to the judgments relied upon by the
learned counsel for the parties. Mr.S. Sharifuddin Pirzads has
referred to the following cases:-
(i)
Lt.-Col. Nawabzada Muhammad Amir Khan v. The
Controller of Estate Duty, Government of Pakistan,
Karachi and others (PLD 1962 SC 335).
(ii)
Fida Hussain v. The Secretary, Kashmir Affairs and
Northern Affairs
Division,
Islamabad
and
another (PLD 1995 SC 701),
(iii)
Suba through Legal Heirs v. Fatima Bibi through
Legal Heirs and others (1996 SCMR 158);
(iv)
Mian Rafiq Saigol and another v. Bank of Credit
and Commerce
International (Overseas) Limited and another (PLD
1997 SC 865).
(v)
Unreported order in Civil Review Petition No.l-K of
1989 (Begum Asfar Saeed and others v. Ch.Abdul
Aziz) rendered by this Court on 10-3-1991.
In the above first case, Cornelius C.J. made the following
observation as to the scope of review:
"For the present purpose, the emphasis should, in my
opinion, be laid upon the consideration that, for the doing
of "complete justice", the Supreme Court is vested with full
power, and I can see no reason why the exercise of that
full power should be applicable only in respect of a matter
coming up before the Supreme Court in the form of a
decision by a High Court or some subordinate Court. I can
see no reason why that purpose in its full scope, should
not also be applicable for the purpose of reviewing a
judgment delivered by the Supreme Court itself: provided
that thereby found a necessity within the meaning of the
expression "complete justice" to exercise that power. It
must, of course, be borne in mind that by assumption,
every judgment pronounced by the Court is a considered
and solemn decision on all points arising out of the case,
and further that every reason compels towards the grant
of finality in favour of such judgments delivered by a
Court which sits at the apex of the judicial system. Again,
the expression "complete justice" is clearly not to be
understood in any abstract or academic sense. So much is
clear from the provision in Article 163(3) that a written
order is to be necessary for the purpose of carrying out the
intention to dispense "complete justice". There must be a
substantial or material effect to be produced upon the
result of the case if, in the interests of "complete justice"
Const. Petition No.127 of 2012
74
the
Supreme
Court
undertakes
to
exercise
its
extraordinary power of review of one of its own considered
judgments. If there be found material irregularity, and yet
there be no substantial injury consequent thereon, the
exercise of the power of review to alter the judgment would
not necessarily be required. The irregularity must be of
such a nature as converts the process from being one in
aid of justice to a process that brings about injustice.
Where, however, there is found to be something directed
by the judgment of which review is sought which is in
conflict with the Constitution or with a law of Pakistan
there it would be the duty of the Court unhesitatingly to
amend the error. It is a duty which is enjoyed upon every
Judge of the Court by the solemn oath which he takes
when he enters upon his duties, viz., to "preserve, protect
and defend the Constitution and law of Pakistan."
In the above report, Kaikaus, J., who rendered his
separate opinion made the following observations:-
"to permit a review on the ground of incorrectness would
amount to granting the Court the jurisdiction to hear
appeals against its own judgments or perhaps a
jurisdiction to one Bench of the Court to hear appeals
against other benches; and that surely is not the scope of
review jurisdiction. No mistake in a considered conclusion,
whatever the extent of that mistake, can be a ground for
the
exercise
of
review
jurisdiction.
On
a
proper
consideration it will be found that the principles
underlying the limitations mentioned in Order XLVII, rule
1, Civil Procedure Code, are implicit in the nature of
review jurisdiction. While I would prefer not to accept
those limitations as if they placed any technical
obstruction in the exercise of the review jurisdiction of this
Court I would accept that they embody the principles on
which this Court would act in the exercise of such
jurisdiction. It is not because a conclusion is wrong but
because something obvious has been overlooked, some
important aspect of the matter has not been considered,
that a review petition will lie. It is a remedy to be used
only in exceptional circumstances."
In the second case this Court comprising the then learned
Chief Justice and four companion Judges entertained a suo motu
review and allowed the same for the following reasons:-
"11. The above case supports the petitioner's stand.
Another aspect which escaped notice of this Court in the
judgment under review is that some of the other civil
servants/employees placed in the same position as the
petitioner was had been considered for promotion to BPS-
17 and in fact were promoted, whereas the petitioner was
denied the above benefit which amounted to violation of
inter alia Article 25 of the Constitution of the Islamic
Republic of Pakistan, 1973. In this regard, reference may
Const. Petition No.127 of 2012
75
be made to the case of I.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance
Division, Islamabad and others 1991 SCMR 1041
12
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
13 âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.âĻâĻâĻâĻ..
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
14. The upshot of the above discussion is that the
judgment under review is liable to be recalled as it
proceeded on wrong premises. We would, therefore, allow
the above Suo Motu Review Petition and recall the above
judgment. In consequence thereof, petitioner's Civil Appeal
No. 216 of 1991 is allowed and the judgment of the
Tribunal is set aside and the respondents are directed to
consider the petitioner's case for promotion to BPS-17."
In the third case this Court, while accepting a review
petition, made following observations:-
"From the above discussed legal position, it emerges that a
petition for review before this Court would lie on grounds,
which are analogous to those embodied in Order XLVII,
Rule 1, C.P.C. The review petition would also be
competent if something which is obvious in the judgment
has either been overlooked and that if it would have been
considered by the Court, the final result of the case would
have been otherwise. No review petition, however, would
lie on the ground of a wrong decision by the Court or that
another view is possible on reconsideration."
In the fourth case also the scope of review was succinctly
discussed by this Court after referring the relevant case-law and
in this regard the following observations were made:-- '
"From the preceding discussion it follows that review
proceedings cannot partake re-hearing of a decided case.
Therefore, if the Court has taken a conscious and
deliberate decision on a point of law or fact while
disposing of a petition or an appeal, review of such
judgment or order cannot be obtained on the grounds that
the Court took an erroneous view or that another view on
reconsideration is possible. Review also cannot be allowed
on the ground of discovery of some new material, if such
material was available at the time of hearing of appeal or
petition but not produced. A ground not urged or raised at
the hearing of petition or appeal cannot be allowed to be
raised in review proceedings. Only such errors in the
judgment/order would justify review, which are self-
evident, found floating on the surface, are discoverable
without much deliberations, and have a material bearing
on the final result of the case."
Const. Petition No.127 of 2012
76
In the last unreported order of this Court in the case of
Begum Asfar Saeed and others v. Ch. Abdul Aziz, after referring a
number of cases, the following conclusion was recorded as to the
scope of a review:-
"From an examination of the aforesaid precedents of this
Court, it seems settled that overlooking some important
aspect of the matter from consideration or an erroneous
assumption of a material fact affecting the conclusion
reached in the judgment are valid grounds on which the
review of a judgment can be permitted. In view of what is
stated it is not necessary to refer to the judgments cited by
the respondent on the scope of review, because mostly the
cases relate to reargument of an appeal in review
jurisdiction which is not permissible, or to the raising of
pleas which were not agitated at the hearing of the appeal
or contained a reassertion of the law as laid down in the
case of Muhammad Amir Khan v. Controller of Estate
Duty (PLD 1962 SC 335) on which the respondent himself
relied."
16. We may now refer to the following cases relied upon by Mr.
Gulzarin Kiani, learned Advocate Supreme Court for the
respondents: --
(i)
Sajjan Singh and others v,. The State of Rajasthan
and others (AIR 1965 SC 845);
(ii)
The
Keshav Mills
Co.
Ltd.,
Petlad
v.
The
Commissioner of Income Tax, Bombay North,
Ahmedabad (AIR 1965 SC 1636);
(iii)
Pillani Investment Corporation Ltd. v. The Income-
tax Officer, A Ward, Calcutta and another (AIR
1972 SC 236);
(iv)
Sow Chandra Kanta and another v. Sheikh Habib
(AIR 1975 SC 1500)
(v)
M/s. Northern India Caterers (India) Ltd. v. Lt.
Governor of Delhi (AIR 1980 SC 674);
(vi)
Col. Avtar Singh Sekhom v. Union of, India and
others (AIR 1980 SC 2041);
(vii)
A.R. Antulay, v. R.S. Nayak and another (AIR 1988
SC 1531)
In the above first case, the India Supreme Court while
dilating upon Article 141 of the Indian Constitution relating to the
power of review of the Supreme Court observed that the
Constitution does not place any restriction on the power of the
Supreme Court to review its earlier decision or even to depart
from them and any matters relating to the decision of
Constitutional points which have significant impact on the
fundamental rights of citizens, it would be prepared to review its
earlier decision in the interest of public good and that the
doctrine stare decisis may not be strictly applied in this context.
It was further observed that this doctrine will not be permitted to
perpetuate erroneous decisions announced by the Supreme Court
to the detriment of the general welfare. It was also observed that
Const. Petition No.127 of 2012
77
the question, whether different view is to be taken, would depend
on the nature of infirmity alleged in the earlier decision, its
impact on public good and the validity and compelling character
of situations urged in support of the contrary view.
In the second case the Indian Supreme Court examined
the scope as to when it should change its previous view in the
following words:-
"When it is urged that the view already taken by this
Court should be reviewed and revised it may not
necessarily be an adequate reason for such review and
revision to hold that though the earlier view is a
reasonably possible view, the alternative view which is
pressed on the subsequent occasion is more reasonable.
In reviewing and revising its earlier decision, this Court
should ask itself whether in the interests of the public
good or for any other valid and compulsive reasons, it is
necessary that the earlier decision should be revised.
When this Court decides questions of law, its decisions
are, under Article 141, binding on all Courts within the
territory of India, and so, it must be the constant
endeavour and concern of this Court to introduce and
maintain an element of certainty and continuity in the
interpretation of law in the country. Frequent exercise by
this Court of its power to review its earlier decisions on the
ground that the view pressed before it later appears to the
Court to be more reasonable, may incidentally tend to
make law uncertain and introduce confusion which must
be consistently avoided. That is not to say that if on a
subsequent occasion, the Court is satisfied that its earlier
decision was clearly erroneous, it should hesitate to
correct the error; but before a previous decision is
pronounced to be plainly erroneous, the Court must be
satisfied with a fair amount of unanimity amongst its
members that a revision of the said view is fully, justified.
It is not possible or desirable, and in any case it would be
inexpedient to lay down any principles which should
govern the approach of the Court in dealing with the
question of reviewing and revising its earlier decisions. It
would
always
depend
upon
several
relevant
considerations:-- What is the nature of the infirmity or
error on which a plea for a review and revision of the
earlier view is based? On the earlier occasion, did some
patent aspects of the question remain unnoticed, or was
the attention of the Court not drawn to any relevant and
material statutory provision, or was any previous decision
of this Court bearing on the point not noticed? Is the
Court hearing such plea fairly unanimous that there is
such an error in the earlier view? What would be the
impact of the error on the general administration of law or
on public good? Has the earlier decision been followed on
subsequent occasions either by this Court or by the High
Courts? And, would the reversal of the earlier decision
lead to public inconvenience, hardship or mischief? These
Const. Petition No.127 of 2012
78
and other relevant considerations must be carefully borne
in mind whenever this Court is called upon to exercise its
jurisdiction to review and revise its earlier decisions.
These considerations become still more significant when
the earlier decision happens to be a unanimous decision
of a Bench of five learned Judges of this Court."
In the third case it was urged by the Indian Supreme
Court that when it was not shown that the earlier judgment of the
Supreme Court was erroneous or that any vital point was not
considered, the Supreme Court would decline to review its earlier
judgment.
In the fourth case, Krishna Iyer, J. made the following
weighty observations as to the scope of review:--
"Mr. Daphtary, learned counsel for the petitioners, has
argued at length all the points which were urged at the
earlier stage when we refused special leave thus making
out that a review proceeding virtually amounts to a re-
hearing. May be we were not right in refusing special leave
right in the first round but, once an order has been
passed by this Court, a review thereof must be subject to
the rules of the game and cannot be lightly entertained. A
review of a judgment is a serious step and reluctant resort
to it is proper only where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial
fallibility. A mere repetition through different counsel of
old and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of
inconsequential import are obviously insufficient. The very
strict need for compliance with these factors is the
rationale behind the insistence of counsel's certificate
which should not be a routine affair or a habitual step. It
is neither fairness to the Court which decided nor
awareness of the precious public time lost what with a
huge back-log of dockets waiting in the queue for disposal,
for counsel to issue easy certificates for entertainment of
review and fight over again the same battle which has
been fought and lost. "
In the fifth case, Krishna Iyer, J. of the Indian Supreme
Court again enunciated the scope of a review by holding that a
party is not entitled to seek a review of the judgment delivered by
the Supreme Court merely for the purpose of re-hearing and a
fresh decision of the case. It has been pointed out that the normal
principle is that a judgment pronounced by the Court is final and
departure
from
that
principle
is
justified
only
when
circumstances of a substantial and compelling character make it
necessary to do.
In the sixth case, Krishan Iyer, J. again reiterated that
review is not a routine procedure but the material error should be
manifest on the face of the earlier order resulting in miscarriage
of justice and must be proved.
Const. Petition No.127 of 2012
79
In the seventh case, the Indian Supreme Court highlighted
that there is no distinction as to the power between Benches of
the Supreme Court because of the number of Judges constituted
the same, in the following words:-
"It is time to sound a note of caution. The Supreme Court
under its Rules of Business ordinarily sits in divisions and
not as a whole one. Each Bench, whether small or large,
exercises the powers vested in the Court and decisions
rendered by he benches irrespective of their size are
considered as decisions of the Court. The practice has
developed that a larger Bench is entitled to overrule the
decision of a smaller Bench notwithstanding the fact that
each of the decisions is that of the Court. That principle,
however, would not apply in the instant case and a Bench
of Seven Judges is not entitled to reverse the decision of
the Constitution Bench,. Overruling when made by a
larger Bench of an earlier decision of a smaller one is
intended to take away the precedent value of the decision
without affecting the binding effect of the decision in the
particular case. "
17.
From the above case-law, the following principles of law
are deductible:
(i)
That every judgment pronounced by the Supreme
Court is presumed to be a considered, solemn and
final decision on all points arising out of the case;
(ii)
that if the Court has taken a conscious and
deliberate decision on a point of fact or law, a
review petition will not lie;
(iii)
that the fact the view canvassed in the review
petition is more reasonable than the view found
favour with the Court in the judgment/order of
which review is sought, is not sufficient to sustain
a review petition;
(iv)
that simpliciter the factum that a material
irregularity was committed would not be sufficient
to review a judgment/order but if the material
irregularity was of such a nature, as to convert the
process from being one in aid of justice to a
process of injustice, a review petition would lie;
(v)
that simpliciter the fact that the conclusion
recorded in a judgment/order is wrong does not
warrant review of the same but if the conclusion is
wrong because something obvious has been
overlooked by the Court or it has failed to consider
some important aspect of the matter, a review
petition would lie;
Const. Petition No.127 of 2012
80
(vi)
that if the error in the judgment/order is so
manifest and is floating on the surface, which is so
material that had the same been noticed prior to
the rendering of the judgment the conclusion
would have been different, in such a case a review
petition would lie;
(vii)
that the power of review cannot be invoked as a
routine matter to rehear a case which has already
been decided nor change of a counsel would
warrant sustaining of a review petition, but the
same can be pressed into service where a glaring
omission or patent mistake has crept in earlier by
judicial fallibility;
(viii)
that the Constitution does not place any restriction
on the power of the Supreme Court to review its
earlier decisions or even to depart from them nor
the doctrine stare decisis will come in its way so
long as review is warranted in view of the
significant impact on the fundamental rights of
citizens or in the interest of public good;
(ix)
that the Court is competent to review its
judgment/order suo motu without any formal
application;
(x)
that under the Supreme Court Rules, it sits in
divisions and not as a whole. Each Bench whether
small or large exercises the same power vested in
the Supreme Court and decisions rendered by the
Benches irrespective of their size are decisions of
the Court having the same binding nature.
Excerpt from Sindh High Court Bar Association (supra)âs case.
(PLD 2009 SC 879)
â167. At this stage, it is necessary to elucidate through our own
jurisprudence and that of other jurisdictions the principle of trichotomy
of powers and the power of judicial review vested in the superior Courts.
Case-law from the Indian jurisdiction is particularly instructive on
account of the common origins of constitutionalism springing from the
Government of India Act, 1935 read with the Indian Independence Act,
1947. The Supreme .Court of India, in the case of Minerva Mills Ltd v.
Union of India (AIR 1980 SC 1789) held that the judiciary was the
interpreter of the Constitution and was assigned the delicate task of
determining the extent of the power conferred on each branch of the
government, its limits and whether any action of that branch
transgressed such limits. It may be advantageous to reproduce below
relevant excerpts from the judgment of the Indian Supreme Court
delivered by Bhagwati J, in the said case: -
"92âĻâĻâĻParliament too, is a creature of the Constitution and it
can only have such powers as are given to it under the
Const. Petition No.127 of 2012
81
Constitution. It has no inherent power of amendment of the
Constitution and being an authority created by the Constitution,
it cannot have such inherent power, but the power of amendment
is conferred upon it by the Constitution and it is a limited power
which is so conferred. Parliament cannot in exercise of this power
so amend the Constitution as to alter its basic structure or to
change its identity. Now, if by constitutional amendment,
Parliament were granted unlimited power of amendment, it would
cease to be an authority under the Constitution, but would
become supreme over it, because it would have power to alter the
entire Constitution including its basic structure and even to put
an end to it by totally changing its identity. It will therefore be
seen that the limited amending power of Parliament is itself an
essential feature of the Constitution, a part of its basic structure,
for if the limited power of amendment were enlarged into an
unlimited power, the entire character of the Constitution would
be changed. It must follow as a necessary corollary that any
amendment of the Constitution which seeks, directly or indirectly,
to enlarge the amending power of Parliament by freeing it from
the limitation of unamendability of the basic structure would be
violative of the basic structure and hence outside the amendatory
power of Parliament.
93. It is a fundamental principle of our constitutional scheme,
and I have pointed this out in the preceding paragraph, that every
organ of the. State, every authority under the Constitution.
Derives its power from the Constitution and has to act within the
limits of such power. But then the question arises as to which
authority must decide what are the limits on the power conferred
upon each organ or instrumentality of the State and whether
such limits are transgressed or exceeded. Now there are three
main departments of the State amongst which the powers of
Government are divided; the Executive, the Legislature and the
Judiciary. Under our Constitution we have no rigid separation of
powers as in the United States of America, but there is a broad
demarcation, though, having regard to the complex nature of
governmental
functions,
certain
degree of
overlapping
is
inevitable. The reason for this broad separation of powers is that
"the concentration of powers in any one organ may" to quote the
words of Chandrachud, J. (as he then was) in Smt. Indira
Gandhi's case (AIR 1975 SC 2299) "by upsetting that fine balance
between the three organs, destroy the fundamental premises of a
democratic Government to which were pledged." Take for
example, a case where the executive which is in charge of
administration acts to the prejudice of a citizen and a question
arises as to what are the powers of the executive and whether the
executive has acted within the scope of its powers. Such a
question obviously cannot be left to the executive to decide and
for two very good reasons. First, the decision of the question
would depend upon the interpretation of the Constitution and the
laws and this would pre-eminently be a matter, fit to be decided
by the judiciary,. because it is the judiciary which alone would be
possessed
of
expertise
in
this
field
and
secondly,
the
constitutional and legal protection afforded to the citizen would
become illusory if it were left to the executive to determine the
legality of its own action. So also if the legislature makes a law
and a dispute arises whether in making the law the legislature
has acted outside the area of its legislative competence or the law
is violative of the fundamental rights or of any other provisions of
the Constitution, its resolution cannot, for the same reasons, be,
left to the determination of the legislature. The Constitution has,
therefore, created an independent machinery for resolving these
disputes and this independent machinery is the judiciary which is
vested with the power of judicial review to determine the legality
of executive action and the validity of legislation passed by the
legislature. It is the solemn duty of the judiciary under the
Constitution to keep the different organs of the State such as the
executive and the legislature within the limits of the power
conferred upon them by the Constitution. This power of judicial
Const. Petition No.127 of 2012
82
review is conferred on the judiciary by Articles 32 and 226 of the
Constitution. Speaking about draft Article 25, corresponding to
present Article 32 of the Constitution, Dr. Ambedkar, the
principal architect of our Constitution, said in the Constituent
Assembly on 9th December, 1948:
"If I was asked to name any particular article in this Constitution
as the most important - an article without which this
Constitution would be a nullity - I could not refer to any other
article except this one. It is the very soul of the Constitution and
the very heart of it and I am glad that the House has realized its
importance". (CAD debates, Vol. VII, p, 953) It is a cardinal
principle of our Constitution that no one howsoever highly placed
and no authority however lofty can claim to be the sole judge of
its power under the Constitution or whether its action is within
the confines of such power laid down by the Constitution. The
judiciary is the interpreter of the Constitution and to the judiciary
is assigned the delicate task to determine what is the power
conferred on each branch of Government, whether it is limited,
and if so, what are the limits and whether any action of that
branch transgresses such limits. It is for the judiciary to uphold
the constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law, which inter alia
requires that "the exercise of powers by the Government whether
it be the legislature or the executive or any other authority, be
conditioned by the Constitution and the law". The power of
judicial review is an integral part of our constitutional system and
without it, there will be no Government of laws and the rule of
law would become a teasing illusion and a promise of unreality. I
am of the view that if there is one feature of our Constitution
which, more than any other, is basic and fundamental to the
maintenance of democracy and the rule of law, it is the power of
judicial review and it is unquestionably, to my mind, part of the
basic structure of the Constitution. Of course, when I say this I
should not be taken to suggest that however effective alternative
institutional mechanisms or arrangements for judicial review
cannot be made by Parliament. But what I wish to emphasise is
that judicial review is a vital principle of our Constitution and it
cannot be abrogated without affecting the basic structure of the
Constitution. If by a Constitutional amendment, the power of
judicial review is taken away and it is provided that the validity of
any law made by the Legislature shall not be liable to be called in
question on any ground, even if it is outside the legislative
competence of the legislature or is violative of any fundamental
rights, it would be nothing short of sub-version of the
Constitution, for it would make a mockery of the distribution of
legislative powers between the Union and the States and render
the fundamental rights meaningless and futile. So also if a
constitutional amendment is made which has the effect of taking
away the power of judicial review and providing that no
amendment made in the Constitution shall be liable to be
questioned on any ground, even if such amendment is violative of
the basic structure and, therefore, outside the amendatory power
of Parliament, it would be making Parliament sole judge of the
constitutional validity of what it has done and that would in effect
and substance, nullify the limitation on the amending power of
Parliament and affect the basic structure of the Constitution. The
conclusion must therefore inevitably follow that clause (4) of
Article 368 is unconstitutional and void as damaging the basic
structure of the Constitution.
94. That takes us to clause (5) of Article 368. This clause opens
with the words "For the removal of doubts" and proceeds to
declare that there shall be no limitation whatever on the
amending power of Parliament under Article 368. It is difficult to
appreciate the meaning of the opening words "For the removal of
doubts" because the majority decision in Kesavananda Bharati's
case (AIR 1973 SC 1461) clearly laid down and left no doubt that
Const. Petition No.127 of 2012
83
the basic structure of the Constitution was outside the
competence of the mandatory power of Parliament and in Smt.
Indira Gandhi's .case (supra) all the Judges unanimously
accepted theory of the basic structure as a theory by which the
validity of the amendment impugned before them, namely, Article
329A(4) was to be judged. Therefore, after the decisions in
Kesavananda Bharati's case and Smt. Indira Gandhi's case, there
was no doubt at all that the amendatory power of Parliament was
limited and it was not competent to Parliament to alter the basic
structure of the Constitution and clause (5) could not remove the
doubt which did not exist. What A clause (5) really sought to do
was to remove the limitation on the amending power of
Parliament and convert it from a limited power into an unlimited
one."
In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an
action of an authority functioning under the Indian Constitution was
discussed as under: -
"The extent of those limitations on the powers has to be
determined on an interpretation of the relevant provisions of the
Constitution. Since the task of interpreting the provisions of the
Constitution is entrusted to the Judiciary, it is vested with the
power to test the validity of an action of every authority
functioning under the Constitution on the touchstone of the
constitution in order to ensure that the authority exercising the
power conferred by the Constitution does not transgress the
limitations placed by the Constitutions on exercise of that power.
This power of judicial review is, therefore, implicit in a written
Constitution and unless expressly excluded by a provision of the
Constitution, the power of judicial review is available in respect of
exercise of powers under any of the provisions of the
Constitution. Justiciability relates to a particular field falling
within the purview of the power of judicial review. On account of
want of judicially manageable standards, there, may be matters
which are not susceptible to the judicial process. Such matters
are regarded as non-justiciable. In other words, during the course
of exercise of the power of judicial review it may be found that
there are certain aspects of the exercise of that power which are
not susceptible to judicial process on account of want of judicially
manageable standards and are, therefore, not justiciable."
168. In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC
184] while dilating upon the role of the Supreme Court of India, it was
held that it was the solemn duty of the Court to protect the fundamental
rights guaranteed by the Constitution zealously and vigilantly. Relevant
portion from the judgment is reproduced below: -
"651. We have a written Constitution which confers powers of
judicial review on this Court and on all High Courts. In exercising
power and discharging duty assigned by the Constitution, this
Court has to play the role of a 'sentinel on the qui vive' and it is
the solemn duty of this Court to protect the fundamental rights
guaranteed by Part III of the Constitution zealously and vigilantly.
652. It may be stated that initially it was contended by the
respondents-that this Court has no power to consider a complaint
against any action taken by Parliament and no such complaint
can ever be entertained by the Court. Mr. Gopal Subramaniam,
appearing for the Attorney General, however, at a later stage
conceded (and I may say, rightly) the jurisdiction of this Court to
consider such complaint, but submitted that the Court must
always keep in mind the fact that the power has been exercised
by a coordinate organ of the State which has the jurisdiction to
Const. Petition No.127 of 2012
84
regulate its own proceedings within the four walls of the House.
Unless, therefore, this Court is convinced that the action of the
House is unconstitutional or wholly unlawful, it may not exercise
its extraordinary jurisdiction by re-appreciating the evidence and
material before Parliament and substitute its own conclusions for
the conclusions arrived at by the House.
653. In my opinion, the submission is well-founded. This Court
cannot be oblivious or unmindful of the fact that the Legislature
is one of three organs of the State and is exercising powers under
the same Constitution under which this Court is exercising the
power of judicial review. It is, therefore, the duty of this Court to
ensure that there is no abuse or misuse of power by the
Legislature without overlooking another equally important
consideration that the Court is not a superior organ or an
appellate forum over the other constitutional functionary. This
Court, therefore, should exercise its power of judicial review with
utmost care, caution and circumspection."
It was further held as under: -
"656. In this connection, I may only observe that in Searchlight
[Pandit Sharma (1)] as well as in Keshav Singh, it has been
observed that there is no doubt that Parliament/State Legislature
has power to punish for contempt, which has been reiterated in
other cases also, for instance, in State of Karnataka v. Union of
India, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State,
(1998) 4 SCC 626. But what has been held is that such decision
of Parliament/State, Legislature is not 'final and 'conclusive'. This
Court in all earlier cases held that in view of power of judicial
review under Articles 32 and 226 of the Constitution, the
Supreme Court and High Courts have jurisdiction to decide
legality or otherwise of the action taken by State- authorities and
that power cannot be taken away from judiciary. There lies the
distinction between British Parliament and Indian Parliament.
Since British Parliament is also 'the High Court of Parliament',
the action taken or decision rendered by it is not open to
challenge in any court of law. This, in my opinion, is based on the
doctrine that there cannot be two parallel courts, i.e. Crown's
Court and also a Court of Parliament ('the High Court of
Parliament') exercising judicial power in respect of one and the
same jurisdiction. India is a democratic and republican. State
having a written Constitution which is supreme and no organ of
the State (Legislature, Executive or Judiciary) can claim
sovereignty or supremacy over the other. Under the said
Constitution, power of judicial review has been conferred on
higher judiciary (Supreme Court and High Courts)."
In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while
referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and
S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that the
judicial review was a basic feature of the Constitution and that the power
of judicial review was a constituent power which could not be abrogated
by judicial process of interpretation. It was further held that it was a
cardinal principle of the Constitution that no one could claim to be the
sole judge of the 'power given under the Constitution and that its actions
were within the confines of the powers given by the Constitution.
169. On the above survey of the case-law, it is clear that the power of
judicial review is a cardinal principle of the Constitution. The Judges, to
keep the power of judicial review strictly judicial, in its exercise, do take
Const. Petition No.127 of 2012
85
care not to intrude upon the' domain of the other branches of the
Government. It is the duty of the judiciary to determine the legality of
executive action and the validity of legislation passed by the Legislature.
At this stage, reference may also be made to our own jurisdiction where a
robust defence of judicial review has been expounded:--
Government of Balochistan through Additional Chief Secretary v.
Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369)
"The Constitution provides for separation of Judiciary from the
Executive. It aims at an independent Judiciary which is an
important organ of the State within the Constitutional sphere.
The Constitution provides for progressive separation of the
Judiciary and had fixed a time limit for such separation. It
expired in the year 1987 and from then onwards, irrespective of
the fact whether steps have been taken or not, judiciary stands
separated and does not and should not seek aid of executive
authorities for its separation. Separation of judiciary is the
cornerstone of independence of judiciary and unless judiciary is
independent, the fundamental right of access to justice cannot be
guaranteed. One of the modes for blocking the road of free access
to justice is to appoint or' hand over the adjudication of rights
and trial of offence in the hands of the Executive Officers. This is
merely a semblance of establishing Courts which are authorised
to decide cases and adjudicate the rights, but in fact such Courts
which are manned and run by executive authorities without being
under the control and supervision of the judiciary can hardly
meet the demands of Constitution. Considering from this point of
view we find that the impugned Ordinance II of 1968 from the
cognizance of the case till the revision is disposed of, the entire
machinery is in the hands of the executive from Naib-Tehsildar to
the official of the Government in the Ministry: Such a procedure
can hardly be conducive to the administration of justice and
development of the area nor will it achieve the desired result of
bringing law and order, peace and tranquility or economic
prosperity
and
well-being.
The
Constitution
envisages
independent Judiciary separate from the Executive. Thus any
Tribunal created under the control and superintendence of the
executive for adjudication of civil or criminal cases will be in
complete conflict with Articles 175, 9 and 25.
"The lower judiciary is a part of the judicial hierarchy in Pakistan.
Its separation and independence is to be equally secured and
preserved as that of the superior judiciary. The lower judiciary is
more dependent and prone to financial dependence and
harassment at the hands of the executive. In practice and effect
the separation of judiciary is the main problem of the lower
judiciary which under several enactments and rules is practically,
under the control and supervision of the executive. Articles 175
and 203 lay down that the judiciary including lower judiciary
shall be separated from the executive and 'High Court shall
supervise and control all Courts subordinate to it'. Such control
and supervision can be achieved only when the judiciary is
administratively and financially separate from the executive. The
next step should be taken to devise proper scheme and frame
rules dealing with financial problems within the framework of the
Constitution. So long financial independence is not achieved, it
will
be
difficult
to
improve
the
working
conditions,
accommodation, building and expansion to meet the growing
needs of the people."
Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)
"Adverting to the above second peculiar feature that our country
Const. Petition No.127 of 2012
86
has Federal system of Government which is based on trichotomy
of power, it may be observed that each organ, of the State is
required to function/operate within the bounds specified in the
Constitution though one can say that the Judiciary is the weakest
limb as it does not have the resources or power which the
Legislature or the Executive enjoy but it has been assigned very
important and delicate role to play, namely, to ensure that none
of the organs or the Government functionaries acts in violation of
any provision of the Constitution or of any other law and because
of the above nature of the work entrusted to the Judiciary, it was
envisaged in the Constitution that the Judiciary shall be
independent. I may reiterate that the independence of Judiciary is
inextricably linked and connected with the Constitutional process
of appointment of Judges of the superior Judiciary. The relevant
Constitutional provisions are to be construed in a manner which
would ensure the independence of Judiciary. At this juncture, it
may be stated that a written Constitution, is an 'organic
document designed and intended to cater the need for all times to
come. It is like a living tree, it grows and blossoms with the
passage of time in order to keep pace with the growth of the
country and its people; Thus, the approach, while interpreting a
Constitutional provision should be dynamic, progressive and
oriented with the desire to meet the situation, which has arisen,
effectively. The interpretation cannot be a narrow and pedantic.
But the Court's efforts should be to construe the same broadly, so
that 'it may be able to meet the requirement of ever changing
society. The general words cannot be construed in isolation but
the same are to be construed in the context in which, they are
employed. In other words, their colour and contents are derived
from their context.
"24. The above principles will have to be kept in view while
construing the, provisions of the Constitution relating to the
appointments/transfers of Judges of the superior Judiciary.
"The Constitution contemplates trichotomy of power inter se the
pillars of the State, namely, Legislature, Executive and the
Judiciary, each of the organs of the State has to function within
the limits provided in Constitution. The Constitutional provisions
relating to the appointments transfers of Judges of the superior
Courts, therefore, need to be examined in light of the Islamic
concept of justice. Islam had always attached unparalleled
importance to the concept of justice."
Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC
1445)
"(v) That the hallmark of our Constitution is that it envisages
separation of the Judiciary from the Executive (which is founded
on the Islamic Judicial System) in order to ensure independence
of Judiciary and. therefore, any Court or Tribunal which is not
subject to judicial review and administrative control of the High
Court and/or the Supreme Court does not fit in within the
judicial framework of the Constitution;
"(vi) That the right of 'access to justice to all' is a fundamental
right, which right cannot be exercised in the absence of an
independent Judiciary 'providing impartial, fair ' and just
adjudicatory
framework
i.e.
judicial
hierarchy.
The
Courts/Tribunals which are manned and run by Executive
Authorities without being under the control and supervision of
the High Court in terms of Article 203 of the Constitution can
hardly meet the mandatory requirement of the Constitution;
"(vii) That the independence of judiciary is inextricably linked and
connected with the process of appointment of Judges and the
security of their tenure and other terms and conditions."
Const. Petition No.127 of 2012
87
Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)
"Now take up the main controversy arising in these petitions,
whether setting up of Military Courts for trial of civilians for
offences not connected with the Armed Forces, is constitutionally
valid? As stated above, our Constitution is based on the theory of
trichotomy of power which makes the three limbs of the State, the
Legislature, the Executive and the Judiciary, independent of each
other in their respective spheres. Chapter I of Part VII of the
Constitution deals with the judicature. The judicature according
to Article 175(1) of the Constitution, consists of the Supreme
Court, a High Court for each Province and such other Courts as
may be established by law. The Courts created under Article
175(1) (ibid) exercise such jurisdiction which is conferred on them
either by the Constitution or by or under any law as provided in
Article 175(2) ibid. The judicature stands separated from the
executive as provided in Article 175(3) of the Constitution.
Creation of Courts outside the control and supervision of
Supreme Court or the High Courts, therefore, not only militates
against the independence of Judiciary but it also negates the
principle of trichotomy of power which is the basic feature of the
Constitution."
Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC
869)
"It is also mentioned in the Objectives Resolution that principles
of democracy, freedom, equality, tolerance and social justice as
enunciated by Islam shall be enabled to order their lives in
accordance with teachings and requirements of Islam as set out
in the Holy Qur'an and Sunnah and independence of judiciary
shall be fully secured. Objectives Resolution was even retained in
the Interim Constitution of 1972 as Preamble.
"Independence of Judiciary is a basic principle of the
Constitutional
system
of
governance
in
Pakistan.
The
Constitution of Pakistan contains specific and categorical
provisions for the independence of Judiciary. The Preamble and
Article 2A state that "the independence of Judiciary shall be fully
secured"; and with a view to achieve .this objective. Article 175
provides that "the Judiciary shall be separated progressively from
the executive".
"In
a
system
of
constitutional
governance,
guaranteeing
Fundamental Rights, and based on principle of trichotomy of
powers, such as ours, the Judiciary plays a crucial role of
interpreting and applying the law and adjudicating upon disputes
arising among governments or between State and citizens or
citizens'
inter
se.
The
Judiciary
is entrusted
with
the
responsibility for enforcement of Fundamental Rights. This calls
for an independent and vigilant system of judicial administration
so that all acts and actions leading to infringement of
Fundamental Rights are nullified and the rule of law upheld in
the society.
The Constitution makes it the exclusive power/responsibility of
the Judiciary to ensure the sustenance of system of "separation of
powers" based on checks and balances. This is a legal obligation
assigned to the Judiciary. It is called upon to enforce the
Constitution and safeguard the Fundamental Rights and freedom
of individuals, To do so, the Judiciary has to be properly
organized and effective and efficient enough to quickly address
and resolve public claims and grievances; and also has to be
strong and independent enough to dispense justice fairly and
impartially. It is such an efficient and independent Judiciary
which can foster an appropriate legal and judicial environment
Const. Petition No.127 of 2012
88
where there is peace and security in the society, ,safety of life,
protection of property and guarantee of essential human rights
and fundamental freedoms for all individuals and groups,
irrespective of any distinction or discrimination on the basis of
cast; creed, colour, culture, gender or place of origin, etc. It is
indeed such a legal and judicial environment, which is conducive
to economic growth and social development."
170. The exercise of suo motu powers has been dwelt at length by the
superior Courts of Pakistan in a large number of cases. Reference may
usefully be made to the following cases: -
Darshan Masih v. State (PLD 1990 SC 513 at page 544)
"It is necessary at this stage to clarify certain aspects of this case.
It is indeed necessary because, this being the first case of its
nature, the procedural and other elements thereof are likely in
due course, to come under discussion.
(i) True, a telegram, it has never been earlier made the basis by
the Supreme Court of Pakistan for action, as in this case; but,
there is ample support in the Constitution for the same. Under
Article 184(3) "Without prejudice to the provisions of Article 199,
the Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter I of Part II is involved,
have the power to make an order of the nature mentioned in the
said Article." The questions of procedural nature relating to the
entertainment of proceedings and/or cognizance of a case under
this provision, have been dealt with in the case of Miss Benazir
Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this
case is covered by the said authority as also by the due extension
of the principles laid therein. Such extension/s would depend
upon the fact and circumstances of each case and nature of
public interest involved and importance thereof. The element of
"public importance" in this case now stands demonstrated by the
resume (a part only) of the proceedings, given earlier.
It needs to be mentioned that in our Supreme Court, though
letters and telegrams are sent to individual Judges, but it is not
considered as an appropriate and proper method of initiating
proceedings. Some times it leads to embarrassment. Accordingly
such an information has to go to the Hon'ble Chief Justice for
initiating proceedings. In this case the telegram was addressed
directly to him and he marked it to me.
As to what other form/s of taking cognizance of a matter under
Article 184 (3) are possible, will depend upon the nature and
importance thereof.
(ii) The "nature" of the orders which can be passed in such cases
is also indicated in Article 184 (3); that is: such as can be passed
under Article 199. Even if for the time being it be assumed that
the "nature" of the order is confined only to the Orders under
sub-clause (c) of Article 199(1) and not to the other Orders under
"Article 199", it would be seen that any conceivable just and
proper order can be passed in a case like the present one. The
principle of extension involved in the relevant phrase used in Art.
199(1)(c): "an order giving such directions to any person or
authority -------- as may be appropriate for the enforcement of the
Fundamental Rights cannot be abridged or curtailed by the law.
As to how far it can be extended, will depend upon each case.
It is so also because of the other provisions of the Constitution,
the rules of this Court and the principles and Rules comprising
Const. Petition No.127 of 2012
89
the Constitutional set up of Pakistan. For instance, "according to
Article 187 (1) this Court some times has to satisfy the dictates of
"Complete Justice". What goes with it, is the subject or ample
authority as well as of future application in given cases. When
this power is exercised the Court will have the necessary
additional power to "issue such directions, orders or decrees as
may
be
necessary."
Besides
the
binding
effect
of
the
judgment/order of this Court on all other "Courts" when it
"decides" a question of law or it is based upon or enunciates a
principle of law under Article 189; another provision Art. 190,
gives a similar command to all executive and judicial "authorities"
throughout Pakistan": This is, so as to act "in aid of Supreme
Court". When Art. 199(1) (c) is read together with Articles, 187,
189 and 190, as stated above, it becomes clear that in a fit case of
enforcement of Fundamental Rights, the Supreme Court has
jurisdiction, power and competence to pass all proper/ necessary
orders as the facts justify.
(iii) The question as to whether this is a case of enforcement of
Fundamental Right/s has not been raised. Everybody accepted
that it is so. The provisions of Article 9 relating to security of
person; Article 11 in so far as it relates to forced labour, traffic in
human beings and child labour; Article 14 relating to dignity of
man; Article 15 ensuring freedom of movement; Article 19 relating
to freedom of trade, business or profession; and Article 25
relating td equality, particularly in the protection of law and bar
against discrimination on the basis of sex, as also the safeguards
for women and children, amongst others, are applicable to the
various aspects of the matter. However, it is a different matter
that some Fundamental Rights are more directly attracted than
the others and some elements involved in any one of them are
relevant while the others are meant for other situations. In view of
lack of contest on this issue it is not necessary to go into a
detailed discussion in this behalf. It is, however, remarked that
for purposes of convenience of all concerned, it might be
necessary
to
define
the
expression
"forced
labour
with
illustrations of its different forms"; in such a manner, so as to
minimize any confusion about its real purport as also the
resultant unproductive litigation. For the same purpose the other
important elements in these Fundamental Rights may be
collected together and put in a self-contained Code. It might cover
all aspects of human dignity, deprivations and misery, including
those rights in this behalf which are ensured, in addition, as
basic human rights in Islam. This Court has in the Shariat
jurisdiction dealt with some of them. There is no bar in the
Constitution to the inclusion in such law of these rights, in
addition to the Fundamental Rights contained in Chapter I Part II
thereof. This comprehensive law should deal with the compulsory
education of the classes concerned for making them aware of
their rights; the detection of the infringement thereof as the duty
of the State; and providing remedial mechanism also at the
instance of the State whenever the will to assert or exercise them
is lacking on the part of a citizen. These aspects of the
enforcement
of
Fundamental
Rights
guaranteed
by
the
Constitution and other basic human rights ensured by Islam can,
by law be made also into an independent inalienable right, with
self-operating mechanism for enforcement as well.
Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993
Supreme Court 473 at page 805)
"First, we may understand the nature of Article 184(3). This
provision confers power on the Supreme Court to consider
questions of public importance which are referable to the
enforcement of any Fundamental Rights guaranteed by the
Constitution and enumerated in Chapter 1 of Part II. This power
is without prejudice to the provisions of Article 199 which confer
similar power with certain restrictions on the High Court. The
Const. Petition No.127 of 2012
90
power conferred depends upon two questions; one, that the case
sought to be heard involves question of public importance and
two, the question of public importance relates to the enforcement
of Fundamental Rights. It is not every question of public
importance which can be entertained by this Court, but such
question should relate to the enforcement of Fundamental Rights.
This provision confers a further safety and security to the
Fundamental
Rights
conferred
and
guaranteed
by
the
Constitution. This shows the importance which Fundamental
Rights have in the scheme of the Constitution. They cannot be
curtailed or abridged and any provision of law or action taken
which violates Fundamental Rights conferred by the Constitution
shall be void. The nature of jurisdiction and the relief which can
be granted under this Article is much wider than Article 199. It
confers a power to make an order of the nature mentioned in
Article 199. The word 'nature' is not restrictive in meaning but
extends the jurisdiction to pass an order which may not be
strictly in conformity with Article 199 but it may have the same
colour and the same scheme without any restrictions imposed
under it. Article 184 is an effective weapon provided to secure and
guarantee the Fundamental Rights. It can be exercised where the
Fundamental Right exists and a breach has been committed or is
threatened. The attributes of Article 199 of being an aggrieved
person or of having an alternate remedy and depending upon the
facts and circumstances even laches cannot restrain the power or
non-suit a petitioner from filing a petition under Article 184 and
seeking relief under it. The relief being in the nature mentioned in
Article 199 can be modified and also consequential reliefs can be
granted
which
may
ensure
effective
protection
and
implementation of the Fundamental Rights. Even disputed
questions of facts which do not require voluminous evidence can
be looked into where Fundamental Right has been breached.
However, in case where intricate disputed questions of facts
involving voluminous evidence are involved the Court will desist
from entering into such controversies. Primarily, the questions
involved are decided on admitted or prima facie established facts
which can be determined by filing affidavits evidence in support of
allegations can be taken orally in very exceptional cases where
the breach is of a very serious nature affecting large section of the
country and is of great general importance.
Shehla Zia v. WAPDA (PLD 1994 SC 693 at page 712)
"The learned counsel for the respondent has raised the objection
that the facts of the case do not justify intervention under Article
184 of the Constitution. The main thrust was that the grid station
and the transmission line are being constructed after a proper
study of the problem taking into consideration the risk factors,
the economic factors and also necessity and requirement in a
particular area. It is after due- consideration that planning is
made and is being executed according to rules. After taking such
steps possibility of health hazards is ruled out and there is no
question of affecting property and health of a number of citizens
nor any Fundamental Right is violated which may warrant
interference under Article 184. So far the first part of the
contention regarding health hazards is concerned, sufficient
discussion has been made in the earlier part of the judgment and
need not be repeated. So far the Fundamental Rights are
concerned, one has not to go too far to find the reply.
Article 9 of the Constitution provides that no person shall be
deprived of life or liberty save in accordance with law. The word
'life' is very significant as it covers all facets of human existence.
The word 'life' has not been defined in the Constitution but it does
not mean nor can it be restricted only to the vegetative or animal
life or mere existence from conception to death. Life includes all
such amenities and facilities which a person born in a free
country,
is entitled to enjoy
with
dignity,
legally
and.
Const. Petition No.127 of 2012
91
constitutionally. For the purposes of present controversy suffice
to say that a person is entitled to protection of law from being
exposed to hazards of electromagnetic fields or any other such
hazards which may be due to installation and construction of any
grid station, any factory, power station or such like installations.
Under the common law a person whose right of easement,
property or health is adversely affected by any act of omission or
commission of a third person in the neighbourhood or at a far off
place, he is entitled to seek an injunction and also claim
damages, but the Constitutional rights are higher than the legal
rights conferred by law, be it municipal law or the common law.
Such a danger as depicted, the possibility of which cannot be
excluded, is bound to affect a large number of people who may
suffer from it unknowingly because of lack of awareness,
information and education and also because such sufferance is
silent and fatal and most of the people who would be residing
near, under or at a dangerous distance of the grid station or such
installation do not know that they are facing any risk or are likely
to suffer by such risk. Therefore, Article 184 can be invoked
because a large number of citizens throughout the country
cannot make such representation and may not like to make it due
to ignorance, poverty and disability. Only some conscientious
citizens aware of their rights and the possibility of danger come
forward and this has happened so in the present case.
13. According to Oxford dictionary, 'life' meant state of all
functional activity and continual change peculiar to organised
matter and specially to the portion of it constituting an animal or
plant before death and animate existence."
In Black's Law Dictionary, 'life' means "that state of animals,
humans, and plants or of an organised being in which its natural
functions and motions are performed, or in which its organs are
capable of performing their functions. The interval between birth
and death, the sum of the forces by which death is resisted, "life"
protected by the Federal Constitution includes all personal rights
and their enjoyment of the faculties, acquiring useful knowledge,
the right to marry, establish a home and bring up children,
freedom of worship, conscience; contract, occupation, speech,
assembly and press".
The Constitutional Law in America provides an extensive and
wide meaning to the word 'life' which includes all such rights
which are necessary and essential for leading a free, proper,
comfortable and clean life. The requirement of acquiring
knowledge to establish home, the freedoms as contemplated by
the Constitution, the personal rights and their enjoyment are
nothing but part of life. A person is entitled to enjoy his personal
rights and to be protected from encroachments on such personal
rights, freedom and liberties. Any action taken which may create
hazards of life will be encroaching upon the personal rights of a
citizen to enjoy the life according to law. In the present case this
is the complaint the petitioners have made. In our view the word
`life' constitutionally is so wide that the danger and encroachment
complained of would impinge Fundamental Right of a citizen. In
this view of the matter the petition is maintainable.
Dr. Pervez Hasan, learned counsel has referred to various
judgments of the Indian Supreme Court in which the term 'life'
has been explained with reference to public interest litigation. In
Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting
the word 'life' used in Article 21 of the Indian Constitution,
reliance was placed on the judgment of Field, J. in Munn v.
Illinois (1876) 94 US 113 at page 142 where it was observed that
'life' means not merely the right to the continuance of a person's
animal existence but a right to the possession of each of his
organs --his arms and legs etc." In Francis Corgi v. Union
Territory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that
Const. Petition No.127 of 2012
92
right to life includes right to live with human dignity and all that
goes along with it, namely, the bare necessaries of 'life such as
adequate nutrition, clothing and shelter and facilities for reading
and writing in diverse form". Same view has been expressed in
Olga Tellis and others v. Bombay Municipal Corporation (AIR
1986 SC 180) and State of Himachal Pradesh and another v.
Umed Ram Sharma and others (AIR 1986 SC 847). In the first
case right to life under the Constitution was held to mean right to
livelihood. In the latter case the definition has been extended to
include the "quality of life' and not mere physical existence. It was
observed that "for residents of hilly areas, access to road is access
to life itself. Thus, apart from the wide meaning given by US
Courts, the Indian Supreme Court seems to give a wider meaning
which includes the quality of life, adequate nutrition, clothing and
shelter and cannot be restricted merely to physical existence. The
word 'life' in the Constitution has not been used in a limited
manner. A. wide meaning should be given to enable a man not
only to sustain life but to enjoy it. Under our Constitution, Article
14 provides that the dignity of man and subject to law the privacy
of home shall be inviolable. The fundamental right to preserve
and protect the dignity of man under Article 14 is unparalleled
and could be found only in few Constitutions of the world. The
Constitution guarantees dignity of man and also right to 'life'
under Article 9 and if both are read together, question will arise
whether a person can be said to have dignity of man if his right to
life is below bare necessity like without proper food, clothing,
shelter, education, health care, clean atmosphere and unpolluted
environment. Such questions will arise for consideration which
can be dilated upon in more detail in a proper proceeding
involving such specific questions.
Dr. Pervaz Hasan has also referred to several judgments of the
Indian Supreme Court in which issues relating to environment
and ecological balance were raised and relief was granted as the
industrial activity causing pollution had degraded the quality of
life. In Rural Litigation and Entitlement Kendra and others v.
State of UP and others (AIR 1985 SC 652) mining operation
carried out through blasting was stopped and directions were
issued to regulate it. The same case came up for further
consideration and concern was shown for the preservation and
protection of environment and ecology. However, considering the
defence need and for earning foreign exchange some queries were
allowed to be operated in a limited manner subject to strict
control and regulations. These judgments are reported in AIR
1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 Sc
594. In Shri Sachidanand Pandey and another v. The State of
West Bengal and others (AIR 1987 SC 1109) part of land of
zoological garden was given to Taj Group of Hotels to build a five-
star hotel. This transaction was challenged in the High Court
without success. The appeal was dismissed. Taking note of the
fact that society's interaction with nature is so extensive that
"environmental question has assumed proportion affecting all
humanity", it was observed that: --
"Obviously,
if
the
Government
is
alive
to
the
various
considerations requiring thought and deliberation and has arrived
at a conscious decision after taking them into account, it may not
be for this Court to interfere in the absence of mala fides. On the
other hand, if relevant considerations are not borne in mind and
irrelevant, considerations influence the decision, the Court may
interfere in order to prevent a likelihood of prejudice to the
public."
In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C.
Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition
filed by a citizen taking note of the fact that the municipal sewage
and industrial effluents from tanneries were being thrown in
River Ganges whereby it was completely polluted, the tanneries
Const. Petition No.127 of 2012
93
were closed down. These judgments go a long way to show that in
cases where life of citizens is degraded, the quality of life, is
adversely affected and health hazards are created affecting a large
number of people, the Court in exercise of its jurisdiction under
Article 184(3) of the Constitution may grant relief to the "extent of
stopping the functioning of factories which create pollution and
environmental degradation.
Employees of the Pak. Law Commission v. Ministry of Works
(1994 SCMR 1548 at page 1551)
"Before dealing with the merits of the case, it seems necessary to
first dispose of the preliminary objection raised by the learned
Standing Counsel. The learned counsel for the respondents
contended that the Court has no jurisdiction to grant the relief
under Article 184(3) of the Constitution and the present case is
not covered by the said provision. The scope and object of Article
184(3) has been comprehensively discussed in several judgments
of this Court including Ms. Benazir Bhutto's case (PLD 1988 SC
416) and Mian Muhammad Nawaz Sharif's case (PLD 1993 SC
473). It is now well-settled that if there is violation of
Fundamental Rights of a class of persons who collectively suffer
due to such breach and there does not seem to be any possible
relief being granted from any quarter due to their inability to seek
or obtain relief, they are entitled to file petition under Article
184(3). The dispute should not be mere an individual grievance,
but a collective grievance which raises questions of general public
importance. In Benazir Bhutto's case it was observed as, follows:-
-
"The plain language of Article 184(3) shows that it is open-ended.
The Article does not say as to who shall have the right to move
the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved or whether it is confined to the
enforcement of the Fundamental Rights of an individual which
are infracted or extends to the enforcement of the rights of a
group or a class of persons whose rights are violated."
It was further observed that "the inquiry into law and life cannot,
in my view, be confined to the harrow limits of the rule of law in
the context of constitutionalism which makes a greater demand
on judicial functions. Therefore, while construing Article 184(3),
the
interpretative
approach
should
not
be
ceremonious
observance of the rules or usages of interpretation, but regard
should be had to the object and the purpose for which this Article
is enacted, that is, this interpretative approach must receive
inspiration from the triad of provisions which saturate and
invigorate the entire Constitution, namely the Objectives
Resolution (Article 2A), the Fundamental Rights and the directive
principles of State Policy so as to achieve democracy, tolerance,
equality and social justice according to Islam". While further
dilating upon the provisions of the Constitution, particularly
Articles 3, 37 and 38 of the Constitution, which enshrine socio-
economic principles, it was observed that "these provisions
become in an indirect sense enforceable by law and " thus, bring
about a phenomenal change in the idea of co-relation of
Fundamental Rights and directive principles of State Policy". In
this background it was observed as follows: --
"The liberties, in this context, if purposefully defined will serve to
guarantee genuine freedom; freedom not only from arbitrary
restraint of authority, but also freedom from want, from poverty
and destitution and from ignorance and illiteracy. That this was
the purport of the role of the rule of law which was affirmed at
Lagos in 1961 in the World Peace Through Law Conference:
`Adequate levels of living are essential 'for full enjoyment of
Const. Petition No.127 of 2012
94
individual's freedom and rights. What is the use of freedom of
speech to under-nourished people or of the freedom of press to an
illiterate population? The rule of law must make for the
establishing of social, economic and cultural conditions which
promote men to live in dignity and to live with aspirations'. "
"The Court will be in a position, if the procedure is flexible, to
extend the benefits of socio-economic change through this
medium of interpretation to all sections of the citizens.
"This approach is in tune with the era of progress and is meant to
establish that the Constitution is not merely an imprisonment of
the past, but is also alive to the unfolding of the future. It would
thus, be futile to insist on ceremonious interpretative approach to
Constitutional interpretations as hitherto undertaken which only
served to limit the controversies between the State and the
individual without extending the benefits of the liberties and the
Principles of Policy to all the segments of the population.
"It is thus clear that Article 9 of the Constitution which
guarantees life and liberty according to law is not to be construed
in a restricted and pedantic manner. Life has a larger concept
which includes the right of enjoyment of life, maintaining
adequate level of living for full enjoyment of freedom and rights.
In this background the petitioners' claim to be provided
accommodation during tenure of service, which is necessary for
maintaining adequate level of living, in our opinion, is covered by
Article 9. It is true that the terms and conditions of service
perhaps do not require the respondents to provide residential
accommodation to the petitioners, but if other Government
servants similarly placed are being provided accommodation there
is no reason to deprive the petitioners from such relief. In this
view of the matter petition under Article 184(3) is competent."
General Secretary v. Director, Industries (1994 SCMR 2061 at
page 2071)
"It is well-settled that in human rights cases/public interest
litigation under Article 184(3), the procedural trappings and
restrictions, precondition of being an aggrieved person and other
similar technical objections cannot bar the jurisdiction of the
Court. This Court has vast power under Article 184(3) to
investigate into questions of fact as well independently by
recording evidence,
appointing commission
or
any other
reasonable and legal manner to ascertain the correct position.
Article 184(3) provides that this Court has the power to make
order of the nature mentioned in Article 199. This is a guideline
for exercise of jurisdiction under this provision without
restrictions and restraints imposed on the High Court. The fact
that the order or direction should he in the nature mentioned in
Article 199, enlarges the scope of granting relief which may not be
exactly as provided under Article 199, but may be similar to it or
in the same nature and the relief so granted by this Court can be
moulded according to the facts and circumstances of each case."
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 at 294)
"It is obvious from the language of Article 184(3) that it provides a
direct access to the highest judicial forum in the country for the
enforcement of Fundamental Rights. It caters for an expeditious
and inexpensive remedy for the protection of the Fundamental
Rights from Legislative and Executive interference. It gives the
Court very wide discretion in the matter of providing an
appropriate order or direction including declaratory order to suit
the exigencies of particular situation. There can be no dour that
declaration of Fundamental Rights is meaningless unless there is
an effective machinery for the enforcement of the rights. It is the
Const. Petition No.127 of 2012
95
'remedy' that makes the right real. It is often said that without
'remedy' there is no right. It is for this reason that Constitution
makers provided a long list of Fundamental Rights and the
machinery for their enforcement. That machinery is the Superior
Courts, namely, the High Courts so far as the Provincial territory
is concerned, and the Supreme Court at the apex having
jurisdiction over the entire length and breadth of Pakistan.
Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page
1005)
"It will not be out of context at this stage to observe that our
country has a Federal System of Government which is based on
trichotomy of power, each organ of the State is required to
function/operate within the bounds specified in the Constitution.
Though one can say that Judiciary is the weakest limb as it does
not have the resources or powers which the Legislature or the
Executive enjoy, but it has been assigned very important and
delicate role to play, namely, to ensure that none of the organs or
the Government functionaries acts in violation of any provision of
the Constitution or any other law and because of the above
nature of work entrusted to the Judiciary, the framers of the
Constitution envisaged an independent Judiciary. However, I may
add that the Judiciary is also constitutionally obliged to act
within the limits of its jurisdiction as delineated by the
Constitution inter alia in Article 175 thereof. Clause (2) of the
above Article provides that no Court shall have any jurisdiction
save as is or may be conferred on it by the Constitution or by
under any law. In this view of the matter, the relevant
Constitutional provisions .are to be construed in a manner that
neither the Judiciary nor the Legislature transgresses its own
limit and an equilibrium is to be maintained inter se between the
three organs of the State. However, at the same time, it should
not be overlooked that our Constitution has enshrined and
emphasised independence of Judiciary and, therefore, the
relevant provisions are to be construed in a manner which would
ensure the independence of Judiciary. We have a written
Constitution, which is an organic document designed and
intended to cater to the needs for all times to come. It is like a
living tree; it grows and blossoms with the passage of time in
order to keep pace with the growth of the country and its people.
Thus the approach while interpreting a Constitutional provision
should be dynamic, progressive and oriented with the desire to
meet
the
situation,
which
has
arisen
effectively.
The
interpretation cannot be narrow and pedantic but the Courts'
efforts should be to construe the same broadly, so that it may be
able to meet the requirements of an ever changing society. The
general words cannot be construed in isolation but the same are
to be construed in the context in which they are employed. In
other words, their colour and contents are derived from the
context."
Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page
717)
"19. Syed Sharif-ud-Din Pirzada learned counsel for the
Privatization Commission contended that to invoke jurisdiction of
this Court under Article 184(3) of the Constitution, two conditions
are required to be fulfilled namely infringement of the
Fundamental Rights and absence of alternate remedy. In the case
in hand no fundamental right has been infringed and under the
scheme of Privatization Commission Ordinance No. LII, 2000
(hereinafter referred to as "Ordinance"), two alternate remedies
are available in terms of section 27 and section 28 of the
Ordinance. According to learned counsel the judgment relied
Const. Petition No.127 of 2012
96
upon by the petitioner in S.P. Gupta's case ibid, in the
circumstances of the instant case is not applicable because
thereafter the Indian Supreme Court in the case of BALCO
Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has
explained the scope of the public interest litigation.
"20. Learned Attorney General, however, at the outset contended
that after hearing the case at length by this Larger Bench for a
long period, it will not be fair on his part to say that, "no point of
public importance is involved in this case", therefore, he will not
be questioning locus standi of the petitioners particularly in view
of the judgments in the cases of Multiline Associates and Ardeshir
Cowasjee ibid.
"21. This Court in the referred cases and the Indian Supreme
Court in the case of S.P. Gupta ibid have laid down a rule namely
that any member of the public having sufficient interest can
maintain an action for judicial redress of public injury arising
from breach of the public duty or from violation of some provision
of the Constitution or the law and for enforcement of such public
duty and observance of such Constitutional provision.
"In the case of Benazir Bhutto ibid, it was held that only when the
element of public importance is involved, the Supreme Court can
exercise its power to issue the writ while sub Article 1(c) of Article
199 of the Constitution has a wider scope as there is no such
limitation therein.
"In Al-Jehad Trust ibid, it has been held that, "question of locus
standi is relevant in a High Court but not in the Supreme Court
when the jurisdiction is invoked under Article 184(3) of the
Constitution.
"In Malik Asad Ali ibid it was observed that under Article 184(3) of
the Constitution, this Court is entitled to take cognizance of any
matter which involves a question of public importance with
reference to the enforcement of any of the fundamental rights
conferred by Chapter I Part II of the Constitution even suo motu,
without having any formal petition.
"In Multiline Associates ibid this Court held that requirement of
the locus standi in the case of pro bono publico (public' interest
litigation is not so rigid) has extended scope. This principle has
been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v.
Federation of Pakistan (PLD 1998 SC 1263)."
At page 739, it is further held -
"Thus it is held that in exercise of the power of judicial review, the
courts normally will not interfere in pure' policy matters (unless
the policy itself is shown to be against Constitution and the law)
nor impose its own opinion in the matter. However, action taken
can always be examined on the well established principles of
judicial review."
171. It is clear from the above survey of the case law that it is a
fundamental principle of our jurisprudence that Courts must always
endeavour to exercise their jurisdiction so that the rights of the people
are guarded against arbitrary violations by the executive. This expansion
of jurisdiction is for securing and safeguarding the rights of the people
against the violations of the law by the executive and not for personal
aggrandizement of the courts and Judges. It is to this end that the power
of judicial review was being exercised by the judiciary before 3rd
Const. Petition No.127 of 2012
97
November, 2007. Indeed the power of judicial review was, and would
continue to be, exercised with strict adherence governing such exercise of
power, remaining within the sphere allotted to the judiciary by the
Constitution.
172. Though the exercise of suo motu powers and alleged consequential
erosion of trichotomy of powers enshrined in the Constitution was made
a ground for imposing the unconstitutional and illegal Proclamation of
Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case,
not a single case taken up suo motu was referred to, or discussed in the
detailed reasons of the said decision - except a bald reference in Para 2(ii)
of the short order - to point to any undue interference in the functioning
of the other branches of the government. In any event, it was open to the
Federation in all such cases to have availed the remedy provided under
the Constitution and the law against the judgments of the Supreme
Court. But, no such step was ever taken in any case whatsoever.
Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal
Muhammad Khan's case that the suo motu actions were destructive of
the constitutional principle of trichotomy of power, but he himself
continued to take similar actions from time to time, which fact was
established from the record of the Supreme Court after 3rd November,
2007. It was a contradiction in terms.â
Excerpt from Justice Khurshid Anwar Bhinder (supra)âs case.
(PLD 2010 SC 483)
24. First of all we intend to deal with the prime contention of
Mr. Wasim Sajjad, learned Senior Advocate Supreme Court
that in view of the provisions as enumerated in Article 188 of
the Constitution and Order XXVI of the Supreme Court Rules
these C.M.As. are maintainable and the applicants cannot be
knocked out on sheer technicalities which has always been
considered undesirable. Article 188 of the Constitution is
reproduced herein below for ready reference:--
"188. Review of judgments or orders by the Supreme
Court.--The Supreme Court shall have power, subject to
the provisions of any Act of (Majlis-e-Shoora (Parliament)]
and of any rules made by the Supreme Court, to review
any judgment pronounced or any order made by it".
25. A bare perusal would reveal that it has been couched in a
very simple and plain language hardly necessitating any
scholarly interpretation. It, inter alia, provides that the
Supreme Court has power to review its judgment or order
subject to the provisions of any Act of Parliament and any rule
made by the Supreme Court itself. (The contention whether
Supreme Court Rules, 1980 are subservient to the Constitution
have been discussed in later part of this judgment) It is to be
noted that no Act of Parliament whatsoever has been
promulgated and thus it can reasonably be inferred that
legislature does not want to restrict or impose any condition on
the powers conferred upon this Court under Article 188 of the
Constitution. In fact the words "subject to the provisions of any
Act of (Majlis-e-Shoora/Parliament) and of any rules made by
the Supreme Court" are indicative of the fact that indirectly the
powers so conferred have been enhanced and there was
absolutely no intention for curtailment of such powers
Const. Petition No.127 of 2012
98
conferred
upon
this
Court
under
Article
188
of
the
Constitution. The point under discussion has been examined
by this Court in case titled Evacuee Trust Property Board v.
Hameed Elahi (PLD 1981 SC 108) with the following
observations:-
"6. Nothing in these Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to make
such orders as may be necessary for the ends of justice
or to prevent abuse of the process of the Court. Now, as
we observed, "a litigant should not suffer on account of
the mistakes or errors of the Court, and the corollary of
this principle is that the Court should have the inherent
power to correct its errors. The said rule only clarifies in
terms that this Court has the inherent power to make
such orders as may be necessary for the ends of justice
or to prevent abuse of the process of the Court." There is
no ambiguity about these words, and if the respondent's
plea be true, he has brought his case within the meaning
of the said rule.
Additionally, the said rule was not framed for first time
by this Court. It is almost verbatim reproduction of
section 151 of the Civil Procedure Code and of section
561-A of the Criminal Procedure Code, and these two
sections (which in turn are in pari materia with each
other) have been part of our procedural laws for
generations, so that there is no ambiguity about of our
procedural laws for generations, so that there is no
ambiguity
about
them,
because
they
have
been
repeatedly construed by the superior Courts. Thus, for
example, taking first, section 151 of the Civil Procedure
Code, the Indian Supreme Court held in Keshardeo
Chamaria v. Radha Kissen Chamaria and others (AIR
1953 SC 23) that a Court could in the exercise of its
powers under section 151 re-call an order passed by it
without notice to the parties concerned. Next, as to
section 561-A of the Criminal Procedure Code this Court
held in Gulzar Hassan Shah v. Ghulam Murtaza and 4
others (PLD 1970 SC 335) that a Court was competent
under section 561-A to re-call an order passed by it
without notice to the parties concerned. However, as this
judgment was pronounced long after the rules of this
Court had been framed in 1956, the case-law on section
561-A before 1950 would be more relevant. We say 1950
and not 1956, because the said rule was originally
enacted as rule 6 of Order LIII of the Federal Court Rules
of 1950. And on the repeal of those rules of 1956, the
same provision was reenacted in the present rules as the
said rule."
26. We are conscious of the fact the principles of C.P.C. also
need to be examined and thus the provisions as enumerated in
Order XLVII, Rule 1 of C.P.C. would require consideration qua
its application which is reproduced herein below for ready
reference:--
"1. Application for review of judgment.--(1) Any person
considering himself aggrieved
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of Small
Const. Petition No.127 of 2012
99
Causes,
and who, from the discovery of new and important
matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be
produced by him at the time when the decree was
passed or order made, or on account of some mistake or
error apparent on the face of the record, or for any other
sufficient reason, desires to obtain a review of the
decree passed or order made against him, may apply for
a review of judgment to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except
where the ground of such appeal is common to the
applicant and the appellant, or when, being respondent,
he can present to the Appellate Court the case on which
he applies for the review."
27. A bare perusal would reveal that the salient features of
Order XLVII, C.P.C. are as under :--
(i)
discovery of new and important matter or
evidence
which
after
the
exercise
of
due
diligence, was not within his knowledge or could
not be produced by the petitioner at the time
when the decree was passed or order made; or
(ii)
on account of some mistake or error apparent on
the face of the record; or
(iii)
for any other sufficient reason. [2003 CLC 1355)
28. We have examined the salient features and grounds as
enumerated in Order XLVII, Rule 1. C.P.C. and we are of the
view in so far as these C.M.As. are concerned that neither there
is discovery of new important fact nor some mistake or error
has been pointed out and besides that no sufficient reasoning
has been advanced on the basis whereof the principle as
enunciated in Order XLVII, Rule 1, C.P.C. can be made
applicable. It may not be out of place to mention here that
"sufficient cause" is not susceptible of an exact definition and
no hard and fast rule can be laid down to cover all possible
cases. Each case must be judged upon its merits and its
peculiar
circumstances.
The
words
"sufficient
cause"
mentioned in O. XLVII, R.1 of the Code do not mean any and
every cause but it means any reason sufficient on ground at
least analogous to those stated in the rule. The view that the
"sufficient grounds" need not necessarily be construed ejusdem
generis with the words preceding cannot be accepted as laying
down the correct law." Suruj Mian v. Asst. Manager, Govt.
Acquired Estate (PLD 1960 Dacca 1045). None of the grounds
urged
by
the
petitioners
attracted
the
provisions
as
enumerated in Order XLVII, C.P.C. and thus C.M.As cannot be
declared competent. A similar proposition was examined in
Yusuf Ali v. State (PLD 1971 SC 508) with the following
observations:--
"The right of review granted by Article 62 of the
Constitution of 1962 is subject not only to the provisions
of any Act of the Central Legislature but also to the
provisions of any rules made by the Supreme Court and
the Rules of the Court specifically provide by Order XXVI
that "subject to the law and practice of the Court, the
Court may review its judgment or order in a civil
Const. Petition No.127 of 2012
100
proceeding on grounds similar to those mentioned in
Order XLVII, rule 1 of the Code and in a criminal
proceeding on the ground of an error apparent on the face
of the record". Where none of the grounds urged by the
petitioner come within the ambit of this rule no valid
ground could be said to have been made out for the
review of the judgment." (Emphasis provided)
29. It may be mentioned that the words "any other sufficient
reasons" used in Order XLVII, Rule (1)(c), C.P.C. means a
reason sufficient on grounds at least analogous to those
mentioned in a categoric manner in clauses (a),. (b), and (c) of
Rule 1 of Order XLVII, C.P.C. "A review, as has been pointed
out by this Court in the case of Lt. Col. Nawabzada Mohammad
Amir Khan v. The Controller of Estate Duty Government of
Pakistan, Karachi and another (PLD 1962 SC 335) is by its very
nature not an appeal or a rehearing merely on the ground that
one party or another conceives himself to be dissatisfied with
the decision of this Court. It can only be granted for some
sufficient cause akin to those mentioned in Order XLVII, rule 1
of the Code of Civil Procedure the provisions whereof
incorporate the principles upon which a review can be
granted." In this regard we are fortified by the dictum laid
down in the following authorities:
(i)
Chhaju v. Neki (AIR 1922 PC 112),
(ii)
Iftikhar Hussain Shah v. Azad Govt. of The State
of J & K (PLD 1984 SC AJ&K 111),
(iii)
Muhammad Ghaffar v. State (1969 SCMR 10)
30. In our view decision once given cannot be reviewed subject
to certain legal exceptions pursuant to the provisions as
enumerated in Order XLVII, Rule 1, C.P.C., scope whereof can
neither be enlarged nor it can be farfetched in such a manner
as argued by the learned Advocate Supreme Courts for the
petitioners in view of the language as employed in Order XLVII,
Rule 1, C.P.C. its application would be only up to that limited
extent and it cannot be unlimited. As mentioned above, the
powers of review are not wide but definite and limited in
nature. "It has to be confined to the four corners of the relevant
rules or the phrase or for any other sufficient reason even the
review jurisdiction as visualized must be traced to Order XLVII
which contains the prescribed conditions and limitations in
terms of the requirement of the section and more so power to
review is not an inherent power. On a proper consideration it
will be found that the principles underlying the limitations
mentioned in Order XLVII, rule 1, Civil Procedure Code, are
implicit in the nature of review jurisdiction and cannot be
equated to that of a technical obstruction." In this regard the
case law as enunciated in the following cases can be referred:--
Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah.
596), Prahlad Krishna Kurne AIR 1951 Bom. 25, Hajee
Suleman v. Custodian Evacuee Property (AIR 1955
Madhya Bharat 108, Rukan Din and others v. Hafiz-ud-
Din and another (PLD 1962 Lah. 161), Mohd. Amir
Khan v. Controller of Estate Duty PLD (1962 SC 335)
Abdul Jabbar v. Collector of Central Excise and Land
Customs Review Application No.15 of 1959 (Quetta)
unreported considered.
31. Mr. Justice Pir Hamid (as he then was) while discussing
the provisions as enumerated in Order XLVII; Rule 1; C.P.C.
has opined that "I for my part would be inclined to hold that a
review is by its very nature not an appeal or a rehearing merely
Const. Petition No.127 of 2012
101
on the ground that one party or another conceives himself to
be dissatisfied with the decision of this Court, but that it
should only be granted for some sufficient cause akin to those
mentioned in Order XLVII, rule 1 of the Code of Civil
Procedure, the provisions whereof incorporate the principles
upon which a review was usually granted by Courts of law in
England. The indulgence by way review may no doubt be
granted to prevent remediable injustice being done by a court
of last resort as where by some inadvertence an important
statutory provision has escape notice which, if it had been
noticed, might materially have affected the judgment of the
Court but in no case should a rehearing be allowed upon
merits." (Emphasis provided). (Muhammad Amir Khan v.
Controller of Estate Duty PLD 1962 SC 335, Young v. Bristol
Aeroplane Company Limited (1944) 1 K B 718, Gower v. Gower
(1950) 1 A E R 804 distinguished).
32. Mr. Justice Ghulam Mujaddid Mirza (as he then was) has
also examined the provisions as enumerated in section 114,
C.P.C. and Order XLVII, Rule 1, C.P.C. in the light of dictum
laid down in H. M. Saya & Co. Karachi v. Wazir Ali Industries
Ltd. Karachi and another (PLD 1969 SC 65) as under:--
"2. I called upon Mr. K. H. Khurshid, learned counsel for
the petitioners to first convince me as to how this petition
was competent when the petitioners were not a party to
the writ proceedings. Learned counsel submitted that as
the petitioners had been adversely affected by the order
of this Court dated the 5th of December 1973, they are,
therefore, aggrieved persons and hence have a locus
standi to file this petition in the present form. Learned
counsel relied on PLD 1971 SC 130, in order to prove that
the petitioners were aggrieved persons but in my view
this authority would not be of much help to him because
in this case the question examined was as to who would
be the person aggrieved within the ambit of Article 98 of
the late Constitution of Islamic Republic of Pakistan
whereas in the instant case the petitioners have to bring
their case within the purview of Order XLVII, rule 1,
C.P.C. Learned counsel tried to avail of section 114,
C.P.C. which deals with the power of review and argued
that
the
words
"any
person
considering
himself
aggrieved" were wide enough to include even those
persons who initially were not a party to the proceedings
but at a later stage were affected by an order adverse to
their interest. My attention was invited to Order XLVII,
rule 1, C.P.C. and it was submitted that even in this
provision
the
above mentioned
words
have
been
repeated, and the learned counsel, therefore, emphasized
that these words would cover the case of even a
stranger, the only essential requisite being that he must
consider himself to be an aggrieved person, the test for
which, according to the learned counsel would be
subjective. Reliance was also placed on H.M. Saya & Co.,
Karachi v. Wazir Ali Industries Ltd. Karachi and another
(PLD 1969 SC 65) with special reference to the following
observations:
There can be no dispute that the only party which was
adversely affected by the order of ad interim injunction
was respondent No.1. We are satisfied that Saya & Co.,
deliberately omitted to make them parties with the
intention of avoiding a contest. They knew fully well that
the relief sought were really directed against Wazir Ali
Industries Limited, and their bankers. A stranger to a
suit or a proceeding is not prohibited by the Code of Civil
Procedure from filing an appeal from an order passed
therein. It is true that there is no express provision
Const. Petition No.127 of 2012
102
permitting such party to prefer an appeal against such an
order. This omission, however, cannot be understood to
amount to prohibition. The Court ought not to act on the
principle that every procedure is to be taken as
prohibited unless it is expressly provided for. To give
such a meaning to the omission would result in grave
injustice. The facts of this case are clear example in
point. The Court should proceed on the principle that
every procedure which furthers administration of justice
is permissible even if there is no express provision
permitting the same. Section 96 of the Civil Procedure
Code deals with appeals from decrees and section 104
deals with appeals from orders. These provisions do not
in terms say who is entitled to prefer an appeal. The
Code, however, lays down that it is the decree or the
order that has to be appealed against. If the decree or
order appealed from adversely affects a person he should
be permitted to challenge the same in appeal even if he
was not made a party to the original suit for proceeding."
and it was argued that the principle laid down in this
case was fully applicable to the present petition and
hence not only that the petition was competent but also
that the order dated the 5th of December 1973, of this
Court deserves to be reviewed.
3. I have very carefully gone through this decision and
find that the law laid down by the Supreme Court is only
with regard to the appellate proceedings, whereas the
scope of review is much different and the review
jurisdiction is substantially and materially different to
the appellate jurisdiction because it can be only utilized
on the specific grounds mentioned in Order XLVII, rule 1,
C.P.C. (Emphasis provided). In this connection it would be
worthwhile to reproduce in extenso rule 1 of Order XLVII,
C.P.C. which is to the following effect:-
"(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence,
was not within his knowledge or could not be produced
by him at the time when the decree was passed or order
made, on account of some mistake or error apparent on
the face of the record, or for any other sufficient reason,
desires to obtain a review of the decree passed or order
made against him may apply for a review of judgment to
the Court which passed the decree or made the order."
The important words to be noted in this connection are
"desires to obtain a review of the decree passed or order
made". These words leave no room for doubt that the
remedy of review could be availed of only by a person
who initially was a party to the proceedings in which
either a decree had been passed or an order had been
made against him, otherwise the very essence of the
grounds on which a review would be competent, would
be rendered ineffective. It is, therefore, obvious that a
stranger to the proceedings would not be permitted to
avail of the grounds on which a review petition would be
Const. Petition No.127 of 2012
103
competent. I, therefore, do not agree with the contention
of the learned counsel that a wider interpretation of the
words "any person considering himself aggrieved" would
be the only proper and reasonable interpretation. On the
other hand, I find that these words would have to be
read and interpreted in the light of the main rule and
when so done in my view their operation would be
restricted and would cover the case of only those persons
who initially were party to the proceedings." (Emphasis
provided). (Qaim Hussain v. Anjuman Islamia PLD 1974
Lah. 346).
64.
From the above discussion it will be seen that depending
upon the peculiar facts and circumstances of each case, which
enables the Court to form its opinion, all the above discussed
jurisdictions conferred to the apex Court under the scheme of the
Constitution are closely interlinked, rather, overlapping in some
areas, therefore, without entering into the intricacies of such
technicalities, this Court is competent to pass any order to foster
the cause of justice; eliminating the chances of perpetuating
illegality and to save an aggrieved party from being rendered
remedy less. If any further case law is needed to fortify this view,
reference can also be made to number of other cases referred by
the learned ASCâs in their respective arguments and discussed in
the earlier part of this judgment as well as the cases of Syed
Wajihul Hassan Zaidi v. Government of the Punjab and others
(PLD 2004 SC 801) and Mrs. Shahida Zahir Abbasi v. President of
Pakistan (PLD 1996 SC 632), which further lays down as under:-
Excerpt from the Wajihul Hassan Zaidi (supra)âs case.
17.
Admittedly, we are not Sitting in appeal over the judgment
rendered by a Full Bench of this Court and the scope of review is
very restricted within the parameters laid down by this Court in
Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690),
Arif Shah v.; Abdul Hakeem Qureshi (PLD 1991 SC 905) and
Abdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363).
We are of the considered view that even if the view taken by this
Court in the decision of the appeal be erroneous, it does not
warrant revisiting by this Bench in the exercise of review
jurisdiction, which can only be exercised when an error or
Const. Petition No.127 of 2012
104
mistake is manifestly shown to float on the face of record, which
is patent and if allowed to remain intact would perpetuate
illegality and gross injustice. Basic object behind the conferment
of power of judicial review on superior Courts essentially is to
foster justice and eliminate chances of perpetuating illegality.
Principal aim and spirit underlying judicial review of orders
passed or actions taken by executive or quasi-judicial forums is
to respect law and to enforce primacy of the Constitution and the
law. There can be no cavil with the proposition that writ
jurisdiction is completely discretionary in nature and invocable in
order to meet blatant illegalities, total lack of jurisdiction,
unwarranted exercise of authority otherwise not conferred by law
or preventing retention of ill-gotten gains. Discretion exercised
within the contemplation of Articles 185 & 187 of the
Constitution by this Court is a too wide in nature and stands at a
higher pedestal. It is obligatory for this Court to ensure that apart
from legal requirements broad equitable principles of law are not
infringed so that complete justice can be dispensed with if
equitable situation demands and legal formulations do not take
the controversy to its logical end. This Court would be grossly
failing in duty if it over-looks equitable considerations and alters
the final verdict in the exercise of its extraordinary jurisdiction.â
Excerpt from Mrs. Shahida Zahir Abbasi (supra)âs case.
From above-quoted passages, it is quite clear that whether
a particular case involved the element of "public importance" is a
question which is to be determined by this Court with reference to
the facts and circumstances of each case. There is no hard and
fast rule that an individual grievance can never be treated as a
matter involving question of public importance. Similarly it
cannot be said that a case brought by, a large number of people
should always be considered as a case of "public importance"
because a large body of persons is interested in the case. The
public importance of a case is determined as observed by this
Court in Manzoor Ellahi's case, supra, by decision on questions
affecting the legal rights and liberties of the people at large, even
though the individual who may have brought the matter before
the Court is of no significance. Similarly, it was observed in
Benazir Bhutto's case, supra, that public importance should be
viewed with reference to freedom and liberties guaranteed under
Constitution, their protection and invasion of these rights in a
manner which raises a serious question regarding their
enforcement, irrespective of the fact whether such infraction of
right, freedom or liberty is alleged by an individual or a group of
individuals. In the case of Employees of Pakistan Law
Commission v. Ministry of Works 1994 SCMR 1548, Saleem
Const. Petition No.127 of 2012
105
Akhtar, J., relying on the observations in Benazir Bhutto's case,
supra, on the scope of Article 184(3) of the Constitution observed
as follows:--
"In Benazir Bhutto's case it was observed as follows:
The plain language of Article 184(3) shows that it is
open-ended. The Article does not say as to who shall have
the right to move the Supreme Court nor does it say by
what proceedings the Supreme Court may be so moved. or
whether it is defined to the enforcement of the Fundamental
Rights of an individual which are infracted or extends to the
enforcement of the rights of a group or a class of persons
whose rights are violated. "
âĻâĻ. âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ..
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
From the above discussion, it is quit clear that this Court
while construing the provisions of Article 184(3) of the
Constitution did not follow the conventional interpretative
approach based on technicalities and ceremonious observance of
rule or usage of interpretation. Keeping in view the avowed spirit
of the provision, this Court, preferred the interpretative approach
which received inspiration from the triad of provision which
saturated and invigorated the entire Constitution, namely, the
Objectives Resolution (Article 2A), the Fundamental Rights and
Directive Principles of State Policy so as to achieve, democracy,
tolerance, equality and social justice according to Islam. This
liberal interpretative approach opened the door of "access to
justice to all".
65.
As a result of above discussion with detailed reference to
some celebrated judgments of this Court, we have no hesitation to
hold that this petition is very much competent and maintainable,
thus, no exception could be taken to its maintainability on any of
the grounds urged by the learned Sr.ASCs/ASCs and the retired
judges of the High Court.
66.
To proceed further, as the whole controversy in the
present proceedings originates and revolves around the âright to
pensionâ of honourable retired judges of the High Court, before
examining the above noted point No.2, as a next step it will be
appropriate rather useful to dilate upon the true connotation and
concept of pension, which has undergone radical changes in the
Const. Petition No.127 of 2012
106
last century. In this regard, it will be useful to reproduce
hereunder
few
definitions
of
word
âpensionâ
from
some
authoritative books/dictionaries and thereafter to reproduce some
discussion from the judgment in the case of I.A Sharwani (supra),
which is quite pertinent on this subject.
Blackâs Law Dictionary.
âPension. Retirement benefit paid regularly (normally,
monthly), with the amount of such based generally on
length of employment and amount of wages or salary of
pensioner. Deferred compensation for services rendered.â
In the New Encyclopedia Britannica Vol.9, 15th Edition
at p.266 the following is laid down for the term
âPensionâ:-
âPension: Series of periodic money payments made to a
person who retires from employment because of age,
disability, or the completion of an agreed span of service.
The payments generally continue for the remainder of the
natural life of the recipient, and sometimes to a widow or
other survivor. Military pensions have existed for many
centuries; private pension plans originated in Europe
during the 19th century. Eligibility for and amounts of
benefits are based on a variety of factors, including length
of employment, age, earnings, and, in some cases, past
contributions.â
In Law Laxican defined âpensionâ as follows:-
Pension defined, Act 21, 1886, S.2-241C803 a periodical
payment made by a Government, company or, any
employer or labour in consideration of past services or the
relinquishment of rights; claims or emoluments; regular
payments to persons in order that they may maintain
themselves. Art.112(3)(d)(i) Const.
I.A Sharwaniâs case (supra).
â15.
Having dealt with the above legal preliminary objections,
we may now revert to the merits of the case. Before dealing with
the respective contentions of the learned counsel for the parties,
we may first refer to the definition and raison d'etre of the term
"pension" and the nature of right in respect thereof. In this
Const. Petition No.127 of 2012
107
regard, reference may be made to Encyclopaedia Britannica,
Volume 17, 1963 Edition, page 488, Corpus Juris Secundum,
Volume 67, pages 763 and 764, Corpus Juris Secundum, Volume
70, page 423, American Jurisprudence, Volume 40, pages 980
and 981, and para. 29 from the judgment in the case of D.S.
Nakara and others v. Union of India (supra), which read as
follows:--
Extract from Encyclopaedia Britannica Vol. 17 1963
Edition Page 488.---"Pensions are periodic payments,
usually for the natural life of a person who retires because
of age or disability. Sometimes the term refers to, periodic
payments to wives, widows or children of a primary or
deceased person or pensioner; occasionally, a pension will
be conveyed solely as an honour for conspicuous service
or valour. Pensions are provided by Government in three
guises: (1) as compensation or recompense to war veterans
and families for old age or for disability or death, usually
from service causes; (2) as disability or old age retirement
benefits for civilian employees of government; (3) as social
security payments for the aged, disabled or deceased
citizenry based on past employment history or subject to
current evidence of need. Pensions are also provided by
many non-Governmental employers as a means of
protecting workers retiring for age or disability and for
relieving the payroll of superannuated personnel. They are
sometimes provided by union-management welfare funds,
associations or trusteeships. Only rarely do employees in
groups, associations or unions undertake their own
pension programme without employer or Government
assistance."
Extract from Corpus Juris Secundum. Vol. 67. pages
763-764.---"Except as limited by the Constitution the
establishment of a pension system is within the scope of
the legislative power. The granting of pensions to public
officers or public employees serves the public purpose,
and is designed to induce competent persons to enter and
remain in the public' service or employment, and to
encourage the retirement from public service of those who
have become incapacitated from performing their duties as
well as they might be performed by younger or more
vigorous persons. It has also been stated that a pension
system is intended to promote efficient, continued and
faithful service to the employer and economic security to
the employees and their dependents, by an arrangement
Const. Petition No.127 of 2012
108
under
which,
by
fulfilment
of
specified
eligibility
requirements, pensions become property of the individual
as a matter of right upon the termination of public
service."
Extract from Corpus Juris Secundum. Vol. 70, page
423.---"A pension is a periodical allowance of money
granted by the Government in consideration or recognition
of meritorious past services, or of loss or injury sustained
in the public service. A pension is mainly designed to
assist the pensioner in providing for his daily wants, and
it presupposes the continued life of the recipient."
Extract from American Jurisprudence, Vo1.40, pages 980
and 981.---"The right to a pension depends upon statutory
provisions therefore, and the existence of such right in
particular instances is determinable primarily from the
terms of the statute under which the right or privilege is
granted. The right to a pension may be made to depend
upon such conditions. as the grantor may see fit to
prescribe. Thus, it has been held that it may be provided,
in a general Pension Act, that any person who accepts the
benefits thereof shall forfeit his right to a special pension
previously granted."
Para. 29 from the judgment in the case of D.S. Nakara
and others v. Union of India (supra).---"Summing-up it
can be said with confidence that pension is not only
compensation for loyal service rendered in the past, but
pension also has a broader significance, in that it is a
measure of socio-economic justice which inheres economic
security in the fall of life when physical and mental
prowess is ebbing corresponding to aging process and,
therefore, one is required to fall back on savings. One
such saving in kind is when you give your best in the hey
day of life to your employer, in days of invalidity,
economic security by way of periodical payment is
assured. The term has been judicially defined as a stated
allowances or stipend made in consideration of past
service or a surrender of rights or emoluments to one
retired from service. Thus the pension payable to a
Government employee is earned by rendering long and
efficient service and therefore can be said to be a deferred
portion of the compensation for service rendered. In one
sentence one can say that the most practical raison d'etre
for pension is the inability to provide for oneself due to
Const. Petition No.127 of 2012
109
old-age. One may live and avoid unemployment but not
senility and penury if there is nothing to fall back upon."
16.
It seems that there are various kinds of pension schemes
which are obtaining in various countries of the world. However,
the same can be divided into two broad categories, namely, (i)
Government Pension Schemes; (ii) Non-Government Pension
Schemes. Each of the above category can be sub-divided into a
number of sub-categories according to the object for which a
particular scheme is designed. In the instant case, we are mainly
concerned
with
the
pension
schemes
meant
for
public
employees/public officers, who are known in the Sub-Continent
as civil servants.
A pension is intended to assist a retired civil servant in
providing for his daily wants so long he is alive in consideration of
his past services, though recently the above benefit has been
extended inter alia in Pakistan to the widows and the dependent
children of the deceased civil servants. The raison d'etre for
pension seems to be inability to provide for oneself due to old-age.
The right and extent to claim pension depends upon the terms of
the relevant statute under which it has been granted.
17. In the Sub-Continent during the British Rule since it was
considered that the salary which a -civil servant drew was a
bounty, the same view was held in respect of the pension.
However, the above controversy has been settled inasmuch as
this Court in more than one case; has held that the concept that
the salary which a civil servant drew was a bounty, was no longer
the law of the country. Reference may be made to the case of The
State of Pakistan and another v. Mehrajuddin (P L D 1959 S C
(Pak.) 147). As regards the right to claim pension, the controversy
has been set to rest by this Court inter alia in the case of The
Government
of
N-W.F.P.
through
The
Secretary
to
the
Government
of
N.-W.F.P..
Communication
and
Works
Departments, Peshawar v. Muhammad Said Khan and another (P
L D 1973 S C 514), wherein the following view has been taken:--
"It must now be taken as well-settled that a person who
enters Government service has also something to look
forward after his retirement, to what are called retirement
benefits, grant of pension being the most valuable of such
benefits. It is equally well-settled that pension like salary of
a civil servant is no longer 'a bounty but is a right acquired
after putting in satisfactory service for the prescribed
minimum period. A fortiori, it cannot be reduced or refused
arbitrarily except to the extent and in the manner provided
Const. Petition No.127 of 2012
110
in the relevant rules. Conversely full pension admissible
under the rules is not to be given as a matter of course
unless the service rendered has been duly approved. (See
Article 470, Civil Service Regulations). It is equally
well-settled that if the service has not been thoroughly
satisfactory, the authority sanctioning the pension is
empowered under the said Article to make such reduction
in the amount as it may deem proper. This power is
however exercisable only before pension is actually
sanctioned."
The same view has been taken by the Indian Supreme Court in
the case of Deokinandan Prasad v. State of Bihar and others (AIR
1971 SC 1409) and the case of State of Punjab and another v.
Iqbal Singh (AIR 1976 SC 667).
[Also see: D.S. Nakara and others v. Unionof India (AIR 1983 SC
130) and Kerala State Road Transport Cooperation v. K.O
Varghese and others (AIR 2003 SC 3966)]
67.
The gist of the discussion made in the above cited cases
on the subject of pension is that it is a right which the Government
servants or employees in different positions and different capacities
earn in terms of the relevant statutory provisions applicable to
their case, mostly depending upon their length of service. In any
case it is not a State bounty which can be awarded to any
individual outside the scope of the applicable statute, as a favour.
68.
After the above discussion, when we move forward to
dilate upon, discuss and adjudicate the second point relating to
the interpretation of Article 205, read with Fifth Schedule to the
Constitution and applicable Presidentâs Order in the light of
submissions made before us and the law, we deem it appropriate
to firstly, discuss the concept of interpretation of statutes,
particularly the constitutional provisions; briefly trace out the
history of legislation in this context; reproduce hereunder the
relevant statutory provisions commencing from Government of
India Act, 1935; various Orders/Presidentâs Orders relating thereto
in sequence, and also to give a brief resume/ comment on the
Const. Petition No.127 of 2012
111
statutory provisions of some other countries regulating pensionary
benefits of the honourable retired judges of the superior Courts in
those countries, with specific reference to the requirement of
minimum length of service to earn the right to pension, as they are
somewhat âpari materiaâ to the constitutional provisions and the
Presidentâs Order in vogue in our country.
69.
As regards the concept of interpretation, we find that it is
a method by which the true sense or meaning of the word is traced
out and understood. The process by which a Judge or a person or
a lawyer associated in the search of meaning of a statute,
constructs from the word of statute book a meaning, which he
either believes to be intent of the legislature or which he proposes
to attribute to it, is called âinterpretationâ. Salmond in his famous
book on the Interpretation of Statutes, describes interpretation or
construction as the process by which Courts seek to ascertain the
meaning of the legislature through the medium of authoritative
forms in which it is expressed. Other renowned jurists and legal
experts have designated the principle of interpretation of statute as
âan art of proliferating a purposeâ, or a science by itself and the
purpose behind interpretation is to seek the intention of its law
maker. In the same context, when we revert to some well
recognized principles of interpretation of statute, we find the
following basic principles outlined for this purpose.
âa.
That the entire Constitution has to be read as an
integrated whole.
b.
No one particular provision should be so construed as to
destroying the other, but each sustaining the other
provision.
This
is
the
rule
of harmony,
rule
of
completeness and exhaustiveness.
c.
Interpretation to be consistent with the Injunctions of
Islam.
Const. Petition No.127 of 2012
112
d.
It must always be borne in mind that it is only where the
words are not clear, or the provision in question is
ambiguous, that is, it is fairly and equally open to diverse
meanings, that the duty of interpretation arises.
e.
Intention to be gathered from the language of the
enactment, otherwise known as the âplain meaning ruleâ.
f.
It is elementary rule of construction that it is to be
assumed that the words and phrases of technical
legislation are used in their technical meaning, if they
have acquired one, and otherwise in their ordinary
meaning. Critical and subtle distinctions are to be avoided
and the obvious and popular meaning of the language
should, as a general rule, be followed.
g.
It is a cardinal rule of construction of statutes that no
words are to be added or omitted or treated as surplusage
or redundant.
h.
That the words of written Constitution prevail over all
unwritten conventions, precedents and practices to the
contrary.
i.
Legislative
history
is
relevant
for
interpreting
constitutional provisions.â
70.
Having discussed above the concept of âPensionâ and
âinterpretation of statutesâ , for ready reference, now we reproduce
in sequence the relevant constitutional provisions, Presidentâs
Orders etc as under:-
Government of India Act, 1935.
âSalaries, &c.
of judges
221. The judges of the several High Courts
shall. be entitled to such salaries and allowances,
including allowances for expenses in respect of
equipment and travelling upon appointment, and
to such rights in respect of leave and pensions, as
may from time to time be fixed by His Majesty in
Council:
Provided that neither the salary of a judge,
nor his rights in respect of leave of absence or
pension, shall be varied to his disadvantage after
his appointment.â
THE HIGH COURT JUDGES ORDER, 1937
ââĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
âĻâĻ..AND WHEREAS by section two hundred and twenty-one of
the Act it is provided that the Judges of the several High Courts
Const. Petition No.127 of 2012
113
shall be entitled to such salaries and allowances, including
allowances for expenses in respect of equipment and travelling
upon appointment, and to such rights in respect of leave and
pensions, as may from time to time be fixed by His Majesty in
Council:
.
.
.
PENSIONS
17.â(1) Subject to the provisions of this Order, a pension shall be
payable to a Judge on his retirement if, but only if, either â
(a)
he has completed not less than 12 yearsâ service
for pension; or
(b)
he has completed not less than 7 yearsâ service for
pension and has attained the age of sixty; or
(c)
he has completed not less than 7 yearsâ service for
pension and his retirement is medically certified to
be necessitated by ill-health.
(2)
the President may for special reasons direct that any
period not exceeding three months shall be added to a Judgeâs
service for pension.
Provided that a period so added shall be disregarded in
calculating any additional pension under Part I or Part II of the
Third Schedule to this Order.â
THE CONSTITUTION OF INDIA, 1949
(Pre 54th Amendment)
â221. Salaries, etc., of Judges.â(1) There shall be paid to the
Judges of each High Court such salaries as are specified in the
Second Schedule.
(2)
Every Judge shall be entitled to such allowances
and to such rights in respect of leave of absence and pension as
may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and
rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his
rights in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.â
(Post 54th Amendment)
â221.
Salaries, etc., of Judges.â(1) There shall be paid to
the Judges of each High Court such salaries as may be
determined by Parliament by law and, until provision in that
Const. Petition No.127 of 2012
114
behalf is so made, such salaries as are specified in the Second
Schedule.
(2)
Every Judge shall be entitled to such allowances
and to such rights in respect of leave of absence and pension as
may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and
rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his
rights in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.
âSalariesâ.âThe salaries received by the High Court/the
Supreme Court Judges are âsalariesâ and are taxable under the
Income
Tax
Act,
though
the
Judges
are
Constitutional
functionaries having no employer.â
The Constitution of the Islamic Republic of Pakistan, 1956.
â175.â(1) The remuneration and other conditions of service of a
Judge of the Supreme Court or of a High Court shall not be varied
to his disadvantage during his tenure of office.
(2)
Subject to Article 151, the conduct of a Judge of the
Supreme Court or of a Judge of a High Court shall not be
discussed in the National or a Provincial Assembly.
176.
âĻâĻ.
177.
Until other provisions in that behalf are made by Act of
Parliament, the provisions of the Third Schedule shall apply in
relation to the Supreme Court and High Courts in respect of
matters specified therein.
THIRD SCHEDULE
(Articles 159 and 177)
The Judiciary
PART I
THE SUPREME COURT
1.
Salary and allowances of Judges. â âĻâĻâĻ.
_______________________
PART II
THE HIGH COURTS
4.
Salaries of Judges.â(1) There shall be paid to the Chief
Justice of a High Court a salary of Rs.5,000 per mensem, and to
every other Judge of that Court a salary of Rs.4,000 per mensem.
Const. Petition No.127 of 2012
115
(2) Every Judge of a High Court shall be entitled to such
other privileges and allowances, including allowances for
expenses in respect of equipment and travelling upon first
appointment, and to such rights in respect of leave of absence
and pensions as may be determined by the President, and until
so determined to the allowances, privileges and rights which
immediately before the Constitution Day, were admissible to the
Judges of the High Court, and the provisions of the Government
of India (High Court Judges) Order, 1937, shall, subject to the
provisions of the Constitution, apply.â
The Constitution of the Islamic Republic of Pakistan, 1962.
âCHAPTER-3.âTHE CENTRAL AND PROVINCIAL JUDICATURES.
.
.
.
124.
The remuneration and other terms and conditions of
service of a Judge of the Supreme Court or of a High Court shall
be as provided in the Second Schedule.
SECOND SCHEDULE
Article 124
Remuneration and Terms and Conditions of Service of Judges
THE SUPREME COURT
1.
There shall be paid to the Chief Justice of the Supreme
Court a salary of Rs.5,500 per mensem, and to every other Judge
of the Supreme Court a salary of Rs.5,100 per mensem.
2.
Every Judge of the Supreme Court shall be entitled to
such privileges and allowances, and to such rights in respect of
leave of absence and pension, as may be determined by the
President, and until so determined, to the privileges, allowances
and rights to which, immediately before the commencing day, the
Judges of the Supreme Court of Pakistan were entitled.
THE HIGH COURTS
1.
There shall be paid to the Chief Justice of a High Court a
salary of Rs.5,000 per mensem, and to every other Judge of a
High Court a salary of Rs.4,000 per mensem.
2.
Every Judge of a High Court of a Province shall be entitled
to such privileges and allowances, and to such rights in respect of
leave of absence and pension, as may be determined by the
President, and until so determined, to the privileges, allowances
and rights to which, immediately before the commencing day, the
Judges of the High Court of the Province were entitled.â
Const. Petition No.127 of 2012
116
âPRESIDENT'S ORDER 9 OF 1970
HIGH COURT JUDGES (LEAVE, PENSION AND PRIVILEGES)
ORDER, 1970
PART I-PRELIMINARY
1. Short title and commencement.-(l ) This Order may be called
the High Court Judges (Leave, Pension and Privileges) Order,
1970.
.
.
.
PART III â PENSION
13. Conditions of admissibility of pension.âA Judge shall, on his
retirement, resignation or removal, be paid a pension in
accordance with the provisions of this Order if he has â
(a) completed not less than five years of service for pension
and attained the retiring age; or
(b) completed not less than ten years of service for pension
and, before attaining the age, resigned; or
(c)completed not less than five years of service for pension
and, before attaining the retiring age, either resigned, his
resignation
having
been
medically
certified
to
be
necessitated by ill-health, or been removed for physical or
mental incapacity:
Provided that, for the purpose of clause (a) of Part I of the
First Schedule a deficiency of three months or less in the
service for pension as Judge shall be deemed to have been
condoned.
14. Determination of pension.âSubject to the provisions of this
Order, the pension payable to a Judge who, on his retirement, is
entitled to a pension under this Order shall be calculatedâ
(a) in the case of a Judge who is not a member of a service in
Pakistan or who immediately before his appointment as a
Judge did not hold any other pensionable civil post in
connection with the affairs of the Centre or of a Province, in
accordance with the provisions of Part I of the First Schedule;
(b) in case of a Judge who is a member of a civil service in
Pakistan or who immediately before his appointment as a
Judge held any other pensionable civil post in connection with
the affairs of the Centre or of a Province, in accordance with
the provisions of Part II of the First Schedule, unless he elects
to receive pension under Part I of the said Schedule.
15. Pension of Judges not covered by paragraph 13.âA Judge
who immediately before his appointment as such was a
member of a civil service in Pakistan or was holding a post in
connection with the affairs of the Centre or of a Province and
who does not fulfill the conditions laid down in paragraph 13
shall, on retirement, be entitled to such pension as would
have been admissible to him in his service or post, had he not
Const. Petition No.127 of 2012
117
been appointed a Judge, his service as a Judge being treated
as service for the purpose of calculating that pension.â
Constitution of the Islamic Republic of Pakistan, 1973
PART VII
THE JUDICATURE
CHAPTER 4-GENERAL PROVISIONS RELATING TO THE JUDICATURE
.
.
.
205. Remuneration, etc., of Judges. The remuneration and other terms
and conditions of service of a Judge of the Supreme Court or of a High
Court shall be as provided in the Fifth Schedule.
FIFTH SCHEDULE
[Article 205]
Remuneration and Terms and Conditions of Service of Judges.
THE SUPREME COURT
1.
There shall be paid to the Chief Justice of Pakistan a
salary of Rs.9,900 per mensem, and to every other Judge of the
Supreme Court a salary of Rs.9,500 per mensem, or such higher
Salary as the President may, from time to time determine.
2.
Every Judge of the Supreme Court shall be entitled to
such privileges and allowances, and to such rights in respect of
leave of absence and pension, as may be determined by the
President, and until so determined, to the privileges, allowances
and rights to which, immediately before the commencing day, the
Judges of the Supreme Court of Pakistan were entitled.
3.
The pension payable to a retired Judge of the Supreme
Court per mensem shall not be less or more than the amount
specified in the table below, depending on the length of his service
as Judge in that Court or a High Court:
Provided that the President may, from time to time, raise
the minimum or maximum amount of pension so specified:-
Judge
Minimum amount Maximum amount
Chief Justice
Rs. 7,000
Rs. 8,000
Other Judge
Rs. 6,250
Rs. 7,125
4.
The widow of a Judge of the Supreme Court shall be
entitled to a pension at the following rates, namely:-
(a)
if the Judge dies after retirement - 50 per cent of
the net pension payable to him; or
(b)
if the Judge dies after having rendered not less
than three year's service as Judge and while still
serving as such - 50 per cent of the pension
admissible to him at the minimum rate.
5.
The pension shall be payable to the widow for life or, if she
remarries, until her marriage.
6.
If the widow dies, the pension shall be payable:-
(a)
to the sons of the Judge who are less than twenty-
one years of age, until they attain that age; and
Const. Petition No.127 of 2012
118
(b)
to the unmarried daughters of the Judge who are
less than twenty-one years of age, until they attain
that age or are married, whichever first occurs.
THE HIGH COURT
1. There shall be paid to the Chief Justice of a High Court a
salary of Rs. 9,400 per mensem, and to every other Judge of a
High Court a salary of Rs.8,400 per mensem, or such higher
salary as the President may, from time to time, determine.
2. Every Judge of a High Court shall be entitled to such privileges
and allowances, and to such rights in respect of leave of absence
and pension, as may be determined by the President, and until so
determined, to the privileges, allowances and rights, to which,
immediately before the commencing day, the Judges of the High
Court were entitled.
3. The Pension payable per mensem to a Judge of a High Court
who retires after having put in not less than five years service as
such Judge shall not be less or more than the amount specified
in the table below, depending on the length of his service as
Judge and total service, if any, in the service of Pakistan:
Provided that the President may, from time to time, raise the
minimum or maximum amount of pension so specified:-
Judge
Minimum amount
Maximum amount
Chief Justice
Rs. 5,640
Rs. 7,050
Other Judge
Rs. 5,040
Rs. 6,300
4. The widow of a Judge of the High Court shall be entitled to a
pension at the following rates, namely:-
(a)
if the Judge dies after retirement - 50 per cent of
the net pension payable to him; or
(b)
if the Judge dies after having rendered not less
than five years' service as Judge and while still
serving as such - 50 per cent of the pension
admissible to him at the minimum rate.
5. The pension shall be payable to the widow for life, or, if she
remarries until her marriage.
6. If the widow dies, the pension shall be payable:-
(a)
to the sons of the Judge who are less than twenty-
one years of age, until they attain that age; and
(b)
to the unmarried daughters of the Judge who are
less than twenty-one years of age, until they attain
that age or are married, whichever first occurs.
High Court Judges (Leave, Pension and Privileges) Order, 1997
PRESIDENT'S ORDER 3 OF 1997
âPART I-PRELIMINARY
1. Short title and commencement.-(l ) This Order may be called
the High Court Judges (Leave, Pension and Privileges) Order,
1997.
(2)
It shall come into force at once and paragraph
15 shall be deemed to have taken effect on the 27th day of July,
1991.
Const. Petition No.127 of 2012
119
2.
Definitions.â âĻâĻâĻ..
(a)
âĻâĻ
(b)
âactual serviceâ means the time spend by a Judge
on duty as such or in the performance of such
other functions as he may be required under any
law to perform or may be requested by the
President or the Governor to discharge and
includes vacation (but excluding any time during
which the Judge is absent on leave) and joining
time on transfer fromâ
(i)
a High Court to the Supreme Court;
(ii)
the Supreme Court to a High Court;
(iii)
one High Court to another;
(iv)
one permanent seat of a High Court to
another permanent seat ;
(v)
a High Court to the place where he is
required under any law to perform any
function; and
(vi)
from a place where he is required under
any law to perform any function to another
such place or to a High Court;
(c)
âAdditional Judgeâ means a Judge appointed by
the President to be an Additional Judge;
(d-e)
âĻâĻ...
(f)
âJudgeâ means a Judge of High Court and include
the Chief justice, and Acting Chief Justice and an
Additional Judge;
.
.
.
PART III. PENSION
14.
The condition or admissibility of pension.âA Judge
shall, on his retirement, resignation or removal, be paid a pension
in accordance with the provisions of this Order if he has--
(a)
completed not less than five years of service for
pension and attained the retiring age; or
(b)
completed not less than five years of service for
pension and before attaining the age, resigned or
sought retirement; or
(c)
completed not less than five years of service for
pension and, before attaining the retiring age,
either resigned, his resignation having been
medically certified to be necessitated by ill-health
or been removed for physical or mental incapacity
or been allowed by the President for sufficient
cause to retire.
Const. Petition No.127 of 2012
120
15.
Payable Pension.â The Chief Justice and a Judge on his
retirement, resignation or removal as provided in paragraph 14
shall be entitled to the minimum amount of pension equal to
seventy per cent of the salary determined by the President from
time to time payable to the Chief Justice, or as the case may be, a
Judge on the completion of five years service for pension as
Judge, and therefore an extra pension at the rate of two per cent
of such salary for each subsequent completed year of service as
the Chief Justice or, as the case may be, the Judge, including his
service if any, in the service of Pakistan the maximum pension
not exceeding eighty per cent of the said salary.
Provided that for the period between twenty-seventh day of
July, 1991 and the thirty-first day of May, 1994 the minimum
and the maximum amounts shall refer to the amounts specified
in the Pension of Judges of Superior Courts Order, 1993 (P.O.2 of
1993).
Explanation.âThe expression âsalaryâ means the salary
referred to in paragraph 1 of the Fifth Schedule to the
Constitution of the Islamic Republic of Pakistan or such higher
salary as the President may determine from time to time and shall
include Superior Judicial allowance but shall not include any
allowance or amount representing any other privilege or facility.
15A.
âĻâĻâĻ
16.
Pension of Judges not covered by paragraph 14.âA
Judge who immediately before his appointments as such was a
member of a civil service in Pakistan or was holding a post in
connection with the affair of the Federation or of a Province and
who does not fulfill the conditions laid down in paragraph 14
shall, on retirement, be entitled to such pension as would has
been admissible to him in service or post. Had he not been
appointed a Judge, his service as Judge being treated as service
for the purpose of calculating that pension.â
.
.
.
29.
Subsidiary conditions of service.âSubject to the
provisions of this Order and such other provisions as the
President may make in this behalf, the other privileges and rights
of a Judge shall be determined by the rules for the time being
applicable to an officer appointed by the President and holding
the rank of secretary to the Government of Pakistan:
Provided that nothing in this paragraph shall have effect
so as to give to a Judge who is a member of a civil service less
favourable terms in respect of his conditions of service than those
to which he would have been entitled as a member of such service
if he had not been appointed as a Judge, his service as Judge
Const. Petition No.127 of 2012
121
being treated as service for the purpose of determining those
privileges and rights.â
(Underlining in the above reproductions is ours, which is
made for emphasis)
71.
A careful reading of above reproduced relevant constitutional
provisions; Article 221 of the Government of India Act, 1935; Article
221 of the Constitution of India, 1949; Article 175 of the Constitution
of Islamic Republic of Pakistan, 1956; Article 124 of the Constitution
of Islamic Republic of Pakistan, 1962; and, Article 205 of the
Constitution of Islamic Republic of Pakistan, 1973, read with relevant
Schedules to the Constitution, reveals that they are âpari materiaâ to
the extent of entitlement to privileges and allowances and to such
rights in respect of leave of absence and pension, and in this context,
from time to time, High Court Judges Order 1937, Presidentâs Order
9 of 1970 and Presidentâs Order 3 of 1997, were issued to determine
the moot question as to their right to pension. Here a reference to
some repealed provisions of the Constitution and the High Court
Judges Order/Presidentâs Orders has been made only to show that in
the High Court Judges Order 1937, condition of minimum length of
service for a High Court Judge for his entitlement/right to pension, in
the normal course, was 12 years and on attaining the age of sixty
years, it was seven years, so also in the cases where retirement was
medically certified to be necessitated due to ill-health, while the
President was further conferred with power that for special reasons, he
may direct that any period not exceeding three months shall be added
to a Judgeâs service for pension. The relevant provision of Presidentâs
Order 9 of 1970, dated 17.6.1970, paragraph 23 whereof repealed
the earlier High Court Judges Order 1937, was its paragraph 13,
which provided one clear condition for entitlement of right to pension
as minimum length of actual service of five years on attaining the
Const. Petition No.127 of 2012
122
retiring age in the normal course and in case of resignation not
less than ten years service. Further, paragraph 15 of this
Presidentâs Order contained provision as regards the right to
pension of other Judges, who were not covered by paragraph 13. In
the Presidentâs Order 3 of 1997, introduced in the year 1997 and
brought into force at once, except to the extent of its paragraph 15,
which was made effective from 27.7.1991, in the definition clause,
meaning of âactual serviceâ, âadditional judgeâ and âjudgeâ were
specifically provided, while section 14 dealt with the condition of
admissibility of pension of the retired judges. A bare reading of
Presidentâs Order 3 of 1997 clearly spells out that every Judge of
the High Court, having completed not less than five years of actual
service as such on attaining the retiring age, is entitled for
pensionary benefits. This provision is further subject to paragraph
29 of the Presidentâs Order 3 of 1997, relating to the âsubsidiary
conditions of serviceâ. A close look at the Fifth Schedule to Article
205 of the Constitution of Islamic Republic of Pakistan, 1973,
which is an important integral part of the constitutional mandate,
applicable to the present case, further reveals that paragraphs-2
and 3 relating to High Court, are the two relevant provisions of the
Constitution, which in unequivocal term provide that in terms of
paragraph-2 âEVERY JUDGEâ of a High Court shall be entitled to
such âPRIVILEGESâ, âALLOWANCESâ, and to such âRIGHTSâ in
respect of leave of absence and âPENSIONâ as may be determined
by the President, and until so determined, with the privileges,
allowances
and
rights,
to
which
immediately
before
the
commencing day, the judges of the High Court were entitled. From
the language of paragraph-2, it is also clear that it only refers to
one category of judges of the High Court i.e. âEvery Judgeâ. To put
Const. Petition No.127 of 2012
123
it in other words, there are no two categories of judges specified
therein as many senior ASCs and retired judges of the High Court
have argued before us while supporting their claim despite they
having rendered less than five years actual service as such. What
is important to notice here is that firstly right to pension is to be
determined by the President for every judge of the High Court and
until such determination, the privileges, allowances and rights
already in-force before the commencing day, are to be availed by all
of them. Keeping in view this clear and unambiguous language of
paragraph-2 (ibid), when we revert to the provisions of paragraph
13 of the Presidentâs Order 9 of 1970, relating to conditions of
admissibility of pension, we find that till its repeal vide paragraph
30 of Presidentâs Order 3 of 1997, rights of every Judge of the High
Court were already determined in the manner that unless they had
completed not less than five years of service before retiring age,
they were not eligible or entitled to any pensionary benefits. It was
in this background that none of the retiring honourable judge of
the High Court, having less than five years service as such to his
credit, ever ventured to agitate such claim. In the year 1997, when
the Presidentâs Order 3 of 1997 was promulgated with immediate
effect (except its section 15, which was made applicable
retrospectively w.e.f. 07.7.1991), under paragraph 14, a similar
condition of not less than five years service before attaining the
retiring age was engraved, and the position under paragraph 17 of
the High Court Judges Order, 1937 (repealed on 17.6.1970) was
also not much different, except that requirement of length of
service to earn right to pension at that time was minimum 12 years
service in the normal course or in case of attaining the age of sixty
years, not less than seven years.
Const. Petition No.127 of 2012
124
72.
Reverting to the language of paragraph-3 of Fifth
Schedule to Article 205 of the Constitution of 1973, we find that in
its original text, paragraph-3 had different phraseology, but it was
subsequently amended in the present form by 12th amendment Act
of 1991. However, in both the situations, right to pension of a
retired High Court Judge was made conditional to not less than
five years actual service, while a further table was provided for
increase in the percentage of pension depending upon the length of
his service as a Judge of the High Court upto the maximum of 80
percent of his salary. Thus, the two paragraphs 2 and 3 of Fifth
Schedule to Article 205 of the Constitution either read separately/
conjunctively or disjunctively, do not alter/change in any manner
the requirement of minimum five years length of actual service for
every Judge of the High Court as one of the basic condition to earn
the right to pension. The arguments of learned ASCs based on the
principle of reading down etc are, thus, of no avail in this regard.
73.
Reference to Article 207 of the Constitution, debarring the
honourable retired Judges of the High Court to plead or act in any
Court or before any authority within the jurisdiction of the High
Court they have served in that capacity, arguments advanced by
some of the learned ASCs in order to strengthen the case of those
honourable retired Judges of the High Court, who retired before
completing a period of minimum five years actual service as such,
are equally without force. Firstly, for the reason that in view of the
reasonable classification to the extent that they are not debarred
from practicing before the High Courts of other Provinces and the
Supreme Court, such limited restriction is not in conflict with the
spirit of Article 18 of the Constitution relating to freedom of trade,
Const. Petition No.127 of 2012
125
business or profession. Secondly, all the Judges who retired or
resigned before completing their actual service as a High Court Judge
for a minimum period of five years, knew well in advance at the time
of their elevation to this high office that their total length of service
upon appointment, looking to their date of birth qua retirement will
be less than five years, therefore, as per Constitutional mandate and
seventy five years old convention/usage, they will not be entitled to
any pensionary benefit. In such circumstances, with profound
respect, all these honourable retired Judges of High Court are
estopped from agitating such grievance at this belated stage. This
view, further gains support from the fact that except few
honourable retired High Court Judges, who have now availed the
benefit of judgment under challenge, though they retired in 70s,
80s, 90s and upto the passing of judgment under challenge, no
one ever put up his claim on the basis of interpretation of Article
205 read with Fifth Schedule and President orders No.3 of 1997, 9
of 1970, as now made applicable to their cases with reference to
judgment under challenge. After all they all were highly skilled and
qualified professional in the field of law and jurists in their own
rights. Thus, any plea of ignorance of law or misinterpretation of
the relevant Constitutional provisions for over seven decades
doesnât appeal to reason.
74.
Besides, the base line of minimum five years actual
service to become entitled for pensionary benefits and to deny the
right to pension to other retired High Court Judges, who have not
served as such for five years or more, applying the principles of
interpretation of statutes as summarized in the preceding
paragraph 69 and reading the Constitutional provisions and P.Oâs
Const. Petition No.127 of 2012
126
as a whole, gain full support from the language of High Court
Judges Order 1937 (Repealed), President Orders i.e. President
Order No.9 of 1970 (Repealed) and President Order No.3 of 1997,
which also provide for a special provision for relaxation of such
period upto certain limit by the President in hardship cases, where
the required period of minimum five years service has remained
short by few days or few months. For the argument sake, in case
determination of right to pension of such category of Judges, who
from time to time rendered less than five years actual service to
their credit and retired, was yet to be made by the President then
there was no necessity for insertion of such provision in both the
Presidentâs Order, as otherwise those hardship cases, having
deficiency of few months, could have been separately dealt with
during such process of determination. This view of the matter
gains further support from the fact that in case right to pension as
regards honourable retired Judges of the High Court, having less
than five years actual service was yet to be determined, then why
since the year 1937 uptil now, neither any such representation
was made nor any legal remedy was followed by the honourable
retired Judges allegedly qualifying for pension in that category. In
this regard, we also confronted many learned Sr. ASCs to show us
a single instance either of pre-partition days or thereafter wherein
such interpretation of law was advanced or such grievance was
ever agitated by any honourable retired Judge of the High Court
falling in this category or earlier to judgment under challenge, any
judge
of
the
High
Court
was
ever
granted
right
to
pension/pensionary benefits on the basis of his length of service as
such for a period of few months or few years, irrespective of
minimum required length of actual service, as has been held
Const. Petition No.127 of 2012
127
through the judgment under challenge. In reply, they frankly
conceded that they have not come across any such instance. All
these facts taken together leave us in no doubt to hold that the
judgment under challenge is outcome of improper assistance to the
Court due to which number of relevant provisions of law necessary
for a just and fair adjudication of this issue were entirely
overlooked and the findings were built on entirely wrong premises.
75.
Another aspect of the case, which has been argued before
us with vehemence by some of the learned ASCs, is the legal status
of the judgment under challenge âas to whether it is a judgment in
âpersonamâ or a judgment in âremâ. In this regard some of the
learned ASCs have also made reference to the cases Pir Bukhsh
versus Chariman, Allotment Committeee (PLD 1987 S. C. 145)
and Federation of Pakistan versus Qamar Hussain Bhatti (PLD
2004 S.C. 77), which laid down the test of distinction between a
âjudgment in remâ and âjudgment in personamâ. In order to dilate
upon the true meaning of these two legal phrases, some
reproduction from the case of Pir Bukhsh (supra) will be useful,
which reads as under:-
âThe terms âin remâ and âin personamâ are of Roman law used in
connection with actio, that is, actio in rem and actio in personam to
denote the nature of actions, and with the disappearance of the Roman
forms of procedure, each of the two terms âin remâ and âin personamâ got
tagged with the word judgments to denote the end-products of actions in
rem and actions in personam. Thus, according to the civil law an actio in
which a claim of ownership was made against all other persons was an
action in rem and the judgment pronounced in such action was a
judgment in rem and binding upon all persons whom the Court was
competent to bind, but if the claim was made against a particular person
or persons, it was an action in personam and the decree was a decree in
personam and binding only upon the particular person or persons
against whom the claim was preferred or persons who were privies to
them.â
Const. Petition No.127 of 2012
128
76.
However this aspect has hardly any relevancy to the facts
of the present proceedings, as while dealing with this issue, we
have felt no difficulty in forming our view, as from the very
language of the judgment under challenge, particularly, from its
paragraphs 31 to 34, as reproduced below, it is clear that for all
intent and purpose appeal against a private person challenging the
judgment of the High Court regarding his individual grievance was
widened in scope and treated as a judgment in rem, benefit
whereof was open endedly extended even to other honourable
retired Judges who were not party to the said appeal and even to
those who were at one stage of the proceedings party through some
miscellaneous applications, but had earlier withdrawn the same
during its pendency. In addition to it, benefit of the judgment
under challenge was also extended to the honourable retired
Judges of the Federal Shariat Court of Pakistan, though prima-
facie no such issue was involved in the proceeding. For ease of
reference, such paragraphs of judgment under challenge are
reproduced as under:-
â31.
Before parting with this judgment, we deem it proper to point
out that Chief Justice and Judges of Federal Shariat Court are also
entitled to the grant of pension and pensionary benefits available to the
retired Judges of the Supreme Court and High Courts under the
Constitution. The appointment of the Chief Justice and Judges-of the
Federal Shariat Court is made by the President under Article 203-C of
the Constitution and the terms and conditions of service of the Judges of
the said Court are also determined by the President, therefore,
notwithstanding the fixed tenure of the Chief Justice and Judges of the
Federal Shariat Court, they are entitled to the terms and conditions of
service and remunerations including pension and pensionary benefits at
par to the Judges of the Supreme Court and High Courts, by virtue of
Article 203-C(9) of the Constitution which provides as under:--
"(9) A Chief justice who is not a Judge of the Supreme Court shall
be entitled to the same remuneration, allowances and privileges
as are admissible to a Judge of the Supreme Court and a Judge
who is not a Judge of a High Court shall be entitled to the same
Const. Petition No.127 of 2012
129
remuneration, allowances and privileges as are admissible to a
Judge of a High Court:
Provided that where a Judge is already drawing a pension for any
other post in the service of Pakistan, the amount of such pension
shall be deducted from the pension admissible under the clause."
32. The Chief Justice or a Judge of Federal Shariat Court shall be
entitled to the same salary, pension, allowances, privileges, including
grant of leave/LPR and other benefits as are allowed to a Judge of the
Supreme Court and High Court respectively. The plain reading of Article
203-C of the Constitution read with Article 205 and Fifth Schedule of the
Constitution would show that right of pension and pensionary benefits of
the Chief Justice and Judges of Federal Shariat Court notwithstanding
the length of service or fixed term of tenure is recognized under the
Constitution
and
consequently,
this
judgment
subject
to
the
Constitution, shall be equally applicable in respect of the right of pension
and pensionary benefits admissible to the Chief Justice and Judges of
the Federal Shariat Court.
33.
In the light of foregoing reasons, we hold that all retired Judges of
the High Courts who retire as such Judge in terms of Article 195 of the
Constitution of Islamic Republic of Pakistan and the Chief Justices and
Judges of the Federal Shariat Court notwithstanding the tenure
appointment, are entitled to the pension and pensionary benefits in
terms of Article 205 read with Fifth Schedule of the Constitution read
with P.O. No.8 of 2007 and Article 203-C of the Constitution and all
other enabling provisions of the Constitution as well as President's Order
No.2 of 1993 and P.O.No.3 of 1997, irrespective of their date of
retirement and length of service. The Miscellaneous Applications bearing
No.940 in C.A. 1021 (filed by Justice (R.) Muhammad Azam Khan),
968/05 in C.A. 1021/95 (filed by Syed Sharif Hussain Bokhari and
Muhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 in
C.A. 1021/95 (filed by Ghulam Muhammad Qureshi), 1176/05 in C.A.
1021/95 (filed by Mr. Riaz Kayani retired Judge of Lahore High Court,
1190/05 in C.A. 1021/95 (filed by Rao Iqbal Ahmed Khan), retired Judge
of Lahore High Court, 1368/05 in C.A. 1021/95 (filed by Dr. Munir
Ahmad Mughal), retired Judge of Lahore High Court, 2079/06 in C.A.
1021/95 and 1273/06 in Const. P. 10/01 (both filed by Justice (R.)
Saeed-ur-Rehman Farrukh), involving similar questions of fact and law,
containing the prayer for impleadment of the applicants in the
constitution petition as co-petitioner and in civil appeal as respondent,
have already been allowed.
34. In consequence to the above discussion, the Constitution
Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and
26/2007, filed by the retired Judges of the High Courts are allowed and
the petitioners/ applicants in these petitions and miscellaneous
applications, along with all other retired Judges of the High Courts, who
Const. Petition No.127 of 2012
130
are not party in the present proceedings, are held entitled to get pension
and pensionary benefits with other privileges admissible to them in
terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and
Article 203-C of the Constitution read with paras 2 and 3 of Fifth
Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their
respective retirements, irrespective of their length of service as such
Judges.â.
77.
As a corollary of above discussion, it is also imperative and
significant to mention here that the judgment under challenge was
passed by a learned three member Bench of this Court consisting of
M/s Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and
Muhammad Farrukh Mahmood, JJ on 06.3.2008, at a time when the
whole superior judiciary of the Country was in kayos, crises and
disarray due to unconstitutional measures taken by the then
President/dictator General (Retired) Pervez Musharraf of Pakistan,
who by hook or crook wanted to remain in power and in that
perspective attempted to destroy the institutions in the Country,
particularly targeted the superior judiciary, to bring them under his
thumb and control. The discussion regarding this aspect of the case
in the present proceedings is enough to this extent. However, in this
context if any further detailed discussion is felt orderly, reference can
be made to the judgment of a full Bench of this Court in the case of
Sindh High Court Bar Association (supra), wherein this aspect has
been extensively discussed and aptly attended to.
78.
It is pertinent to mention here that while taking
cognizance in these suo moto proceedings, we have exercised all
care and caution to intimate all the Honourable Retired Judges of
the High Court, who, in one or the other capacity have availed the
benefit of judgment under challenge, to afford them due
opportunity of hearing and for this purpose notices were also
issued to the legal heirs of late Mr. Justice Ahmed Ali U. Qureshi.
Const. Petition No.127 of 2012
131
Besides, offices of the Accountant General of all the four Provinces
were also directed to bring on record all the relevant facts and
figures in order to afford opportunity of hearing to all the
concerned, but, as the judgment under challenge was given the
status of judgment in rem, therefore, it is further made clear that
irrespective of the fact whether some Honourable Retired Judges
had notice or they participated in these proceedings or not, each
one of them will be bound by the fallout of this judgment in the
same manner as if they were party to these proceedings. This
clarification is necessary as, particularly, the office of Accountant
General Sindh and Balochistan have not come up before this Court
in response to our order dated 3.4.2013, with clean hands, so
much so that at one stage of these proceedings we had to initiate
contempt proceedings against Deputy Accountant General Sindh
for his negligent and irresponsible conduct in responding to our
queries.
79.
There is yet another aspect of this case, which has been
argued before us by some of the learned ASCs and Honourable
Retired Judges of the High Court, who have been either elevated or
have resigned from their offices after the judgment under
challenge. They have contended that since at the relevant time of
their elevation/resignation judgment under challenge was in full
force applicable and implemented, therefore, valuable rights have
accrued
in
their
favour
on
the
principle
of
locus
poenitentiae/legitimate expectancy which cannot be taken away
lightly by way of some observations in this case. Indeed, such
submissions of some of the newly elevated or honourable retired
Judges of the High Court are in line with the ratio of the judgment
Const. Petition No.127 of 2012
132
under challenge, but at the same time it is to be noticed that the
Honourable Judges, who have resigned from their office before
completion of minimum five years service as such have to bless
their own stars for this purpose because their mere oral assertion
that they had to resign from their office under compelling
circumstances, cannot be legally accepted. As regards the other
Judges, who have taken oath of their office as High Court Judge
after the judgment under challenge, suffice it to observe that since
the said judgment has been declared by this Court as per incurium,
null and void, therefore, any benefit on the principle of legitimate
expectancy cannot hold the filed, more so, when as to their
pensionary rights they are to be governed by the law in force at the
relevant time i.e. Article 205 of the Constitution read with its Fifth
Schedule and Presidentâs Order No.9 of 1970 or 3 of 1997,
regarding which a detailed discussion has already been made in
the preceding paragraphs of this judgment, and not by the dicta
laid down in the judgment under challenge, which has been
declared âper incuriamâ.
80.
Another angle for looking at the interpretation of the
relevant Constitutional provision and the Presidentâs Order, to view
the right to pension of the honourable retired Judges of the High
Court, having less than five years actual service, is admitted long
standing convention/usage of its interpretation which has given it
a status of statutory backing on the principle of âOptima Est Legis
Interpres Consuetudoâ, which is defined in Blackâs Law Dictionary
Sixth Edition as under:-
âCustom is the best interpreter of the lawâ
81.
Discussing this legal principle as a rule of construction in
the case of Sheppard v. Gosnold (1672 Vangham 159, P-169),
Const. Petition No.127 of 2012
133
Vaughan, C.J. observed that where the penning of a statute is
dubious, long usage is just a medium to expound it by; for jus et
norma loquondi is governed by usage, and the meaning of things
spoken or written must be as it hath constantly been received to be
by common acceptation. General usage under a statue may make
for a practical construction of it which will be accorded great
consideration by the courts. General usage, of long duration
therefore unquestioned, will frequently be of great assistance in the
search of legislative meaning. The meaning publicly given by
contemporary or long professional usage, is presumed to be a true
one, even when the language has etymologically or popularly a
different meaning. It is obvious that the language of a statute must
be understood in the sense in which it was understood when it was
passed, and those who lived at or near the time when it was
passed, may reasonably be supposed to be better acquainted than
their descendants with the circumstances to which it had relation,
as well as with the sense then attached to legislative expressions.
This view of the matter is fortified from the case of National and
Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay
(AIR 1969 SC 1048) and also from the judgment of this Court in
the case of Asad Ali (supra), which lays down as under:-
â95. âĻâĻ..a constitutional convention once established has the
same binding effect as a Constitutional provision. We may,
however, add that in the case of an unwritten Constitution,
conventions play a more prominent and dominant `role in the
interpretation of Constitutional provisions than in the case of
written
Constitution.
Therefore,
while
explaining
the
Constitutional provision of a written Constitution on the basis of
a convention, it must be shown that either a convention has
developed with the passage of time side by side with the
enforcement and interpretation of the Constitution or a
convention already existing on the date of enforcement of a
written Constitution, has either received a statutory, recognition
Const. Petition No.127 of 2012
134
in the Constitutional document or has been established as a
Constitutional convention on account of conscious and deliberate
obedience of the convention by those who are charged with the
duty of interpreting or enforcing the Constitution. Therefore,
when an already existing convention is followed in interpreting a
provision of a written Constitution consistently and consciously
over a length of time by those who are responsible under the
Constitutional mandate to interpret and enforce the said
provision of Constitution, the convention is established as a
Constitutional convention and any breach thereof may be treated
by the Courts as a breach of the provision of the Constitution to
which the convention relates. âĻ..â
82.
Indeed, right to pension of every honourable retired Judge
of the High Court in our country is to be determined strictly in line
with applicable Article 205, its Fifth Schedule read with applicable
P.O No.9 of 1970 or P.O. No.3 of 1997, but for our better
understanding, we have also attempted to further divulge into the
question of condition of minimum length of service for honourable
retired Judges of High Court as one of the basic requirement to
earn the right to pension. For this purpose, we have over seen
some relevant Constitutional and statutory provisions in force on
this subject in the neighbouring countries, India, Bangladesh and
Sri Lanka, which are in substance pari materia to ours and noticed
that in each of these countries without any exception there is
requirement of length of service of minimum five years or more for
acquiring such right as a retired Judge of the High Court, while in
some other countries it is stretched upto 10/12 years, and this
long standing convention, having the force of law, is being
religiously adhered to.
83.
In so far as the arguments of Rana M. Shamim, learned
ASC who represented honourable retired Justice Dr. Ghous
Muhammad and Mr. Afzal Siddiqui, learned ASC who represented
honourable retired Justice Syed Najmul Hassan Kazmi, with
Const. Petition No.127 of 2012
135
reference to Article 270AA 3(b) of the Constitution, are concerned,
we find much force in their contentions that they shall be deemed to
have retired on attaining their respective age of superannuation and
as such both of them have completed minimum five years actual
service to their credit as Judge of the High Court, which has made
them entitled for the benefit of pension irrespective of the judgment
under challenge. Thus, for this purpose, they have their own
entitlement for pension, independent of judgment under challenge.
84.
The submissions made by some of the learned ASCs that
âAdditional Judgesâ of the High Court, being covered with the
definition of âJudgeâ as defined under Article 260(1)(c) of the
Constitution, are equally entitled for right to pension like
permanent judges of the High Court, have much force as at one
place the definition of âJudgeâ in the above referred Article of the
Constitution clearly defines that in relation to the High Court, a
person who is an Additional Judge of the High Court, is also
included in the definition of a Judge and at the other place under
Article 197 of the Constitution, relating to appointment of
Additional Judges also, no discrimination is identified for the
purpose of holding them disentitled for right to pension like any
permanent judge of the High Court, who, in terms of Article 195 of
the Constitution, will retire on attaining the age of 62 years, unless
he resigns sooner or removed from the office in accordance with
the Constitution. It will be also pertinent to mention here that
under paragraph-2 of the Presidentâs Order 3 of 1997, âAdditional
Judgeâ and âJudgeâ of the High Court have been separately defined
as under:-
â2(c)
âAdditional Judgeâ means a Judge appointed by the
President to be an Additional Judge.â
Const. Petition No.127 of 2012
136
â2(f)
âJudgeâ means a Judge of High Court and include the
Chief Justice, and Acting Chief Justice and an Additional
Judge.â
From the reading of above two definitions, again it is clear that
definition of a Judge of the High Court also includes additional
judge, therefore, no exception could be taken in determination of
his right to pension for the reason that he has not yet been
appointed as permanent judge of the High Court in terms of Article
193 of the Constitution. Another added reason in support of this
conclusion emerges from the combined reading of paragraph-2 of
the Fifth Schedule to Article 205 of the Constitution, speaking
about âevery judgeâ, and the definitions of âjudgeâ under Article
260(1)(c)(b) of the Constitution and paragraph-2(f) of Presidentâs
Order 3 of 1997, which leave no room for exclusion of âAdditional
Judgeâ from the category of âevery judgeâ within the meaning of
paragraph-2 (ibid). However, it is necessary to state and clarify
here that in such eventuality, for claiming right to pension a
retired judge of the High Court âadditional judgeâ will also have to
have minimum five years actual service to this credit.
85.
In view of the foregoing discussion, we find that
Additional Judge of the High Court will be entitled for equal
treatment like a permanent Judge of the High Court for his right to
pension, but subject to subsisting determination of such right by
the President in terms of Article 205, read with Fifth Schedule of
the Constitution and the applicable Presidentâs Order.
86.
When we go into further details of this litigation, which
earlier ended up in the form of judgment under challenge, we find
that on 19.10.1994, retired Justice Ahmed Ali U. Qureshi, who had
initially joined Sindh Judiciary on 11.6.1953 as sub-Judge,
Const. Petition No.127 of 2012
137
thereafter elevated as Additional Judge of the High Court of Sindh
in July, 1985, wherefrom he retired on 25.10.1988, after rendering
actual service in that capacity for a period of three years and four
months approximately, upon his retirement was found entitled for
pension at the rate of Rs.4,200/- per month, as retired District
Judge. The payment of this pension amount was in addition to a
sum of Rs.2,100/- as cost of living allowance payable to a judge of
the High Court under paragraph 16-B of the Presidentâs Order 9 of
1970, as amended by Presidentâs Order 5 of 1988. The pension of
the petitioner was revised from time to time, but when the
petitioner approached the Accountant General Sindh, Karachi to
avail the benefit of Presidentâs Order 2 of 1993, he was denied such
benefit on the ground that since he had not put up minimum five
years actual service as Judge of the High Court, therefore, he was
not entitled for its benefit.
87.
In the above discussed background, in order to avail the
benefit of Presidentâs Order 2 of 1993, the petitioner had brought
the said petition before the High Court in person with the following
prayers:-
âa)
To declare the P.O. 9 of the 1970 so far its provision in
Part III with regard to pension are repugnant to the
Constitution of the Islamic Republic of Pakistan are void.
b)
To order the Respondents to pay the Petitioner maximum
pension payable to a Judge of the High Court under P.O. 2
of 1993 alongwith arrears or in alternative.
e)
To order the Respondents to fix the pension of the
Petitioner at Rs.8,190/- per month admissible to him as
Civil Servant, add to it increments in pension allowed from
time to time and pay all the arrears alongwith markup for
the period this amount is illegally retained by Respondent
No.4.â
88.
This petition was strongly resisted by the respondents on
various legal grounds regarding disentitlement of the petitioner,
Const. Petition No.127 of 2012
138
however, narration of facts was not disputed. It was in this
background of the litigation that learned Division Bench of the
High Court of Sindh, wherein one of its member was Justice Ms.
Majida Rizvi (as she then was), delivered its judgment in the
following terms.
â11.
In the result, the petition is allowed and the respondents
are liable to fix the petitionerâs pension at the maximum pension
as allowed under Presidentâs Order No.2 of 1993. The parties are
left to bear their own costs.â
89.
A perusal of this judgment of the High Court of Sindh
dated 08.2.1995, which was subsequently impugned before the
apex Court in the earlier proceedings, reveals that the main ground
which found favour for grant of such relief to the petitioner was the
principle laid down in the case of I.A Sharwani v. Government of
Pakistan (1991 SCMR 1041) was attracted, operative part whereof
reads as under:-
â9.
We are, consequently, of the view that rights and privileges
admissible to the petitioner in respect of his pension are now governed
under Presidentâs Order No.2 of 1993. As has been held by the Supreme
Court in I.A. Sharwaniâs case, instruments such as P.O. 2 of 1993 are
constitutional instruments, therefore, full effect must be given to them.
We, therefore, find no force in the contentions raised on behalf of the
respondents. Learned Standing Counsel has also adopted the arguments
advanced by the learned A.A.G. but as we have just pointed out, we are
unable to agree with his contentions.
10.
Although, it has also been contended by the petitioner in the
alternative that, in any case, he is entitled to a pension of Rs.8,190 in
accordance with the Civil Servants Rules, but since we have accepted his
plea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessary
for us to consider the second contention of the petitioner. However, it will
always be open for the petitioner to take such a plea in the future if the
circumstances so require.â
90.
After scanning the whole record in this case, we are
somewhat surprised to see that nowhere in the judgment dated
08.2.1995, which was subsequently challenged by the Accountant
General Sindh before the apex Court, question of entitlement of
Const. Petition No.127 of 2012
139
pension to every judge of the High Court, irrespective of his length
of service, was involved or decided by the High Court, rather, it
was held that at the time of retirement of the petitioner from
service as Judge of the High Court, the rights and privileges as to
his pension had not yet been determined by the President in
pursuance of paragraph 2 of the Fifth Schedule, but as was
provided by said paragraph, till such rights and privileges were
determined by the President, a Judge of the High Court was
entitled to such privileges, allowances and rights, to which he was
entitled immediately before the commencing day, while such day
has been specified by Article 265 of the Constitution as the 14th
day of August, 1973. In our opinion, remaining oblivious of all
these legal and factual deficiencies and the limited scope of appeal
against the impugned judgment, floating on the surface of record,
is yet another strong ground to justify declaring the judgment
under challenge per incuriam.
91.
At the cost of repetition, it will be worthwhile to reproduce
here paragraph-2 of Fifth Schedule to Article 205 of the
Constitution as all along it has been the center point of arguments
advanced in this case on behalf of honourable retired judges of the
High Court etc, who have been the beneficiary of the judgment
under challenge.
âFIFTH SCHEDULE
[Article 205]
Remuneration and Terms and Conditions of Service of Judges.
THE SUPREME COURT
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ
THE HIGH COURT
1.
âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ.
2. Every Judge of a High Court shall be entitled to such privileges
and allowances, and to such rights in respect of leave of absence
Const. Petition No.127 of 2012
140
and pension, as may be determined by the President, and until so
determined, to the privileges, allowances and rights, to which,
immediately before the commencing day, the Judges of the High
Court were entitledâ
In the first place, simple reading of this paragraph alongwith
corresponding language of Article 221 of the Government of India
Act, 1935; relevant paragraph of the High Court Judges Order,
1937; Article 221(2) of the Constitution of India, 1949 (pre 54th
amendment and post 54th amendment); paragraph 4(2) relating to
High Court Judges in the Third Schedule to the Constitution of
Islamic Republic of Pakistan, 1956; Article 124 read with
paragraph-2 of the Second Schedule to the Constitution of Islamic
Republic of Pakistan, 1962, relating to High Court; and above
reproduced paragraph-2 of the Fifth Schedule to Article 205 of the
Constitution of 1973, read with Presidentâs Order 9 of 1970 or
Presidentâs Order 3 of 1997, leads us to an irresistible conclusion
that these provisions for the purpose of determination of right to
pension of the honourable retired judges of the High Court are
âpari materiaâ for all intent and purposes. In this background when
we proceed further to look into the language of the High Court
Judges Order, 1937, Presidentâs Order 9 of 1970 and Presidentâs
Order 3 of 1997, we find no ambiguity at all that the
determination, as to the right to pension required to be made by
the President under the Constitution, was made from time to time
for every judge of the High Court. Therefore, to say that
determination of right to pension for the honourable retired judges
of the High Court, who have rendered less than five years actual
service is yet to be made is absolutely fallacious and misconceived.
This view of the matter gains further support from the fact that the
determination of right to pension to be made on each occasion,
Const. Petition No.127 of 2012
141
was to be made for every judge of the High Court at one go and not
in piecemeal; and this is what exactly through all these
instruments his Majesty in Council and the President have done in
unequivocal terms that at all times minimum length of service,
(now five years), was the bottom line to earn the right to pension.
Not only this, but a combined reading of all the three orders i.e.
High Court Judges Order, 1937, Presidentâs Order 9 of 1970 and
Presidentâs Order 3 of 1997 in sequence also reveals that such
determination of âright to pensionâ of âevery judgeâ of the High
Court was always made and continued without break since 1937
uptill today.
92.
To add force to the above interpretation of paragraph 2 of
the Fifth Schedule to Article 205 of the Constitution, we also cannot
overlook two maxims of similar nature âExpressum Facit Cessare
Tacitumâ meaning thereby that âwhat is expressed makes what is
implied to ceaseâ, and âexpressio unis est exclusio alteriusâ
meaning thereby that âthe express mention of one thing implies the
exclusion of anotherâ. Thus, where a statute contains express
covenants or mention of things and contingencies no other
implication of any covenant or contingency on the same subject
matter can be raised. In other words, where the legislature
postulates and specifies some thing for some category of persons
only, it, inline with these maxims, impliedly exclude others. Indeed,
the principle propounded in these two maxims, in certain
situations, can have dangerous repercussions, therefore, it is to be
applied with extra care and caution, but in the present case, there is
absolutely no dispute or denial of the fact that right from the year
1937, while exercising powers, his Majesty in Council or the
Const. Petition No.127 of 2012
142
President, as the case may be, have from time to time laid down
the criteria for entitlement of pensionary benefits for every retired
judge of the High Court, and for this purpose, the relevant
provisions of Judges Order 1937 or two Presidentâs Order, which
are âpari materiaâ, give a clear meaning of exclusion from the
entitlement of pensionary benefits, all those honourable retired
judges of the High Court, who have, under the order of 1937 or
Presidentâs Orders 9 of 1970 and 3 of 1997, not completed
minimum twelive/five years actual service to earn right to pension.
A reading of paragraph 2 and 3 in any manner, conjunctive or
disjunctive, makes it abundantly clear that the President at the time
of determination of right to pension for a retiring honourable judge
of the High Court has made not less than five years actual service
as bottom line for his entitlement/right to pension with full intent
and, thus, excluded all those who have not met this minimum
threshold of actual service. But in some cases subject to other
prescribed and applicable provisions like proviso to paragraph-13(c)
of Presidentâs Order No.9 of 1970 or paragraph 29 of the Presidentâs
Order 3 of 1997, read with S.R No.423 (ibid), relating to automatic
or otherwise addition of certain period in it to make up deficiency in
hardship cases. The arguments advanced by some of the learned
ASCs that Fifth Schedule to Article 205 of the Constitution is a sub-
constitutional legislation, in our opinion, are also meritless,
therefore, any argument built on these premises are devoid of force.
At the cost of repetition, we may mention here that right to
determine conferred to the President under paragraph 2 (ibid) is not
a right limited to the extent of determination of quantum of pension
for every judge, but in the first place, President has to determine the
criteria for honourable retired judge of the High Court to earn right
Const. Petition No.127 of 2012
143
to pension, which exercise has been already undertaken explicitly
and in unambiguous terms in both the earlier Presidentâs Order 9 of
1970 and Presidentâs Order 3 of 1997 (reproduced above). To put it
in other words, it is the President who has been exclusively
delegated with the power, in the first place to determine the
entitlement/right to pension of every honourable retired judge of the
High Court; and, in the second place, to determine the quantum of
such pensionary benefit, which exercise has been repeatedly
undertaken by him in very clear terms. While discussing the issue
relating to entitlement of pensionary benefits of honourable retired
judges of the High Court, having less than five years service, another
strong ground which has emerged for our consideration from
admitted facts, and carries force of convention/usage is that learned
ASCs addressing the Court despite specific suggestions to this effect,
could not cite a single instance from the Sub-continent where the
honourable retired judges of the High Court, having rendered less
than the minimum required period of actual service, envisaged as
condition for entitlement for right to pension under the High Court
Judges Order 1937, Presidentâs Order 9 of 1970 or Presidentâs
Order 3 of 1997, ever claimed or got pension on the basis of
interpretation of paragraph 2 and 3 read with applicable Presidentâs
Order in the manner as erroneously interpreted in the judgment
under challenge. We, therefore, have no hesitation to hold that for
the preceding reasons and further reasons to be recorded
hereinafter, the judgment under challenge falls in the category of
per incuriam and makes it without jurisdiction and nullity in the
eyes of law, as if it never existed at all.
93.
After having answered the first two moot points, when we
come to the last point relating to the fate of pensionary benefits
Const. Petition No.127 of 2012
144
already availed by the honourable retired judges of the High Court,
though having less than five years actual service to their credit, on
the basis of the judgment under challenge, we deem it proper that
before undertaking any further discussion in this regard, to
prepare a statement in the form of a chart, containing the relevant
dates and financial repercussions, as noted hereunder.
Calculation/Statement of Accounts pertaining to Pension of
Hon'ble Judges of High Courts
Lahore High Court
S.No.
Name of Hon'ble Judge/ or
widows of Hon'ble Judges
Date of
retirement/
resignation/
removal
Actual
Length of
Service
(Y-M-D)
Total Pension
Drawn
including
Commutation
Per month
Pension
Annual
Pension
Amount
1
Mr. Justice (Retd) Abdul
Ghafoor Khan Lodhi
1-Jul-81
04-05-20
24,907,339
-
-
2
Mr. Justice (Retd) Mian
Ghulam Ahmad
2-Feb-95
02-05-04
26,845,284
515,652
6,187,824
3
Mr. Justice (Retd) Sh. Abdul
Mannan
6-Nov-95
03-02-06
25,850,871
550,422
6,605,064
4
Mr. Justice (Retd) Rana
Muhammad Arshad Khan
1-Oct-96
02-01-23
25,281,378
535,133
6,421,596
5
Mr. Justice (Retd) Ch. Mushtaq
Ahmad Khan
1-Oct-96
04-01-23
24,386,404
528,002
6,336,024
6
Mr. Justice (Retd) Khan Riaz-
ud-Din Ahmad
1-Jan-98
03-02-23
23,275,729
533,944
6,407,328
7
Mr. Justice (Retd) Muhammad
Aqil Mirza
4-Apr-97
02-07-26
24,048,779
528,002
6,336,024
8
Mr. Justice (Retd) Abdul
Hafeez Cheema
1-Oct-97
03-01-23
28,802,381
610,287
7,323,444
9
Mr. Justice (Retd) Ghulam
Sarwar Sh.
10-Dec-98
02-00-00
25,986,075
594,663
7,135,956
10
Mr. Justice (Retd) Syed Sharif
Hussain Bukhari
15-Jun-98
03-10-07
24,615,969
527,950
6,335,400
11
Mr. Justice (Retd) Muhammad
Islam Bhatti
22-Dec-98
03-02-11
26,184,753
608,654
7,303,848
12
Mr. Justice (Retd) Rao Iqbal
Ahmad Khan
12-Jan-99
02-01-00
24,793,480
519,535
6,234,420
13
Mr. Justice (Retd) Mian Saeed
ur Rehman Furrukh
1-Aug-98
03-06-12
24,392,330
527,950
6,335,400
14
Mr. Justice (Retd) Sh. Amjad
Ali
22-Jun-99
02-06-11
24,233,654
608,654
7,303,848
15
Mst. Shahida Khurshid w/o Mr.
Justice (Retd) Raja Muhammad
Khurshid
24-Aug-99
03-10-13
13,662,023
297,012
3,564,144
16
Mr. Justice (Retd) Syed Najam
ul Hassan Kazami
27-Jan-00
02-07-29
24,027,865
519,172
6,230,064
17
Mr. Justice (Retd) Iftikhar
Ahmad Cheema
1-Jul-01
02-07-07
29,708,666
441,273
5,295,276
18
Mr. Justice (Retd) Dr. Munir
Ahmad Mughal
7-Jul-01
04-06-26
26,364,853
594,023
7,128,276
19
Mr. Justice (Retd) Riaz Kayani
6-Aug-01
03-02-15
23,770,477
519,173
6,230,076
Const. Petition No.127 of 2012
145
20
Mr. Justice (Retd) Ghulam
Mahmood Qureshi
8-Oct-01
04-04-10
23,119,482
519,172
6,230,064
21
Mr. Justice (Retd) Mansoor
Ahmad
7-Mar-04
03-02-04
22,601,149
510,436
6,125,232
22
Mr. Justice (Retd) Pervaiz
Ahmad
10-Apr-04
02-01-05
26,222,120
583,356
7,000,272
23
Mr. Justice (Retd) Farrukh Latif
10-Jun-05
03-03-05
23,143,378
606,077
7,272,924
24
Mr. Justice (Retd) Rustam Ali
Malik
10-Sep-05
03-06-05
23,605,888
574,113
6,889,356
25
Mr. Justice (Retd) Sh. Abdul
Rashid
1-Jun-06
02-08-28
22,297,141
571,932
6,863,184
26
Mst. Parveen Nawaz w/o Mr.
Justice (Retd) Muhammad
Nawaz Bhatti
11-Jul-06
01-07-10
13,343,486
267,566
3,210,792
27
Mr. Justice (Retd) Muhammad
Jahangir Arshad
4-Nov-07
02-11-02
20,578,426
488,459
5,861,508
28
Mr. Justice (Retd) Sh. Javaid
Sarfraz
13-Feb-08
03-02-11
22,760,620
488,460
5,861,520
29
Mr. Justice (Retd) Muhammad
Muzammal Khan
29-Feb-08
04-05-27
22,096,799
488,459
5,861,508
30
Mr. Justice (Retd) Tariq
Shamim
12-Oct-09
03-07-10
26,598,475
440,299
5,283,588
31
Mr. Justice (Retd) Fazal-e-
Miran Chowhan
11-Oct-09
04-10-09
24,587,585
440,299
5,283,588
32
Mr. Justice (Retd) Syed Asghar
Haider
12-Oct-09
03-07-09
29,458,843
440,299
5,283,588
33
Mr. Justice (Retd) Sh. Ahmad
Farooq
10-Feb-12
01-11-20
26,826,640
436,235
5,234,820
34
Mr. Justice (Retd) Ch. Shahid
Saeed
3-Oct-12
02-07-13
24,480,676
364,567
4,374,804
35
Mst. Shahnaz Ansari w/o Mr.
Justice (Retd) Tanveer Bashir
Ansari
26-Jun-05
04-01-few
9,102,366
188,768
2,265,216
36
Mr. Justice (Retd) Sagheer
Ahmad Qadri
11-Feb-13
03-04-26
26,174,540
416,649
4,999,788
Sub-Total (Lahore High Court)
858,135,924
17,384,647
208,615,764
Peshawar High Court
S.No.
Name of Hon'ble Judge/ or
widows of Hon'ble Judges
Date of
retirement/
resignation/
removal
Actual
Length of
Service
(Y-M-D)
Total Pension
Drawn
including
Commutation
Per month
Pension
Annual
Pension
Amount
1
Widow of late Justice (Retd)
Sher Bahadar Khan
1-Jun-94
03-8-14
7,919,104
256,277
3,075,324
2
Mr. Justice (Retd) Raza Ahmad
Khan
6-Mar-92
03-5-04
25,648,302
535,132
6,421,584
3
Mr. Justice (Retd) Muhammad
Khiyar Khan
18-Nov-94
04-00-13
14,269,686
267,566
3,210,792
4
Mr. Justice (Retd) Shah Abdur
Rashid
2-Dec-84
04-07-05
23,111,683
535,710
6,428,520
5
Mr. Justice (Retd) Salim Khan
1-Jan-08
02-11-28
23,740,207
407,359
4,888,308
6
Mr. Justice (Retd) Abdul Aziz
Kundi
1-Jan-11
01-3-24
36,132,633
331,918
3,983,016
7
Mr. Justice (Retd) Hamid
Farooq Durrani
3-Nov-09
03-06-28
39,701,383
321,762
3,861,144
8
Mr. Justice (Retd) Muhammad
Azam Khan
27-Jan-00
01-07-14
23,818,108
519,172
6,230,064
Const. Petition No.127 of 2012
146
9
Mr. Justice (Retd) Fazal-ur-
Rehman
1-Mar-07
04-05-18
18,513,679
208,667
2,504,004
10
Mr. Justice (Retd) Salim Dil
Khan
1-Oct-96
02-09-16
13,599,009
260,437
3,125,244
11
Mr. Justice (Retd) Muhammad
Raza Khan
8-Aug-08
03-07-04
26,189,176
481,828
5,781,936
12
Mr. Justice (Retd) Attaullah
Khan
4-Jun-12
02-08-26
36,224,227
311,595
3,739,140
13
Mr. Justice (Retd) Muhammad
Daud Khan
1-Jan-82
04-11-11
17,510,692
267,566
3,210,792
14
Mr. Justice (Retd) Said Maroof
Khan
2-Nov-09
03-06-29
30,864,089
399,655
4,795,860
15
Mr. Justice (Retd) Raj
Muhammad Khan
15-May-08
02-01-11
24,930,879
390,558
4,686,696
16
Mr. Justice (Retd) Abdur
Rehman Khan Kaif
27-Jul-91
03-07-08
11,782,192
225,794
2,709,528
17
Mr. Justice (Retd) Qazi Hamid
ud Din
11-Oct-96
02-08-26
23,587,385
456,045
5,472,540
18
Mr. Justice (Retd) Miftah-ud-
Din Khan
03-05-05
0
Sub-Total (Peshawar High Court)
397,542,434
6,177,041
74,124,492
Balochistan High Court
S.No.
Name of Hon'ble Judge/ or
widows of Hon'ble Judges
Date of
retirement/
resignation/
removal
Actual
Length of
Service
(Y-M-D)
Total Pension
Drawn
including
Commutation
Per month
Pension
Annual
Pension
Amount
1
Mr. Justice (Retd) Tariq
Mehmood
17-Apr-02
01-07-04
22,186,772
489,133
5,869,596
2.
Mr. Justice (Retd) Mehta
Kelash Nath Kohli
25.8.2009
04-08-10
23,979,696
519,536
6,234,432
Sub-Total (Balochistan High Court)
46,166,468
1,008,669
12,104,028
Sindh High Court
S.No.
Name of Hon'ble Judge/
widows of Hon'ble Judges
Date of
retirement/
resignation/
removal
Actual
Length of
Service
(Y-M-D)
Total Pension
Drawn
including
Commutation
Per month
Pension
Annual
Pension
Amount
1
Mr. Justice (Retd) Ghulam
Muhammad Kourejo
31-Jul-82
02-02-14
22,807,356
350,546
4,206,552
2
Mr. Justice (Retd) Munawar Ali
Khan
19-Jun-86
04-06-12
22,546,187
350,546
4,206,552
3
Mr. Justice (Retd) Muhammad
Aslam Arain
11-May-95
04-06-00
24,750,995
457,234
5,486,808
4
Mr. Justice (Retd) Majida Rizvi
18-Jan-99
04-07-12
23,635,293
441,274
5,295,288
5
Mr. Justice (Retd) Dr. Ghous
Muhammad
26-Jan-00
04-09-16
23,675,698
441,273
5,295,276
6
Mr. Justice (Retd) Amanullah
Abbasi
4-Mar-00
04-11-23
23,552,083
441,274
5,295,288
7
Mr. Justice (Retd) Abdul Ghani
Sheikh
11-Nov-00
03-00-13
24,156,529
519,173
6,230,076
8
Mr. Justice (Retd) S.A. Rabbani
5-Jun-02
03-01-16
26,034,663
515,350
6,184,200
9
Mr. Justice (Retd) M. Sadiq
Leghari
30-Jun-06
03-10-03
25,118,860
502,245
6,026,940
10
Justice (Retd) Mrs. Qaiser Iqbal
11-Oct-09
03-11-16
28,631,048
503,199
6,038,388
Const. Petition No.127 of 2012
147
11
Mr. Justice (Retd) Nadeem
Azher Siddiqui
11-Oct-09
03-11-16
29,358,946
362,400
4,348,800
12
Mr. Justice (Retd) Munib
Ahmed Khan
11-Oct-09
03-11-16
22,790,717
414,172
4,970,064
13
Mr. Justice (Retd) Ali Sain Dino
Metlo
11-Oct-09
03-11-16
27,786,518
414,172
4,970,064
14
Mr. Justice (Retd) Shahid
Anwar Bajwa
4-Oct-12
03-00-19
20,440,437
303,806
3,645,672
Sub-Total (Sindh High Court)
345,285,330
6,016,664
72,199,968
Grand Total
1,647,130,156
32,604,359
391,252,308
(Note: All the details and particulars incorporated in this chart are based on the data collected from
the case record and the statement of accounts furnished before this Court by the office of
Accountant Generals of all the four Provinces, thus, any reference to above chart in this judgment
shall not be deemed as final adjudication as regards facts and figures incorporated therein.)
94.
Now taking up the issue of applicability and effect of this
judgment after the implementation of judgment under challenge,
so as to see whether it should have prospective or retrospective
applicability, the first thing to be noted is that in our short order
dated 11.4.2013 we have declared that the law enunciated in the
judgment under challenge is âper incuriamâ. The fallout of such
declaration is that it is a judgment without jurisdiction, thus, for
all intent and purposes not to be quoted as precedent, rather liable
to be ignored. A useful discussion on the concept and import of
âper incuriamâ finds place in the case of Sindh High Court Bar
Association (supra), which reads as under:-
â(ii)
MAXIM "PER INCURIUM".
37.
`Incuria' literally means "carelessness". In practice per incurium
is taken to mean per ignoratium and ignored if it is rendered in
ignoratium of a statute or other binding authority.
38.
What is mean by giving a decision per incurium is giving a
decision when a case or a statute has not been brought to the attention
of the court and they have given the decision in ignorance or
forgetfulness of the existence of that case or that statute or forgetfulness
of some inconsistent statutory provision or of some authority binding on
the court, so that in such cases some part of the decision or some step in
the reasoning on which it was based was on that account demonstrably
wrong, so that in such like cases, some part of the decision, or some step
in the reasoning on which it is based, is found, on that account to be
Const. Petition No.127 of 2012
148
demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565
para 21), Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113,
1131), Watson's case {AELR 1947 (2) 193 at 196, Morelle Ltd.'s case (LR
1955 QB 379 at 380), Elmer Ltd.'s case {Weekly Law Reports 1988 (3)
867 at 875 and 878), Bristol Aeroplane Co.'s case {AELR 1944 (2) 293 at
page 294} and Morelle Ltd.'s case {AELR 1955 (1) 708).
39.
The ratio of the aforesaid judgments is that once the Court has
come to the conclusion that judgment was delivered per-incurium then
Court is not bound to follow such decision on the well known principle
that the judgment itself is without jurisdiction and per-incurium,
therefore, it deserves to be over-ruled at the earliest opportunity. In such
situation, it is the duty and obligation of the apex Court to rectify it. The
law has to be developed gradually by the interpretation of the
Constitution then it will effect the whole nation, therefore, this Court, as
mentioned above, is bound to review such judgments to put the nation
on the right path as it is the duty and, obligation of the Court in view of
Article 4, 5 (2) read with Article 189 and 190 of the Constitution.â
95.
Apart from the above, it will be seen that there can be no
two views about the powers of legislature to legislate any law and
to make it applicable prospectively or retrospectively or from any
particular date, with clear/express intendment in this regard.
However the procedural law, even though not expressly provided
for, normally holds its applicability retrospectively as no one can
claim vested right in the matter of procedure. There are number of
precedents where the law has been so legislated or amended and
made applicable retrospectively to destroy the vested rights of
certain individuals and such actions when challenged, have been
upheld by the Court, to be legal. If any case law is needed to fortify
this view, reference can be made to the case of Asad Ali (supra) as
under:-
â135. It is a well-settled law that a new or an amending statute
touching the, vested rights of the parties operates prospectively
unless the language of the legislation expressly provides for its
retrospective operation. However, the presumption against the
retrospective operation of a statute is not applicable to statutes
dealing with the procedure as no vested right can be claimed by
any party in respect of a procedure. The only exception to the
Const. Petition No.127 of 2012
149
retrospective operation of a procedure law is that if by giving it a
retrospective operation, the vested right of a party is impaired
then to that extent it operates prospectively. The above principles
applicable to a new or an amending statute, however, cannot be
applied strictly to the law declared by the Courts through
interpretative process. The Courts while interpreting a law do not
legislate or create any new law or amend the existing law. By
interpreting the law, the Courts only declare the true meaning of
the law which already existed. Therefore, to that extent the law
declared by the Court is applicable from the date the law is
enacted. However, as under the Constitution only the decision- of
this Court on a question of law or in so far it enunciates a
principle of law is binding on all Courts, and Authorities, the
possibility that a provision of law or Constitution before it came
up for interpretation before this Court, was interpreted or
understood differently could not be ruled out. Therefore, if as a
result of interpretation of a law or a Constitutional provision by
this Court, the existing interpretation or meaning of the law is
changed, then it is more of a matter of public policy based on
justice, equity and good conscious than a rule of law, that an
innocent person who acting bona fidely on the prevailing
interpretation or meaning of law created a liability or acquired a
right, be protected against the change brought about in the
existing state of law as a result of its interpretation by this Court.
However, where a person or authority acts in defiance of a clear
provision of law or Constitution or the interpretation by the Court
does not have the effect of changing the prevailing understanding
of the meaning of the provision of law or the Constitution, the
question of, protecting any one against the effect of such
interpretation by the Court on the principle that the effect of
interpretation by given prospective operation, does not arise. For
example, if a particular provision of law or the Constitution has
not come up for interpretation before any Court and the
functionaries responsible for giving effect to it have consistently
interpreted the said provision and understood it in a particular
scene and acted upon it accordingly over a length of time, but all
of a sudden the functionaries decide to follow a new practice by
changing the interpretation of that provision. However, when the
matter is brought before the Court, the solitary deviation by the
functionaries made on the basis of changed interpretation is
struck down by the Court as illegal and unconstitutional and the
previous interpretation and practice followed by the functionaries
is upheld being in accordance with the law and Constitution. In
that event, neither the functionaries nor the person deriving any
benefit on the basis of the new practice founded on the changed
interpretation of the provision of law or the Constitution could
Const. Petition No.127 of 2012
150
defend the illegality or unconstitutionality of the action on the
principle that the interpretation given by the Courts be applied
prospectively and not retrospectively, as in such a case the Court
is striking down the very first deviation of the functionaries on the
ground
that
the
deviation
from
the
previous
practice/
interpretation is illegal and unconstitutional. The principle that
the change in the state of law as a result of interpretation by this
Court is to be given effect to from the date the Court interpreted
the law is also not applicable in those cases which could be
brought under challenge in accordance with the law before or
after the interpretation of the provision by this Court. Even
otherwise, as pointed out by us earlier, this Court while adopting
an interpretation of the provision of the law or the Constitution
which is at variance from the existing view, it is only declaring the
correct law as an apex Court. By doing so, it neither legislates any
new law nor amends the existing law. Therefore, while
interpreting a provision of law or the Constitution, this Court can
also provide the date from which the interpretation given by it is
to come into effect, keeping in view the nature of the provision it
is interpreting, the likelihood of possible prejudice which may be
caused to an individual or a body of individual and the
requirement of justice in the case.â
[Also see: Golak Nath v. State of Punjab (AIR 1967 SC 1643) and
Messrs Haider Automobile Ltd v. Pakistan (PLD 1969 SC 623)]
96.
Similarly, depending upon the facts and circumstances of
a case, the Supreme Court, having vast powers, while delivering its
judgment or making an order can lay down the parameters for its
implementation
including
the
option
of
its
retrospective
applicability from any particular date, so as to make sure its
effective fallout, as the situation in a particular case may demand.
For doing so, one of the underlining principle is âActus Curiae
Neminem Gravabitâ (an act of the Court shall prejudice no man).
As, no body should suffer due to any act, omission or mistake of
the Court. Similarly no body should take undue advantage or
benefit of any act, omission, mistake or legal error committed by
the Court and to avoid adverse effect of such judgment, powers are
to be exercised by the Court in the manner to save it from
Const. Petition No.127 of 2012
151
becoming an abuse of the process of law. In the present
proceedings as highlighted earlier, due to judgment under
challenge public exchequer has been unjustly burdened with the
liability of Rs.1,647,130,156/-,besides additional payment of
Rs.32,604,359/- towards monthly pension, thus, in all fairness
such mistake of law is to be cured in a manner to repair such huge
financial loss to the public exchequer.
97.
While discussing the fallout of the judgment under
challenge having been declared per incurium, we find that this
Court, in exercise of its jurisdiction under Articles 184(3), 187 and
188 of the Constitution, in order to do complete justice and stick to
the norms of equity and fair play is not denuded of its powers to
order implementation of this judgment retrospectively from the
date of the judgment under challenge. Dilating further upon the
maxim âActus Curiae Neminem Gravabitâ (an act of the Court
shall prejudice no man), we find that concept of â prejudice no
manâ visualized in it, includes not only individual parties before
the Court but also any juristic person such as corporations, banks,
government
functionaries,
including
Federal
or
Provincial
Government. Thus, in the instant proceedings due to the act or
mistake of the Court no prejudice should be caused to the interest
of the Federal or Provincial Government like any other ordinary
litigant before the Court. Moreover, when we have declared the
judgment under challenge âper incuriumâ, its natural fallout is that
whosoever has availed its benefit in any form he is bound to
restore it in favour of the other, whose interest has been prejudiced
due to such act of the Court. It is also to be noted here that all the
sums so paid by the Government to honourable retired judges,
exceeding Rs.1.64 billion (Rs.1,647,130,156/-) have been paid
Const. Petition No.127 of 2012
152
from the public exchequer, which is otherwise a sacred public
trust, therefore, its improper use or mishandling in any form is to
be checked and controlled at all costs.
98.
The discussion made in the last two paragraphs of this
judgment gains full support from the case of South Eastern
Coalfields Ltd. v. State of M.P. (AIR 2003 SC 4482), wherein after
detailed discussion with reference to several other cases on the
doctrine of âactus curiae neminem gravabitâ, the Indian Supreme
Court observed as under:-
â26.
That no one shall suffer by an act of the Court is not a rule
confined to an erroneous act of the Court; the âact of the courtâ
embraces within its sweep all such acts as to which the court may
form an opinion in any legal proceedings that the Court would not
have so acted had it been correctly apprised of the facts and the law.
The factor attracting applicability of restitution is not the act of the
Court being wrongful or a mistake or error committed by the court;
the test is whether on account of an act of the party persuading the
Court to pass an order held at the end as not sustainable, has
resulted in one party gaining an advantage which it would not have
otherwise earned or the other party has suffered an impoverishment
which it would not have suffered but for the order of the Court and
the act of such party. The quantum of restitution, depending on the
facts and circumstances of a given case, may take into consideration
not only what the party excluded would have made but also what
the party under obligation has or might reasonably have made.
There is nothing wrong in the parties demanding being placed in the
same position in which they would have been had the Court not
intervened by its interim order when at the end of the proceedings
the Court pronounces its judicial verdict which does not match with
and countenance its own interim verdict. Whenever called upon to
adjudicate, the Court would act in conjunction with what is the real
and substantial justice. The injury, if any, caused by the act of the
Court shall be undone and the gain which the party would have
earned unless it was interdicted by the order of the court would be
restored to or conferred on the party by suitably commanding the
party liable to do so. Any opinion to the contrary would lead to
unjust if not disastrous consequences. Litigation may turn into a
fruitful industry. Though litigation is not gambling yet there is an
element of chance in every litigation. Unscrupulous litigants may
feel encouraged to approach the Courts, persuading the court to
Const. Petition No.127 of 2012
153
pass interlocutory orders favourable to them by sues are yet to be
heard and determined on merits and if the concept of restitution is
excluded from application to interim orders, then the litigant would
stand to gain by swallowing the benefits yielding out of the interim
orders even though the battle has been lost at the end. This cannot
be countenanced. We are, therefore, of the opinion that the
successful party finally held entitled to a relief assessable in terms of
money at the end of the litigation, is entitled to be compensated by
award of interest at a suitable reasonable rate for the period for
which the interim order of the Court withholding the release of
money had remained in operation.â
[Also see: Jai Berham v. Kedar Nath Marwari (AIR 1922 P.C 269)]
99.
Besides, it is germane to observe here with reference to
the arguments of some learned ASCs, insisting for only prospective
applicability of this judgment, that this Court has not legislated or
laid down any new law through its judgment in hand, but only
interpreted and enunciated correctly an existing law, which is in
force in the form of Article 205 of the Constitution with its Fifth
Schedule and Presidentâs Order 3 of 1997, since the year 1973 and
1997 respectively. Therefore, premised on these admitted facts
there is no tenable legal ground to hold the applicability of this
judgment prospectively and not retrospectively, so as to curb the
mischief of earlier erroneous enunciation/interpretation of law.
100.
From the earlier discussion as regards the scope and
applicability of paragraph No.29 of Presidentâs Order 3 of 1997 (as
reproduced earlier) read with regulation No.423 of CSR, we find
that, prima facie, the honourable retired Judges shown in the
above reproduced chart, at serial No.18,20,29,31 & 35 (M/s
Justice Dr. Munir Ahmad Mughal, Justice Ghulam Mahmood
Qureshi, Justice Muhammad Muzammal Khan, Justice Fazal-e-
Miran Chowhan, and Mst. Shahnaz Ansari w/o Late Justice
Tanveer Bashir Ansari) from the Lahore High Court; serial No.9 & 13
(M/s Justice Fazal-ur-Rehman, and Justice Muhammad Daud
Const. Petition No.127 of 2012
154
Khan) from the Peshawar High Court; serial No.2 (Mr. Justice
Mehta Kelash Nath Kohli) from the Balochistan High Court; and,
serial No.4,5&6 (M/s Justice Majida Rizvi, Justice Dr. Ghous
Muhammad, and Justice Amanullah Abbasi) from the Sindh High
Court, having actually served for different periods, but for more
than four years or four years nine months (as the case may be) in
each case and in some cases just few days less than five years, are
eligible to lay their claim for pensionary benefit before the
competent authority (President) by following due process of law in
line with paragraph-29 of Presidentâs Order 3 of 1997 and
applicable regulation No.423 of CSR, which reads as under:-
â423. (1) A deficiency of a period not exceeding six months in the
qualifying service of an officer shall be deemed to have been
condoned automatically.
(2) The authority competent to sanction pension may
condone a deficiency of more than six months but less than a
year subject to the following conditions, namely:-
(a)
The officer has died while in service, or has retired
under circumstances beyond his control, such as
on invalidation or the abolition of his post, and
would have completed another year of service if he
had not died or retired.
(b)
The
service
rendered
by
him
had
been
meritorious.â
101.
However, those honourable retired judges of the High
Court, who have retired as such before coming into force of
Presidentâs Order 3 of 1997 on 12.2.1997, for the purpose of
making up similar deficiency will be governed by the proviso to
paragraph-13(c) of Presidentâs Order 9 of 1970, providing for
making up deficiency upto three months or less and not by
paragraph-29 of the Presidentâs Order 3 of 1997 read with
regulation No.423 of CSR. We, therefore, expect that if any such
Const. Petition No.127 of 2012
155
representations or fresh representations are made by the
honourable retired judges qualified under either of the two
categories of retired judges, before the President of Pakistan, he
will decide the same within two month so as to fairly adjudicate
and safeguard the interest of these honourable retired Judges in
accordance with applicable law.
102.
Since during his arguments, Mr. Munir A. Malik, learned
Sr. ASC made reference to a subsequent judgment of the High
Court of Sindh dated 1.7.2008, in C.P No.D-24/2002 (Re: Mrs.
Majid Rizvi v. Federation of Pakistan and others) relating to the
same controversy, passed in favour of one honourable retired
Judge of the High Court and also placed on record copy of said
Petition under Article 199 of the Constitution, alongwith the copy
of judgment passed therein, it became imperative for us to discuss
this aspect of the case also. A perusal of contents of the said
petition reveals that though in the petition a reference to the earlier
judgment of a Division Bench of the High Court dated 02.2.1995 in
C.P No.D-2308/1994 (Re: Ahmed Ali U. Qureshi v. Federation of
Pakistan and others) was made, but the prayers made by the
petitioner were for seeking directions to the President of Pakistan
for condonation of deficiency in her length of service and to
determine the payable pension of the petitioner as a retired judge
of the High Court notwithstanding her length of service; as before
her retirement she had served as a Judge of the High Court for a
period of 04-years, 07-months and 12-days. The learned Division
Bench of the High Court, while passing its judgment dated
1.7.2008, had not made any independent discussion on the merits
of the contentions raised before it by the petitioner, but simply
Const. Petition No.127 of 2012
156
placed reliance upon the judgment under challenge dated
6.3.2008, which was referred before it. In such circumstances, it
goes without saying that as the above referred judgment has now
been declared per incuriam, therefore, as its corollary, the
judgment dated 1.7.2008 in C.P No.D-24/2002, is also liable to be
set aside and the petition has to be dismissed. We accordingly
order so. However, it will be open for the honourable retired
Justice Majida Rizvi that she may apply afresh to the President of
Pakistan for availing the benefit of relevant provisions of President
Order No.3 of 1997 applicable to her case; paragraph-29 whereof,
read with regulation No.423 of CSR, inter alia, provides for
automatic making up of deficiency in the length of service upto six
months.
103.
As some of the learned ASCs on behalf of the Honourable
Retired Judges have also attempted to present their case on the
cardinal principle of independence of judiciary, including financial
independence, and National Judicial Policies (NJP) 2009 and 2012,
we may mention here that indeed the âJUDICIARYâ, as a third
pillar of the State needs to be independent in all respects,
including its financial matters, but at the same time such
independence is subject to the mandate of the Constitutional
provisions. A bare reading of Part VII Chapters 1 to 4 i.e. Articles
175 to 212 together with Article 2-A and some other relevant
constitutional provisions define such independence of the
judiciary, thus, it cannot be argued that the issue regarding right
to pension for retired Judges of the High Court, which is the
crucial point under consideration in the present proceedings, has
as such any nexus to the financial independence of judiciary as a
Const. Petition No.127 of 2012
157
institution. Similarly, reference to National Judicial Policies 2009 &
2012 confer or create no right to pension beyond the intent of the
legislature, as evident from the plain reading of Article 205 read
with Fifth Schedule of the Constitution and the applicable
Presidentâs Orders 9 of 1970 or 3 of 1997.
104.
Apart
from
various
Constitutional
provisions
and
Presidential orders reproduced and discussed above, some of the
learned ASCs have also made reference of other Presidential Orders
Nos.1 of 1968, 5 of 1983, 3 of 1990, 2,6,7 & 9 of 1991, 1 & 2 of
1993, 1&2 of 1994, 3&5 of 1995, 2 of 1997, 1,2&3 of 1998, 2&3 of
2000, 1,2&3 of 2001, 2 of 2004, 1 to 4 of 2005, and 2&3 of 2006.
However, in our opinion, in so far as the issue regarding review of
judgment under challenge is concerned except interpretation of
relevant Constitutional provisions and Presidentâs Orders 9 of 1970
and 3 of 1997, on the subject of right to pension of honourable
retired Judges of the High Court, having less than five years actual
service as such, no detailed discussion on these Presidential Orders
is required. More so, as all these Presidentâs Orders relate to the
increase in salaries and other benefits of the judges of the superior
judiciary or grant of some additional facilities to them from time to
time while in actual service or after retirement, as the case may be.
But have no nexus to the determination of right to pension by the
President in terms of paragraph-2 of the Fifth Schedule to Article
205 of the Constitution.
105.
When we look at the individual cases of some of the
honourable retired Judges of the High Court, we find that M/s
Mian Saeed ur Rehman Farrukh and Khan Riaz-ud-Din Ahmad,
JJ, are the two affectees of judgment of the Apex Court in the case
Const. Petition No.127 of 2012
158
of Al-Jehad Trust, (supra). In this case when the question of
appointment of judges in the superior judiciary came up for
consideration before a five member Bench, inter alia, following
discussion was made:-
âThe independence of Judiciary is inextricably linked and
connected with the constitutional process of appointment of
Judges of the superior Judiciary. The relevant constitutional
provisions are to be construed in a manner which would ensure
the independence of Judiciary. A written Constitution is an
organic document designed and intended to cater the need for all
times to come. It is like a living tree, it grows and blossoms with
the passage of time in order to keep pace with the growth of the
country and its people. Thus, the approach, while interpreting a
constitutional provision should be dynamic, progressive and
oriented with the desire to meet the situation, which has arisen,
effectively. The interpretation cannot be a narrow and pedantic.
But the Court's efforts should be to construe the same broadly, so
that it may be able to meet the requirement of ever changing
society. The general words cannot be construed in isolation but
the same are to be construed in the context in which, they are
employed. In other words, their colour and contents are derived
from their context.
The above principles will have to be kept in view while
construing the provisions of the Constitution relating to the
appointments/transfers of Judges of the superior Judiciary.
Courts, while construing a constitutional provision, can
press into service an established constitutional convention in
order to understand the import and the working of the same, if it
is not contrary to the express provision of the Constitution.â
More over, as regards few earlier appointments of the judges in the
High Courts, which were found to be violative of the scheme of the
Constitution, some parameters were laid down and following
directions were issued:-
That upon the appointment of the permanent Chief
Justices in the High Courts where there is no permanent
incumbent or where there are permanent incumbents already,
they shall process the cases of the High Courts' Judges in terms
of the above declaration No. 13 within one month from the date of
this order or within one month from the date of assumption of
office by a permanent incumbent whichever is later in time and to
Const. Petition No.127 of 2012
159
take action for regularising the appointments/confirmation of the
Judges recently appointed/confirmed inter alia of respondents
Nos.7 to 28 in Civil Appeal No.805/95 in the light of this short
order. In like manner, the Chief Justice of Pakistan will take
appropriate action for recalling permanent Judges of the Supreme
Court from the High Courts where they are performing functions
as Acting Chief Justices and also shall consider desirability of
continuation or not of appointment in the Supreme Court of Ad
Hoc/Acting Judges.
106.
This being the position, despite their effective service as
Additional Judges or otherwise for any period, since their
appointments were neither legal nor regularized, they cannot be
even considered as Judges of the High Court. Besides, calculations
as regards their actual period of service as retired judges of the
High Court, made by the learned Sr. ASC during his arguments, to
bring their case within the category of Judges, who have served as
a Judge of the High Court for five years or more, are entirely
misconceived, inasmuch as, from no stretch of imagination
intervening period, when they had not served as High Court
judges, could form part of their actual period of service for the
purpose of such relief.
107.
Arguments of some of the learned Sr. ASCs with reference
to the observations of this Court contained in paragraph No.178 of
the judgment in the case of Sindh High Court Bar Association
(supra) are also without force, as applying the principle of exercise
of de facto jurisdiction, only judicial proceedings were saved, but
these observations had not conferred or blessed any sanctity to the
findings in the judgments passed during such proceedings nor
protected them from being challenged in accordance with law. To
make this view more clear the relevant paragraph No.178 is
reproduced as under:-
Const. Petition No.127 of 2012
160
178. However, the judgments and orders passed, and proceedings
taken in the cases of other litigants involving their rights and
interests in civil, criminal and other matters, any function
performed under the Constitution including administering of oath
to the President, and other acts, whether administrative or
financial, done or performed by Abdul Hameed Dogar, J, and
such other Judges or by any authority, or by any person, whether
in the Supreme Court or a High Court, which were passed, taken,
done or performed, or purported to have been passed, taken,
done or performed under the Constitution or law from 3rd
November, 2007 to 31st July, 2009, i.e. the date of this judgment
would not be affected on the principle laid down in Asad Ali's case
(supra).
108.
Considering the claim/case of the widows/legal heirs of
some of the Honourable Retied Judges, we may mention here that
the ratio of judgment under challenge is of no help to their claim,
as their cases are to be dealt with by the President strictly in terms
of paragraphs No.4 to 6 relating to the Supreme Court and the
High Court in the Fifth Schedule to Article 205 of the constitution.
109.
Inspired by the maxim âsalus populi est suprema lexâ
(public welfare is the supreme law), to which all other maxims of
public policy must yield, another important aspect of the case, on
which much arguments have not been advanced by the learned
ASCs is that as a result of judgment under challenge, erroneously
giving it a status of judgment in rem, this Court has hugely
burdened the public exchequer with uncalled for financial liability.
Therefore, being custodian of public interest and public welfare,
looking at this controversy from another angle, we consider it just,
fair and equitable to treat these proceedings as public interest
litigation to protect the rights of every citizen of this country qua
public exchequer and to lay down correct law for this purpose.
110.
While arguments with reference to principle of past and
closed transaction were being advanced before us repeatedly, we
also enquired from the learned ASCs as to whether such principle,
Const. Petition No.127 of 2012
161
if at all found applicable to the present case, should not have been
in the first place conversely made applicable to the case of those
honourable retired Judges of the High Court, who stood retired
during the period from 1970 onwards upto the date of judgment
under challenge, as they never agitated such claim during this long
period after their retirement from time to time. None of the learned
ASCs could offer any satisfactory reply to this query, except that
the right to pension has accrued in their favour on the basis of
judgment under challenge. This reply on their behalf is not only
frail and meritless but negates their other contention that right to
pension was otherwise available in their favour on the basis of
Article 205 read with Fifth Schedule of the Constitution and
Presidentâs Order 9 of 1970 or Presidentâs Order No.3 of 1997.
Undeniably, the right to pension of every Judge of the High Court
is to be determined and regulated in terms of Paragraphs-2 and 3
of Fifth Schedule to Article 205 of the Constitution, which is the
basic instrument for this purpose, together with applicable
Presidentâs Order No.9 of 1970 or 3 of 1997. Thus, the judgment
under challenge confers no independent right to pension for them.
Needless to mention here that where the superstructure is built on
altogether faulty factual or legal foundation, upon its removal, it is
bound to collapse as a whole.
111.
Considering the question of indulgence or sympathetic
consideration of the case of the honourable retired Judges of the
High Court, having been already benefited from the judgment
under challenge, we cannot lose sight of the fact that the heavy
sums paid to them, as partly reflected in the above reproduced
chart, were made from public exchequer, which is a sacred trust.
Thus all care and caution is required to see whether a mistake or
Const. Petition No.127 of 2012
162
illegality committed by the Court could make them entitled for
payment of more than Rs.1,647,130,156/- and further liability of
payment of Rs.32,604,359/- towards monthly pension. In view of
our discussion in this context made in the foregoing paragraphs,
we have no option but to hold that all the sums paid to each of the
honourable retired judges, who were made entitled for pensionary
benefits in terms of the judgment under challenge, are liable to be
recovered from them.
112.
It is necessary to mention here so as to make the things
more clear that admittedly before his retirement as a Judge of the
High Court on 19.10.1994, retired Justice Ahmed Ali U. Qureshi
had served as such for a period of 03-years and 04-months
(approximately) and since by this judgment the Constitutional
Petition No.D-2308 of 1994 filed by retired Justice Retied Ahmed
Ali U. Qureshi before the High Court of Sindh has also been
dismissed, therefore, all the benefits, except as per his entitlement
as a retired District Judge qua paragraph 15 of Presidentâs Order 9
of 1970, availed under the said judgment of the Sindh High Court
and the judgment under challenge are to be recovered from the
legal heirs of the deceased to the extent of their liability in this
regard, but in accordance with law.
113.
There is yet another aspect of this case, which has been
argued before us by some of the learned ASCs and honourable
retired Judges of the High Court, who were either elevated or had
resigned from their offices after the judgment under challenge.
They
had
contended
that
since
at
the
time
of
their
elevation/resignation judgment under challenge was in full force
applicable, followed and implemented, therefore, valuable rights
have accrued in their favour on the principle of legitimate
Const. Petition No.127 of 2012
163
expectancy which cannot be done away lightly by way of some
observations in this case. Indeed, such submissions of some of the
newly elevated or honourable retied Judges of the High Court are
in line with the ratio of the judgment under challenge, but at the
same time it is to be noticed that the Honourable Judges, who
have resigned from their office before completion of minimum five
years actual service as such have to bless their own stars for this
purpose because their mere oral assertion that they had to resign
from their office under compelling circumstances, cannot be legally
accepted as a valid defence. As regards the other Judges, who have
taken oath of their office as High Court Judge after the judgment
under challenge, suffice it to observe that since the said judgment
has been declared per incurium, and become null and void,
therefore, any claim based on the principle of locus poenitentiae or
legitimate expectancy cannot hold the field. More so, when as to
their right to pension honourable retired judges are to be governed
by the law in force at the relevant time i.e. Article 205 of the
Constitution read with its Fifth Schedule and President Order No.3
of 1997, regarding which a detailed discussion has already been
made in the preceding paragraphs of this judgment, and not by the
dicta laid down in the judgment under challenge. The honourable
retired judges of the High Court also cannot claim any benefit on
account of its implementation by the respondents on the principle
of past and closed transaction or on the principle estoppel, as on
one hand it is a continuing liability over the public exchequer to
the tune of approximately Rupees Thirty million per month, thus
giving recurring cause of action; and, on the other hand, being
judgment of the apex Court, the respondents had no option but to
implement it in its letter and spirit or to face penal consequences
of non-compliance, including contempt proceedings.
Const. Petition No.127 of 2012
164
114.
It is pertinent to mention here that the principle of locus
poenitentiae, which refrains from rescinding, if a decisive step is
taken in furtherance of some action, is mainly confined to
administrative actions and not to the judicial pronouncements, as
rescinding in the form of review, recalling, varying or amending the
earlier order or judgment will have statutory backing in the form of
Article 188 of the Constitution and section 21 of the General Clauses
Act 1897. Thus, the principle of locus poenitentiae cannot placidly
take away the authority of the apex Court to undo a wrong
occasioned due to the act of the Court. If a contrary view of the
matter is taken, then these provisions of law will become a farce,
meant only for the purpose of academic discussion without power to
repair the loss caused to an aggrieved party due to a judgment per
incuriam, null and void in nature. Here, in order to understand the
principle of locus poenitentiae more clearly, reference to the cases of
Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and
Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907), will also be
useful. In the case of Engineer-in-Chief Branch (supra), it was held
that locus poenitentiae is the power of receding till a decisive step is
taken but it is not a principle of law that order once passed
becomes irrevocable and past and closed transaction. If the order
is illegal then perpetual rights cannot be gained on the basis of such
an illegal order. In the other case of Abdul Haq Indhar (supra),
discussing the principle of locus poenitentiae, provisions of section 21
of General Clauses Act were also considered and it was affirmed that
the authority which can pass an order, is entitled to vary, amend,
add to or to rescind that order, as locus poenitentiae is the power of
receding till a decisive step is taken, but it is not a principle of law
that order once passed becomes irrevocable and past and closed
transaction. If the order is illegal then perpetual rights cannot be
Const. Petition No.127 of 2012
165
gained on the basis of such an illegal order. Thus, mere bonafide of
the beneficiaries of the judgment under challenge, as claimed, which
carry a big question mark due to their legal background and post
retirement conduct, as discussed earlier, is not enough to dilute the
effect of the judgment in hand.
115.
As regards the honourable retired judges of the High Court,
who have opted to resign or have retired after the judgment under
challenge, here a reference to the case of Justice Hasnat Ahmed
Khan v. Federation of Pakistan/State (PLD 2011 SC 680) is also
necessary wherein the consequence of unconstitutional P.C.O 1 of
2007, dated 3.11.2007 qua it implications on the superior judiciary
were examined in detail with reference to an order passed by a seven
member Bench of the Supreme Court on the same day, and as
regards the judges who have either taken oath under the P.C.O 1 of
2007 or had violated the said order of the Court dated 3.11.2007,
following observations were made:-
âAppellant and others shall be entitled for the service and
pensionary benefits upto 20.4.2010 when 18th Constitutional
Amendment was passed; however if ultimately they are found to be
guilty of contempt of the Court by the Supreme Court, their cases
for affecting the recovery of pensionary benefits in future shall be
dealt with accordingly.â
In these circumstances, to say that some judges of the High Court,
who resigned from their office after the judgment under challenge,
could legitimately claim right to pension without meeting the
threshold of minimum five years actual service, has no legal
foundation.
116.
As regards the issue of recovery of pensionary benefits
availed by some honourable retired judges of the High Court in
terms of judgment under challenge, when we look at the recent
pragmatic approach employed by this Court to safeguard public
interest qua securing public exchequer, we find that in the case of
Const. Petition No.127 of 2012
166
Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD
2012 SC 1054) and Syed Mehmood Akhtar Naqvi versus
Federation of Pakistan (PLD 2012 SC 1089), wherein declaration
was issued against number of elected MNAs, MPAs and Senators
for their disqualification from being Members of Majlis-e-Shoora
(Parliament), Provincial Assemblies and the Senate, because of
holding dual nationalities and consequent disqualification under
Article 63(1)(c) of the Constitution, despite they having served their
respective Institution (Parliament) during the intervening period,
Court ordered that all these Members of the Parliament and
Provincial Assemblies etc being declared disqualified are also
directed to refund all monetary benefits drawn by them for the
period during which they kept the public office and have drawn
their emoluments etc. from the public exchequer, including the
remuneration, T.A./D.A., facilities for accommodation alongwith
other perks which shall be calculated in terms of the money by the
Secretaries of the National Assembly, Senate and Provincial
Assemblies accordingly.
117.
In another case of similar nature titled Muhammad Yasin
versus Federation of Pakistan (PLD 2012 SC 132), relating to
appointment of Chairman, OGRA, which was declared illegal and
void ab inito, it was further ordered that all salaries, value of
perquisites and benefits availed from the date of his appointment
till the date of the judgment shall be recovered by the Government
from the beneficiary Chairman at the earliest. In contrast the facts
of these two cases, the beneficiaries of judgment under challenge
(the honourable retired judges of the High Court) during the
intervening period have not worked or undertaken any assignment
so as to make their cases worth consideration for some concession
or relief on this ground.
Const. Petition No.127 of 2012
167
118.
The above discussed recent trend adopted by this Court
to safeguard public exchequer from being misused has persuaded
us to follow a similar course in the present case. More so, as this
principle can not be deviated merely for the reason that this time
the affectees of this judgment are some honourable retired judges
of the High Court, who are very respectable citizens of the Country.
Rather, adoption of this course in the present proceedings is all the
more necessary to strengthen the inbuilt process of self
accountability, which is necessary to earn public confidence in our
judicial system.
119.
Leaving apart the principles of English jurisprudence qua
the intricacies of the legal principles discussed hereinabove, when we
simply look at the principles of Islamic jurisprudence, having special
significance in our judicial system by virtue of Article 2-A of the
Constitution, in the context of moot point No.(c) of paragraph-61
(ibid), we find that there is no legal notion under the Islamic
dispensation of justice, furnishing any reasonable justification for the
honourable retired judges of the High Court to retain the financial
benefits availed by them under the disguise of pension on the basis of
judgment under challenge, which we have already declared per
incuriam, null and void.
120.
While dealing with a lis at any level and in any form,
every Court has to keep in mind the golden principle that all laws
in any form, may be constitutional provisions, including
fundamental rights provided in Part-II of the Constitution or the
sub-Constitutional legislations of different nature are based on one
broad principle of equal dispensation of justice for all, for which
every citizen of this country enjoys similar legal status, thus, he
cannot be discriminated on any high moral ground. We have no
Const. Petition No.127 of 2012
168
hesitation to further clarify that interest of public at large is to be
given priority and preference over the interest of individuals,
therefore, interest of public at large cannot be sacrificed to extend
profane benefits to some individuals. Thus, to say that this Court
looking to the peculiar facts and circumstances emerging from the
judgment under challenge, shall take a lenient view of the matter
so as to protect the benefit of the judgment under challenge
already availed by some honourable retired High Court Judges has
absolutely no legal or moral force. As a matter fact, all honourable
retired judges of the High Court, who had less than minimum five
years actual service to their credit as such and beneficiary of
judgment under challenge, are legally and morally bound to restore
all such gains to the public exchequer so as to set an example for
the society about their high morals and conduct, which is expected
from all those who are supposedly role model for the society.
121.
Before parting with this judgment, we also record a note
of our appreciation for M/s Khawaja Haris Ahmed and Salman
Akram Raja, the two learned amici curiae appointed in this case,
for their valuable assistance in this matter.
Islamabad, the
11th April, 2013.
Approved for reporting.
īīŋŊاīŋŊī
Judge
Judge
Judge
Judge
Judge
169
MIAN SAQIB NISAR, J.- Pursuant to the short order
dated 11.4.2013 consensually passed by this Bench in the noted
matter, my learned brother Anwar Zaheer Jamali, J. has composed
the detailed reasons. I have the privilege of going through such
exposition and to an extent agree thereto, however, with due
deference to the honourable Judge, where my reasons are
otherwise or I hold an opinion different on any of the proposition(s)
(involved herein), it shall be duly reflected in this discourse.
2.
The facts of the matter; the submissions made at the
podium by all the concerned and the laws cited in that context,
have been extensively and elaborately given in the judgment of my
learned brother, however, still though at the cost of repetition, but
with an object to facilitate the comprehension of my present
determinant I shall make a brief mention of such facts which are
absolutely relevant, in that:- these proceedings having emanated
from a note dated 21.11.2012, put up by the Registrar of this
Court to the Honâble Chief Justice of Pakistan stating therein, in
some detail, the background of the verdict rendered by this Court
in Accountant-General, Sindh and others Vs. Ahmed Ali U.
Qureshi and others (PLD 2008 SC 522) (hereinafter referred to as
âThe Judgmentâ) and specifying that, the entitlement of the
pensionary rights (benefits) of the honourable retired Judges of the
High Courts (hereinafter referred to as the Judges), in such
decision, inter alia, have been based upon P.O.8/2007, which was
promulgated by the President of Pakistan on 14.12.2007, but such
order (PO) has been declared unconstitutional, ultra vires and void
ab initio vide judgment of this Court dated 31.7.2009 passed in
Sindh High Court Bar Association through its Secretary and
170
another Vs. Federation of Pakistan through Secretary,
Ministry of Law and Justice, Islamabad and others (PLD 2009
SC 879), besides, âthe judgmentâ otherwise is wrong in law,
therefore, it was suggested âthe matter is therefore of great public
importance as huge public money is being expended without any legal
justification despite the fact that the basis of the judgment itself has lost its
validity. It is therefore a fit case for Suo Moto Review.â. Upon the said note,
the Honâble Chief Justice passed an order dated 23.11.2012 to the
following effect:-
âPerusal of the above note prima facie makes out a case
for examination of points raised therein. Therefore,
instant note be registered as Suo Moto Misc. Petition and
it may be fixed in Court in the week commencing from
03.12.2012. Notice to Honâble Retired Judges, who are
beneficiaries of the judgment dated 6.3.2008 be issued.
Office shall provide their addresses. Notice to Attorney
General for Pakistan may also be issued.â
This is how the noted matter has come up for hearing before the
Court and vide order dated 29.1.2013, the Bench seized of the
matter, appointed M/s Makhdoom Ali Khan (not appeared), Khawaja
Haris Ahmed and Salman Akram Raja, learned ASCs to assist the
Court as amicus curiae. In the context of the above, the epitome of
the submissions made by all the concerned before the Court are:
(1) whether the present proceedings are maintainable or otherwise;
in this regard the authority/action of the Registrar of this Court
upon whose note these proceedings were initiated has been
seriously questioned (2) whether (in the context of maintainability) âthe
judgmentâ, which was passed in the appellate jurisdiction of this
Court under Article 185 of the Constitution, and/or under Article
171
184(3) thereof can (or cannot) be reviewed, revisited and set aside by
this Court, in the instant suo moto proceedings (note: as while arguing
from the Judges side it is the plea of almost all, that these proceedings predominantly have nexus
to Article 184(3) of the Constitution) (3) whether these proceedings qualify (or
do not qualify) the test and the principles set out by law (including the
law enunciated by this Court) for the purposes of review of a judgment,
either under Article 188 of the Constitution or even while
exercising suo moto jurisdiction by this Court (4) whether âthe
judgmentâ is founded upon valid, proper, due and correct
consideration, application and interpretation of relevant provisions
of law, i.e. Article 205 of the Constitution of Islamic Republic of
Pakistan 1973 (hereinafter referred to as the Constitution) read
with the Fifth Schedule thereto, and various (certain) Presidential
Orders (5) whether a vested right(s) stand created in favour of the
Judges on the basis of âthe judgmentâ, which cannot be stultified
vide the instant proceedings, even if âthe judgmentâ is per
incuriam, and such right(s) is protected by the rules of past and
closed transaction, the locus poenitentiae, and legitimate
expectation (6) whether in the facts of the matter any protection is
available to the Judges on the rule of equality as enshrined by
Article 25 of the Constitution (7) without prejudice to the above, if
this Court comes to the conclusion, that âthe judgmentâ is per
incuriam and thus it should be set aside, whether such decision
shall have prospective or retroactive effect. And the right of the
Judges to receive pension in future shall not be affected on
account of such (this) decision; and in any case, the amounts so far
received by them, under âthe judgmentâ cannot be directed in law
to be recovered (from them).
172
MAINTAINABILITY
(Questions No.1, 2 and 3)
3.
My learned brother has exhaustively dealt with the
question of maintainability, which is a threshold proposition of the
matter, and in this behalf extensive reference to the case law has
also been made. I therefore have no intention to add any
superfluity to that, however, my approach to the proposition is
quite simple, plain and facile, in that, the Supreme Court of
Pakistan is the apex Court of the country. It is the final, the
utmost and the ultimate Court, inter alia, in relation to, (a)
resolving disputes inter se the parties before it, (b) securing and
enforcing the fundamental rights of the citizen/person, when those
(rights) are in issue before the Court, in any of its jurisdiction,
either original or appellate or suo moto, (c) the interpretation and
the enunciation of the law of the land, (d) examining and adjudging
the legislative Acts and the executive order/actions of the State, in
the exercise of its power of judicial review, (e) the exercise of
original jurisdiction as per the mandate of Article 184 of the
Constitution, (f) the advisory jurisdiction within the parameter of
Article 186 of the Constitution, (g) the review of its decision
(judgments) (see Article 188) (h) a special jurisdiction conferred upon this
Court by any law. And above all the power to do complete justice
(see Article 187). In terms of Article 189 of the Constitution, âAny
decision of the Supreme Court shall, to the extent that it decides question of law
or is based upon or enunciates a principle of law, (emphasis supplied) be binding on
all other courts in Pakistanâ. Moreover, according to Article 190 âAll
executive and judicial authorities throughout Pakistan shall act in aid of the
Supreme Courtâ.
4.
The aforestated legal position explains and highlights
173
the true magnitude and the supremacy of this Court in regard to
the dispensation of justice in the country and the enunciation and
the declaration of the law by it. As the law laid down by the (apex)
Court, and the order(s) passed by it, being the paramount and
ultimate in nature, has to be imperatively and mandatorily
followed, obeyed and adhered to by all the concerned. Reading
Articles 189 and 190 conjointly, and while keeping in view the
scheme of the constitution, the very purpose, the pivotal position
and the status of this Court (prescribed above), it is expedient that
correct law should be pronounced by the apex Court. And
pursuant to the above object and due to the venerated position of
this Court, the Court is cumbered with, inviolable responsibility,
and a sacred duty, to interpret, declare and enunciate the law
correctly, so that it should be followed, obeyed and adhered to
purposively and in letter and spirit, by all the other organs of the
State (including all other Courts in Pakistan) strictly inconsonance with the
true aim of the aforementioned Articles. It may be pertinent to
mention here, that any invalid enunciation of law, shall contravene
and impugn the very character, and attribute(s) of this Court and
such bad/wrong law shall cause drastic adverse affects on the
socio-economic, political, geographical, ethnic, cultural aspects
and dynamics of the nation, the society, the people at large and the
State in presentee or in futurio. In the above context, reference can
also be made to Article 4 of the Constitution which enshrines (inter
alia) an inalienable right of every citizen to be dealt with in
accordance with the law, obviously this shall mean the law that is,
correctly laid down by this Court. As it is a cardinal principle of
justice, that the law should be worn by the Judge in his sleeves
174
and
justice
should
be
imparted
according
to
the
law,
notwithstanding whether the parties in a lis before the Court are
misdirected and misplaced in that regard. Therefore, if any law
which has been invalidly pronounced and declared by this Court,
which in particular is based upon ignorance of any provisions of
the Constitution, and/or is founded on gross and grave
misinterpretation thereof; the provisions of the relevant law have
been ignored, misread and misapplied; the law already enunciated
and settled by this Court on a specific subject, has not been taken
into account, all this, inter alia, shall constitute a given
judgment(s) as per incuriam; and inconsistent/conflicting decision
of this Court shall also fall in that category. Such decision
undoubtedly shall have grave consequences and repercussions, on
the State, the persons/citizens, the society and the public at large
as stated above. Therefore, if a judgment or a decision of this Court
which is found to be per incuriam (note: what is a judgment per incuriam has
been dealt with by my brother), it shall be the duty of this Court to correct
such wrong verdict and to set the law right. And the Court should
not shun from such a duty (emphasis supplied). For the support of my
above view, I may rely upon the law laid down in the dicta Lt. Col.
Nawabzada Muhammad Amir Khan Vs. The Controller of Estate
Duty, Government of Pakistan, Karachi and others (PLD 1962
SC 335 at page 340):-
âWhere, however, there is found to be something directed
by the judgment of which review is sought which is in
conflict with the Constitution or with a law of Pakistan,
there it would be the duty of the Court, unhesitatingly to
amend the error. It is a duty which is enjoined upon every
Judge of the Court by the solemn oath which he takes when
he enters upon his duties, viz., to "preserve, protect and
175
defend the Constitution and laws of Pakistan" But the
violation of a written law must be clear.â
M. S. Ahlawat Vs. State of Haryana and another (AIR 2000 SC
1680):-
â15. To perpetuate an error is no virtue but to correct it is
a compulsion of judicial conscience.â
Bengal Immunity Co. Ltd., Vs. State of Bihar and others (AIR
1955 SC 661):-
â19.
Reference is made to the doctrine of finality of
judicial decisions and it is pressed upon us that we should
not reverse our previous decision except in cases where a
material provision of law has been overlooked or where the
decision has proceeded upon the mistaken assumption of
the continuance of a repealed or expired statute and that
we should not differ from a previous decision merely
because a contrary view appears to us to be preferable.
It is needless for us to say that we should not lightly
dissent from a previous pronouncement of this court. Our
power of review, which undoubtedly exists, must be
exercised with due care and caution and only for
advancing the public well being in the light of the
surrounding circumstances of each case brought to our
notice but we do not consider it right to confine our power
within rightly fixed limits as suggested before us.
If on a re-examination of the question we come to
the conclusion, as indeed we have, that the previous
majority decision was plainly erroneous then it will be our
duty to say so and not to perpetuate our mistake even when
one learned Judge who was party to the previous decision
considers it incorrect on further reflection (emphasis supplied
by me).
In Superintendent and Remembrancer of Legal Affairs, west
Bengal Vs. Corporation of Calcutta (AIR 1967 SC 997) it is
held:-
176
âIf the aforesaid rule of construction accepted by this
Court is inconsistent with the legal philosophy of our
Constitution, it is our duty to correct ourselves and lay
down the right rule (emphasis supplied by me). In constitutional
matters which affect the evolution of our policy, we must
more readily do so than in other branches of law, as
perpetuation of a mistake will be harmful to public
interests. While continuity and consistency are conducive to
the smooth evolution of the rule of law, hesitancy to set
right deviations will retard it growth. In this case, as we
are satisfied that the said rule of construction is
inconsistent with out republican polity and, if accepted,
bristles with anomalies, we have no hesitation to
reconsider our earlier decision.â
The question, however, shall be as to how this duty should be
discharged and the object of correcting the wrong law, and setting
it (the law) right should be achieved. One of the obvious ways of
doing so is, when a party to the lis seeks review of the wrong
judgment in terms of Article 188 of the Constitution. But what, if
that remedy is not availed for any reason, or even if availed by the
concerned, is discarded by the Court (again by committing an another wrong).
Whether thereafter, such a wrong decision on the point of law,
cannot be remedied and interfered with, revisited or set aside at all
or in other words, even if a judgment which is patently per
incuriam, infinitely should be left outstanding, allowing it to
become the liability of this Court and our legal/judicial system, for
all future times. And the (this) Court and the system should be
fettered by it, and held as a captive thereto, leaving it intact to
pervade and permeate serious prejudice in perpetuity to the
persons/citizens of the country and even the State, compelling
them, to be dealt with by a wrong/invalid law, despite it having
come to the notice of the Court, through any means whatsoever,
177
that such decision suffers from patent and gross vice, and it is
vividly a judgment per incuriam by all references. The answer is
âNoâ. In my candid view the approach to leave such a decision to
stay intact shall be ludicrous and shall lead to drastic effects as
indicated above. Rather in such a situation this Court, having
special position in our judicature (judicial system as highlighted above)
shall have the inherent, intrinsic and inbred power (jurisdiction)
vested in it, (a) to declare a judgment per incuriam; (b) decline to
follow the same as a valid precedent, (c) and/or to set it aside. For
the exercise of jurisdiction in that regard and for the discharge of
the duty as mentioned earlier, it is absolutely irrelevant and
immaterial vide (via) which source it (decision) has come to the notice
of the Court. The Court once attaining the knowledge of such a
blemished and flawed decision has the sole privilege, to examine
the same and to decide about its fate, whether it is per incuriam or
otherwise. In this context, it may be mentioned, for example, if
while hearing some case, it is brought to the attention of the Court
by the member(s) of the Bar; or during the hearing of any matter,
the Court itself finds an earlier judgment to be per incuriam; or if a
Judge (Judge of this Court) in the course of his study or research,
comes across any judgment which in his view is per incuriam or if
any information through the Registrar of the Court is passed on to
the honourable Chief Justice of the Court or to any other Judge (of
this Court), by any member of the Bar, or the member of the civil
society (any organization/group of the society) that a judgment is per
incuriam (note: without the informant having any right or locus standi of hearing or
the audience, until the matter is set out for hearing in the Court and the Court deems it
proper to hear him), the Court in exercise of its inherent suo moto
178
power and the duty mentioned above (emphasis supplied) shall have the
due authority and the empowerment to examine such a judgment,
in order to ascertain and adjudge if the law laid down therein is
incorrect or otherwise. And if the judgment is found to be per
incuriam, it shall be dealt with accordingly. In such a situation (as
earlier stated) it shall not be of much significance, as to who has
brought the vice of the judgment to the notice of the Court or
through which channel it has reached there. Rather, the pivotal
aspect, the object, the concern and the anxiety of this Court
should be to examine the judgment and if it is per incuriam to set
the law right with considerable urgency.
5.
In the instant matter, as stated in the beginning, these
proceedings have genesis in the note put forth by the Registrar of
this Court, to which serious objection has been raised from the
Judgesâ side; in this behalf it may be held that though there is no
specific provision in the Supreme Court Rules, 1980, enabling the
Registrar to put up such note to the honourable Chief Justice of
Pakistan, but at the same time there is no bar or clog upon the
Registrar, being the principle officer of the court, not to bring to the
notice of the Chief Justice of Pakistan or the Court as the case may
be, that any decision earlier rendered by the Court is per incuriam
or needs to be reviewed. Therefore, in view of what has been
discussed, the objections about the maintainability of the present
proceedings and the jurisdiction of this Court are overruled. And it
is categorically held that judgments/decisions of this Court which
are per incuriam are a class apart, to which the limitations or the
rider of the Review (Article 188) or of the provisions of Article 184(3)
are inapplicable and not attracted. These Articles and the
179
limitations thereof shall have no nexus for the exercise of the
inherent jurisdiction of this Court and the discharge of its duty as
prescribed above for the correction of the decisions per incuriam.
Before parting with the topic, however, I feel urged to make a
reference to a full Court meeting of this Court, (presumably held on
26.4.2010) in which pursuant to an agenda item, in the context of
conflicting judgments by various Benches of the Supreme Court,
the office had put up a note envisaging that as the Supreme Court
provides guidance to all the Courts in the country and its
judgments are also binding upon them (Courts) thus, and any
conflict in its judgments shall have far reaching effect (note: obviously
conflicting judgments, shall fall within the purview of per incuriam). Upon the above
note, it was resolved by the full Court that the Librarian and
R&ROs of the Court should carry out an exercise in the matter and
point out instances of the conflicting judgments, and while doing
so, they may consult with eminent lawyers to take benefit of their
experience. Data should be prepared and the matter be placed
before the Honâble Chief Justice of Pakistan, who may like to
constitute a larger Bench to resolve the conflicting issues. It was
further resolved, if during the course of hearing of any case, an
instance of conflicting judgments comes to the notice of the Bench,
the Honâble Judges may refer the same to the Honâble Chief Justice
for constitution of a larger Bench to resolve the conflict. This
resolution of the full Court duly fortify my above point of view, that
it is the duty of this Court to declare and discard a judgment as
per incuriam and for this neither the source of its knowledge nor
the confines of ordinary Review and/or Article 184(3) are of much
relevance.
180
ENTITLEMENT TO PENSION
(Question No.4)
6.
On the aspect of entitlement to the right of the Judges
to receive pension, I am of the view that for the purposes of
adjudging the same, and for the interpretation of the relevant
provision of the Constitution i.e. Article 205 and Fifth Schedule
thereto, and the apposite Presidential Orders; the legislative
history of the law on the subject; the nature and object of pension;
the (constitutional) convention and previous practice, and the
contemporaneous understanding (prior to the case of Ahmed Ali U. Qureshi) of
the law are quite germane factor (note: my brother has also highlighted the above
concept but may be differently). However, as the requisite history and the
text of laws has been comprehensively reproduced in the main
judgment of my brother, therefore, by relying thereupon, I shall
primarily restrict to the interpretation of such provisions (note:
however, whenever required a part of such text shall be reproduced), by making
reference to the laws in a chronological order.
7.
For the first time in the Subcontinent the honourable
retired Judges of the High Court were held entitled to receive
pension as per Article 221 of the Government of India Act, 1935,
but the Article only prescribed that they âshall be entitled to such rights
(emphasis supplied) in respect of leave and pension as may from time to time be
fixed (emphasis supplied) by His Majestyâ. From the aforestated it is clear
that the authority and the prerogative for the fixation of the
entitlement was conferred upon His Majesty; meaning thereby that
His Majesty was mandated to fix i.e. assess and settle such right
and the entitlement. Pursuant to the above, the High Court Judges
Order, 1937 was accordingly enforced on 18th March, 1937, and
vide clause 17 thereof, the right of pension was fixed, but restricted
181
to those Judges only, who fulfilled the required criteria laid
therein, e.g. (relevant being) upon the completion of service tenure of
not less than 12 years. There can be no cavil, that without the
above mandate of law, no retired Judge otherwise was entitled to
receive the pension. And for the purposes of acquiring said right,
or in other words to qualify for the pension, the test and the
criteria prescribed in Order 1937 (ibid) was sine qua non, signifying
that the right or entitlement to receive pension was subjected to
and was conditioned by the requirement of a specific tenure. After
the emergence of Pakistan, the entitlement to pension of the
Judges remained to be governed by the said laws (note: till 1956).
However, Article 221 of the Indian Constitution 1949, prescribes
âEvery Judge shall be entitled to such allowances and to such rights in respect of
leave of absence and pension as may from time to time to be determined by or
under law made by Parliament and, until so determined, to such allowances and
rights as are specified in the Second Schedule (emphasis supplied)â. It is manifest
from the above that despite some change in language the
entitlement again is dependent upon the determination by the law
(note:- until the law, by Second Schedule). When the Constitution of 1956,
was enforced in our country, the relevant provisions therein are
quite analogous to the Indian provisions, inasmuch as quite
significantly the Third Schedule thereto (of 1956 Constitution) stipulates
âEvery Judge of a High Court shall be entitled to such other privileges and
allowances for expenses in respect of equipment and traveling upon first
appointment, and to such rights in respect of leave of absence and pension as may
be determined by the President (emphasis supplied by me).â
The only main difference in the Indian provision and our
constitutional dispensation was, that there (India) the determination
of entitlement by or under the law by Parliament was made,
182
(otherwise by Schedule), while in Pakistan determination had to be made
(done) by the President (note: and until then under Order 1937). After the
abrogation of 1956, the Constitution 1962 came into force and as
per relevant Article (it is prescribed) â124. Remuneration, etc., of Judges.â
The remuneration and other terms and conditions of service of a Judge of the
Supreme Court or of a High Court shall be as provided in the Second Schedule.â.
The relevant part of the Schedule provides:-
â2.
Every Judge of a High Court of a Province shall be
entitled to such privileges and allowances, and to such
rights in respect of leave of absence and pension, as may be
determined by the President, and until so determined, to the
privileges, allowances and rights to which, immediately
before the commencing day, the Judges of the High Court
of the Province were entitled.â
It is obvious from the above, that the authority, of determination of
the entitlement to the pension of the Judges as per the
Constitutional command, was conferred and bestowed upon the
President, i.e. it shall be the President who shall decide, about
their entitlement. Pursuant thereto, Presidential Order P.O.1/1968
was issued, prescribing (see clause 13) the qualifications and the
criteria for the said entitlement, which vividly and unmistakably is
dependent upon the length of service of the Judges. Anyhow, on
account of the annulment of the 1962 Constitution and upon
proclamation of emergency on 25th day of March, 1969, a
Provisional Constitutional Order dated 14th April, 1969, was
introduced, whereunder the President of Pakistan enforced
P.O.9/1970, wherein the entitlement (right) of the Judges in respect
of their pension was stipulated as under:-
â13.
Condition of admissibility of pension.âA
Judge shall, on his retirement, resignation or removal, be
183
paid a pension in accordance with the provisions of this
Order if he has---
(a)
completed not less than five years of service
for pension and attained the retiring age; or
(b)
completed not less than five years of service
for pension and, before attaining the age,
resigned; or
(c)
completed not less than five years of service
for pension and, before attaining the retiring
age, either resigned, his resignation having
being medically certified to be necessitated
by ill-health or been removed for physical or
mental incapacity:
Provided that, for the purpose of clause (a) of Part I
of the First Schedule a deficiency of three months or less in
the service for pension as Judge shall be deemed to have
been condoned.â
In the interim Constitution of Pakistan 1972 as per Article 207, the
entitlement of every retired Judge remained conditional to the
determination by the President (emphasis supplied).
8.
On the promulgation of the âthe Constitutionâ no vital
and
important
change
was
introduced
(therein)
about
the
entitlement of the retired Judges, as no departure from the earlier
law was visibly made. And Fifth Schedule (note: the interpretation of the Fifth
Schedule is critical) to Article 205 prescribed:-
â1âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ....
2.
Every Judge of a High Court shall be
entitled to such privileges and allowances, and to such
rights in respect of leave of absence and pension, as may be
determined by the President, and until so determined, to the
privileges, allowances and rights to which, immediately
before the commencing day, the Judges of the High Court
were entitled.
3.
The pension payable to a retired Judge of
the Supreme Court shall not be less than Rs.1,500 per
184
mensem or more than Rs.1,950 per mensem, depending on
the length of his service as Judge in that Court or a High
Court:â
However, by virtue of the Constitution (Twelfth Amendment) Act
1991 dated 27.7.1991, Paragraph 3 was substituted to read as
below:-
â3.
The Pension payable per mensem to a Judge of a
High Court who retires after having put in not less than
five years service as such Judge shall not be less or more
than the amount specified in the table below, depending
on the length of his service as Judge and total service, if
any, in the service of Pakistan:
Provided that the President may, from time to
time, raise the minimum or maximum amount of pension
so specifiedâ
Then came into force P.O.2/1993 on 19th October, 1993 and it is
quite significant to point out, that this P.O. has been issued under
proviso to 3rd Paragraph of the Fifth Schedule (Paragraph 3 which was
added by aforestated twelfth amendment); in this regard the title of the P.O.
reads as âWhereas, the proviso to third paragraph of the Fifth Schedule to the
Constitution of the Islamic Republic of Pakistan relating to the remuneration of
the Judges of the Supreme Court and High Courts provides that the President
may, from time to time, raise the minimum or maximum amount of pension so
specified in the said paragraphâ. Whereas the pension related part of
P.O.2/1993 is:-
â2.
Pension.---(1)âĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ...
(2)
The minimum and maximum monthly pension of the
Chief Justice of a High Court shall be Rs.9,800 and
Rs.12,250 respectively and that of every other Judge of a
High Court shall be Rs.8,722 and Rs.10,902 respectively.â
185
Finally P.O.3/1997 was enforced on 12.2.1997, which has been
issued under Paragraph 2 of the Fifth Schedule, and it contains
the provisions about the entitlement and the admissibility
(emphasis supplied) of pension of retired Judges of the High Courts as
below:-
â14.
Condition or admissibility of pension.âA Judge
shall, on his retirement, resignation or removal, be paid a
pension in accordance with the provisions of this Order if
he has---
(a)
completed not less than five years of service
for pension and attained the retiring age; or
(b)
completed not less than five years of service
for pension and, before attaining the age,
resigned or sought retirement; or
(c)
completed not less than five years of service
for pension and, before attaining the retiring
age, either resigned, his resignation having
being medically certified to be necessitated
by ill-health or been removed for physical or
mental incapacity or been allowed by the
President for sufficient cause to retire.â
The above in a sequence accomplish the legislative history, in
respect of the genesis, and the evolution of the pensionary right
and the entitlement of the Honâble retired Judges of the High
Courts throughout. And as stated earlier it is in the context of this
legal backdrop and the development; the nature and purpose of
pension; the convention etc.; and contemporaneous understanding
of the law, that the evaluation of the right/entitlement of pension
of the Judges should be made and the provision(s) of Article 205
and Fifth Schedule thereof, and P.O.3/1997 (alongwith other relevant P.Os.)
186
has to be applied and construed.
9.
Since the Government of India Act, 1935 which is the
origin of the retired Judgeâs right to receive pension, and from all
the laws that have followed, it is vivid from the contents, the text,
the letter and spirit thereof (such laws) that the said right is neither
absolute nor unqualified. Here I would briefly mention that the
pension is not the bounty from the State/employer to the
servant/employee, but it is fashioned on the premise and the
resolution that the employee serves his employer in the days of his
ability and capacity and during the formerâs debility, the latter
compensates him for the services so rendered. Therefore, the right
to pension has to be earned and for the accomplishment thereof,
the condition of length of service is most relevant and purposive. In
the case of the employments which are governed by the service
rules, there are provisions laying down the criteria and the
qualification for that purpose; and where the employments are
regulated by the contracts, it is so specified in the terms and
conditions of such contracts. Until such qualifications are met and
the contractual stipulations are satisfied (note: as the case may be), no
servant/employee is entitled to pension. And the Judges are no
exception to the above rule. Therefore, a Judge per se on the basis
of his appointment shall not become entitled to the pension, rather
he has to earn that right by meeting the qualifications and by
fulfilling the requirements stipulated by the legal instruments in
force at the relevant point of time (or from time to time). In all the laws
mentioned above, there are some very important words and
expressions which have been used, and for the comprehension and
interpretation of such provisions and for the purposes of resolving
187
the issue, it is imperative that meaning of the words/expressions
should be ascertained. The first in the chain is such, which means,
that, as/that, of the type to be mentioned, or that kind;
unmistakably meaning, that it is only that kind of the right which
has been fixed and determined either by the law or the authority
designated in the law, therefore, these two words are of immense
importance. According to various dictionary meaning fix is defined
as, to assess, to determine, to settle (see e.g. MS Dictionary), whereas,
the
word
determine
connotes;
to
fix
conclusively
and
authoritatively; to come to a decision, to settle, to resolve, to fix the
form or character before hand; ordain; to find out the nature, limit,
dimension and scope (see MS Dictionary and Merriam and Webster Dictionary). In
view of the aforestated position, I have wee hesitation to hold that
these two (words) are analogous and interchangeable terms/words.
Thus from the above it is clear that, it is only such right which is
determined by the President which entitles the Judges to pension;
if there is no determination there is no right and if the
determination is qualified, the right is not absolute, but conditional
thereto. Therefore, in the context of the instant proposition, it is
hereby conclusively held that such right is subject to, dependent
upon, and circumscribed by the condition of determination; and
when the said determination has prescribed certain qualifications
and the requirements for the conferment and/or for acquiring the
(such) rights, the right shall only be created, as is mandated by law,
and the conditions laid down therein (the law) are first satisfied. I
find myself in agreement with the plea raised from the Judges side,
that the provisions of Paragraph 2 of the Fifth Schedule are
independent of Paragraph 3, but none, as repeatedly queried, was
188
able to answer and point out if the President has ever made any
determination about the entitlement/right to receive pension with
respect to those Judges who have the term of service less than five
years. Undoubtedly while considering the contents of Paragraph 3
of the Fifth Schedule and also the relevant provisions of
P.O.3/1997, the determination of the right and the entitlement is
only restricted to, with respect to those Judges who have served for
five or more years and for none else. I am absolutely unimpressed
by the argument from the Judges side that the determination has
been made as per the provisions of P.O.2/1993 reproduced above;
or for that purpose Paragraph 3 of the Fifth Schedule or clause 14
of P.O.3/1997 should be enlarged or read down (note: Mr. Munir A. Malik,
ASC, has argued this point); it is my candid opinion that P.O.2/1993 has
nothing to do with the determination contemplated by Paragraph 2
of the Fifth Schedule, rather it (P.O.2/1993) is pursuant to Paragraph
3 of the Schedule, as it is so clear from the title thereof and such
Presidential Order is only meant for and caters for the Judges,
whose right have been determined as per the force of Paragraph 2
of the Fifth Schedule. Now considering the right to pension in
terms of the convention etc. There has not been a single instance
(present case is an exception) in the Subcontinent that a retired Judge
who had not completed the requisite term of service would ask for
or was granted the pension, which thus had developed into a
convention and this was also the contemporaneous understanding
of the law, that is why the legal illumenorions of their time, who
had lesser term of service than required never pressed for pension
(this aspect has also been highlighted by my brother). Before parting with the
proposition, passingly it may be mentioned that in India, almost in
189
a similar factual scenario, an akin issue, cropped up, and in view
of the provision of Article 221 ibid and Section 14 of the Indian
(relevant) law, which prescribed a particular tenure for the
entitlement to pension of the High Court Judges; the Court seized
of the matter in that case reported as Pana Chand Jain Vs. Union
of India and others (AIR 1996 Rajasthan 231) held:-
âReading the aforesaid provisions (Section 14) with Part-I of
the First Schedule to âthe Actâ it is evident that the amount
of pension payable to a Judge of the High Court is linked
with the length of service rendered by him. This very basis
of fixation of amount of pension is challenged by the
petitionerâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻâĻ...â
âThus, framers of the Constitution, who laid down the
eligibility criteria in Article 217 of the Constitution made
distinction while determining the amount of pension and
other allowances payable to the High Court Judges. That is
why they made separate provision by enacting Sub-Clause
(2) of Article 221. The leave of absence and the pension
and other allowances payable to High Court Judges was
left to be determined by Parliament by enactment of law.
The framers of the Constitution did not take upon the task
of fixing the amount of pension themselves as they
undertook this task while fixing the amount of salary. The
very scheme of the Constitution suggests that the amount of
pension to be payable to a High Court Judge is to be left to
the wisdom of the Parliament. This is the mandate of the
Constitution. Therefore, the contention based on the
provisions of Constitution and particularly the provisions
of Article 217 is misconceived. If the argument is accepted,
it would lead to absurd result inasmuch we may have to
come to the conclusion that the framers of the Constitution
were not aware about the distinction introduced and made
by themselves in Article 221(2) in respect of leave of
absence and pension payable to the High Court Judges.
Therefore, there is no merit in the argument that the
provision of Section 14 of the Act is contrary to law or
190
violative of Articles 217 and 221 of the Constitution.â
WHETHER âTHE JUDGMENTâ IS PER INCURIAM AND
THE
NEXUS
OF
THE
PRINCIPLES
OF
LOCUS
POENITENTIAE AND LEGITIMATE EXPECTATION ETC.
(Question No.5)
10.
For adjudging the validity of the law laid down in âthe
judgmentâ (PLD 2008 SC 522), it seems expedient to make a brief probe
into the facts of that case. Justice (Retd.) Ahmed Ali U. Qureshi
retired as a Judge of the Sindh High Court, without having a
period of five years to his service credit (as High Court Judge). He (in the
year 1994) filed a writ petition in the Sindh High Court, claiming
entitlement to the pension, notwithstanding the length of his
service, which claim of the learned (Retd) Judge was accepted by
the learned High Court vide its judgment dated 2.2.1995 (reported as
PLD 1995 Kar 223) holding âWe are, consequently of the view that rights and
privileges admissible to the petitioner in respect of his pension are now governed
under President's Order 2 of 1993ââĻâĻâĻâĻâĻâĻâIn the result, the petition is
allowed and the respondents are liable to fix the petitioner's pension at the
maximum pension as allowed under President's Order No. 2 of 1993â. This
verdict has been affirmed by this Court in âthe judgmentâ (PLD 2008
SC 522) and in relation to the proposition, about the entitlement of
the pension of the Judges, while interpreting Article 205 of the
Constitution and the Fifth Schedule thereto, this Court came to
the conclusion that Paragraphs 2 and 3 of the Schedule are two
independent provisions (note: no cavil with the above). Besides, under
Paragraph 2 (of the Schedule) âEvery Judgeâ is entitled to pension,
irrespective of his length of service and Paragraph 3 only relates to
those Judges who have served for more than five years; the latter
Paragraph in no manner debars and/or preclude the other Judges,
191
who have served for less than five years to receive pension. In this
regard with an object to justify that the entitlement of such Judges
(with less than five years term) has been determined by the President,
strenuous reliance was placed on P.O.2/1993 and also on the
factum that this entitlement has been affirmed and recognized by
P.O.7/2008. This Court also implied (in that decision) that the
expression âevery Judgeâ appearing in Paragraph 2 of the Fifth
Schedule, as against the lack of or the omission of the expression
âa Judgeâ therein, is significant and therefore the entitlement of
âevery Judgeâ notwithstanding P.O.3/1997 is absolute and
established. In my view âthe judgmentâ (PLD 2008 SC 522) is per
incuriam and for this purpose my opinion/exposition on Question
No.4 (ibid) should be read as integral part herein, and in the light
thereof, I hereby enumerate the fundamental errors of âthe
judgmentâ which has rendered it per incuriam: (a) the legislative
history of the law on the field has been ignored and overlooked by
the Court (b) the true nature, the concept and the purpose of the
pension has been disregarded (c) the convention and the previous
practice which has the force of law, in that, no pension was ever
paid or claimed by the Judges who did not qualify the test of the
law, has been elided (d) the most important and crucial
words/expression
of
the
relevant
laws
such
right
and
fix/determination of such right, by the President has not been
adverted to at all (e) once holding that the provisions of Paragraphs
2 and 3 of the Fifth Schedule are independent, still the justification
of entitlement has been founded upon either of the two Paragraphs
by erroneously reading those with P.O.3/1993 (f) P.O.2/1993
undisputedly was issued under Paragraph 3 of the Fifth Schedule,
192
yet it has been misconceived that the determination by the
President has been made on the basis thereof which could only be
in the context of the Paragraph 2. In this behalf conspicuous
omission has been committed, by not adverting to and taking in
account (reproducing) the title part of P.O.2/1993, which reads as
âWhereas, the proviso to third paragraph of the Fifth Schedule to the
Constitution of the Islamic Republic of Pakistan relating to the remuneration of
the Judges of the Supreme Court and High Courts provides that the President
may, from time to time, raise the minimum or maximum amount of pension so
specified in the said paragraphâ which clearly contemplated that the
P.O. was only restricted to Paragraph 3 (g) P.O.7/2008 was
resorted to, which was subsequently declared as ultra vires and
non est by this Court in the Sindh High Court Bar Association case
(h) the contemporaneous understanding of law and the factor that
during the long period of about around 50 years, no Judge having
a lesser tenure than the one prescribed by law for the time being in
force, ever claimed or approached the Court, for the pension have
grossly eluded the attention of the Court.
11.
Now attending to the proposition raised from the
Judges side, that as a vested right has been created in their
favour, on account of the judgment thus on the basis of the
doctrine of past and closed transaction, locus poenitentiae, and
legitimate expectation, such right cannot be stultified and taken
away which stands protected in perpetuity; suffice it to say that as
per the settled law, no perpetual right can be created in favour of a
citizen/a person, which (right) is against the law. The right to
pension, which the judges claim to have been created in their
favour, undoubtedly is founded upon âthe judgmentâ (PLD 2008 SC
193
522). Obviously, this right has to sustain and cease with the fate of
the said judgment. If the law declared in âthe judgmentâ, is
pronounced to be per incuriam (as has been done in the matter) âthe
judgmentâ, and the law enunciated therein stand extinguished and
with the annihilation of âthe judgmentâ, the right also vanish and
the judges cannot claim, under any principle of law (quoted above),
that they still should be paid the pension in future. Even though,
the said judgment being per incuriam has been set aside by this
Court.
In the context of the plea that the right of pension can
sustain, I intend to analyze the doctrine of locus poenitentiae; my
learned brother in his judgment has defined and elucidated the
principle of locus poenitentiae, however at the cost of repetition, it
is held that locus poenitentiae conceptually connotes, that
authority which has the jurisdiction to pass an order and take an
action, has the due authority to set aside, modify and vary such
order/action, however there is an exception to this rule i.e. if such
order/action has been acted upon, it creates a right in favour of
the beneficiary of that order etc. and the order/action cannot
thereafter be set aside/modified etc. so as to deprive the person of
the said right and to his disadvantage. However, it may be
pertinent to mention here, that as pointed out in the preceding
part, no valid and vested right can be founded upon an order,
which by itself is against the law. In this regard, reference can be
made to the judgment reported as The Engineer-in-Chief Branch
through Ministry of Defence, Rawalpindi and another Vs.
Jalaluddin (PLD 1992 SC 207), the relevant part whereof reads as
under:-
194
âIt was further observed that locus poenitentiae is the
power of receding till a decisive step is taken but it is not a
principle of law that order once passed becomes
irrevocable and past and closed transaction. If the order is
illegal then perpetual rights cannot be gained on the basis
of such an illegal order.â
Further dictas in this behalf are:- Abdul Haque Indhar and others
Vs. Province of Sindh through Secretary Forest, Fisheries and
Livestock Department, Karachi and 3 others (2000 SCMR 907)
and M/s Excell Builders and others Vs. Ardeshir Cowasjee and
others (1999 SCMR 2089). Besides, the principle of locus
poenitentiae (with its exception), in my view, primarily has the nexus
and application to administrative orders and actions, and would
not apply to the judicial decisions. The judicial decision can only
be invalidated, quashed and annulled, through the process of
appeal, revision and review, if such remedies are available to an
aggrieved party under the express provisions of law. And once such
decision has attained finality it operates as res judicata inter se the
parties to the lis (note: the decisions however rendered by the superior Courts in so far
enunciating the law has the binding effect also on all the concerned). Therefore, such a
decision until the law declared therein is altered in the appropriate
jurisdiction of the Court or the decision is declared as per incuriam,
and is squashed it shall have the due effect. But where the
judgment is set aside as in this case; the rule of locus poenitentiae,
alongwith the exception, shall not be applicable, because as
mentioned
earlier,
the
doctrine
primarily
belongs
to
the
administrative
domain
of
the
State
and
is
restricted
to
administrative orders/actions alone. In this context, reference can
195
be made to Clause 21 of the General Clauses Act, 1887, which
provision is reproduced as below:-
âPower to make, to include power to add to, amend, vary
or rescind, orders, rules or bye-laws. Where, by any
Central Act or Regulation, a power to issue notifications,
orders, rules, or bye-laws is conferred, then that power
includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add
to, amend, vary or rescind any notifications, orders, rules
or bye-laws so issued.â
While interpreting such provision, it has been held by Sindh High
Court in Sheikh Liaquat Hussain Vs. The State (1997 P.Cr.L.J.
61)
âThe word "orders" has been used alongwith the words
"notifications, rules, and bye-laws", and will thus be
interpreted ejusdem generis, meaning thereby that it will
be taken to be in the sense of an order issued by the
Legislature or the Executive. Moreover, as a rule of
construction the words used in a statute must be
construed according to their context and as such other
provisions in that statute would be very much relevant.
Section 21 should, therefore, be read in the light of
sections 14 to 20 and sections 22 to 24 and then it will be
clear that the word "order" in that section refers to
Legislative or Executive orders and not a judicial order. I
am fortified in my opinion by a Full Bench decision of
Nagpur High Court reported as Venkatesh Yashwant
Deshpande v. Emperor AIR 1938 Nag. 513. I will
reproduce with advantage the following observations in
this judgment:--
"The meaning of the word 'orders' becomes
clear when section 21 is read in conjunction
with section 24. These considerations make it
clear that the word 'order' used in section 21,
196
General Clauses Act, is a legislative or
statutory order, that is an order having the
force of law. The order passed under section
401 granting remission of punishment falls in
a
category
different
from
the
order
contemplated in section 21, General Clauses
Act. The applicability of that section is,
therefore, highly doubtful. "
A learned Single Judge of the Lahore High Court also took
the view that section 21 of the General Clauses Act could
not be pressed into service in relation to orders passed in a
judicial capacity. Reference in this connection may be
made to the case of Muhammad Ibrahim and 2 others v.
Municipal Committee, Chiniot through its Chairman 1990
ALD 655.â
In this behalf, reliance can also be placed upon the judgment
reported as Venkatesh Yeshwant Deshpande Vs. Emperor (AIR
1938 Nagpur 513) wherein it has been held as under:-
âIt is a well recognized rule of construction that the words
used in a statute must be interpreted according to their
context. Section 21 of the General Clauses Act, must
therefore be read in light of Ss 14 to 20 which precede Ss
22 to 24 which follow. These considerations make it clear
that the word âordersâ used in section 21 is a legislative or
statutory order, that is an order having force of law.â
Moreover, in the A.I.R. Manual, 5th Edition 1989 by V.R. Manohar
and W.W. Chitaley; the query at hand is addressed at on page 143
of its book. It states that Section 21 of the General Clauses Act
does not apply to a decision as to the rights of parties made by
particular judicial or quasi judicial or administrative authority.
Orders spoken in the section are those in the nature of
subordinate legislation.
197
My own reading of the provisions of clause 21 of the General
Clauses Act with reference to the object and purpose of the Act and
its various provisions leads me to form a view that, the rule of
locus poenitentiae, for the purposes of the protection of the rights
under the said clause, is only restricted to the administrative or
executive orders/actions, and in no way is attracted to the judicial
decisions, particularly where a decision is declared as per incuriam
and is specifically set aside. Upon the above principles, and the
reasoning the doctrine of past and closed transaction, shall also
not attract hereto, specially because no right can in perpetuity
either be created or be continued on the basis of a law, which has
ceased to exist and has been annulled.
As far as the rule of legitimate expectation is concerned,
such rule is not a part of any codified law, rather the doctrine has
been coined and designed by the Courts primarily for the exercise
of their power of judicial review of the administrative actions. As
per Halsburyâs Laws of England, Volume 1(1), 4th Edition, para 81,
at pages 151-152, it is prescribed:-
âA person may have a legitimate expectation of being
treated in certain way by an administrative authority even
though he has no legal right in private law to receive such
treatment. The expectation may arise from a representation
or promise made by the authority including an Implied
representation or from consistent past practice.â
In R. Vs. Secretary of State of Transport Exporte Greater
London Council (1985)3 ALL. ER 300, it is propounded that:-
âLegitimate, or reasonable, expectation may arise from
an express promise given on behalf of a public authority
or from the existence of a regular practice which the
198
claimant can reasonably expect to continue. The
expectation may be based on some statement or
undertaking by or on behalf of the public authority which
has the duty of taking decision.â
In the judgment reported as Union of India Vs. Hindustan
Development Corporation (1993)3 SCC 499 at 540, it has been
held:-
âThe legitimacy of an expectation can be inferred only if
it is founded on the sanction of law or custom or
established procedure followed in regular and natural
sequence. It is also distinguishable from a genuine
expectation. Such expectation should be justifiably
legitimate and protectable. Every such legitimate
expectation does not by itself fructify into a right and
therefore it does not amount to a right in the
conventional sense.â
It is thus clear from the above that the doctrine only has
nexus to administrative decisions and actions, and no one can
have resort to it, for the purposes of claiming any right found upon
any decisions of this Court, which decision and the law laid down
therein is found by the Court to be per incuriam. Therefore, I do not
find any merit in the plea raised by the Judges side, that their
right to receive pension in future is protected on the principle of
legitimate expectation despite the fact that âthe judgmentâ has
been declared per incuriam and set aside.
WHETHER ANY PROTECTION IS AVAILABLE TO THE
JUDGES ON THE RULE OF EQUALITY AS ENSHRINED
BY ARTICLE 25 OF THE CONSTITUTION
(Question No.6)
12.
For the above question, it has been argued from the
Judges side that they shall be discriminated qua the Judges of this
199
Court as also the Judges of the High Courts who are entitled to
pension in terms of Paragraph 3 of the Fifth Schedule and also
clause 14 of P.O.3/1997, as having served for a term of five years
or more. There can be no two opinions, that the reasonable
classification and differentia is permissible under Article 25 of the
Constitution. The Judges of this Court have been treated by the
Constitution itself as a class apart from the Judges of High Courts
for the purpose of pension, and by no conceivable reason, it can be
held that both the categories of the Judges i.e. Supreme Court and
High Court forms part of one and the same class. Therefore, the
plea with reference to the Judges of this Court has no force. Now
examining the argument in relation to those Judges who have
completed five years tenure; it may be mentioned that they are
again qualified to receive the pension under the mandate of the
Constitution and in this behalf Paragraph No.2 of the Fifth
Schedule to the Constitution, and clause 14 of P.O.3/1997 are
very much clear; and I have already held (see discussion on entitlement) that
the right to receive the pension is not absolute; it has to be earned
and it also is not a bounty. Therefore, the Judges lacking the
qualification prescribed by law for acquiring the right cannot
compete with those who fulfill the requirement. It may be pertinent
to state here that some of the Judges have a service tenure of one
year/two years/three years; how conceivably they can compare
themselves, with those who have the prescribed tenure of five years
and plead discrimination. Therefore, the submission made is
unfounded and is hereby discarded.
200
WHETHER THIS JUDGMENT SHALL HAVE
PROSPECTIVE OR RETROSPECTIVE EFFECT
(Question No.7)
13.
While assessing this question I have the privilege and
advantage of going through the note of my learned brother
Muhammad Ather Saeed, J. and agree thereto, therefore I shall not
repeat what my brother has already expressed. However I would
like to add; that in the ordinary course, the judgment(s)
pronounced by this Court declaring and enunciating law has
prospective effect, but still, the prospective or the retrospective
application of a particular judgment depends upon the facts and
circumstances of each case, and it is for the Court to decide (in each
case), if the judgment should be made applicable prospectively or
otherwise. In forming this opinion, I am fortified by the law laid
down in the case reported as Malik Asad Ali and others Vs.
Federation of Pakistan through Secretary, Law, Justice and
Parliament Affairs, Islamabad and others (PLD 1998 SC 161 at
page 346) (on which reliance has also been placed by my learned brother in his judgment)
the relevant part whereof reads âEven otherwise, as pointed out by us
earlier, this Court while adopting an interpretation of the provision of the law or
the Constitution which is at variance from the existing view, it is only declaring
the correct law as an apex Court. By doing so, it neither legislates any new law
nor amends the existing law. Therefore, while interpreting a provision of law or
the Constitution, this Court can also provide the date from which the
interpretation given by it is to come into effect, keeping in view the nature of the
provision it is interpreting, the likelihood of possible prejudice which may be
caused to an individual or a body of individual and the requirement of justice in
the case (emphasis supplied)â. In Malik Asad Aliâs case (supra), quite a few
precedents on the subject have been cited. In my view the present
201
decision warrants prospective application i.e. from the date of its
pronouncement and I have reasons to form such an opinion.
However, before propounding those reasons I intend to state that a
judgment per incuriam is not a judgment without jurisdiction and
thus it is neither void nor nullity in the eyes of law therefore, the
fallout of a void verdict/order shall neither follow nor can be
resorted to; moreover in the context of this case, I find no
relevance, to compare the interest of the Judges with the State
and/or the public interest, on the touchstone of the maxim âsalus
populi est supreme lexâ or on the rule that the individual interest has
to give way to the public welfare and interest. Be that as it may, my
reasons for giving this judgment prospective effect are:- majority of
the Judges have not even approached this Court to seek the relief
for the grant of pension, rather it is only in terms of paragraph
No.34 of âthe judgmentâ which provides âIn consequence to the above
discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003,
04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed
and the petitioners/applicants in these petitions and miscellaneous applications,
along with all other retired Judges of the High Courts, who are not party in the
present proceedings, are held entitled to get pension and pensionary benefits with
other privileges admissible to them in terms, of Article 205 of the Constitution
read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras
2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date
of their respective retirements, irrespective of their length of service as such
Judges (emphasis supplied)â that they were contacted by the Registrar of
the respective High Courts (as this is the stand taken by them and I have no reasons
to disbelieve) and they were offered the pension. Some of the
beneficiaries of âthe judgmentâ are the widows of the retired
Judges. It is nobodyâs case that they have practiced and played any
202
fraud or committed some foul in gaining and procuring the
pension, so as to disentitle them to retain such gain, on the known
principle, that no one should be allowed to hold the premium of his
wrong/fraud and/or retain ill gotten gains. Rather to the contrary
they have received the monies under the judicial dispensation by
the apex Court, which was considered as valid enunciation of law,
till the present decision and the pension was paid and received by
them in bona fide belief of the entitlement; none of the concerned,
ever pointed out the depravity and the vice of âthe judgmentâ,
though âthe judgmentâ was known at all the levels of the High
Court(s) and also in other judicial circles, rather it was a publicly
known fact, yet the verdict was left outstanding for a considerably
long period, thereby allowing the Judges to derive benefit of âthe
judgmentâ; I am not persuaded that the Registrar of this Court or
for that matter all the concerned, at all the levels, including the
learned Members of this Bench, who graced the respective High
Courts of the country as the Chief Justices were unaware of âthe
judgmentâ, but still no timely action was initiated to set the wrong
law, right and the time was allowed to pass. If a wrong and an
error has been committed in the declaration of law (PLD 2008 SC 522),
the responsibility rests on this Court and it is fundamental rule of
law and justice, that the act of the Court shall prejudice none; in
my view this principle tilts in favour of the Judges, rather the
State. Because on account of the lapse of considerable time, most
of the Judges might have spent and consumed the amount
received by them, as they are expected to have decent living after
their retirement; the amount so received might have expended on
the education and marriages of their children; the possibility that
203
they might have acquired an abode to spend rest of their life to
avoid dependency on their scion cannot be ruled out. This amount
might have been utilized on their daily expense and sustenance
and in the discharge of their other social and financial obligations.
And if now the amount is ordered to be recovered from them they
might have to sell their assets (shelter) and belongings. Those who
have no assets or saving might be compelled and constrained to
entreat others or borrow which would definitely not behove with
their status and position as the retired Judges; baring few, most of
them are of old age and I am not sure they have the ability and
capacity, at such an advance age to generate the requisite amount
for the refund. Enforcing the refund of the amount upon them may
cause innumerable predicament for them and may lead to a very
pathetic and a ludicrous situation for them. And all those who
have once graced the superior judiciary, might in this scenario be
rendered destitute and precarious and deprived of even a modest
life and living in future. But for the commission of no wrong, fraud,
foul and fault on their part. Rather as stated earlier an error and
mistake perpetrated by this Court. Therefore, I am of the
considered view that the present judgment be given prospective
effect.
14.
I also do not find that in this matter the principle of
restitution, which in the normal situation where a decision is
reversed should apply because the judgment is not being set aside
on the approach of any aggrieved party, but on its own motion by
this Court for the purposes of setting the wrong law correct.
Furthermore, I am not impressed by a thought that as âthe
judgmentâ was rendered during the period when the real judicial
204
set up was lacking in country, therefore the recovery is justified,
because to my mind all such decisions made and verdicts given in
between the period of 3rd March, 2007 and 23rd March, 2009 have
been saved as per the doctrine of defacto jurisdiction (see para 178 of the
Sindh High Court Bar Association case) however without debaring in any
manner this Court in its appropriate/proper jurisdiction, including
its suo moto jurisdiction to examine such decisions and to set
aside those, inter alia, on the basis of rule of per incuriam; and âthe
judgmentâ is no exception to it, however, it shall be perilous to
impute motives to the Judges in rendering the judgments. Be that
as it may, in not conferring retrospective effect to the present
judgment and I am persuaded by the law laid down by this Court
in The Engineer-in-Chief Branch through Ministry of Defence,
Rawalpindi and another Vs. Jalauddin (PLD 1992 SC 207) (to
which reference has also been made by my learned brother in his judgment) wherein while
considering the aspects of locus poenitentiae and past and closed
transaction, with regard to an order involved in that case, which
was declared to be illegal, it has been held as under:-
âLocus poenitentiae is the power of receding till a decisive
step is taken. But it is not a principle of law that order once
passed becomes irrevocable and it is past and closed
transaction. If the order is illegal then perpetual rights
cannot be gained on the basis of an illegal order. In the
present case the appellants when came to know that on the
basis of incorrect letter, the respondent was granted
Grade-11, they withdrew the said letter. The principle of
locus poenitentiae would not apply in this case. However,
as the respondent had received the amount on the bona fide
belief, the appellant is not entitled to recover the amount
drawn by the respondent during this period when the letter
remained in the field.â
205
Therefore following the above dictum, I hold that the amount so far
received by the Judges should not be recovered, from them, as it
shall be oppressive and more prejudicial to the Judges, as against
the respondent of the case i.e. (of PLD 2008 SC 522) and the State,
which (State) even never ever filed any review against âthe
judgmentâ, even after the success of the movement for the
restoration of real judiciary. And even now the recovery has not
been pressed for before us by the State. However, as now the
judicial verdict (PLD 2008 SC 522) under which the Judges had and
have been receiving the pension, is declared per incuriam and is set
aside, obviously their right to receive the pension has ceased and
come to an end, rather they are disentitled to receive pension in
future. And as mentioned earlier, such right for the future receipt
of pension is not protected under any principle, rule and on
jurisprudential plain.
15.
While summation of my this discourse, I want to state
that in the judgment authored by my brother Anwar Zaheer
Jamali, J. it has been held that for the purposes of the entitlement
to pension, there is no distinction between âa Judgeâ and an
âAdditional Judgeâ of the High Court. In this behalf, my brother
has taken into account the definition of a âJudgeâ provided in
Article 260 of the Constitution and reference to certain P.Os. have
also been made, the definition of remuneration etc. has also been
considered, but with due deference to my learned brother, I am not
inclined to endorse such a view and the reasoning; because in my
humble estimate, the object and purpose of such appointment (see
Article 197) is different and the definitions are only meant for the
purposes of the functions/privileges and remuneration of an
206
âAdditional Judgeâ during the course of his service as Additional
Judge, but does not entitle him for pension even if he has served
for five years. Anyhow as in the present scenario, in my view the
above question is only rendered academic and as we have not
received much assistance on the point, therefore, I shall leave the
issue open and left to be resolved in some appropriate matter.
JUDGE
207
EJAZ AFZAL KHAN,J:- I have gone through the judgment authored
by my brother Mr. Justice Anwar Zaheer Jamali. Though I agree with the
judgment yet I would like to record reasons of my own on certain points.
2.
The entire argument of the learned counsel appearing to defend
the judgment rendered in the case of âAccountant General, Sindh and
others. Vs. Ahmed Ali U. Qureshi and othersâ (PLD 2008 SC 522) hinges on
the words âevery judge of a High Courtâ used at the start of paragraph 2
of Fifth Schedule to the Constitution of the Islamic Republic of Pakistan,
1973. The main thrust of their argument is that when it has been provided
in the said paragraph that every judge of a High Court shall be entitled to
such privileges and allowances and to such rights in respect of leave of
absence and pension the legislature in its wisdom can never be said to
have conditioned the incidence of such rights with having put in not less
than five years of service as such judge. It, according to them, recognized
the entitlement of every judge to the privileges and allowances and such
rights in respect of leave of absence and pension irrespective of their
length of service, therefore, it has to be determined by the President and
that failure to do so will not culminate in the extinguishment of such rights.
These arguments so to speak, evince an element of ingenuity but when all
the paragraphs of the Schedule are read in their correct perspective,
these arguments appear to be fallacious both legally and logically. What
paragraph-2, in simple words, provides is that every judge of a High Court
shall be entitled to such privileges and allowances and to such rights in
respect of leave of absence and pension as may be determined by the
President and until so determined the judges of the High Court would get
what they were, immediately before the commencing day, entitled to.
Now the question arises what the judges of the High Court entitled to
before the commencing day of the Constitution. The answer can well be
found in paragraph-13 of Order IX of 1970. The relevant provisions of the
Ordinance read as under:-
208
â13.
Conditions of admissibility of pension. â A Judge shall, on
his retirement, resignation or removal, be paid a pension in
accordance with the provisions of this Order if he has ----
a) completed not less than five years of service for pension
and attained the retiring age; or
b) completed not less than ten years of service for
pension and, before attaining the age, resigned; or
c) completed not less than five years of service for
pension and, before attaining the retiring age, either resigned, his
resignation having been medically certified to be necessitated by
ill-health, or been removed for physical or mental incapacity;
Provided that, for the purpose of clause (a) of Part I of the
First Schedule a deficiency of three months or less in the service for
pension as Judge shall be deemed to have been condoned.
14. Determination of pension. --- Subject to the provisions of this
Order, the pension payable to a Judge who, on his retirement, is
entitled to a pension under this Order shall be calculated ---
a) in the case of a Judge who is not a member of a
service in Pakistan or who immediately before his
appointment as a Judge did not hold any other
pensionable civil post in connection with the affairs of the
Centre or of a Province, in accordance with the provisions
of Part I of the First Schedule;
b) in the case of a Judge who is a member of a civil
service in Pakistan or who immediately before his
appointment as a Judge held any other pensionable civil
post in connection with the affairs of the Centre or of a
Province, in accordance with the provisions of Part II of the
First Schedule, unless he elects to receive pension under
Part I of the said Schedule.
15. Pension of Judges not covered by paragraph 13. --- A Judge
who immediately before his appointment as such was a member
of a civil service in Pakistan or was holding a post in connection
with the affairs of the Centre or of a Province and who does not
fulfill the conditions laid down in paragraph 13 shall, on retirement,
be entitled to such pension as would have been admissible to him
in his service or post, had he not been appointed a Judge, his
service as a Judge being treated as service for the purpose of
calculating that pensionâ.
2.
An identical provision can be found in the Constitution of
1962 and that of 1956 in the same words which provided that every judge
209
of a High Court shall be entitled to such privileges and allowances and to
such rights in respect of leave of absence and pension as may be
determined by the President and unless so determined to the privileges,
allowances and rights to which immediately before the commencing day
the judges of the High Court were entitled. What was the instrument
regulating the entitlement of the judges to the privileges and allowances
and to such rights in respect of leave of absence and pension
immediately before the commencing day of the aforesaid Constitution.
The answer can be found in the relevant provisions of The High Court
Judges Order 1937 which read as under:-
âPension. 17.--- (1) Subject to the provisions of this Order, a
pension shall be payable to a Judge on his retirement if, but only if,
either â
a)
he has completed not less than 12 yearsâ service for
pension; or
b)
he has completed not less than 7 yearsâ service for
pension and has attained the age of sixty; or
c)
he has completed not less than 7 yearsâ service for
pension and his retirement is medically certified to be necessitated
by ill-healthâ.
2) The [President] may for special reasons direct that any period
not exceeding three months shall be added to a Judgeâs service
for pension:
Provided that a period so added shall be disregarded in
calculating any additional pension under Part I or Part II of the
Third Schedule to this Orderâ.
3.
All provisions of the orders reproduced above show that a
Judge shall have a right to pension only if he has put in the prescribed
qualifying service. Mere appointment as a Judge will not entitle him to
pension. Many instruments regulating the entitlement of judges of the High
Court to privileges and allowances and rights in respect of leave of
absence and pension like Order II of 1993 and Order IX of 1970 have been
enforced but none of them entitles them to rights to pension if they have
put in less than five years of service. It, thus, clinches the matter once and
210
for all and leaves no doubt that rights of the judges to pension who have
put in less than five years of service also stand determined. What was
required to be enforced under the enabling provision of the Fifth
Schedule stood enforced in the form of Order II of 1993 and Order III of
1997 which have been extensively reproduced in the main judgment.
When this being the case, we donât understand where do the rights to
pension of the judges who have put in less than five years of service come
from. It was argued by one of the counsel representing the retired judges
that if the rights of the judges to pension who have put in less than five
years of service, have been recognized by the Constitution, it could not
be denied due to inaction of the President as the very conferment of the
power enabling him to determine such rights would invariably call for its
exercise. But this argument, to say the least, appears to be misconceived
as there has not been any inaction on the part of the President at any
stage or at any point of time, inasmuch as, he enforced Order II of 1993
and Order III of 1997 determining such rights in clear and unambiguous
terms. Once these rights have been determined pursuant to paragraph 2
of Fifth Schedule of the Constitution, we donât think any judge who has
put in less than five years service can be left with a hope or an occasion
to wait for yet another order determining the rights in accordance with his
wishful thinking.
4.
The provision recorded in the judgment rendered in the case
of âAccountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and
othersâ (supra) entitling a Judges to pension who have put in less than five
years of service is paragraph 4 of Order VIII of 2007 but when this and the
paragraph succeeding it are read together and each word used therein
is given due meaning, it does not tend to support the deductions drawn
therefrom. None of the words used in the aforesaid paragraphs could
lead to the meaning wrung and wrested therefrom in the judgment under
review. It appears that the aforesaid paragraphs have not been read
carefully nor were they interpreted in their correct perspective.
211
5.
When asked whether the Judges who have put in less than five
years of service could retain the benefits they have received in case the
judgment rendered in the case of âAccountant General, Sindh and others.
Vs. Ahmed Ali U. Qureshi and othersâ (supra) is set at naught, learned
counsel representing the Judges submitted that it being a transaction
past and closed cannot be reopened because a subsequent decision
being prospective in operation cannot be applied retrospectively. But
when asked how the Judges who have put in less than five years service,
could retain the benefits they have received or continue to receive if the
judgment furnishing basis for grant of such benefits is set at naught and
thus rendered non existent, no satisfactory reply was given by any of the
counsel representing them. Granted that a subsequent precedent
overruling a previous one being prospective in operation cannot be
applied retrospectively but this principle will not apply when the judgment
furnishing a basis for a right or entitlement stands annulled on having been
reviewed. Therefore, a judgment reversing or declaring a judgment per
incuriam in review cannot be treated at par with a judgment overruling or
declaring a precedent in another case as per incuriam. As for example, a
pre-emptor, succeeding to get a decree from a Court, in a pre-emption
case without having a superior right of pre-emption and without making
demands which are sine qua non for the enforcement of such right,
cannot claim any right or benefit much less vested on the basis of such
decree when it is annulled by the Court granting it in the exercise of its
review jurisdiction. Retention of a benefit or right thus acquired cannot be
justified under any cannons of law, justice and propriety. It cannot be
justified on the plea of bonafide either. What is illegal would remain illegal.
It cannot be changed into legal by pleading bonafide.
6.
When learned counsel for the respondents could not find
any statutory basis to shield the benefits the latter received, they sought to
shield them behind the principle of locus poenitentiae by arguing that an
order extending a right cannot be rescinded, revoked or recalled if it is
212
acted upon and in consequence a right has accrued. This principle
cannot help them firstly because it is not applicable to judicial
proceedings and secondly because it cannot be applied in a vacuum
without considering the import of provisions contained in section 21 of the
General Clauses Act. According to the aforesaid provision, the authority
passing such order, in the first instance must have a power to pass, and
then recall, revoke or rescind it. Where the authority passing the order has
no power to pass it, its recall, revocation or rescindment canât be
precluded on the ground that it has been acted upon and in
consequence a valuable right has accrued. An order passed without a
power, would be just non-est. The judgment rendered in the case of
âAccountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and
othersâ (supra), when read with open eyes does not appear to have
been based on and backed by any order, instrument or any statutory
provision worth the name. It, therefore, has no basis altogether. If at all it
had any by any stretch of imagination, it vanished and withered away on
having been reviewed. Needless to say, that fall of basis would call for
the fall of the superstructure raised thereon. Effect of the judgment in
Constitution Petition No. 127 of 2012 declaring the judgment rendered in
the case of âAccountant General, Sindh and others. Vs. Ahmed Ali U.
Qureshi and othersâ (supra) as per incuriam would be prospective as well
as retrospective when the existence of the latter on having been
reviewed has been reduced into non-existence unlike the judgments
overruled or dissented from inasmuch as they for having been rendered in
different cases do not reopen the matters past and closed.
7.
I have also been deliberating since the commencement of
hearing of their case till the writing of this note to find some justification for
the retention of the benefits received by the learned Judges but could
not find any. In case I create or contrive one in this behalf, I cannot find
any reason to deny the same relief to the others whose case is either in
the pipeline or who have yet to retire. I also could not find any intelligible
213
differentia for a classification amongst the Judges who have received the
benefits and those who have yet to receive notwithstanding they are
similarly placed. Even otherwise, a benefit extended in derogation of the
law cannot be justified to be retained simply because it has been
received as such.
Judge
219
Iqbal Hameedur Rahman, J: - I have the honour and privilege of
going through a very lucid judgment expounded by my lord Justice Anwar
Zaheer Jamali, J, as well as additional notes of my lords Justice Mian Saqib
Nisar and Justice Muhammad Ather Saeed, JJ, wherein very persuasive and
elaborate interpretation has been given with clarity in pursuance to our
short order dated 11.04.2013, whereby the judgment rendered by this Court
in the case of Accountant-General, Sindh and others vs. Ahmed Ali U.
Qureshi and others (PLD 2008 SC 522) has been declared to be per-
incuriam.
2.
Both my lords, Justice Anwar Zaheer Jamali and Justice Mian Saqib
Nisar, JJ, have in exhaustive manner dealt with the contentions raised by
respondents-Judges and the law alongwith the interpretation of
constitutional provisions extensively with clarity and reasoning supported
by celebrated judgments and I fully concur with the reasoning and
conclusions being propounded by my lords by holding the judgment in the
case of Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi
and others per-incuriam. There is no cavil to the same and I fully agree
with the same, but with due reverence and humility to my lord Justice
Anwar Zaheer Jamali, J, I find myself not in consonance with the view that
the judgment should take retrospective effect rather, on this issue, I concur
with my lords Justice Mian Saqib Nisar and Justice Muhammad Ather
Saeed that the judgment should take prospective effect, and in this regard I
am fully in accord with the reasons given by my lord Justice Mian Saqib
Nisar, J, which reads as under: -
â13.
âĻâĻ.. Be that as it may, my reasons for giving this judgment
prospective effect are:- majority of the Judges have not even approached this
Court to seek the relief for the grant of pension, rather it is only in terms of
paragraph No.34 of âthe judgmentâ which provides âIn consequence to the
above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003,
220
34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts
are allowed and the petitioners/applicants in these petitions and miscellaneous
applications, along with all other retired Judges of the High Courts, who are not
party in the present proceedings, are held entitled to get pension and pensionary
benefits with other privileges admissible to them in terms, of Article 205 of the
Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution
read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of
1997 from the date of their respective retirements, irrespective of their length of
service as such Judges (emphasis supplied)â that they were contacted by the
Registrar of the respective High Courts (as this is the stand taken by them and I have no
reasons to disbelieve) and they were offered the pension. Some of the beneficiaries
of âthe judgmentâ are the widows of the retired Judges. It is nobodyâs case that
they have practiced and played any fraud or committed some foul in gaining and
procuring the pension, so as to disentitle them to retain such gain, on the known
principle, that no one should be allowed to hold the premium of his wrong/fraud
and/or retain ill gotten gains. Rather to the contrary they have received the
monies under the judicial dispensation by the apex Court, which was considered
as valid enunciation of law, till the present decision and the pension was paid
and received by them in bona fide belief of the entitlement; none of the
concerned, ever pointed out the depravity and the vice of âthe judgmentâ,
though âthe judgmentâ was known at all the levels of the High Court(s) and also
in other judicial circles, rather it was a publicly known fact, yet the verdict was
left outstanding for a considerably long period, thereby allowing the Judges to
derive benefit of âthe judgmentâ; I am not persuaded that the Registrar of this
Court or for that matter all the concerned, at all the levels, including the learned
Members of this Bench, who graced the respective High Courts of the country as
the Chief Justices were unaware of âthe judgmentâ, but still no timely action
was initiated to set the wrong law, right and the time was allowed to pass. If a
wrong and an error has been committed in the declaration of law (PLD 2008 SC
522), the responsibility rests on this Court and it is fundamental rule of law and
justice, that the act of the Court shall prejudice none; in my view this principle
tilts in favour of the Judges, rather the State. Because on account of the lapse of
considerable time, most of the Judges might have spent and consumed the
amount received by them, as they are expected to have decent living after their
retirement; the amount so received might have expended on the education and
marriages of their children; the possibility that they might have acquired an
221
abode to spend rest of their life to avoid dependency on their scion cannot be
ruled out. This amount might have been utilized on their daily expense and
sustenance and in the discharge of their other social and financial obligations.
And if now the amount is ordered to be recovered from them they might have to
sell their assets (shelter) and belongings. Those who have no assets or saving
might be compelled and constrained to entreat others or borrow which would
definitely not behove with their status and position as the retired Judges; baring
few, most of them are of old age and I am not sure they have the ability and
capacity, at such an advance age to generate the requisite amount for the refund.
Enforcing the refund of the amount upon them may cause innumerable
predicament for them and may lead to a very pathetic and a ludicrous situation
for them. And all those who have once graced the superior judiciary, might in
this scenario be rendered destitute and precarious and deprived of even a modest
life and living in future. But for the commission of no wrong, fraud, foul and
fault on their part. Rather as stated earlier an error and mistake perpetrated by
this Court. Therefore, I am of the considered view that the present judgment be
given prospective effect.â
3.
I, therefore, consider the judgment Accountant-General, Sindh
(supra) to be per-incuriam, which should be given prospective effect and
the pensionary benefits being paid to the Judges should be discontinued
with effect from passing of the judgment and order by this Court, but no
direction for the of recovery of pensionary benefits and emoluments already
availed by them can be given, as the same are undoubtedly not obtained by
them on account of any commission of wrong, fraud or fault on their part
rather the same have been availed on account of a mistaken judgment by
this Court. As such, the instant judgment and order cannot be given
retrospective effect.
Judge.
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ī17
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īī
īēīģīī
īˇ
īī¤īīēīīī īĢīī īļī
īīīŧ īīīš īĨīī
1973
ī
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8
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īˇ
ī
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ī¨PLD 1997 SC 426īŠ
īīŗīļīŗīīŗī§ī
īŦīŗīīĄīī˛īŗīīŗīīąīŗī¯
īĨīīī
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ī
īīąīŽīŗī
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īīŽī
238
īīąīŽīŗī
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(original)
īīīīą ī°ī
1973
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239
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239
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239
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īŊ
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ī¨Raghunathrao Ganpatrao VS Union of India, AIR 1993 SC 1267īŠ
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239
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īīšīēī§ī°īĒ
īąīīīīģīĨ
īĩīī
2009
īŦīˇīīŧīī īˇī īąīī§ī
īĒ
īŦīīĢ īī īī
īŦīī īī§ īĒī´
īžīĸī¤ī§īŦ
īšīēī§ī°īĒ
īģīīīīš
īĒīīĄīĒ
īīī§īī
īīšīĸ īĨīī
īŠīīīī§īģ
ī´īī¤ī
īēīģ
īīžī
īĒī°ī ī
ī¨ īžī īšīĨ
ī¨
īīĒīīī ī
ī´ īĨīīēī§
īģīēī īīĸī īģī īīīžīĸī¤ī§īŦ
īēīē ī¸īīĨīīē īī īīŽ īĩīīēī§
īŦ
ī
īī īīžīĸī¤ī§īŦ
īīšīĸīī
īŠīīīī§īģī
ī°
īīīēī§ī
ī°ī
ī
īīī
ī ī¸ī īī´ī īīĨīąīīąīīī§ īī°īĢ
īģ
īīļīŦ
īīīĨ īī¤īī
īīīīī īī
ī§īž īī
ī ī§īģī
īĸī
īšīīēī§
(Magna Carta)
īĄīĩīŊīĩīŠ īīī
īžī
īģī§īīĒ
1215
ī¸ī
īŠ
īīĩī§īŖīĸīī¸īŦīĒ īŗīŗīŠ
(Lords of Appeal in Ordinary)
īŠ īīīžīī īī§īģ īīī
ī ī§īē īą
īī§īĨ
īīīŠīŗīīīŗī¤
īĻīĨīīĩīŽīŗīīŗī§
īˇ
īīŗī¯
īīŗīīī
īĢ
īīĻī
īīŽ
īˇ īī§ ī
īŠīĄ īēī ī¤ī
ī§īē īą
īīī§īģ
ī¨īš
īē īīģ īĄīĒ īīīīīš
ī¯īŖīĒ
īī
ī´īĢīīĒ
īīīŧ
īąī ī
īąīī
īīˇīīī
ī§īŽ
ī¨īīīļīŦ
īŦī
īīŽīŗīļ
īīīŗī§īīĄ
īĨīŗīī
ī¯ī
īīīīĻī
ī īīīĢ
īīŽīļīīīĄ
īīŦ
īŦī¤ī§ī īīīšīēī§ī°īĒ
īīēī§īīīīšī¨īĄīĒ
īīšīĸīīĄ īēī ī¤īī¯īīĄ īžī
īš īī§īģ ī°
īŠīīīī§īĨ
ī¨ī īīīŧ
ī
ī īĨīē ī
īīšī īīšīēī§ī°īĒ
īī¸īŠ
īīī§īŦī§īī¨īĢīīīīīīīīŠ īĻī§ īīžīŠīīšīĸīīīīī°īĒ
īīīīīīī
īēīģ
īŽīŠ
īīīŠ
īžīĸī¤ī§īŦ
īīšīēī§ī°īĒ
īīēīīīīĸ
īąīīīžī
ī§īˇī
īīžīĻīī
ī
īĸ
ī īīī
īąīīīēīĸ īīž īŖī
ī§
ī
īīĢ īīēī§ī īŦīēīģīšīēī§ī°īĒ
īīˇ īīŠīī
īĢīī
īīīžīĸī¤ī§īŦ
īēī§īž īĸī´ī§ī´īīī¤ī īīž īŖī
īŦ
īīĒ
ī
īīŗīŗīīīŽīŗīŗīŗīŗī¤
īīŗīŗī¯
īīŖīēī īŗīĨ ī§īī ī¸ī īīŖī¸ī¯ī§īžīĸī¤ī§īŦ
īīąīīī¸īĨ īīēī§ īą īī ī´īī
īžīšīī°īĒ
īī
īīŗīŗ
īąīĄī¯ īī ī īŖīī īī
ī īī§ īļī
ī§īŽīĨ īŗīŗī
īīīļīŦ
īīīī
ī°
14
ī¸īīŖīī°īĒ
īē
īīīžīī īīŖīĒ īĸīīĄīĒīīŦī´īŧ
ī§īŦ
īīī°ī
ī
īīī°īžīĸī¤ī§īŦ
īą īī īŗīī§īŦ
ī
ī˛ī°ī īē īī īīŽ
ī26
īīŊ īīīī§
ī§īŽ
ī īīī§ īēīļīŦ
īĸ
īī°ī īŖīĒīēīšīžīī īīŖīĒ īīĸīīĄīĒ īļ
īžīĸī¤ īī§īŦ
īīšīēī§ī°īĒ
īī˛ īģī¸ī īī§ī
ī
īī
īŦī
īīēī§ī ī
īī°ī īīēī§ī īīŖīĒīēīšīīī§īą īŖī īĸ
ī§īˇīģīĨ
ī
īĸ
ī
ī
īšī īī°īĒ
īīŠīīīž
ī
ī
īēīī ī¤īī§ī īžī
īīīī§īīī
1949
īēīīˇīīīĢī
ī§īŦīīŗī
īŗ
īĢīīīī
īīīī īīēī§ īļīŦ
īīĻ īī§ī īŋ
īī
ī
īīŖ
īēīī ī¤īī´īīīīĢ īīēī§ī
īąīīī
īĒīīŖīĸīī
īīīĻī īēīīŦ
īī ī¤ī ī§īē īēīīšīī°īĒ
īŖīĒ
ī¨ īīēī§ī
ī§
īīŗīīīŽīŗī¤
īīŗī¯
īīīī
īŽī ī īī īŠīļ īīī īī īī°
ī
īēīī¸ īīšī īī°īĒ
īĢī
ī
īīēīīŠīīēī§ī§ī
īīŦī ī§ī ī īģī īą
īī
īŗīŗī
īąīīąīą
īĢī
īīĄīĒīī´ īĸī§īī
ī
ī° īī§ īŖīĒ
ī´īīģī˛īĨī īīŦīĢīīī°
īžī¸īīžīĸī¤ī§īŦ
īąī°ī īīīīŦīīīĨ īēīīš īļīŦ
ī
ī27
ī
īąīīžīĢīŦ
īĒīī
īˇīī īą īēīīŦ
īļ
īą īīēī§ī
īīĩī
īīī
ī
īīŦīˇ
īžīĸī¤ī§īŦ
īąīīī¨īģīžīŠīīšīĸ īī īī§ī°īĒ
ī
īąīīŦī
īīąīīīīģī
īˇ
īī§ī¨īīĄīīīĢīīīģ īīī
īīīī
ī ī§īŖīĒ
ī īīĸīĨīīīĻ
ī
īīŊīī§īģīī§ī ī¨ī
īīŠīĄīĩīŊīĩīŠ īīī
ī
īģī§īīĒ
īž īīēī§
ī¸īīīšīēī§ī°īĒ
īī¤īīŦ
ī
īšī¨īī
īž īīīĄ īĄīĒ
īī§īīīīąīī
ī
īī
īī
īīī°īīīīš
ī
īžīī§ī°īĒ
īĄīĒ
īīīĄīģī
īĨīģīĢ
īī§īą īŖī īĸ īīīŽīīŦīī¯
īžīĸī¤ī§īŦ
īīī§ī°īĒ
ī
īīīī
īīĄīĒ
īīĢīī īēīŦīīŦ
ī§ī¨īīŦīīĒ
ī˛
īīŦīŽ
ī´īžīšīī°īĒ
īīˇīąīī§ī
īīī§īˇ
īīīŠī
ī
īŖ
ī
īąīīĢ īī īŦīī ī§ī ī
īī¸īīī
īŦ ī§īģ īīąīīŖīĸīīĨ
ī
īĢ īīēī§ī
īŗīīēīžīĢīŦīģīī°īīĄīĒ
īŖ
1935
īīŖīĒīīĻīĢ
īŦ
īīīīŦ īī īą
ī´ ī¸ī§īŖīĒīī
īīīī§īē
īˇī¸ī
īĨīŦīĻīŠīšīēī§ī°īĒ
īīšīīŠī īīšīĸīīžīī¯
ī§ī ī¨īīī¨īĨīīĒ
ī
īī§īģ
īŦīīĒ
ī
ī§īŽ īīž īŖī
īļīŦ
īžī¸īīžīĸī¤ī§īŦ
īīī īŦī§īĻī¸īģī¤ īī§ī ī īŖī īēī§ī°īĒ
ī
īī§ī ī¨īīžīšīī°īĒ
īī
ī28
īąī
īīīīĒī§ī
īĸīīĒ
īī¤
ī īīģ īīšī´īīŦīīĒ
īīĸī§ī¨īīĻīŦīīĄīĒ
īēī§īž īĸīĸī¸
īŦ
īšīēī§ īī°īĒ
ī
ī¤ī˛īĨī īĻ ī§ī īĻīģī¤ īī§ī īī
īīŗī§īīžīļī¤ī§īŦ
īĨ īēīīŖīĒ
īģīīīžīĸī¤ īī§īŦ
īŖī
īīžīīąīīŠ
īīīēīž
īŦī
ī°
īēīŦīļīī
īĢīīžī¸īīŖīĸīīŊī§ī¸
īīīŠī
ī´īīģīŊī§ī¸
ī§īĻ
ī īīēīĸ īŗī
īī´ī
īīī´ īģīīąīīŖīĸī
ī
īīĢīī īŦīĻ īģī§ī īĄī
īŠīŖīĒ
īī
īĢ īīģī
ī°īīī
īĨ
ī¤
ī§īŽīīģīīˇ
īļīŦ
īīŠīīīž
īīĻī
īēīī¸ īŊī§ī¸īīīī
ī
ī°īīĄī
īī§īŠīēī
īī
īŗīĄīĒ
īīīšīĨ
īīīŦīī§īˇīąīī§īī¸īīī¤ī ī§ī°īĒ
īĄīĒ
īīīĄīģīīēī§īĄīĒ
īĻī°ī īīģīž īīīĄ
ī§
īąīīŊī§ī¸īīīī
īī§īģ ī
ī
īĩī§īīĒ
īąīīžīĸī¤ īī§īŦ
īīēī§ī īŦīīīšīĒīī ī
īŗ īīī īī¸īī
īĢ
1947 īˇ
ī
15
īž
īī¤ īī§ī ī īŖī īēī§ī°īĒ
īī§īĻ
īīĨ
īĢīī
ī īī īŦī¯īīĄ ī
īīīģ īĩī§īīĒ
īģīīŦ
īŖīĨīĸī¸
ī
īīŠīīīž
īī
īžīšīī°īĒ
īĻī°ī īĨīī¤īĢīĩīŠ īīī¤ īī§ī ī īŖī īēī§ī°īĒ
ī§īģī§īī
ī
īĒīĒ
īē
īīŖīšī´
īīŠīīŠīīīž
īīīš īŦīīīąīēīīī īīĸ īīī īīŖīĒ īĸīīĄīĒīĒī
ī°īīī
īšīĒīēīšī īīĸ
ī29
ī
ī
ī
īīĸīŠ ī§īžī
īēīī¸ īīšīĒīēīšīīļīī īī īī°īĒ
ī
ī¤īīī īīģī īŖīī īī
īīŠīīīž
īēīīą
īīļ
ī
īžī
īīŠīīī
īīšīĒīēīš
īŠīī
īšīĸī
1947
īī
ī
īēīģīīīīĄīģī¨ī§īŦ
īīģīģīˇīąīī§īīĢ īŠī ī¸ ī§īŦīŖīĒī
īļīŗīŗ ī¤
1947
ī
ī
īīī¨ī
īīĄīĒīŖīī īĸīīīīĄ ī´
ī´īĄ
ī¤
īī¸īˇ
ī§īŽīŠ
īŖīī
īšīĒīēīšīļīŦ
īīšīžīī§īī īī
7(2)
īī§ī īģī
īīĨīīĒ
īžīĸī¤ī§īŦ
īīĄī
ī§īĻī īī§ īīīžīī§ī°īĒ
īļī¤ īīĄīī§īŦ īļīŦ
ī´
īĨīīēī§ī
ī¸īīžīˇīĢ
ī˛ ī¸ī īīŦ
īīēī§
īīĨīžīŽ īīģīĸ īī¤
īŖīĒīēīšīīŖ
īŦī
ī§īĻīĢ īēīī¸ī
īĢīīŦ
ī
īŗīģīīī ī¸īļīŦ
ī¤ī¯īšīĸīīĄīīšīĒīēīšīīĨ
īģ
īąīīīž
īīī§ ī¸īīīīļīīŊī¯
(White Hall)
īīēī§īēī
ī
īˇīģī¤
(Westminister)
ī ī¸īē īģ
īŽ
īīīīīī§
īąī ī¯ī īī ī¯ī ī§īī īī§ī īĄ
īīĻī
īĨīŽīīˇīąīī§īīĢīī¤ī
īŦīšīąīīīīšīīīīī¤
ī
īĸīīšīīī¨ī°īīī īŗīŗī
īĒī´īŖīĒ
ī
īī°īĒīĒ
ī īī§īīˇ
īīĻ
ī´īīīī īĨīīēī§
īīŗīīĨīŖīŗī¯
ī īŠīī
īī īŽīļ
īŠīŖī
īąīī īŦ
īēīŖī
ī§īŽīŖ īīēī īŧī¨
īīšīīļīŦ
ī´ īīēī§ īąī īīŖīĒ
īˇīąīī§īīīš īēīģī īīąī īīž īīīīšīļī
īļ
īĻ
īīŠīīīž
īī
īĨ īīŠī¸ īī¤īĢ
īĢ īīēīģī
īīžī° īīž īŖī īīēī§ īĢīīŦ
īīŠīīīž
īŖīĨīŖīīī
ī
ī§īĻī īī§ ī īī īļ
īĻī¯
ī¸
īīīŦ
īĢīī ī
ī
īļīī¨
īļ
īīŠīīī°īĒ īĒ īīŖī¸ī¯ī§īģīšī īī°īĒ
īĨī
īēīī¸ ī īģī īšī
ī¨
īīēī§ī§ī
īī°īŽīīīą
īĒīĒ
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īĸīīĨīŖīĨ
īŦ īī§īī ī
īīˇīģ īīŖī¸ī¯ī§
ī°īˇ
īēīī¸īī°īĒ īžīī
ī¯īīĄ īžīī§
īĄīĒ
īīīĄīģ
ī
īĄī¨
īīēī§ī° ī
īī
ī°īžīŽīģīĸ ī˛ ī¸ī¸ī
īģīīīī
ī˛īīĸ
īŖ
īēīī¸ ī¤īī˛īī īī īŖīĒ
ī
īīšī
īēīš
īīīēī§ī°īīą
ī
īĨīšīąīīīš īīŠīĄīĒ
īīē
īī īī
īĩī¤īĨīšīŖīīąīą
īąīīąīŽīļ
īąīī īĢ
īīī´ īīĄ ī īīīĄ
īīī¨īīīīĻīī´
īĩ
īī
īīī
ī
ī´ īī¤ī¯
ī¯īīŽ
īžīĢ īī īŦ ī§īģ īžīŊīģīĄ
īģī ī§ī ī
īĢīīīīˇ
īļīŦ
īī īģīīŦīģī īēīī ī¤īīēīŋ
īĨīŽ
ī
īĨī
īēīī¸
īī īžī īī¯
īŖī
īŠ īĻī§ īī
ī§īŽīŠ
īĄīīīī īēīī¸ ī´īīīīŦīī¤ī¯īīīļīŦ
ī ī§īŖīĒ
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ī
ī
ī¸īīīī§
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ī
īī ī§īž ī
ī
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ī īēī§īž īĸ
īē
īīīē
īīž īŖīīēīģ ī¸īīīīŖīĨīĸīī¤īīˇ
īĢī
īī īīĩ īĢīīīīīīī
īīīēīīīī īī īŖī
ī30
ī˛īīīŦīˇīī
īīēī§īīŠīīīž
ī
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īĢ īģī ī¤īīŦī īīī´ īž
īĨ īēīģ ī¸īīŦīŊ īĻī§ īĢīīŦ
īˇīĻīīĨīīžīī¯
īž
16
īīĄ
īĨīŗīīŗīī
īīŗī§īīŗī§
ī°
īŠīīŽīīīīīī
īĻīīŗīīī´īĩīŗī
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īĒī°ī īš īēī īžī§ī¸īīžīą
īĨī ī
ī ī¨
ī¤ī¤
ī
īžīŗīŦī
ī
ī īīŠ īī°īĢ
īžīīĨīŠīŦ ī´īēīģ īīĨ īīŖīĒ
īšīī°īĒ
īēīī¸ īīĢ īīēī§ī
īī
ī¨PLD 1955 FC 240īŠ
īĨīī´ī īīī°ī īĩ īīīŠ īŖ
īī¤
īīŠīīīž
īīī
ī
īžīĸī¤ īī§īŦ
īŽ īīģīž īīīĄ īĄīĒ
īēīēīīīī§īīĒ
īĸ
ī¯ī§īŊī§ī¸īīī¤
ī
ī
īī
ī ī
ī īžī°ī
īīĸīž
ī§īĻī īī§ īī
īļīŦ
ī
ī īēīī ī¤īī´
īīīŦ
īĢīī
īŖī īēīī ī¤ īīīĄīīļīī¨
ī
īąī
ī(Justice A. R. Cornelius)
īī§īī
ī īīī§ī
ī˛ī¸
īīŠīīīž
īģī¤ī´īīēīļ
ī
īīŦīī° īīīīē
īŊīīŊ
īīī§īīģī§īĸīĩīī´
ī¸ ī
ī
ī
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ī§īŽīī¤ī
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īēīī¸ īīšīī°īĒ
īąī īēīēīĨī¤īīŦ īĩīīģ īī´īēīīŽ
ī
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īī§īī¨
īīŖīĒ
īīēī§īēīī¸
īĨ īīēī§ īąī§ī ī
īĨīī¨
īīīąīī¯īī īžī īī¯
īˇī¯īīšīēī§ īīī°īĒ
īīīĸīīŠīī
ī
ī
īīŗī§īī§
ī°
īŠīīŽīīīīīī
ī
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īąīī§īŦ
īĩī¸īĒīĒ
ī īīģī§īŦ
ī§īŽ
īļīŦ
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īīī¯īžīī¯
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
ī¤
īīīī īī īīą īī īžīŗīŦ
īĢīŖ
īąīīžīšīī°īĒ
īīšīĸīī
īˇ
īļīŦ
īŊī§ī¸īīīŦī§īī ī§īē ī¨
īĄ
īĨīŽ
īī¯īąīīīī¤
ī
ī īīž īŖīīēīģ ī¸
īīĨ
īļīŦ
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
īĨīīī¤
īīšīī īī§ ī°īģīŧīī¤ī īīīŦ īĨīīŗīĨīīī¤
ī31
ī°
īīŗīŗī
īīŗīīŽīŗī
ī°
īīŗīīĒīŗī¤ī¨
1947
īīīī
ī
īĄīŗīīŗīīĻ
ī
īĒīŗīŗīīĄīīīīŗ
ī¸
īšīžīīĨīī īģīī īĸīī
īĨīī
īīī
īīŗīīīŗīīŗ
ī
īīĨīīīīī§
ī°
īĩīī
īīŽīī
ī¯ī ī¸
6
īĒīŗīīĄ īī īĩīŗī
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ī
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īī
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ī¸ ī
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ī īīŽ īīŠī¯ī ī¸
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ī
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īĨīīīīī§
ī°
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ī´
īīīŗīīŗī¯īīŠīŖīŗī
īŗī¯ īī īąīŗī§
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īąī īĄ
īī
īī
īą
īĩīŽīīīī īŽīļ
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ī¤
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ī¯
ī īĢ īīī
īą
ī
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
ī´īīŦīī¤
īˇīąīī§ī
īīĒīŽīŗī˛īŗīą
īīŽīŗīļī¨īīĻī
īīĨīŗīī
īĒīŗī¯ ī
īīŗīąī¨
īŽī ī īī īĩī
īĢīŽīīŠīŖīīī
īīŗī¯
īŦīŗī§ī
īīŗī
ī¯ īīī ī° īĒīī
īīĩīīą
[
īĒīīĄ īī īĩīŗī
]
ī
īīŗīī
īĢ
īīīīī
1947
īžī
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ī
īīļ
1947
īīīŗīī
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ī¯
īĻīĨīŽīīĻī
ī¯
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ī
īīīŽī¤ī¨īīŽīļ
īīĻī
īīī˛ī
īĄī§ īī īīī
īĢīŽīīŠīŖī
17
īīšīīĢī
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
ī¤
īī¸ īī īŊ
ī¤īŠīīŽ ī
ī
īī° ī
īīŦ
ī˛ī¤īī˛īļ īīž ī īī¨īĢ
īŊ
īĄ
ī
īĄ
īīīĒ
ī32
īīīīŗī¤īīŗī
ī¤īĨī ī īąīĄīŦ īĨī ī§ ī˛īŽ ī īīī ī ī
īīīī§
ī°
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ī
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ī°
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īīīĒīą
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ī
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īī ī īīĒ īąī īĄ
īīīīī¤
īīŗīą
īĢ īŠīļ
8ī1
ī°
īīŗī¯
īīīī¤ī
1947
īīŦ
īĒīŽīŗīī
ī
īŽīŗīīĄīŗī§
īĢīŗīīĄīĄīĄīī īīŗīīīīīī
ī
īĄīīīĻ
ī
īĒīīĄīīī
ī¸
ī¯ īĨīŖ ī¯ ī§īą ī
īīīī§ī
ī¯
īīīīī
īīīą ī
īąī
īĩī īīą
īĢ
ī§ī
īī
īąīīī
īī
ī¯ī
īīīī
īīĻī
ī īīī īīī īĩī ī°
ī°
īąīĄ
īĄīī
īēīī¸ ī īī ī´īŗīģīĢī§ī ī
īĨī ī
ī
īąī§ī ī
ī¤
ī īĨīīģ īĢīīīĄ īēī ī¤īīļīŦ
īĸī
īļīŦ
īī ī§īģ īīīĢ
īšīī°īĒ
ī
īī
ī
īēī§īēīīŖīĒ īˇī īžī īĸī¤ī§īŦ
ī
īī īģī°īĒ
īĒīĒ
īīīˇīžīīĢīī īīŊīˇīŦ
ī¯ī
īĸīī ī
(1947)
īīŠīīīž
īīžīļīŦ
īī¸ īī īŊ
ī¤īŠīīŽ ī
ī´ īīˇ īīī° ī
īīˇ
īŊ īīēī§ ī
īģī§īĸīĩīī´
ī¸ ī
īī
īĸīī ī
ī¯īģī
īī īēī§īŦ
īīīīĒ
īīīīīĒ
ī
īĢī
ī
īīēīĩī§īīĒ
īīīŦ
īĸīīĒ
īŦīīī¤
ī
īīīīš
īīīĸī
īīģīĸ īīģīī īīˇīžīŗīŦ
īīŦ
īģīē
īģīīģīīēī
īīīĸī§īīēī§
ī§īŽīīģ
īĨīīī´ īēī īļīŦ
ī˛īīˇīžīŖī§ īīīĒ
ī
īĸ īī īīī¤īŖ
īīŖī
ī33
īļīŦ
ī
īŦī
ī¨PLD 1976 Karachi 1368īŠ
ī
īŗīŦ
ī īšīīą ī īēīŽī
īīīīĨīīī
īĒīīĄ īī īĩī īĢ ī§ī īīĩ
īīī§īīĄ
īēī§īž īĸīīŽīīŦ
īīīē īīēīīīžīŗīŦīĢīī īŦ
īŦīī
īīšī īīēī§ īŗ īīļīŦ
īēīžīŗīŦīĢīī īąī īīŖīĒ
ī
īŗ
ī
ī¤īĢ
īī¸īĒīĒ
īīąī§ī ī
īēīī¸ īīŦīī
ī
īīīī§īīŖīĒ īēī īīēī§ī ī īīīšīĨ
īĨīŽīžīīŦīī
ī¤
ī¨preambleīŠ
ī
īī
ī
ī īī¸ īī
ī˛
īīŽ
īīąī§ī ī
īēīī¸ īīīīīĨīĒīĒ
ī īīīšīĨ
īēīīīŖīĒ
īŊ īīēī§ īŗīīīąīĢīĸ īīīī§ī
īēī´
īīīī īī¨
īˇ
ī
ī°īīŠīŗīŦ
īŦ
īąīīĄīŊī§ī¸īīŦ
ī
īˇī
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īīī ī īšīīą ī īēīŽī
īī§īī
īī¤
īŦīŗ īīīĄ
ī
ī§īˇ
īī˛
ī¨īīēī§ī
ī§īīĢ
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īī°īĢ
īīˇīīĢ īī¯ī
īŗīŦīĢīī īīīīąīīīˇīī´ī īīģīīīī
īž
īŠ īĻī§ ī
īžīī
ī§ī¨ īēīī īļī īīī¨ īšīēī§ī°īĒ
ī¯
239
ī§ī ī¨ī
īŋīīĢīˇī īīĢ īīģī
īļīŦ
ī
īī§ ī ī§īē ī
īīŦī
ī§
ī
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īžī¨
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ī
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īēīīīŦīī īŠīē īī´ī
ī
īīģīīŖīĒ
ī¨īģīīŦ
ī˛īĨ īī īīīĨ
īīīģīŊ
ī34
ī ī§īīĄ īī¯ī īŠīī
ī
īī
īī īī§ ī° īŧīģ īīŠī¤īīī§
īĢīī
īąī°ī§īĻ
ī´ī¨īąīīīĒīī¤
īīŗ
īŦīīžīŽ
īīī
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īīŠīą ī
ī¤īī¤ ī īĄīŽīļ
īŽīī īŦ
ī
ī¤īīī
ī§īīīīīī
īŠīļ ī
ī° īīī
īīąīŽī
īąī īĢ ī§ī īīĩī¨īĢ īŠīļ īąī
īīąīŽī
ī¯
ī¯ī īąī īŦī
īŠīŽīī
ī°
īīŽīļ
īī ī īī¤ ī īīŽ
īīīī
īīī
īīĒīą īīī
īĄīŽīļī¨ī
ī īī īąīĄīŦ īīīī īŦ īīļ
īīīīī
ī
18
īą īŗīŗīī
ī¨ īīēī§ ī
īŧīīļīŦ
ī´īīĄīĒī īīīīŦīīĢīŽ
īš
ī īī ī°īī īīŗī
īīī¤īĄīĄīĄīī
īīĄ īīī
īīīī
īĒīīī
īĨ
īīŗī¤īŠīŗ
īŗī§ī
ī
īīŗī¤īīąīŽīŗī
īīīīīŦ
ī§īī īī
īĄī§īŠīą
īĄīŽīļī¨ī
īīŦīŽī
īī īŽ
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īŦīī
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ī
īīĨīīī¯īĢ īīīēī īąīīīīˇīīīŦī´ī
īī´īĒīīīīīīīēīī
ī
īīĢīŽ
īī īŽīŗīŗīŗīļīī
ī
ī˛īīīĨīīīīŖīĒ
īīŖ
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īąīīīīž
īī
ī
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ī¸īīī§īīĒ
ī
ī īī§īŦ īĻī¨īģī§īŦ īžīŊī§īĄīĒ
īīŖīĒ
ī°
īīīžīĢīŽ īīšīīīī§īˇ
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ī¸ īīĒ īšīīˇ
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ī
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ī´īī° ī īīīš ī¸ī īīŖī˛īīīī¤
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īīŖī
ī¸
īĢīīī´īēīī īīš īž
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ī´īīąīīī§ī¨
ī
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ī
īˇīŦīĄ
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īēīĨīģīīžī¨īĢ
īīī
īī¨
ī
īžīĩ īīē
īīŦī´īīĄīĒ
ī´īī°īī
īŦī¯ī
īīīĢ
īīĢīī īŦīīĒ
īĨī
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īĨī
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ī¯īžīīŗī
ī§īžīīēī§īēīī¸
īĨ
īī§īĻīī¯
īīī ī§īī¨īĢīžī¨
ī§
īī§īģī§
īīīīīī
ī
īŊ
ī īģīĻ īĢīīžī° īī īŖīēī īžīˇīēīīŽ
īī¯
īžī° īī ī¤īēī īīīŦīīĒ
ī
ī
īī īēīī˛ ī īī īŦīĢīŦ
īžīīŦī
ī´
īąīīšīīīīīīī
īĒī°ī īĢīī
īī
īŦīīžīīīīīīīīģī¨
īīīīšīĨ īīī īīī
ī īī
īŗīŗīŖīĒ
īˇ īīī
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ī
ī§īŗīŗīīīī§ī
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ī
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ī¨
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īēīŽīŗī
ī
īŗīšīŗīīąīŗ
ī
īīŗīīŗī
īĢ ī35
īŗīŗī¯ ī īī
īĄīŗīŗī¯
ī īī
īŠīŗīŗī
ī īŽīŗīīīīŗīīīŗīīŗī¯
īąīī ī
ī¨ī
ī
īī
ī
īīģīģ īī´ īąīīīīŖīļīŦ
īŦīī
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īž
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īīĢīī īŦīŗ
īīģ īŠīŖīĒ
īŗīŗīī
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īēīī ī¤ī īīž īžī¨
ī īĻī īīīŋī´ī
īī
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īīŗī¯
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īĄ
īą
ī° īīŠ īˇ
īīīīĄīĒ
ī¤īˇ
īīēī§ī°īĒ īīĨīī īīī
īąīīī
īž īī īŖī
īī īīīīīĸīīŊīĩ īīē ī
ī
īąīī
īŗīŦī
(Chief Justice John Marshall)
īĸī§ īšīīŊī˛īī īī§ īĒī´īīĨ īī īĸī§
ī¯
īģ
īĒīīĄī
īīąīī¯
ī¨McCulloch Vs Maryland 17 316 US 1819)
īīŗīīŗīī
ī
īĨīŗīīŗīī
ī° īīŽī
īīŽīīģ
ī
īšīĸīī īīĨ
ī
īīēī§īīīĨ
ī
īīī
īĢ īī īŦīī
īˇīˇīīī
ī¯
īąīī
īšī īģī°īĒ
ī
ī īīēī§īģ īīĩī§īīĒ
ī
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īī¤īī§ī¨īī
īī
ī§īŦ
ī°īīīĢīī
ī īēīīĩ īĄ īēī ī¤īīˇīžīī
1973
ī§ī¸īīē īīēī§ īˇ
īŊ
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ī° īīŽī
īīŽīīģ
ī˛ī
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ī
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ī īī§ īīĻīŋ
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ī
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ī
1787
īžīīĻīīŗīŦī
ī
ī īīŠ īī°īĢ
ī¤ īēīī¸ ī īīīĨ īŦ īī´ īŦ īīŖīĒ
ī
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ī
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īžīŠīī īī īēīģī īīŦ ī¯īŖīĒ
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ī´īīŦīī
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5
īīīīŦīī īīąī īĻī ī
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ī§ īī§ īīīī īīīĨ īļīŦ
(rigidity) ī§
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ī
īīŋ
īīˇī§ īŊī
īēīī¸ īžīīīŦīīīīīī¤ī§īĻī¯
īą
19
īžīīī īīīĨ ī
īŠī§īīŦ
ī°īīģīēīģ
ī īŠīģ ī
ī
īģī¨ īī§ī īŖīĒ
īĢīˇī īīģ īĩī§īīĒ
īīŦ īīĒ īīĻī¤ī
īŧ
īīĨ ī
ī
ī§īīīŦīēīģī¨ ī´ī
(Bill of Rights)
ī§īŦ
īžīīī īīĨīžīī
īŦīŗī
īŽī īī´īŖ ī§īŠ īģīĄīĒ
230
ī
īīĩī§īīĒ
īĻī¯
ī¸
īīī§īīī
īˇīīŦ
īŧīīžīīīī§ī īĻīīģ īīˇīžī
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ī
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ī
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ī
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ī
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īĄ īēī ī¤īīīĄīē
īīīš īī§ī ī¨īīšīīŦ
ī§īē ī
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ī
ī
īĄ īēī īī
īīī§ī ī¨ īŖī īēī§ī°īĒ
īīŽīīī īēīī īļ
239 īīēī§ 238
īž
īēī§īž īĸī§
īī§ īī īī īŦ
ī§
ī¨īī§īģīĄīĒ
īžīīīŧ īīī§
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īžī
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īīˇī
īīžīī§īīĢīīŗī
ī
īī˛ī¸īžī
ī¤īīžī
1972-73
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ī´ īī¤ī¯
ī§īīŦ
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ī¨
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ī
ī īļīī ī
ī
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ī
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ī
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ī
ī
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ī¤ī´ īēī īĻīīŗīīŗī§ī
īˇīīĢ īīģī
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īēīŽīŗī
ī
īŗīšīŗīŗīīą
īīī ī
īĢīī
ī36
īī
īŦīĨ īīēī§ī īŦ ī§īē
ī°īīŠ īī§īīīŦ
īžīą īī īīŧ īˇīī§
īī¯ īŖī
ī´ īēīīī´ ī§īī¨īĢīīŦīą ī§ī ī¨īī
īīīšīī°īĒ
īĨ
ī
īŗīīēī
īˇīīīˇīīĢ īīģī īīˇīžīŗīŦ
ī īī īąīī
ī¤īīŖ
īīīŗī§īīĄ
īēīŽīŗī
ī īŗīšīīą ī
īīī
īēī¯
ī¤
ī§īŽīĨ
īģīˇīīĢīīīī īīīąīī ī§ī ī¨īīļīŦ
īĨ īī īŦīąī¯īšī˛ īīž īŖī
īąīī¤īˇīžīŖī§ īīīĒ
ī§īī˛ī°ī ī
ī§
īžīīī ī
īĢīī
īīģīīĄīĒ
ī¸ īĄīĒ
īĨīī§īīī
īīīīĨ īīž īŖīīīī
ī
īŗīŗīĸī
īīīŦ
ī
ī´ īēī īĄīī¨īĢ
īŖī
īīž
ī
ī īīī´ īĢīīĢīī°īąīī īī īīī īīīĨ īŦīī
īīąīīŗīŦ
īīīŗī§īīĄ
ī īšīīą ī īēīŽī
īīī
īīŋī
ī
īīž
īŊī§ī¸ īīēī§ īīī īīīĨ īąīīī īīŠ īī°īĢ
ī¨īī§īģīĄīĒ īīī
ī
īīšīīīīĒ ī¤īīĨ īī īŦ īī īąīžī
ī§
ī
ī īĨīīģ
īīĒ
1946
īŗīŗīģ īĢī
ī
īģīīŦ
īīąīēīīĸī¸
īĄīĒīī īĄī īēīīīˇīīī īīŦ īīŖīĒ
īīˇīīī ī´ī§ī¯īļ
ī
ī
īīēī§ī īīīīēī
īĨīē
īīī¤
ī¸īī¸īąīīīļīŦ
īŠīĩī°īĒ
īīīīīīą
ī
īšīĄ
īŖī
īŖīīī īīīš ī īīļīŦ
ī˛
īžīīīīīąīī¨īēīī
īē
īīēīī¸ ī¸īąī°īĒ
īĨī
ī¨
īīąī§ī īŖīĒ
ī īīīšīĨīīīžīŊī§īĄīĒ
īŗīŗīīēī§īī
ī˛
īŖīŗīŗ īš
ī
īļīī
īŦīžīˇīīīžīī
īīē īĸīĨ
īīēī§ī īī¨īīīī īī īžīąī§ī
īŊī
īīēī°
īīĄīīą īēī ī´
īŦ
īĢīīī§ īīīīĒ
īī§īŽī īŗīŗīļīŦ
īŠī°īīīĒīĒ
īīĨīī īīīˇīĢ
īīēī§īīī
īī īžīˇ
īīēīīšīĨīīžīīŦ ī§īē
īžīīŦī īīēī§
ī
ī īĨ īīīēī§ īžīīē
īī īīēī§ īĒ
īĨīēī
īīĸī§ī ī īģī ī īīēī§ īąīīˇīžīˇ īīē īīīžīīŦīīžī˛īī¤
īŖīĒ
ī
ī
īīžī
īēīīĩ īĢī īīš īĸī§ī īī īŦīī
īī
ī
ī īīŠ īī°īĢ
ī¸īīŦ īīēīąī¸īī īŠī īī īīĒīĒ
ī§īžīī°
īī
ī
īīī īŗīŗīŊīī§ īīŖī¯ īī
īˇ ī°īīēī§
ī´īīīīī°ī īī§ īŗī§ī
ī¤īī§ī¨īī īˇ īēīģ īŊīŽ
ī¤īīąīīī īīīĄīĒ
ī
20
īīīĨ īˇīīģīīīīī īŦīŽī ī
īīēī§ ī
īŠīī´īī¸ īī§
ī´
īī° īąīī
ī¤īīžīī§īē ī
īĢīīī§īīĒ
ī
īī
īīžī¸īī īīēī§ īĢīīī§īīĒ
īēī§īž īĸīĒīĒ
īŦ
ī
ī īī
īˇīąīž
īīēīī¸
ī˛īŖīĸīīīąī§ī ī
īŖīš
ī˛īīīĨ īī īīīļ īīīī§ī
ī´ī¤īŖ
īīīˇīī
īīī īŦīŖīĒ
ī37
īĨīŗīī
īīąīŽī
īīīīĻ
īīīŽīīą
ī īĨī īąī
ī§īī ī īŽī ī īĄīĄīĄ
īīīīąīŽī
ī° īīī
īīīīŦ
īĒīŽīī
ī¨īą
īąī ī
īĻ ī¯ī ī
īĻīĨ
īąīīĢ īī¤ī¯
ī
īŖ
īīīąī
īą ī
īĄ
īĢīīīīī
īīī īļīŽ
īīąīŽīŗī
īīŽīļ
īŠīīīŽī
īĻīŠīĻīīī
ī īī ī¯
īīŽīļī¨īīīī§ī
ī¯
īīīĒīĻīī
ī
ī˛īīīĨīīĄīī¸
īŠī
īĸ īī īīŖ
īīī§īī ī¸
ī
īīīˇ ī´ī īī īŦīī īīŠ īī°īĢ
īŦīžīˇī
īĸīĨ
īīēī§ī
īą
īŖīĒīī īžī¸īīīīž
ī´īīīŦīī
īīŦīˇ
īīšīī°īĒ
īēīī¸ī
īžī
īīī§īīŦ
īī¨
īŋīˇīŖīĒ
īīīˇ
ī´
īĨī
ī¸
ī¨
īīēī§ī§ī
ī
īą
ī´īī īĄīĒ
īīŦ
īīŖīĒ
īžīīīīĒī§īĢīīī§ī°īĒ
īī§īīŦ
ī¤
īīŦī
īī
īīšīī°īĒ
īēī
ī(Jameson)
īī¸īīŽīĒ
ī¨ ī
ī
ī
ī¨John AustinīŠ
īīīš īī īīīĢīī¤īīĨ īŋī īīīīž
īŗīī
īˇīīī
īēī§īŠ
ī
īļīī īīēī§
ī
īĒīīĄīīŖīĒ īģīīēīĢīŦ
īŦ
īīēī§īīš
ī
ī¨CarlyleīŠ
īīģī§ī
īĸ
ī¨WilloughbyīŠ
īīēī
īĄ
(Williamson)
īīē
ī
īīī
ī§īīīīīīą
īīąīŽī
ī īīŽ īīŠ ī¯ī
ī¨īīĩīīą
īīīīąīŽī
īīīīīŦ
īĒīŽīī
īīī
īī īą
īĒīīīī
īąī
īŖī
ī´ īīļīŦ
īīŗ
īŦīīžīŽ
ī
īīŗī¯
īŠīŖīŗī¯
īīĻī
īīĩīŗīīŗīą
īŗī īīĻ
īīŗīīīĨīīąīŽīŗī
īīŽīŗīļīŠīīīŽī
īīīīŦ
īĒīŽīī
īī
īī¯ īīļī ī§ī īĢ īīī īąī
ī§ī
īĩī
ī´ī
īąīģī īģ
ī
īŠīī§ī
īī ī
īīīīĄī
īīīīĻīŧīīī
īīĨīīąīŽī
īīīī
īŠīīīīŽī
īĩīīĨīī
ī
īīīąī
īī
īīīĒīīĄ
īąīī
ī
ī
īŗīŦ
īī§ī°ī
ī
īžīĻ
īīīēī§ī
īīģ īīąīĸī§ī
īīīŗī§īīĄ
īēīŽīŗī
ī īŗīšīīą ī
īīī
īīĸīĢ īīēī§ī
īŦ īīĒ īīŦ īīīīą ī
ī
ī¤īš īīĻīī¤ ī īžīīĸīŦ
īī¤īī§īīŦ
ī
ī¨
īīīĒ
īīīēīļīŦ ī
īˇ
īīīĸī
īī¸īĨīžīī§īē ī
īīĒīĒ
īīŦīīĒ
īēīģ
ī´īŗī
īĸīīĒ
īī¤
īīīīĨīĒīĒ
ī˛īīīĨīī īīŠ īšīēī§ī°īĒ
īąī§ī īīī ī°ī¨īŦīģīīēī
īēīī¸ īžīąī§ī ī
īŖ
ī
ī
ī īīēī§ī īŖīĨī¸ī§īŦīīĒ
īŖīĨīŖīīē
ī
ī
īīī§īīĄ
īīī ī īšīīą ī īēīŽī
ī īī¸ ī ī°ī īīīž
ī˛
īīŽ
īīīŦīˇīąīī§ī ī´īēīģ īīīīīĨīĒīĒ
ī
ī38
ī°īīī´īŠīī īīī īąī´īīŊī§ī¸ īģī ī īīī īīą īī īžīŗīŦ
ī
īˇ
īŧīī§ īīĄī
īšīēī§ī°īĒ
ī
īžīī
ī¨īīī¤īī§īīŦ
ī§ī¨īīĢ ī§īīēī§ī
ī īēī īĩīīīļīŦ
īīīˇ ī´īīŦī°
īžīŗīŦ ī¨īī§īģ
īŖīĒ īēīīī
īī
īĨīīēī§
īīī īģīĢīēī
īīīīŖīĒ
īīīēī§īē
īŠīĨīĻīīī¨ ī
īŖ īŠīĨīĻīī īīīžīˇīīĢī§ī
īīĢīŽ īĸīīš ī§īīī īŦīīīīŖīĒ
īŋ
ī¨ īīģ īīīŦ
ī
ī
īīŖīĒ
īŠīļīŦ
īĸ
īī§ī īŽ īēī§īžī
īīˇīąīī§īī
īšī īģī°īĒ
ī°ī
ī
īĒī°ī īīˇ
īī¨
īĨīīģī
īī¤
īŗ īīīĄ
īī¸īĨ
īīĒ
īĨīģīīĢīī īŦ
ī´īīžīī¯
īīĨīˇ
īĸīŠ īīš īīģīī
īŠīīī´īīīŦīīīļīŦ
īą
īīēī§ī ī
īšīĸ
īīīšī
īĢ
īīĢīīžīŊī§īĄīĒ
īīīēī§īēīģ
īī
ī˛īīīĨīīą īīīš īšīĸīīˇīŦīĢīī
īĨīŽī¤īŖ
īĢīīī¯ī´īī¤
ī
21
īīĨīīĄī
īŠīī°
īī¯
īīŦīĻ
īīīīĢ
īī
ī
ī¸īīąīīī īīŠ īī°īĢ
īīīī īī´
ī
ī
īˇīīĢ īīģī īīˇīžīŗīŦ
īīī§īīĄ
ī īšīīą ī īēīŽī
īīī
īĩīĨīĢī
īĨīŽīžīīŦ īīŠī¸ īļīŦ
ī īī¸ īīī¤
ī39
īąīī
īŗī§īī īīēī§ ī
īīīĄī§īģ
īīīīēī
ī¯īĄīĒ
ī˛īīīĨīīŠ
īīīīŖ
īĢīī¤īī˛īī īīŖīļīŦ
īĸ
īīīĨīŗīīŽīŗī
īŗī¯ īī
ī īŊīī īī īī īŠīŗīļ
īąī¨īīĩīīą
īīīīąīī
ī īĻīˇ
ī§īŠīīīŽī
īģīī¸ īĸīī īīī
īēīī¸ īīŦīīŠ
ī¤
īŦīˇī īī¨
īīēīī¸
ī¤
īŽ
ī īēīī¸ ī īīīžīī īīž ī īīīŖīĒīĸīŋ ī
īīēīīēī
īą īŽīīĄ ī īī īīīĩ īī
īĄīī
īļīŦ
īī°īĒ
īŦīīŖīĒ
ī˛īīīĨīīīīīīīĢ
īŖ
īšīēī§ī°īĒ
īŦīļīŦ
īēīī ī¤īīīĢ
īŖ ī´īī
īī°īĒ
īīīīīŖīĒ
ī§īŽīģ ī īīĻīŋī
īĒīĒ
īļīŦ
īīŦī´īīģīīīŦī§īī
ī¨īīīšīēī§ī°īĒ
īĸ ī§īĄīĒ
īąīī¤
ī
ī§īīīŦ
īīļīŦ
īŦīĩ
īžī īī īąīī
īīĢ
ī§īīŦ
īģ
ī´ī§ī ī¨ īŖī īēī§ī°īĒ
īīīīī°īĒ
īŦ īēī¯ īĻ
īīīšīī
ī
īī īĢ īīī īīī
ī īīīī°īĒ
īŽ
īŦīīī īīŦīĩ ī
īīī
īŋ
ī
īĄīĒ
īŠī§īģī
ī
ī īī ī īī¸ īīīīĸīŠ īēī ī īīīŖīĒīš īī īą
īīŦīīĒīīīĄīˇīŦī´īīĢīī īī īī§ īžī
ī¨īī§īģ
ī
īą īī§ī īĄīĒ
īąīī¤ī īīīŦ īŦīąī§ī ī
ī īīīĸ īšīĸīīˇīŦīĢīļ īī īŖī
īīĒī
īĸī
īŦīīŖīĒ
ī¯ī
īŗīŗīĢīīī§ īīīīĒ
īļīŦ
ī
īŦ
īīŦī
īŊīīĢ īīīĻī¯īīˇīąīī§īī
īšīī°īĒ
īŊīĩīļīģīˇīīĢ īīģī īīˇīžīīĢīī
ī īī īˇ
ī
ī
ī¨īģīīŦ
ī˛īīīĨīī¨īīŦī°īīˇī īēī§ īĸī
īĨ
īīēī§ī ī īī¤īŖ
īą
ī
īīīŽīīĢīīī ī§ī īąīī
ī
īĢīīŽīīŦī īīŠ īī°īĢ
īˇ īīŠī¸ īļīŦ
ī īīīĒ
ī§īŽīīģīīŦī īēīž īŖī
īīīŦ īīš īĢ
īĄīĢīīļīŦ
ī
īī§ī īĻ īīīš ī
īē
ī
ī§īŽ
īīģīī¤ī°īī
īīīļīŦ
īˇ
(organic whole)
ī
īīēī§īīšī
īī
ī´
īąīīīī īī¸ī īŧ
ī
īīŽ ī¸īĒīĒ
īŋ ī
īī
īīīī
īīīļ
īīŦīĢīžīŊī§īĄīĒ
īīīĢīī¤īĢīīī īīīĄīĒ
īī¤īŠīīŽ ī
īī īąīĢī
īī° ī
ī¨
īīŖīēī īĸī§
īŦ īīŖīĒ
ī
īē
ī´
ī
īī¨īīīˇīŦ
īī˛ī°ī īīąīīĢīĻīī ī°ī
īŋ
īŠīīŊīīŦ
īĸīīĒ īēī§īž īĸ
īŽīīī¤
īŦ
īąī
ī
īīīĢ īīēī§ī
īīī¸īīī¤ī´ īēī īļīŦ
īīŦī´īīŦīī§īŽīīžī¨
īīī§ī°īĒ
īĢīīī§ īī°īĢ
ī40
īĸīĻ
īīŦ īī īąī
īīšīēī§ī°īĒ
ī
ī ī¯ī§ ī
ī¯īĢ īīēī§ī īŦīīīī°īĒ
īīģīŖ īĸī
īīĨ īĢīīļīŦ
īī īēīģ īīŦ īīī
ī
īīī§ī ī¨īīšīīŦ
īīĒīĒ
īˇī
īīīŦ
ī´īŖ ī§īž ī¯ī īēīī¸ īīē īīēī§ īīŊīīˇ
ī
īī°īŖīĒ
īīŠīīīž
īž
īą
īž īīŠ īī°īĢ
ī
īĨ
ī īēīī¸ īžīī§īī
ī¤ī īī¨ī¨īīīīīž
īī
ī´ īēī īžī° īīīŊīĩ īīīē īīī§īē īŗ īģī§ī īšīēī§ī°īĒ
īŗ
īī¨
īīļ īēīīē īĩ īēīī ī¤īīīīŠ īĻī§ īīŋ
īīļīŦ
īī¨ī´īžīˇīŦīīĢ īīēī§ī īŦ ī§īģ īŊ ī§īģī ī´īģī¤īī§īŽ
īŋ
ī
īąī
ī
īī§īī§īīīŦ
ī˛ī°ī īļīŦ
ī¤īī§ ī
īī
ī¨īīīŖīīĒ
ī§īīīēī§ī
īī īēī§ īĸī
īĢ
ī´ī¤īŠīīŽ ī
īīŦ īīĒ īīģ
īī īī īī° ī
ī´
īīēī§
īš
īīģ īēīī ī¤ īīīĄīžīīīŦīīĻ
īŦ īī¸ ī
ī
22
īĢī
īīĄīĒ
īļīī°īī
īŖīīļīŦ
īī¨ ī§īž ī¯īīˇ
īąī§ī ī
īēīī¸ īžīŋ
īīēī§īīŠīīīīēī
ī
īīĄīĒ
īīī§ī°īĒ
ī41
ī´
īīšīīēī§īĩ
ī
īīīīĻ
ī´īģīĢīī°
īŠ īĻī§ ī ī īī īŦīˇ īīīĻī¯ī
īģīī¨ īī§ī ī¨īīīšīēī§ī°īĒ
īĩ
ī§
ī§ īīģ īļ īēīīē īĩī
īĢ īīēī§ī
īī§ īīģ īļ īēīīē īĩ īīīš īīīīˇ
īī īģīī īˇī
īī°ī īī§ī īīĒīĒ
īī īŦīīĒ
īĢ
īī§ īī¯īīīļ īēīīē īĩ
īģīīēī§ī°īĒ īĒīĒ
īīšīēī§
ī¨īī
īšīīēī§ī
īļ
ī´ ī§īŖīĒ
īīīī§īē
īī
ī īī īĄīĒ
ī¤īīĻ
īģīˇīī
ī¯ ī
īīĢ ī
īą īģī īĒīĒ
ī
īĢī
īīīą īĸīēī§ī
ī
īī§ī°īĒ
īī°
ī
īīīĢīī ī°īīŦīŗ īīīĄ
īĨī
īĸī ī°īĒ
īīž
ī¤
īžīīīīīŦī
īēīģ
īĢ īīī¤ī¯īī°īīŦī
ī§ī¨ īģī īĸī§īĢ īģī īī§ī°īĒ
ī īī´ īžīąī§ī īžīˇīīīīī´
īŗīĻī
īˇī īŖī īĸīī
īž
īīž īēī§īŠ īŗīī
īīī īŖīĸīīīīŊī§ī¸ī´ īīēī§ īīīˇ
īīīŗ īīīĄ
ī
īī¨īŦī
īī°ī īīīīžīŋ
īīš īīīĸ īŖīēī§ī°īĒ
īŦīīĒ
īąīīīˇ
ī
ī
īīīŦīīžīīīīīžīĢīŦ
ī42
īīēīģī°īĒ ī
ī
īšīēī§
ī
ī īī īˇ
īīēī§īĸ īī°īĒ
īīīī
īī īģī ī°īī° ī
īšī īī°īĒ
īī īēīģī īīŦīŽ
īī
ī
īĨī
īēīī¸ īīī¯
ī¨
īīēī§ī§ī
īīī īĢīī īŦīĢīŋīģīą
īžīĩ ī
īīī
īīĢ ī˛ī īģīĒīĒ
īīī§īģīī¯
īī¤īī§
īŦīŗ īīīĄ
ī
īĒī°ī īĄīī
ī
ī¨
ī
ī īīī īŽīīŦī°īīē
īēī¨
īīī§ īīīīīŧī īīēī§ ī ī°īī° īīąīīīī
ī
īīī
īīī´
īīģīŊī§ī¸īīŖīĨīĒīĒ
īŠ īīī¨ īšīēī§ī°īĒ
īŧī īŠ
īąīī°īīģī¤īīĢ īī¸ ī īīēī§ī īĢ
īŖīĸ īēī ī
īīīŠ
īžīīīīŦīˇīī īą
īąīī
īĸ īīī§ īšīēī§ī°īĒ
ī
īīī°īĒ
īīŠīī īīīļ īēīīē īĩ īīīēī§
īĸīīĢīīžīīąīī
ī
ī¨
īēī¤ī¨ī´īŦī§
ī
ī
īīīīīīēī īĄīŦī ī
ī
īīšīĸīīī°ī
īīī¸ īīĢīĄīĒ
īĄī°īīĢīžīīĸīŠīīĄ īēī ī¤ī
ī
īī
ī¤ī
īīīī
īī īīĒ
ī˛ī°ī īš
ī¤īī§ ī
īžīīīŖ īīīĒī
īīī¤īīŖī
īīŽīīŖīĒ
ī´īģīĢīī°
ī
īˇ
īĒī°ī ī
īīšīĸ īīī ī¨
ī˛ī°ī ī´īīŦī§ī īī īĄ īīīŠ īīĢīīĄīī¤īīī¤īīŖī
īąīī īī§ī īŋ
ī
ī
īĢīŦ
īž
īąīīī
īŗīŦī
1958
īīī§ī¨īīĄī īēīž īŖī
īī
īŦīīĒ
īīēī§īĸ
īīžī¨
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
ī īģī īĢīī¤
ī§
īīĨīīž
īīĻīīīīīīīīĨīīī
ī
ī§īĨī¤īŋīīīīĨī¯
īī īĩī
īĒīīĄ
ī´
īīĄīĒ
īąīī
īąīī
īīˇīīī
ī§īŽ
īīĻīļīŦ
īēīģ īīīąīī§ī ī¨īī īī ī°īī° īīīŦī īēī§ īĸī
ī¤īī¤
ī43
īēī ī¯īīšīēī§ī°īĒ
īŗ ī¸īģ
īī īīīˇ
ī
īīēīī¸
ī
īīī§ī ī¨īīīšīēī§ī°īĒ
ī īēīŠ ī
ī° ī°ī§ ī´
īī°
īĄ
ī īīī¤ī¯ īīīĸī
īīī§ī ī¨īī īšī īēī§ī°īĒ
īŊī īēīŠ ī
īīēī§īēīī¸
ī
īīĸīŠīī
īŊī īēī ī°īŦ
īī° īēīī¸ ī
ī
ī
īī°īīīŦīīąīī§ī
īīŠīīīž
īī¤ī īī
īīīš īŦ ī¯īŖīĒ
ī´īžīīīą
īī
ī
īīĸīŠīī īēīī¸ī
ī
īīēī§īž
īŽī
īšīēī§ī°īĒ
īīīļīŦ
īīīī īīŦīī§īŽ
ī°īīēī§ī§īē
īŽīīīĸ
īī
īĸ īīī§ īīī§ī ī¨īī˛ī°ī īīˇ
ī´
23
īīŠ īī°īĢ
īī īēīŠī ī īžīīēī§
īēī§īž īĸīšī´ ī°ī§ ī´
īĢīī
ī ī´ī īīīīŦ
ī¤īīĢīī¤
īēīī īīĸ
ī
īī¤
īīēīī¸
ī
ī
īąī§ī
īī´īī īĄīĒ
īī´
īīēī§īĄīĒ īĒīĒ
īī´ īīēī§ īŦī
īīēī§īĄīĒ īīĄīĒ
īī
ī īīēī§ īŦīšī¨īīīī§ī°īĒ
ī°ī īŦīĨīŖ
ī˛
ī´ī
(Justice Bhagwati)
īžīī§ī ī¨ī
īīĻ īēīŠīŖīĒī
ī¤
īī īī§ īĒī´īī§ī¸īīŦī
īēīļī¸īŊ
ī
īīīĄīŗīŗī
īąīŗīŗ
īīŗīą
īīŽīą
īīžīī īīŖīĒ īĸīīĄīĒīīĸīŋ
īīīēī§
īī ī°īī°
īīīīšīīžīąīŖī īģīīš īīī§ī ī
īē
īŦ īĨīŗī īī
īīŗī§
īĄīŗī
īĢ īĻīīŗ
īīĄīŗī
īīŽīļ
īīąīĄī¯ īī ī īŖīī īī
ī¤īīąīŽī
īī ī¯ī īī ī īī
īĒīīĻīī
ī§īąīąīĄ
īĄī
īīīī
īŗīīŗī§ ī ī¨īĨ īŖ
īī
īīīŽī¤īĩīī¨īī¤īī
ī
īīīąī
īąī ī§ī īĻīĨ ī¤īīąīĄī¯ īīŠ ī
īĩī īīą
īī
īīĻīīīŠ
īīī
ī ī¯
ī´
īŊ
īģī§īĸīĩīī´
ī¸ ī
īī
ī īīĨ īīī¤
īīī´
īīŽīŗīļ
īŽīŗī ī īŠīŗī
īīŗīŋīī
ī
ī§īī˛īą
ī¯ īī ī īī
īīŋīī
īąī
īŠīĻīī
īŖīī ī
īĄīī
ī
īļ īīž īąī§ī ī°īĨīīīīžīŗīŦ
īīĄīĒīīī´ īąīīŦīīžī¸īīī§ īīīĒ
īīŗī§īīŗī§
ī°
īŠīŗīīŽīŗīŗīīīīīī
īąī
ī
īīŦīīīīŖīēī
īģīšīēī§ī°īĒ
ī¯īŖīĒ
īīīīī
īĢīŋīģīąī§ī ī
īēīī¸ īšīĸ
īšīŠ īēīīŦ
īīˇ
īīīĒ
īī°
īąīī
īīīīī
ī
īžīŠīīšīĸīī
īīēīŦī§ī¨īīīģīšīēī§ī°īĒ
ī
ī¸īīŋ ī§īž ī¯ īīēī§ īĢīīąīīīĢ īģī īī°
ī ī§īģ īˇ
īŽīī¨
ī
ī´īŽīŊī§ī¸
īī´
īĨīĒīĒ
īīˇ
īī īī īļ īēīīē īĩīīšīēī§ī°īĒ
ī¤īˇī¤īĢ
īŦī
īīēī§īēīī¸ī
īĢ
ī´īŖīīīžīŊī§īĄīĒ
ī
īąīī§īīī°īŽīīˇī
īīīˇ
īžīˇ īīīą īˇīī ī´ īīēī§ ī¨
īĨīīģīšīēī§ī°īĒ
ī´īīīī¸ī§īĩīīĒ
īīĄīĒ
īĢ
īŦ īīž īīŖīēī īąīīīīŖīļīŦ
īīŠīĨīĻīīī¨
ī§īī§ī°ī
īīĢīīīī˛
63A
īī§ īžīģīŊīĩ īīē īīīĢīī¤
ī§
īĢīīąīī
ī
īīīĄīĒ
ī´
īīīīīˇ
īīī§ī ī¨īīīī ī° īīŠ īžīšīēī§ī°īĒ
īˇī
īēīŠī ī
ī° īąī§ īīļīŦ
īī
ī°
īĢ
īīīą īĻī
ī˛ī°ī īīīīŦīī
ī¤īī§ ī
īŠīŖ īīīĒī
īąīī īēī§īž īĸ
ī
īīŖīĢī
īēī§īž īĸīĸīīīī īģīˇīīĢīīĢīīī´ īīēī īŦīī¤īīģ
ī˛ī°ī īīī§ī°īĒīīī¤ī¯ īŦ
ī¤īī§ ī
īŖ īīīĒī
ī44
īąīī ī
ī
īīĨ īīēī§ī īŽ
(James Madison)
ī
īīŠīīī
īˇīĢ īīēī§ īĸ īī
ī ī īīēīģī¤ī¨ī´īĩīŠ ī īąī īīŖīĒ
īĸīīĒ
īī¸īīŦī§ ī
īīī¤
ī
īēī
ī
īīīīĢīŗīŗīīī
īŗīŗīīĄ ī
īĒīŗīą ī īīŗīŗī
īĄīŗī§īŠīŗīą
īĢ ī§īīŗ īīĩ īŗī¯ īī īŠī§
īīŗī¯
īī ī
īąīīīžīī
īĄīĒ
īŦīīīĨī
īē
ī
īŗīīĻī
īŦ
īīŗī¤īĩīŗīŧīŠīŗī¯
īĄīīĢīŗīīī
ī
īŗīīīŗī§
īˇ
īĩīŗīīīŗī
ī¯ īī ī īĢ ī§ī īīĩ īīą īˇ īĒī§ ī
ī¨īŠī§ ī¯ īĄī§īŠ
īĢ ī§ī īīĩ
īĩī
īŗī¯ īī
īīīŗīī
īĻīīŗī¯
īīŗīīĨīŽīŗīīĻī
ī¯
īīŽī§īīī
ī
īīšīīĻ
īŦ īīĻī
īī¯ī ī
īī īŽīļ
ī§ī īīĩ ī¯ī īī ī īĄīī ī¯ īŠīŖ
īĢ
īīŗī¯
ī īīŽ īīŠ
īīŽīļī¨
ī ī§īī īą
īīĄīī
ī īĩī īˇ īīī§ ī
īīīļī¨
īąīī§ī
īīīīīĨ
īīīī
īī¤īīĄ
ī īąīĄī¯ īĩīŧīŠ
ī¤
īĩī īŗīīŗīą
īĩīŗīīŗī§īīŗ
īĢ
īīŗī§ī
ī īīīĨ ī
īĨīīīī
īąīīąīą
ī īĩī īˇ īīī§ ī ī īĻīĨ ī¤ī
īīšīīĻ
īīĻī
īąīīīī ī
īī īīĻ
īŖ
īīŗī
īĩīŗīīŗīą
īīŽīŗīļ
īīīŗīą
īŦīŗī§ī
īīŗī§
īīŗīīŗīšīŗīīĻ
ī
īīŗīīīą
īĩīīīīīīĨīĻīĩīīĨīī
īŽī ī
īīĄ īĄīĨ īąīī īąī
īĻī¤īī
ī
īąīŗī
ī īŗī§ī
ī°
īīŗīŋīŗīī
īīŽīŗīļ
īīŗī§īīīĩīŗīīīīļ
ī īĄ īĩī īąīī§ī īĩī īĢ ī§ī īīĩī¯īĄ īī
ī
īīšīīĻ
ī
īĄī§īŠīīĄ
īą
īĄ
īīŽīŗīīŗī
īĄīŗīīŽīŗīļ
ī īī
īŗīīīŗī¯
īŠīŗīī
īīŗīŽ
īīĻī
īŠīŗī˛īŗīīĨīŗīą
īīą
īī¤īĨīīĻī
ī
īīĻīīīīīĄ
ī īą
ī¤īĩīī
īīŽīīīī¯
īĢ īī ī
īīĻī
24
īīīī§īīŽ
īĄīīąī īĢ
īĻīĨīĨīŖ
ī¯ī īī ī¯
īīīīĩīĒīŽīīīŽīļīī
īĄīŽīļ ī° īīĻī
ī
ī ī§ī īĢ ī§ī īīĩī§īą
īīšīīĻ
ī ī
īīīą
ī˛ī°ī
ī¤īī§ ī
īąīīīĢīīīŖ īīīĒī
īīŦ ī¯īŗīŗ ī´ īšī īēī§ īīī
īĢīī
īīģīī§ī°īĒ
īīīĄīĒ
ī¤
īŦī
īīŽīŗīļ
īīŗīīŗīīĻīĄ
īˇ īĄī§
īĄīī
īīīīīīīŖīĒ īīžī
īĩīīī¯īŠīī¨ī
ī§īīī§ī°īĒīīĄī¨īĢī īīģī ī§īŦ
ī
ī īīīīēī
īļīŦ
īī īīŠ īī°īĢ īīīŦ
īŖīĒ
ī
īąīīĢ īī ī°īšīēī§ī°īĒ
ī
ī˛ī°ī īīŊīī§īīŦ
ī¤īī§ ī
ī ī
īŗīīēī
īĢ īī īīž īŠī ī
īŖīīĒ
īģīŊīĩīīē īīąī§ī īĢīīŖ
īž
īīŖīļīŦ
īīēī§īīš
īīŦīī
63A
īī§
ī§
īī§ī°ī
ī
īĻ
īŠīē īŦ īī§īģ īĻī¯
īīģīīīĨ īīž īŖī
ī´īē
ī
īŦ īīīī¤ī¯
(Basic Structure Theory)
īĨ īģīš īīĻīī¤ ī
īŠīŦīžīī¯
īĸīīīīīĨ īīž īŖī
ī45
īžīšīĸīīī§ī¸ī
ī¨ī
īĨīī īīēī§ īĨ
īą īēīīī
ī¯ī
īīģīīēīŧīīŦī§īĻīŖīĸīī
īīļīŦ
īīīšīīžīīą
īą
īĢīīž īī
īĸī
īŠīļīŦ
īĸ
īēī§īžī
īī¤ ī§ī īŽ
īžī¨
ī
īīīˇ
īˇ īīīīēīĢīīĢ īīīĒ
īŽī§ī
ī¤īĢīīąīī°
ī
īīš
īī§ī°ī
īĒīģīī˛
īĢīī īĄīī¤ī
ī
īĸī
īīīĒ
īŖīĒ
īīŦ
ī§ī¸īĢīī īīīĻ īēī§īž īĸīžīīŦīīŗīīž īī¨īĢ
ī
īĸī
īļīŦ
īīąī īĨīī īī§īē īŧī
īī´īŋ
īĢīī
īĸī
ī¯ī
īī¨īīĄ īēī ī¤īīĸīīžī īī§ īĒī´īī§ī¸ ī
īļīŦ
īļīŦ
īīīŦīīīŗ
īīŦī
ī
īīīī
ī´īļīŦ
ī´ī
īīīīīīī¸īīŖīĸīīīī
īēī
ī
ī°īąī
ī
īĢ
īīĸī
īīēī§ī īĢīīī§īīĒ
ī¸
īĻī
ī§ī
ī´īīīīīīī
īīąīīŗ
ī īŗīŗīīīĨ īīž īŖīīīīžīŖ
īĻ
ī§ī
īīģ
īĒīĒ
īī¯īĒīĒ
īĻ
īī¸īĨ
īŦīīĒ
ī
ī´īīģīīīĨ īīž īŖī
īŦī
īŋ
īīŋ
īīŦī´ī´īīģīīīĨ īīž īŖī
īīšīēī§ī°īĒ
īī īī ī ī§ī ī¨īīšīīŦ
īžīīīĨ īīž īŖī
ī§īīŦ
ī46
īīīˇ
īīēī§īī¤ī¯ ī¨
ī°ī
īĢīī§īīŦ
ī īī ī īī¸ īīīīīĨ īīž īŖī
ī īī īŖīĨīĸīīīŖī
īŦī´īīĄīĒ
ī
īīŗīīŗīīŗī
īĩīŗī ī°
īīŗīī
ī īŗīŗīīīĨ īīž īŖīīī īĢīīžīī¨īīī°īī§ī¸īžīīī
ī¤īŠīīŽ ī
ī
īī° ī
īīīĒ
īīˇ
ī
ī¨Shankri Prasad Vs Union of India, AIR[38] 1951 SC 458īŠ
īĨīŗīīŗīŗīīīīŗī§īīŽ
īī ī
īīīģīīŗī
īĒī¤īī§īīĒī´īī§ī¸īžīŗīŦī
īĒīī°ī īĨ īīŖīĒ
ī¨
īą īģī īī§ī ī
īšīēī§ī°īĒ
ī
ī§īīīŦ
īļīŦ
ī¤īī§ ī
ī
ī
īīŗīīŗīŦīŗīŗīž
īĨīŗīīŗīī
ī
īīą īĢī´ īī§īīĩ
ī
īĒīŖīīĄ
īŠīī
ī
īˇīīī īī īŦīˇ
īąīīīīĒ
īŗīŦī
īŋ
ī īŖīīĒ
ī¤
īž
īŦīī
ī
īī¸ī´īĢ īīīĒ
(Sajjan Singh Vs State of Rajsthan, AIR 1965 SC 845)
ī
īŗīŦ
īīŽī
īŗīŗīīĻīīŗīŗīīŗīŗīīīĨīŖīŗīŗīī
īŠīŗīŗī¯
īĨīŗīŗīīŗīī
īĩīŗīīŗī§īīŗ
ī īĢī´
īŽīŗīīīīŗīŗī¤
īīŗī°
īīĒ
ī¸ īģī īžī°īĢīī īī
īŠ
īī
īīŦīīĒ
īĒī´īŖ
ī
ī¨Kesavananda Bharti Vs State of Kerala, AIR 1973 SC 1461īŠ
25
ī
ī
ī§īīŦ
īļ īī īŧīžī īīī¤īī
īˇ
368
īīī
īĢīīŧī
īī
īī§ īžīīīīēī īīž īŖī
ī§
īžīī¨
īīīīīīŖīĒīīī¸ī¸ī
īīēī§īīīŠī
īī¤ī īī§ īĒī´īī§ī¸īžīīī´īīŊī§ī¸īīīĢī§ī īĨ
ī
ī
īˇīīĢī
īŖī
ī§īī ī§īīīŦīēīī ī¤īīžīī īīļīŦ
ī īīž
ī
īīīīĨ īīž īŖī
īžīšīĒīēīšī
īĸī
ī
īē
ī´īģīīīĨ īīž īŖī
īžīī§ī¸ī´ī
ī īģī
īģī
īŦī¯īēīļī
īĢī īīĒīĒ
ī´īī˛īī¸
īĄīīīī
īī§ī¸ī¨
ī47
īŊīžīī
ī
īīˇīŖ ī´īēī
ī īīĒ
īĻīī īĄīīī īī§ īĒī´īī§ī¸īīŽīīŦīī§īīĨ īīž īŖī
īīēī§ īąī§ī
ī
ī¯ī
īīĒīĒ
īĻīīĒī´īļīŦ
īīīĨ
īąī
īĒī°ī īžīīīĢīī īˇī īīēī§ īŦī¯īīĄ īžīīīĨ īīž īŖī
īąīī ī°ī¨
ī
īī ī
īŠīīīī§
īīīŦīīīīīŗī°īžīŊ
īīĢī°īĒ
ī īĻīī īĄ
īīēī§ī§ī
ī¯ī
īą
īļīŦ
īī§ī¸ī
īī§ī°īĒ
ī
īī¨
ī¨ī¸īļīŦ
īŦī§ī¨ īģī ī¤īī¨
ī
ī¤ī¨ī´īĩīŠ ī
īīīīĨ īīž īŖīīī
ī ī
īīĸī
īŦīīŧī°
īīī īī§ īĒī´īī§ī¸īžīī īī īąīī˛īēīĩī
ī48
ī
īī¨īŧīžīīīī§ī¸īīŦī°īīēīī
īŗī ī¸īē ī° ī¸īŖīĒ īīˇ
ī´īīīŦ īī īąīēī§ īĸīŖ
īžī¤īī§
īīīī§īž
īīŦīī
īīšī
īīž īŖīīīīī īī īīēī
īŗīŗīģ īīīĨ
īĻī¯ īīēī§īĒīĒīē
īĢīŦ
īīīī§īīŖīĒ īīēī
īīŧīīīŽīąī
ī
īīīĒīģīĢī
īī§ī¸īīąīīŦ īī īīī§īīīžīīĸīŦ īīīž
ī´īī°īĢ īīŦīī§ī°īĒ
īīī¤ī īīŠīģ
īēī§
īŗī īīŽī
īīšīī
īīīī§ī¸īīŦ
īīĢīī
īīēī§ī īŦī¯īīĄ īžīīīĨ īīž īŖī
īīĢīīīš
īīīīīŦīī īĄīĒ
ī
ī
īšī¸īī§ īīīīŧīīīžīŗīŦ
īī§īĢīī
īąī§ī īŗīĨīīļīŦ
ī°īĒ
īīŖīĒ
īīĨīīĒ
ī§īīĨ īīž īŖī
ī
īīļīŦ īīĸīĨ
īĻīīŗīīī
īŠīīŦīĢīī¤
īīēīŗ
īžīĻ
īīēīīēī§
īģīīŧ
ī¨GroverīŠ
īŊ īīēī§
īēīēī§ ī¤ī¯
ī¨ShelatīŠ
īīŦī
ī¤īŊ
ī
īīī
ī
īĨ īīŖīĒ
īģīīīīģī
īī īī¸ī ī
īīī
ī
īŧī¤
īīīŠīīī
īī
īŖ īīž īŖī
ī´īīēī§ī
īą
īĢīŖī
ī ī§īŖīĒ
īī¸īĒīīĻ
ī¨
ī¤
īīž īŖī
ī¨MukherjeaīŠ
īī¸īŊ īīēī§
ī¨HegdeīŠ
īīēī§ī¸ īŦ īī
īī ī˛
īą īīē
īīŗī
ī´īĩīģīĨ īīīī īŊ
īŊ
īąī ī
īīēī
īīē īīēī§ ī
īĻ
īīī°ī
īī§ī¸īžīīŦī
īŠī īšīļī
ī§īŽīī¨ ī§īžī
ī¯ īēīžī īŖī
ī¸ī ī§īž ī¯īļīŦ
īģ
īī
īīīīī
ī
īīŠīīīž
ī
īīī ī˛ īīŠ ī
īĢīŖīī
ī ī§īŖīĒ
ī īēī īŠīŖī¨ī īīēī§ī ī¨īģī¸īĒīīĻ
īļīŦ
ī
īīĄ ī¸īĒīģīŊīī§ī
ī¯
īīšī¤
ī
īīīˇīĄīīīīĨ īīž īŖī
īąīēī īī´īīīīžī
ī
ī¨ReddyīŠ
īīī
īīŖ
ī§īŊ
īŠīĢ
īž
ī ī§īŖīĒ ī§īž ī¯ī§īīī°
īīŊī¯ī§ī ī īī ī īīŗīģīīī¨ īīēī§ īī§īī īī īĻ
īī
īŧī¨ īīēī§ īĸī
īīŠīīīžī
īŖ
ī¸īīēī§
īīēī īŠīžīĸīīī ī
īĩīąī
īĨī§ī¯īŖīēī§ īī°īĒ
īīēī§ī§īŖīĒ ī¤
ī
īĨī
īīĸī˛īīīīĻ
īģīīŠīīīīē
ī īī īˇ
īĄīĒ
ī
īīŦī´
īĨī
īīīŧīī
ī
īīģīīš īī¤
īąīīī˛īēī¸ī
īąī´ī īīīąīīąīīī
ī
īīēīŦī īīēī§ īĨ
īĻ
īˇ
26
īąīīžīī§īĢīī¤
ī
īŦīī´īī
(Dr. Ashok Dhamija)
īīīš īšīĸīīŖīĒīēīšīīĢī
īīīŽīīīŠī īĩ īī ī īĨī
ī
ī
īąī īīž īŖī
ī
īĒīīĄīīŖīĒ īģīīēī
īīŦ
īēīģī¤īīīī īī§ īĒī´īī§ī¸ī
īīēī
27
īīī
īŽ
īīēī
īļīŦ
īģīīˇ īšī¸īīī¸īī
ī´
īīˇ
27
īģī¯
īīŦī
īīīšīļī
ī°
īīš
īĒīģīīĸīŦ
īąīī§ īŗīŗīģ īīēī īīž īŖīīī īīīī§ī īī§ īąīīī
39
ī¤ī īī§ īĒī´īī§ī¸ī° īī¤ī¯
ī49
īŦ
īīīīĢīīĒ
ī´ī
īīē
īĻ
īŽ īīēī§ īĨ
īīˇ
īīīŽīī°ī°īĒ
īī
īīīī§ī¸īŖ
īē
īžīī
ī īēī§ īĸī
ī§īīŦ
īˇīŦ
ī
īŖīĒīēīī¸ īīŦ
īīŦīīī§ī°īĒ
īī°īĢ
īīˇ īīŠīģ
ī¨ī īīĒ
īī§īģīŠīĨīĻīī
īŦī¯īīĄ īž īŗīŗīīēī īīž īŖīī
īī īīīī§īīŦ
īŖīĒ
īŗī¯ īīī§ īąīŗ
ī īīŗ
īīŽīŗīļ
īŠīīīŽī
ī¯īī˛ īĄī§
īŗīīēī¤
īŦī
īŖ
īīēīī
(Dhamija)
īīīŽīīīŠī ī īĨī īīļīīˇ
ī
īĄīŗī§īŠīŗī¯
īīĻī
īąīĄ
īĻīĨīīī
īī¯ī
īīŋ ī¯ īīīīĒ
īī īąīī¯ īī¤īī
īĩīīą
ī¯ ī
īĄ īīĢīąī
īĄī¯ īĄī§īŠ
īī¤ ī¯īĄī§ īąī¨īŠ
īīī
īŗīŗ
ī īĄī§
īīĒīīĄ
īī´ īīīĨ īī īĻīĨ ī¤ī īą
īŠīīīŽī
ī¯ īĨīŖ ī¯ īŠīŖ
īīīī īŽīļ
ī
īąī
īīī
īŋ
īīīī§ī¸īīīĢīąīī¯īīīŦ
(Dhamija)
īŽīīˇīąīī§īīĢī
īīīŽīīīŠī ī īĨī īĄīīĢ
ī
īĸī§īĢīī
īīŖīĨīīˇīŦ
īī ī°ī ī īī¨ī¨īīąīīīīīīīīŗīĻī īī§ īžīĢīīŖīĒ
īīīą
īīŦīˇ
368
īī§
ī§
īī
īīąīŽīŗī
īīŗī¯
īĨīīŽīī
īīŽīļ īŦ īŽī īī§īīŦ ī°
īīī īī§ ī ī
īĨ
īī
īēīŽī
īī
ī īąīī
ī6 īī
īŧ īīŗī
īŠīŗīīīŽī
īī īŽīļ
īąī īīąī¤īī¯ īīĒ ī īąī ī¯ī
īīĒīŽī˛
īą
īīŽīļ
īīŽīļ īī
īŠīļ
ī īī
īī
īŠīīīŽī
īąīī īĄī§
īĄ
īīĻ
īŗīīĩīŗ
ī īī īĢ
īīŗī§īī
īīŗī
īī¨ īąīŗī§ī
ī¤īīī
īī ī īŦī ī¯ ī§īą ī
īīąīŽī
ī¯ī
īĨīīŽīī
ī°
īąīĄīĢīŽīī§ī īŦīŗ
īīīī īŽīļī¨
īīīī
īļīīī
īīĻī
īąīĄī¯ īīĒ īīŖī ī¯īĄī ī§ī
ī
ī
īļīīī
īīŗīŗ
ī ī§ī
ī
īīīīŽ
ī
īī¤īī
īīĻī
ī¯ī
īĄī§ ī¯ īĩīĒī
īĢī
ī°īīŦīˇīī īąī§ īī§ ī°ī īī¨ īžīīīī§ī¸ī° īī¤ī¯
īīīīĨ īīž īŖī
īģī¤ īīī īĸī
ī§īŽīŠ
īļīŦ
ī50
īīŗī¸
ī īī§ īĒī´īī§ī¸īĸī§īĢ īī īŦī
ī ī§īŖīĒ
īą īģī īĻ
īąīīąīī
ī¤īīšī˛ īēīž īŠī
ī
īīĄīĒ
īī ī īīŦ
īŠ
īīīŦ īī īą
īĢī
(preamble)
ī°īīŦīīīŗī°īžīŊ īīīī§
īŦ
īŊī§ī¸īīŦ
ī
īīīĢī°īĒ
ī
īī§ī¸
īī¤īīˇīąīī§īī
īĢīī īī¨
īĻīī ī
īīī
īīīī īīīŖīĒīŖ īĸīēī ī
īžī
īī§īīīļīŦ
īŽī
ī§
ī īēī§ īĸī
ī¤ī
īą īī īŦīˇ
ī
īī§īīīŦ
īĒīžīŊī§īĄīĒ
īīīŖīĒīŦī īēī§ īĸī
ī ī´ī īŗīī
īąīīī
ī´
ī
īīī§īīŦ
īąī ī°ī īīī¤ī¯ īˇīīžīŗīĻīī īīīŖīĒī īī§ īžī
ī
īŦīīī§īīŦ
īžīŊ īīīīŦīīŦ
īīˇ
ī
īĒī°ī
ī§ī¨īī ī¨
īīīīˇ
ī¸īŗīģīī§īīŦ
īīīī§ī
īŦīžīŊ īīīīŦīĢīī§īīŦ īīī¤ī¯ īŊ
īīē īī
īĩīīīīˇī
īĢīī īī
īīŦ
ī§
27
īŦ īī¸ īīīīĸīŠīīīīī īēīī¸
īŖīĒ
ī˛ī°ī īžīī§īīĢīī īˇ
ī¤īī§ ī
īīŖ īīīĒī
īĒī°ī īąīī īģī§ī īąīēī§īŦ
ī¨
ī
īīīī§ī¨ī´ī
īžīī§īī
ī¤ī īī¸ ī
ī¸īŗ īīģ ī§īīŦ
īīīī§ī
ī´ īīŊ
īīīˇī
īĢ
īīīĄīĒ
īąī īīīŖīĒīŦī īī īĸīīīŠ ī
ī
īīīī īąīīĸīŠīīīīī īēīī¸ īžī
īīīī§ī¸ īīēī§ īīīŊī§ī¸ī´īžīąī§ī īžīˇ īīˇīŖīĒ
ī
īšī¸ īī§
īīž īŖī
īīīīĸīŠīīŦīīžī ī īī§ī¸ī¨īīŦ īīī´
ī¸
īīˇ
īšī¸īīīī§ī¸ī īēīē īĢ īīēī§ī īīˇ
ī
ī
īŗīŗīīīĨ īīž īŖīīīīīī°
īĸīĨ
īī īī
īīŖīĒ
īŖīīŦ īīī īĄīĒ
īĻīī ī īīēī§ī īŦīīˇīŦ
īąī§ī
īīļīŦ
īžīąī
ī§īŽ
īŖ
ī
īĢ
īīī īŦīī
īīīī§īž
īīīŽīīīŽīī
ī īĨī ī
ī īī§īģīĄīĒī¨ī
ī
ī
īĨīž
īĢīīī
īīŦīī¤
īīīī§īž
ī¯īīģ
īŦīˇ
ī
ī´īŗīŗī°īĒ īīģīīīĨ īīž īŖīīī
īīšī
īąī
īŠīžī¸īī
īŦīīī°
īŋ
īīīēīĸ īž
ī
ī īēī¯ īĨīīīŗī§ī
īŖīŊīŽ
īĨīŽīžī
ī īī¸ īīī¤
ī˛
īīŽ
īīīīīĨīĒīĒ
īīšīēī§ī°īĒ
ī§ī
ī51
īī¤īī¤ī
īīĸī§ī
īĸī
īīīīĨ īīž īŖī
īīĸī
īąīī¤īīī
īŠī
īĒīĸīą
īīąī īīēī§ īŊīŠīĩ īˇīīēī§
ī
īž
īąīī īī īŦīąī
ī
īī§īīīŦ
īĨīŽīŦīī¤īīˇī
īīžīŋ
ī¤
īīī¤ī¯ īŦī īēī§ īĸī
īŽ ī§īēī° ī¨
īīīē īī¨
īą
īīŖīēīī
īĢīžī īīīīŊī§ī¸ī
īīŖīĒ
ī°īĢ
īģī§īžī
īī īļīīąīī ī§ī īĸī§ī
īĢīžīīŖī¨ī
ī§ īīģīģ īī°īĢ
ī
īī
ī§īī ī
īŦ īīĒ
ī
īŗīŗ
īēī ī
ī
(Preamble)ī
īąī
ī
īžī¸īīī§īīīŦ
īī
īŦī īŗīŗī īī
īŋ
īą īī īīīŧīīžīšīī°īĒ
ī
ī§īīīŦ
īīļīŦ
īī īīī īĄīī¤ī īŖīīĒ
ī īŗīŗīīīĨ īīž īŖī
ī°
ī52
īŊī§ī¸īžīī§īī
ī˛ī°ī īĢīīĢī°īĒ
(Preamble)ī
ī
ī¤īīŦīīīīēī
ī īēī§ īĸīīĄīĒ
ī īī īŦīˇ
ī
ī
īąī
ī īŊīīŦ
ī¯īĸī
īīą īŖī
ī
ī īī īŦ īī
ī īīīŖīĒīĸīŽīīīīˇī°ī ī
īēīī¸ ī
īļīŦ
īąīī
īī īī¨ī
īŋ
īŦ
īąī
ī
ī§īŽīŖ ī´īēī īžī
īīšīīļīŦ
ī
ī ī§īŖīĒ
īˇī¸īīīĸī˛ī¸īīīĻ
īēī§ī°īĒ
īģīīīīŦ īī° īšīīēī§
īģīģī§īēī
īŦ īīĒ īīŖ
ī
īīŦīī
īąīī īŦīīī
īēīī¸ īīšīī°īĒ
īąīī
ī¸īī
īē
īīīīąī īīŖīĒ
īīšīī´īļīŦ
īĨīŽīĒīĒ
īēī§īž īĸī¤
īŦ
ī
īīŠī īī īīžī
īģī§ī§īēīī°
ī
īīēī§īīš
īžī
īīīī§īīī
īīŖ
ī īīĸ īšīļīŦ
īļīŦ
īēī§īĢīīŗ īŖī
ī¯
ī
ī
ī
1949ī
īīŦīšīīžīŗīĻīīļīīī§ ī§īž ī
ī¤ī īīēī§ īļī§īž ī§īī īīēīļīŦ
īąīīžīŖīīī
īąīī
ī§ī
īšī
īŗ
ī
īīīš ī° īī īēī
īŊ
īĢīīīĢīŦ
īŗīīēī
īīĄīĒ
īī īŦīīīŖ
īī
ī
ī¸īī§īģ
īīš
ī§īŽīĨ
īąīīšīīļīŦ
ī īīī ī
īīēī§
īī˛ī¸īžī
īžī
īīēī§ī
īĩ ī´ī īīīīą īī ī´īīŊī§ī¸ī
1973
īīī
īģīīī§ī
īīīĨīĩ
īž
ī§ī īģī īšīīžī
īĒīīī¤ī īīēī§ īļīīēīļīŦ
īēīī¸īī§īŖīĒ
ī
ī°ī§īĢī īīēīļīŦīīĻ
ī īģī ī°
ī¤
1949
īŦīīĄīĒ
ī
28
īīēīˇī
īŽ īīēī§ īī
īīīīī§īīī
ī
īī§ī ī¨īīžīīŖ
īĄīē
ī ī§īŖīĒ
īīēī°īīīĻ
īēīī¸īī
īīīĢ
īī īī°
ī
īĢī
īą ī§īž ī¸īīŦī
īīĄīĒ
īīīģī
īą
ī
īīīŦīīžī
ī īēīē ī
īīīąīīˇī
ī°ī
īīīī§īīī
īīŖ
īž
īąī
ī
īīīīīŦīī
īžī° īīž īŖī
īēīī¸ī§īŖīĒ īīšīī°īĒ
ī
īĻ
īąīī¸ īīēī§ īīĢīīļīŦ
īˇīīī
īēīī¸īī§īŖīĒ
ī
īĻ
īīēī§
ī´ ī§īŖīĒ
īīīī§īē
īˇī¸īŠī
īšīēī§ī°īĒ
ī¨īīēī§īīš
īąīīīĸī
ī
īīĻīī¤ī
ī ī
īīˇ
īīžī īī īŽīīīīīŖ ī¸īēī
īš
ī īī§ īīĸīŠīī īēīī¸ ī īī§ īžī
īģī
īŖī
īīīī īīžī
īžī
īąīīŊī§ī¸ īī īēīīĸīīĩīŠ īī
ī
īĩ īīī§ī ī
īŦī
ī
īīŗīĻ
īēī
ī
īīŗīīīŗ
īĢ
īīĩīŗīīą
īīŦ
īĒīŽīī
ī
īŦ
īĻīīīĒīīī
īīīĨ ī ī§ī īīīĒ īąī ī§īī īī§ī
īĄ(1)
īīīīąīīīĻīˇ
īąī
īī
īī
īī īą
īĒīīīī
īĢīŖīī
ī¯ī
īąīŗī
ī īŗī§ī
ī
īĢ
ī¨īīīī
īŦ īīĻī ī ī¨ī ī°
ī¨ī
īĻīīīī
īīĻī
ī°
īīīī
īąīī¯ īīīī
īĄ(2)
īī
īŗī§īī§
īĩīī¨ īˇ
ī¤īī ī īī īąīŽ
īīīą īĄ
īĄī¯ī ī¸ īī īīŠ ī¯ī īīĄ
īąī¨īĩī§ī
ī°
īŽī īīīīīŧ īī
īąīīąīą
īĢīī
īī
īīīīī§
ī īˇ
ī§īīīīīī
ī°
īīĻī
īīąīĒīīī
ī¯
īīŽīīīĄī´
īīī
īīŽīļ
ī īīīĨ īī
īĄ(3)
īĨīŗīīŗīīīŗī
īąīŗīīąīŗīą
īĢīŗī
īīŗī¤
īĻīĨīīĩīŗī
ī§īī īī¯īĢ īīī ī¯
ī¯īīĄ
īŠīīīŽīī
īŦ
īīĻī
īŧīīīīąī¨ī īīīĨ ī īąī īˇī§ī īŠīī
īīīīĄ
īīĻī
ī īĩī
īĢīī
īīŽīļ
īīĄ
īī
īŠīīŽī
īŽī ī
īĢīŽīīĄ
īąī¨īŠīīŠīŽ
ī īŖīī§
īīŽīļī
īīŗīīī
īĻīīīŗīīŗī¯
īīīĒīŗīŋīŗīī
īŽīŗī ī
īąīŗīīąīą
ī īĢī
ī¤īīīīŽīĒīŽīļ
īīīī
īąī ī°
īīĩīīą
īĄ(4)
īĩī ī§ īīīĄ ī
īīīŽīīĨī
īīŽīļ ī īžī
īīĻī
īīĄ
īīŽīļ ī īī īī īĩīī
īīĻī
īīĩī
ī¯
ī¤īīīīĒī§
īīˇ
ī§īŠīī
ī īŖīī¯
īīŽīļī
īĻīĨ
īīŗīą īĄ īīŗ
īąīŗī§ī
īĩīŗīī īĢ īĻīīŗ ī
īĒīīĄ ī
īīŽīļ
īĄīŽīļ īī īī ī īī ī
īīĻī
īĄ(5)
īŗīą ī īī
īīīŗīŦīŗī
īīŗīą īĄ īīŗ
ī§īĨī īą
īīīīīˇ
īĒīīĄ īī īĩī
īīŽīļ
ī īī ī īī ī
ī
īĄīŗī§
īˇī¨īī
ī
īĻīīī
īĨīīīąīŽīļ
ī¯ī īīąīąīĢ
īŠīīīīī
īīīīˇīīĩīīą
īīŦ
īĒīŽīī
ī
īŦ
īīĻī
īą
īīīīīŽīīą
īīĻī īĩī¯
īīŽīļ
ī
īĄīĒīą
īĄī§īąīą
īĒīī
īī ī§ī īŦ
īĢīˇ īĄī§
ī¯ī
īĨīŗīīŽīŗīī
ī°
īĩīŗīīŗī§
ī
īīŗī¯
ī°ī īĢ īīī ī
īąīīąīą
ī¯īĢ
īīĻī
īīĄ
ī īĩīī§
īīŽīļ
īĄ(6)
īīŗīŗīīīŗī§
īĄīīĻī
īīŦīŗ
īīĄ
īīŗīŗīīīŗīŗī¤
īīŗīą
īŠīŗīŗīīĨīŗī
īĩīŽīĨīŽīŗīŗ
īīĻī
īĢ
īī§īīī
īīŽīļ
īŦ īŗīīĻī īī
ī¨īīŗīīīŗī§
īĄ
īīŗī¯
ī īīŋ
īīŽīļ
īĨīīīĨī
ī°
ī¨īīī
ī¯ īīŠ ī
ī¨īīī
ī¯ī
īīĻī
īīĻī
īīī īī ī¯ī īŽīŗī ī
ī§ī
īĩī¨īīž
ī īī
ī´ī
īīąīąī¨
īīīŽīīĨī¨īīī ī¨
īīĻīī
īŦ
īīĻī
29
īīąīĒīīī
ī¯ī
īīīī
īĢ īĄī§ ī īī īī°
ī¯ī
īīīŗīīŽīĒīŗī§
īˇīīĻī
īĩ
ī
īŗīīīīīĨīīĻī
ī
īŋīī§ī
īīĻīī§
īąī īˇ
īąīīąī
īīīīī
īąī īŦ
īĄ(7)
īī īŠīļ
īīīīīī
īĻīīī
ī¯
īīīĒīŋīī
īŽī ī
īąīīąīą
īĢīī
ī
īīīŽī¤
ī¯ī
īīīī
īīīīī ī§ī ī°
ī§ī
īĩīīŠīļ
īīī īī
īąīīąīą
īĢīī
īĄ(8)
īĻīīī
ī¯īīˇ īī§ īĄīīąī
īīīīīŽ
īĢ
ī¨īĻīīī
ī¯ī
īīīī
ī°
īīĻī
ī
īąī ī
īĄ(9)
īąīŗīīŗīīŗī¤
īĩīŗīī§
ī¨īĨīļ ī° īĨī¸ī ī īī§ īīĨ ī
ī°ī
īīĻī
ī
ī¯ īīą ī
īīīĒīīī
ī´īīī
ī ī¯ī
ī¯
ī¯ī īĢ īīīž īĩ
īąīīąīą
ī¯īĢ
īĄ
ī
ī¤ī
īīĻī´ ī° īīī
ī¸īī
īŽī§ī īī
īīšīąīī°
īīŦīīĒ
īąīī īī§ī ī
īĻī
ī§īīĸī§
īŦ
(Preamble)ī ī53
īīēī§ī
īī
īīŦīŖī īīē ī
ī
īĢ īī īģīˇīžīŖī
ī
īīīĄīĒ
ī
īī°īĢ
ī īīŠīģ
īīŦīīīŖīĒ
īīīī§īīī
īīŖ
īļīŦ
īģīī
ī īīĸ īšīžī
īļīŦ
īąīīī īīĢ īīēī§ī īī§īŖī
īĨīŗī
īī
ī¤
īī§īģ īļīŦ
īīīą ī§ī§ī īīī¤īīšī
1949
īīīŗīą
īī
īĩīŗīŧ īŧ īīŗī
īĸīŗī
īąīīąīą
īĢī īī
ī¯ī ī ī¤ī ī
īŠīīĻīŽī
īŽī ī īĻīŠī
īąīī īĄī§
īīĻī
īī¤
īŦī´īīĢī
īīī
īĨīļ
ī§īīī¤
īŗīŗ
īīŗīīŗīīŗī§ī
īŽīŗī ī
īīŽīļ ī ī¤ī īīąīī īąī
īī īīī īī
īīĩ īīīī´
īŠī˛ ī¯ īīīī
īŽī ī ī§īī
īĢīŽīīĄ
īą
ī¸ī¯ī§ īīī¨
īīŖīēī
ī§īŽīŖ
īŊī§ī¸īļīŦ
ī¨PLD 1997SC426)
īīŗīļīŗīī§ī
īŦīīĄīī˛
ī¯ īīą ī
īĨīīī
īĻīīīī´īĩī
īī
īĒīīĄ
īšī īīžīī
īŊīī§ īīŖī¯īī
īŊīīžī° īī īģ
īŦīīīīŖīĒ
īīīšīī
ī
ī°
īīīŗīēīīĒ
īēīīŖīĒ
ī
īīŖīĒ
ī
īĩīīīĨ
īˇ
ī
īīī¯īīīŖ ī´īēī ī° īīīī
īšīēī§ī°īĒ
īŦī°ī īīēī§ īŊīī
īēīī¸ īīšīī°īĒ
īīēī§īēīī¸
īĢīī īī
ī54
īŽī§ī¨īģ īīŖī¸īžī¯
īīī°
īŗīīī§ī°īĒ
ī¤īīˇī
ī§ī ī¨ īīī
īīžī¤ īēīī¸ ī ī§ī ī¨īīīŦī
ī
īīīīĄīē
ī īēīī¸ ī
ī§ īīģ īļ īēīīē īĩīīī§ī ī¨ īīģī īīĄīē
īŦīīī
īīēīī¸
ī¤
ī¨ī´ī īīī§ī°īĒ
ī§īīŖīĒ
īą īĸī ī§īīīŦīīžīŠīīšīĸīīĄī īīš īžīī§īē ī
ī īīīŖīĒīĸī īī§ īžīīēīģ īīŦ
īŊīī§īīīīī
ī
īĸīĄīĒ
īīīĸīŠīī¤
īīˇīēīŠ ī
īžīąī§ī īžīˇīīĸī§īīī
īī§ īī°īĒ
ī°īīĢīīžīšīĸīī
ī§ī¨ īģī ī¤īī§īīŦ
īˇ
ī§
ī
īīĸ
īīšīīžī
īīģīēīī¸
īĢīīžīī īīī¤ī¯ īīīīī īīīŖīĒī
ī¨ī´ī īīī°īĩīīīīīī
ī§īīīŦ
ī§
īĢīī īŦīīą
īī§īīīŦ
īŽīīŖī
ī īī§īŖīĒīąī§ī ī
īēīī¸ īŽīīī īī īīĒ
īˇī¸īīĸī˛īīĻ
īšīēī§ī°īĒ
ī
īąī§ī
īļīŦ
īŽī§ī´īīŦī§īīąī´īī īĄīĒ
īīŦīĩīīīĄīĒ
īīģī°īī
ī§īīŦ
īŦīŽīīī īīīŖīĒī īīž īžī
īīŖīĒ
īĢ
īī
īīŋīīēī§ī
īĨīīĢ
īž īīēī¸ īēīīąī§ī īĢīīļīŦ
īī īžīīīąīīī§ī¨
īŦīĨ īīēī§ī īŦ ī§īē
īīģī§īīīŦ
īˇīģīīŦ
ī
30
īīąī
ī
ī
ī
īĩī§īīĒ
īĻīī īīēī§ī
īŽī§ī
īąīī°
īšīīīĄīĒ
īīŦīī
īīīīīī
īī¸īŧ
ī
ī°īī§ī
ī
ī55
īŦ
īīēī§īēīī¸īī§īŖīĒ
ī
īīēī§ī§īŖīĒ īĻ
ī´
īīīī§īē
īšī¸īī§ īī
īĸīĄīĒ
īīī¤ī¯ īŦīīī¤ī¯ īĸīī ī§ī¨īīī°īī
īĒī°ī īĢī°ī
ī¨
ī
īīīŧ
īžīīŦ
ī īģīĻ ī
īīŦīīīą
īĨīŽī°
īī īī ī¤
ī
īĢīī īŦīŦ īī§ īĻī¯
īŗīīēī
īŖīĨīŖīīŖ
īļ
īī īīēīģī
ī
īŗīīīĨ
īīŖ
īīˇ
īąī
ī īĢī īīĄī¨īĢīī
īŦīīĢīī īŦī´ īēīēī
īĨī§ī¯īī
īīīī¤
īˇīŗīŗīīēī§īī
ī
īī°
īīŠīīīžīŗīŗ
īīĩī§ī
ī īīī§ī ī§īŦ
īąīīĸī§īĢīīĻ
ī
īž īŠī ī
ī§īīŦ
īŠīĨīĻīīī¨ īīļīīąīīˇ
īą ī§ī
ī
ī§ī īžīˇīīŦīī īžī§īīīŦ
īą
īąīī
īĢīīž
ī
īīēī§īēīē
ī´
īī
ī¤
īĢīīŦī
ī
īšīēī§ī°īĒ
īī´īī īĄīĒ
īšīīĸīīžīĸī¤ī§īŦ
ī īīģ īŠīŖīĒ
īīŦī§īīŦ
ī
īŦī
ī
īīŖīĒ
ī°īīŦī§īīšīīžīļī¤ī§īŦ
īīēīīīžīšīī°īĒ
īīŦī
īīĨī īīĢ
īŖīĒ
īĸīĨ ī īīŖīĒ īĸīīĄīĒīžīĸī¤ī§īŦ
īˇ
ī
īīī īī ī° īīēī§ īŦ
īļīŦ
īŦīīŋ
ī īīēī§ī
īīēī§īŠ īīĢīēīš īŠīĸ ī īī ī°īžīŊī§īĄīĒ
ī
ī§īžī¸īīīĢīī
ī
īĒīąī
īŦīīžīŠī
ī
īąī
ī
ī
ī
īīąīīŠ
īž
īīēī
īē
ī
ī īīīīžīīŠ īī¸ ī
īŠīī
ī
īīģīīēī
īĄīģīīŦ
īīŧī īīĒ ī¤īžī īŗī´ī¯īĩ īīīīĨīĸī¸
ī´ī
ī56
īīž īī ī
īŦīīˇīīģīīīžī
ī¤īēīīī¤īīīīŦ īī ī´īī§īģ īīĄīĒ
īī¤
ī
īąīīīīļīŦ
ī
ī
īģ
īīžī īīī´ī
īīŗī
īĢ
ī´īīšī īŠī°īĒ
īēīģī¨ī
ī
īīīŦ
ī
162
ī´ī
īžīīŦ
īĢ īīī īīīŦ
īīˇ
īīĄīĒ
īš
ī
īī°īž
īīŠīīīž
ī´īīŦ īī īą īĒīīĄ īģ
īīĄīĒ
īī°īīīž īīīš īŦīīĻ ī īīĻīŋī
ī
īŦīī
ī° īēīī ī
īļīŦ
ī
īąīīžī§ī¸ī īļīŦīˇ
ī
ī
īī°īžī
īīŠīīīž
ī
īēīī°īĢ īīĢ īī īīīīˇī
īīĄīī
īīŠ
ī
īĨīŖ
īŊ īīīī§ ī´ ī§īŖīĒ
īīēī§īīīīī
ī¸ī´īī
ī§īžī
īą
ī
īąī
ī ī
īĨīŽī
īēī¤
īīŖīĒ
īīŊ īīĒ īīī īŦī¤ī
īīŠī
ī
īī¤īīž īąīīŠ īīĢīīīīŦ
ī
īīīˇ īī
ī īīŋī¤ī¨ī´īĩīŠ īīŦīīī īīŠ īī°īĢ
īˇīīĸīĢ ī´īī
īģīīī īŦī¤ī
ī
īŗī´ī¯īĩ īīīīĨīŖī īīž īī
īą īēīģī ī´īīĢ īī
ī
īīēī§īīąīīŠ
īīĢīī¤īīž
īĨīŽī
ī
īēī¤
īīŖīĒ
ī ī´ī īīŦīš īŠīĄīĒ
ī
īĨī§ī¯ īīī īŦī īēī§ īĸ
īīīīī¤
ī
īī° īīīēī§
īīŠīīīž
ī
ī
ī° īī ī°
īīĨīģīšīī īąīī
īą īēīī¨
ī
īī
īŗ īīļīŦ
1972
īŗīŗīī īŽ
īĢ
īī°īžīŊī§īĄīĒ
īī˛ī¸īĸī§īīī īŦīīī°īī§īžī§ī¸īīīģī
īīī
īŖ
īēīī ī¤īīšī¸īī§ īī
īģī§ī§īēīī°īīēī§īģ
īˇīīģ ī§īĢīŦ
īĨīīĢīī
īīīš īīīŦī īĨīīˇ īī§īē īļīŦ
īąīīžī īīĸ
ī
1973
īīˇīŽī
īĢīī īī
ī§ī ī ī´ī īīīīīī§īīīŖīļīŦ
īīīĸīžīŠīīĸīīžī ī īĸī§ī īīīī
ī
īīžīˇīīīīŦīīīŗī§ī§ ī¨ īŠīĨīĻīī
īīīĒīī¤ ī´īēī īīīī
ī
īšīĄīŖīĸī
īīą īēī ī¨
īīīīī°
ī
31
īīąīī´ī īŽī
īŗ īīēī§ īŦ
īī¯īąī
ī¸īŧ
ī
īīīŗīŗīŗīŗī˛
ī īŗīŗīŗīŗīŗīī
ī
īī°
īīŠīīīž
īī˛ī°ī īīšīĄīŦī¸īŧīģ
ī īīīš īŦīīīšīīžīīŦ
īŠīŦīžīīŦ
ī57
īĩīŗīīŗī§īīŗ
īĢī´
īīŗīīŗī
īĸīĨīīī
īīī
īīīī
ī°
ī(PLD 1996 SC 324)
īēīŗī
ī¸ īīŗ
īĨīŗīīŗīī
īĻīīīī´īĩīī
ī
īĒīīĄ
((PLD 1996 SC 504)
īŽīŗīŽ ī
īīŽīŗīīīŗ
īŽīŗī īīĩīĢ
īĨīīī
īĻīīīī´īĩīī
īĒīīĄ ī
īīēī§ (PLD 1994 SC 105)
īīīīīīĢī
īĨī§ī¯ī
īīīīī¤
īīīēī§īīšī
īīīī
īĢīī īŦīŽī§īģī´īēīīĨ
īĨīīī°īīžīŊī§īĄīĒ
īŊ
īąī§ī
īīīīē īīēī§ īˇ
īī¸īī īīŖī¸ī¯ī§ īīēī§ īīĄīĒ
ī°īīˇ īīžīŊī§īĄīĒ
ī īī īŦī¸
īĨī§ī¯
īīĸī ī
ī ī¤
īš
īī ī īī īąīž īīĒ ī¤īĨī
īĨī§ī¯īžī´īī
īī¤
ī īļīī¸īīąīī¸īĒīĒ
ī īī īļī¤ī§īŦ
īī§īŖīĒ
ī§īī˛ īžīī īīģ
ī¸ī
26
īīŖīĒ
ī
ī´ īēī īīī§ī
(Democratic People's Republic of Korea)
ī¤ī¯ī§īž ī¯īīīąī
īŦīī īīīĒīĒ
īī°ī īžī¸īīīšī īī°īĒ
īīīēīĻ
īīē īžīī¸ī ī§īž ī¯īļīīŖīĒ
īˇīīēī§īīēī¸ī
ī¤
ī¸īīīĢīŖīĄīī
ī¯ī
īīī§īĻīŽīīīīī ī§īžī
ī¸īīŦ īī īī¨
(run off)
ī īēīī§īē īšīīĄ īēī
īž
īīš
īīŊī´ī
īīŗ īīŠ īī§īŦ
ī īĨ
īĒ
īīīŦ
ī
īīēī§īīī
īīī¤ī¯ ī ī§īī˛ īžīˇ
ī īī¨
ī¸ī§īī˛
ī
ī
īēīī¸ īīąī īīŖīĒ
īīŠīīīīē
īąī¯īīīīīąī§ī
īīī¨ī
ī¸ī īīģ īīąīŖīĒ
īĨī§ī¯īīīąīīŖīĒ
ī
īīīīīī¤
īī§īž īī°īĒ
īīīˇ ī´īĨīīī
ī°
ī´īīŊī§ īī¸ī īī
īŦīˇ
ī
īĢīīĒ
īˇīī§īīģī
īī¯īŦīī¤ī
īąīī īīīĻ
ī
īšīī
īīī ī˛ī ī
īļīŦ
īĨīīˇ ī
īī īī īąīī
ī58
īīžīŠīīšīĸ ī¸ī īŦīīĸ
īīēī§īīš
īīēī§
īīī¨ īīīī¤
īī¤ī
īī īīš ī
ī¸īŦīŠīīī
īąīģī¤īīļīŦ
īĩ
īŠī īī īŽī¯
īīēī§īĸ ī˛ ī¸ī īą
īŠīĨīĻīīīīīŦ īīĢīī
īī§īīīž īŠ
ī§īŽ
īīīĢīī īī ī§īīģī°īĒīžīšīĄīŖīĸīīŊī§ī¸īļīŦ
īž
īąīīīī ī°
ī
īīēī§ī ī
īīģī
īŠīīī īģī īīŦ
ī īī īŠ
ī°
īļīŦ
īą īī īģ ī§īž ī¸ī īīēī§ īŦī
ī
īīŦīēīģ īĩī§īīĒ
īļ
īŦīīīīšīīŦī
ī
īīēī§ (Craies)
īī
īīŦ (Crawford)
īīŖī īīīīžīīĩī§ī˛ī°ī īŊī§ī¸
ī īīēī ī īīēī§ īīŦ
īīī¯ī§īĨ
ī59
ī
īŠīĄīģīŗī¨ī´ī¨ ī
īīļī
ī
ī§īŽīīŠīīšīģī§īŦīĒīīĄ īģ ī
īļīŦ
ī īīŖīĒ
ī
ī īī īŦīīĒ
īŦīīī
īĢ īīēī§ī ī
ī
ī˛ ī¸ī¸ī
īī
ī¸
īīŦī
īī ī°īī° īžīļī¤ī§īŦ
ī
īąīī
ī
ī
īĩīąīģīŖīļīŦ
ī¨īīīˇ
īžīļī¤ī§īŦ
īŦī¤ī§ī īīšīēī§ī°īĒ
īīēī§
īī°ī īžīĸī¤ī§īŦ
ī
īĢ īīĸ īšīĸ īīī īīšīēī§ī°īĒ
īˇīī īīī°īĒ
ī˛ ī¸ī īąīīąī¯īīšīēī§ī°īĒ
ī˛ī°ī īļīŦ
ī¤īī§ ī
īīīĒī
īŖ
ī§ī¨ ī°ī īīģ
īīī§īŦī§īī¨īĢīīˇ
ī
ī˛ ī¸ī īžīļī¤ī§īŦ
īēī
īīēī
īˇ
īīŦīˇ
(judicial review)
32
īī´
īīēīĢīīīŦ
īĸī
īīīīī¸īĨī°
ī
ī īīŊī§ī¸īīī ī´ī īĢīŖ
ī
īą īēīī¨
ī
īĢīī
ī
ī60
īžī īīŊī§ī¸īīŦī´ īēīē ī
īĢīī īŦ īī īąīž
ī īģī ī
ī
īĢ īīīēī§ī
īīīī ī īŖī īīĩī§īīĒ
īŦ
īžī
īˇī
ī
īąīīĄ
īžīĻī
īīīĄī§
īīīīģī°īī
īīŦīī
īŊ
īīŦīēī˛ ī¸ī ī˛īīąīīąīī§īŦ
ī
īī īŗī´ī¯īĩ īīīīĨīīīˇ
īīīŧīīžīšī īīŖ
ī
ī
īīīīīĄīĒ
īą īīēīģī
īšī
ī
ī
īŽ
īŗī§ī
ī
īīīĄī§īģ
īīīīīŦī§ī
īīīžī¸īīžīĸī¤ī§īŦ
ī¤ī§ī īīīšīēī§ī°īĒ
īī
īąīīĢīīīīŦīīĒ
ī
ī
ī
īīē
ī§īĄīĒ
īŊ
īž
ī§ī¨ī
īīˇ
ī¸īīīī
ī§īžī
īą
ī
īī
ī§ī´ī
ī
ī
ī˛ ī¸ī īžīšī īī īīĸ
īīĸī
ī
īŦī°ī§īŦīĄ
ī
īąī īŗīī
īī˛ īēī īīģī¸ī īī¤ī ī
īšīĸīī
īī°ī§īŦī´ īīŦ ī˛īĨī īī§īē īļīŦ
ī§īŽī¸īŦ īĢīŦ
īļīŦ
ī
īĻīŦīīī
īī¯īŖīĸī
īī
ī īī˛īŗīģ ī
īšīī īģī¤īīžīĢīŦ
īī¸ī
īīĢīī īŦīīĒ
ī§īŦ
īŊī§ī¸ī
(draftsman)
īīģ
ī¤
ī¸īŽī§īģīī
ī ī
īĢīŋī
īī īīēī§ īīˇī°ī ī
īēīī¸ ī´īīīīŦī
īīīˇ īīēī§ īŦīšīŠ īēīīŦ
ī
īŖī
īī
ī´īīŦīŽīīš īīŠīĄīĒī ī°īīą ī īīš īžīŊī§īĄīĒ
īą īžī ī§ī¸īīĄīĒ
ī
īīĩī§īīĒ
īē
ī§īŽīīŖīĒ
īīļīŦ
īī īŦīīīžīŽ
īĢ
īĢī
īīēī§īīąīīŠ
īĒīīž
ī¤ī īī īļīŦīēīīŦ
īīī ī°īī° īŖī īī
īīīīīŦ
īšīī ī§īģ īžī¸īīīīŖī īīēī§ī īĒīĒ
īīēī§
ī§
ī īīēī§ īīīīĨī
ī§īŽī
ī¯ī§ īīī¨ īīīēīŊīīĢīīˇīīĢīī¸
ī§ī ī¨īīŋ
īąīīīīĒīĒ
ī
ī ī
ī ī
ī
ī
īĢ īīēī§ī ī¤īī
īī¤īī
ī´ī¨īīąīŦīŗ īīīĄ
ī
ī īīŊī§ī¸ī
īĻ īīīĄīīą īēīī¨
ī§īīĸī§īŗīŗīīī
īŖ
īž
īĢī
īī īģīīĩ īĢī
īīŖī
ī´īīŦīīīĒ
īĨīŽ
ī¤
īī¯īĒīĒ
īĻ
īąīī īŦīīĄīĒ
īēī¤īīŦīīŽī īŗīŗī īī īĢ īī īŗī§ī
īīŗīŗ
ī
īīīīˇī
īīī§ī īˇ ī§ī
īīēī§īīē
īĩ
īī´īŗī§īž
ī´īī īīąī īīŖīĒ
īī ī°ī
īŊīŧ īī§ ī
īī īĢ īī§
ī°īīē
ī
īą īēī ī¨
īīēī§īī
īŦ ī§īē
īīēī§ī
īŦīĨ
īī§īīīŦ
īī°īīžīŊī§īĄīĒ
īīī§īīī
īˇ
51 īīēī§ 63A, 175A, 175
īī
ī
īēīžīīģī īīŊī§ī¸ī īŗī´ī¯īĩ īīīīĨī´ī§īžīīĻī
īīģī
īŦīˇīīģ īī¤īģīē ī¤
īīīēī§īē
īīĸī
īĢīī
ī61
īīīŦī°ī§īŦīĄ
īīĢīīŧ
īīĄīĒ
ī§īŦ
īŗīīēī
īĢ īīēī§ī īŦī
īąīīīī
īŖ
ī
īīŦīīīĩī§īīĒ
īī¯
ī
īąīīĢ īī īŦ
ī
īģī§īī°īŽ ī°ī ī
īīīī§īīī
īīīŖ
īī
īą ī´ī īīī
īĒīī
īļ īēīīŦ
īīīŠīīīž
īī
ī§īģīī
īīēī§ īļ
ī´
ī ī§īž ī ī
ī īīī
īī§īģīŦīžīīŦī§īŖīŊ
ī
īĒī´ī īīļ
ī
ī§īģī¤īīī īīš īēīīŦ
ī§īŽīīīļ
īļīŦ
1973
īīĒīĄīĒ
īīąīīģī īī īŦīīīī§īīžīšīī°īĒ
ī
īĨīīˇī¤īšīģī
īīēī§ī
īĨīī§ī ī¤īīŠī īī
ī
ī´ī
ī īīī
ī
īīīī§īīī
īīīŖ
ī
īļīŦ
īīī§ īŖī
īī´ī°īĢīīīžīīŦīĸ
īī
ī
īŗ īģīĻ īī
1973
īīīąī
īīž
īīŦ
īģīą
33
īī
ī§īīĒ
ī
ī ī§īĨ īĢī§īŖīēī§ī°īĒ
1949
ī īī§ īĒī´ī¤īīēīĨī
īī§ī īĄīĒ
īąīīīīīīēī
īŖīī
ī62
īŠ īĻī§
īĸ ī´īīĒ
īī
ī¤īī¤
īīŦī
ī
īīīī§īīī
īąīīīŖ
īą ī°īīŠ ī
īīīī§īīī
īĢ īīēī§ī īļ
īąī§ī ī´ īīˇ īļīŦ
īˇīīĨīĨīīˇ
ī
īĢīī īŦīˇīŦ
ī¤īŠīīŽ ī
īĻī´ īŊī§ī¸īģīī° ī
ī¸īī
īīģī°īīīŗīŦī īī
ī
īĸīīĒ
ī¤
īīˇ
īŊīīī īīĒ
īīīī§īīī
īīŖ
ī
īīĢīīąīī īĸ
īīžīīĩī§īļ īī īī¸īīī§īīĒ
ī¨īģīīŦ
ī īēī§ īĸī
īĨ
īŊīīŦīˇ
īąīīŗīī
ī
īēī īī
ī´
īąīīžī
īŊīīēīīŽī ī
īēīŖīļīŦ
īīī īīģ īš īēī īˇī¸īīīīī´ī¸īīīīĒ
1973
īŦ
īĻ
īŽī¤īīīēīīē
ī§īŽ
īļīŦ
īīīĄīĒīī´īŽīīĨīī§ī
īīīī§īīī
īīąī§ī īŽīīŖ
ī§ī
ī°īīˇ
ī§īŽīīļ
īļīŦ
īąīī
ī
īīī ī
ī ī
īą īī īī īīīˇ
ī
ī
īŽīˇīąīžī
ī§īŽ
īļīŦ
īī§ī
īī
īī īĨīīēī§ī
ī´ī
īŦīŦīīˇīąīī§ī
ī
īąīīĢīīĒ
īīēī§īīĒī
īŧīī§
īīī§ īēī§ī¨ īĸīļīŦ
ī īŗī´ī¯īĩ īīīīĨīĒīĒ
īī īīēī§ īļī§īž ī§īī īīēīļīŦ
īīˇīīšīĻ
īŽī§ī
ī°
ī63
īšī¸īī§ īīš īī§īģ īīīŠī īīšīĸīīžī
ī¤ īīīĄī
ī¯ īģīĄīĒ
īŠ
1949
īĢīī ī¸
īī
ī¸ī§īģīĄīī¤īīģ
ī
ī¤īš īī§īģ īīī īĨ ī§īģ ī°
īīīī§īīī
īīīŖ
īī
īŧī°
ī§īīīĨīī§ī īģī īī
īīēī§ īļī§īž ī§īī īīēīļīŦ
ī
īīī
ī°ī
īīˇī¤īĢ
īīīĩīŗīī
īĒīīĄ ī
īĢī ī
īī ī¯ī
ī¨īīĩīīą
īąī ī§īī ī
īī
īī
īąīī
īīī¤
īŊ
ī´īžīĢīŦ
īŋ
ī
īˇīīŦ
īļ
ī
ī
īīąī īīŖīĒ
īŋī
īīšī°
īˇīīīŦ
īī
īˇ
ī´īĢ īīīĒ
īĨīŽīīĄīĒ
īīŦī¯īąī
īīī¤
īīīĩīŗī
īĒīŗīīĄ īī
īīŗīą
ī
ī§īīīī
īīž
īŖ
īąīīžīī˛ī ī¸
īīˇ īīģ īē īŽīīģ ī
ī´ īīēī§ īī
īŋ
īī īīž īīŦ
īīīī§īīī
ī
ī īīĢīī īīŖ
ī
1972 ī
īŖ
ī
ī§īŽ
īī¯īīĄ īļīŦ
īŋī
īī īīž īīī´ī°īīēīžīĢ īī īąī īīŖīĒ
īīŦ
īīļ īīž ī¤ī īīēī§ īļīīēīļīŦ
(preamble)
īīīīīī¤
īŗīīēī
ī§ īŠīģīīŦīīīīžī
īĢīī īĨīšī¤īī˛īīąīīīīŖ
īīī§īīŦ
īīīąīīī´ī¸īŧ
1949
īŠīĻīŗīī
ī
īŠīŗīīŗīīīŗī¯īīīą
īīĩīīīīŦ
īĒīŽīī
īĩīī
īĒīīĄ ī
ī ī§īī īīąī
ī§īŠīī§ī
īī ī
īīīīĄ
īą
īĄīĨīīīīī
īīīŦ
īīī¤
ī
ī¤
īŗīīē ī§īī¨īĢī
īąīīīīŖ
īīŗī§īīīĨīŗīīīŠīŗī
īĄīŽīŗīļ
īīĻī
ī
īīŗīīīŗ
īĢ
īīĄīŗīīŽ
īĢ
īīŽīļ
īĄī¯ īīŠ ī īĨī īąī ī§īī ī
īąīī
īīīĩī īŗīīŗīą
ī§īī ī
īīŠīą
īĄīŽīļ
īīĻī
īĩīŖīī
īī
īĄīĢī
ī
īīī
īīī¯īĄ ī§īī īīąīĄī¯ īĨīīĒ īąī ī§īī īīĢ
īšī¤īī˛ī
īē
īīŗī¯
ī
īĄīŗīīŗīīŗīīą
īīŠīą ī ī¯
īĄīŽīļ
īīĻī
īŠīą īĄī˛īą īī ī¯īĄ ī§īī ī
īĄīŽīļ
īĄīīŽī
īą ī
ī§īīīīī
īŠī ī¯ īīąīŽī
ī īŽī
īīŽīļ
īŽīą ī ī īī ī
īĢī˛īą
īĄīŽīļī¨īīĄ
ī§ īī ī īī¤ īąī
īžīīĄī
īĄī§īŠīīĄ
ī§ī īąīĻīĢī ī
īī ī§īą īĨīī
ī ī¤īī ī īą
īīŽīļ
ī
īąīŗīīŠīŗī¯
īĄīŗīą
īŠīŗī§īīŗī¤
īīŗī
īĒīŗīī
ī´
īĨī ī īīŗ
īīĻī
īąīĄī¯ īąīīŠ
īąī ī§īī ī
īĨīīīŠī
īĄī§
īąīĄī¯ īąīīŠ
īĄīīĻī
īī
ī¯
īĩī
īīŗī˛
īŖīŗīą
īīīĒīŗīī
īĄ īĄīŗīą ī
ī
īīŗī
īĢ īīŗ
īīŗī§īī
īīŗī¯
īīĻīī
īĄīŗī§īŠīŗī¯
īĄīŗīą
īīĩ ī¯ī īī
īīīīĄ
īīīīīīī īŽīļ
īĄ
ī¯ ī§īī īīĢī ī
īīŗī
ī
īīąīą
īīĻī
ī ī¯ ī§īī ī
īīīīĻī
īĩī īŦ
īīīĄ
īīĸīīīą
ī¯ī
īĩīīĨīī
īąīĄ
īĄīīŽī
īīī īąīŽ ī
ī¤īīī
īīŗī§ī
īŠīŗī
ī īŽīŗī
īīŽīļ
īĨīŽīīĄ
īŽī ī
īĢīŽīīĄ
īąī¨ī
īīī
īīŽīą īąī īĢ
ī¯ ī§īī ī
ī
īīąīą
īīĻī
ī
īīīīĻī
īŦ
īīīĩīīĨīī
ī
īĄīī
34
ī
īŗīŗīīĻī
ī°
īī īŽīŗīļ
īĄīŗīą
īĄīīŗīŗī¤
īŦīŗīīŗīŗī
īŖ
īīŗīŗī¯
īīĻī
īąīĄīŦ īĨīŗīŗī
īīŽīļ
īąī īŖ īīŗī īŦ īī
īī˛īŗī
īŦ
ī˛īŗīīĄīĒīŗī
īī īŠīē īī īīž
1972-73
īžīīĢīīžī
ī¸īŦ ī¸ī§ īģīĒīĒ
ī°
1949
ī° īī¤ī¯
ī īīēī§ īļīīēīļīŦ
īĄīŗīŗīŗīŗī§
īˇ
īĄīī
ī¤īīžī
īēīī ī
īĄīŦīģīŖīĢīīĢ
ī
īĨīīēī§ī
īžīīī
īīšīī°īĒ
īēīī¸īīīš
īīģ
īīĢī¸īŖ īīēī§ ī¨īīŦ
1949
īīīīŖīĒ
īīīēī§ī
īą
ī
ī§īŽīīģīžī
īīīĻīļīŦ
īĒīĩīģī īī īī
īĢī´ī īžīąī§ī īžīˇīī īēīī¸ īīšīī°īĒ
īīŦ
īĢ
īžī°
īīļ
īīīī§īīī
īī ī
ī ī īīēī§ īī
īžīīŖ
īš īī§īģ īī
īī§īē īī°īļīŦ
īīī ī§ī ī īīŦī´ īīī¤ī¯ īļ
ī
īīīī§īīī
īīŖ
īīīĄīąī§ī ī´ īīˇ īļīŦ
īīīīŠī īīšīĸīīī īīēī§ īĨī
īĨī īīēī§ī īīēīīēī
īĄīšī¸īī§ īī¤
ī
īī īēīī ī¤ī
īą īī īīĨīīīī
īˇīīī
īˇīīīĢīī īīēī§ī īŦī°īīēīĨīīšīī¤ī īīēī§ īļīīēīļīŦ
ī
īžī
ī˛ī¸
1949
īąī ī§īž ī¸īąīīīī´
ī
īēīī¸ī§īŖīĒ īīŦīīīžī
ī
īīĻ
īīēīīīĄīĒ
ī ī§īŖīĒ
īļīŦīēīī¸ īĻ
ī
ī
īąīĢīīžī
īąī§
ī´īīĄ īēī ī¤īīļīŦ
īīŽīīĢ īīēī īī īīŊī§ī¸ī§īŖīģīŖ
īĨīī īī§īē īļīŦ
ī´īĒīīŦ
ī
īžī
īąīīš īī§īģ īīīŠī īīšīĸīī
īīīīīī
īīēī§īĄīĒīĩīŠīĒīĒ
īąī§
ī¨īīī°īīīĩī§ī
1973
īīēī§ īžī
1949
īīīē ī¸īīĸī§
īĩīī´
ī´ī īīīš
īĢīī ī īī īŖ
īĩī°īīžīīĄīĒ
īī īīŊī§ī¸īīī§īˇ
ī
īĢīīĄīī
ī
īīīąī°īī§ī
īēī§īž īĸīīĒīĒ
īąī ī§īž ī¸īī´ īīēī§ īŦ
ī
ī
ī°īĸīī°ī§īŦīģī īīŊī§ī¸īĄ
īĢīīīŦīˇ
ī
ī
īŗī
īžīīŗī
īŦī
ī
īąī
ī
īžī īīīģ īąīīī
īī¸ī¸
īēīģīŊīī§ īīŖī¯
īīīī§īīž
ī¤ī
īĢ īīēī§ī īŦī
ī
īī īīēī§ ī§ īīīš
ī64
īīŦīīīĒ
īī˛ī¸ī¤ īēīī¸ īīšīī°īĒ
īīīēīīēīīīžī
īŦīīĄīē
īēīģīī¨ īīīĒ
īŖīī¯ī§
ī
īŦīīē
ī
īīī¤īī˛ī
ī ī§īŖīĒ
īīīĢ īīēī§ī īĻ
ī¸īīīī§īē
īī°īĄīī
īŦīī
īīēīī¸īģīīš
īĄī
īģī§īīīī§īē
īī
ī§īŽīŖīēī ī
īļīŦ
īąīīĢī
ī
īīšīīžī
īĢīī īŦīīīīŖīĒ
īī
īēī īīīĄīīļīīē
īī¤
īīīī
īąīī ī īŖīĒ
īŊ īĻī§ ī
īŦ
ī
īīī
īēīī¸
īīĢīī īēīģī
ī§īŦ
ī
īīēīī˛
ī
īŊīīˇī
īīēīīē
īŦī
īīēī§īīš
īīī§īž īŠīĻī
īīŦī´
īēīģīēīī¸
īŽīīīĸīĩ īīēī§ ī§īąīīĸīī
ī
īīŦīīŋ
ī
īīī§īĢīīīĸīī īēīī¸ ī īŗī´ī¯īĩ īīīīĨīīīˇ
īŽ
īļ ī¸ī ī
īīīī§īē
īī īģī
ī
īī° īēīģ īīŦīŽ
īīŠīīīžīīēī§
ī¯
īīīš īŽīīŦīīīģīīī ī§īžī
īšī īīžīīīą
ī
ī
ī˛ ī¸ī
īĸīīˇīī
ī
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36
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37
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26
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38
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39
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(common law)
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īī°īģī īŋīŖ īŖīĸ īēī īīŦ
ī78
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ī´īŦīīĻ
īīŖīēī īīĄīĒ
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ī
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ī¸īīĒ
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ī īīīžī¸īīīīĸīŦ īīīš īŦīīĒ
ī
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īīī˛ī ī¸
ī īīšī
īĄīē
1972-73
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ī¤
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ī ī
īīŦīīē
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41
īīˇī°ī
īīēī§īīš
īžīī
ī īī īīĸīŠīī
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(Prof. Raj Kumar Chakraverty)
ī īīš
īīīŦīīšīīīēī
ī§īī īīēīļīŦ
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1973
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24
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11
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īī
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(vii)
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1972-73 īīīēī§
1949
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61
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62
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