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Petitioner: KANWAR INTIZAR MUHAMMAD KHAN, ADVOCATE VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Lahore High Court Judge(s): Sharif Hussain Bokhari, Ch. Mushtaq Ahmad Khan, Ch. Khurshid Ahmad Title:KANWAR INTIZAR MUHAMMAD KHAN, ADVOCATE vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: 1995 MLD 1903 Result: Petition dismissed Judgment JUDGMENT CH. MUSHTAQ AHMAD KHAN, J: --This detailed judgment shall be read as a part and in continuation of the short order, dated 1-6-1995 passed by us, whereby the writ petition has been dismissed. 2. Briefly stated facts of the case out of which this Constitutional petition has arisen are, that Kanwar Intizar Muhammad Khan, who is an Advocate of this Court and is voter citizen of Pakistan, filed an application on 15-9-1994, before the Speaker of the National Assembly levelling certain allegations against Mohtarma Benazir Bhutto, the Prime Minister of Pakistan, which according to him disqualify her from remaining a Member of (Majlis-e--Shoora) the Parliament. The allegations mentioned in the, application are reproduced as under: "(i) That respondent No.3 reduced the strength of Army on the pretext of financial implications through deceitful means. She banned the retirement of Army personnels from two to three years. Suppose 30,000 Army personnels would have retired within this period, they would have-become a part of Pak Army in case of emergency and 30,000 would have been replaced through new recruitment but through. Extension of retirement period retirement has been banned for 2 to 3 years on the dictation of I.M.F. And World Bank. A5 result thereof 30,000 persons could not be recruited and in this manner through this tactics the strength of Armed Forces has been reduced technically which is a great national loss. In this way the respondent No.3 acted prejudicial to the integrity and security of Pakistan.
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(ii) That according to the press media the sea-port of Gawadar has been handed over to Oman and the Federal Government has also donated 100 acres of land free to Sultan Masqat (Oman). The Rest House of Gawadar has also been given to Sultan Masqat where a museum will be established. According to the press media this sea-port will be utilized by Task Forces of United States Army pr--sent in State of Oman. Gawadar sea port was being developed for the purpose of providing shipping facilities to Central Asian Muslim Countries for which ex-regime of Mian Nawaz Sharif had also started construction of Motor Way from Gawadar to neighbouring countries but present regime of respondent No.3 not only stopped the Motor Way from Gawadar to neighbouring countries but the sea port alongwith 100 acres of land has been given to Sultan of Oman. This act of respondent No.3 is also against the sovereignty, integrity and security of Pakistan. No authority is competent to give any territory of Pakistan to other country. (iii) That India is arch `enemy of Pakistan which invaded Pakistan two times in the past. In the year 1971 it trespassed into the lands of East Pakistan and occupied it forcibly and due to world conspiracy our renowned armed forces had to surrender and Pakistan was turned into two pieces. Every Pakistani determines to pay the debit indebited by India in 1971 but in the year 1988 when respondent No.3 was in power and in the Indian Punjab Movement for Khalistan was on peak by Sikhs but respondent No.3 helped Rajev Gandhi the then Prime Minister of India the arch enemy of Pakistan in respect of Sikhs Movement for Khalistan through providing list of Sikhs. She confessed her guilt in an interview with B.B.C. In this manner the respondent No.3 acted against the integrity and security of Pakistan. (iv) That in the previous regime of respondent No.3 in the year 1988 she froze and capped Nuclear Programme of Pakistan under the dictation of U.S.A. And now she is going to sign N.P.T. Against the interest of Pakistan in the coming month of January, 1995. By freezing and capping the Nuclear Programme of Pakistan she also acted against the sovereignty, security and integrity of Pakistan. (v) That in the year 1990 when National Assembly of Pakistan was dissolved by ex-President of Pakistan Ghulam Ishaq Khan she issued statements against I.S.I. And Pak Army which resulted in defamation of Armed Forces. (vi) That on restoration of Mian Nawaz Sharif Government by august Supreme Court of Pakistan she also issued statement against Supreme Court and in like manner she acted prejudicial to the integrity and independence of judiciary of Pakistan and also defamed and brought into ridicule the judiciary of Pakistan. (vii) That after coming into power in 1993 she stopped manufacturing of Missiles on the dictation of U.S.A. While our arch enemy India is still manufacturing the sophisticated Missiles and other types of war weapons which might be used against Pakistan. Respondent No.3 is not even extending the manufacturing the war weapons in local Ordnance Factory to meet the challenge of India. This act of respondent No.3 is against the sovereignty, integrity and security of Pakistan. (viii) That respondent No.3 in the month of August, 1994 summoned the new elevated honourable Judges of Lahore High Court in Islamabad and gave them instructions. She also in her speech on the occasion of inauguration of Larkana Bench of Sindh High Court (Circuit Bench) instructed the judiciary in various manners. This conduct of respondent No.3 regarding the instructions to the Judiciary is also against the precedent as she is head of the executive of Pakistan. She again issued instructions to the judiciary and in this way acted prejudicial to the integrity, independence of judiciary and also defamed and brought into ridicule the judiciary. (ix)That respondent No.3 with mala fide intention was entered into agreement, with USA and other Countries' Companies regarding energy etc. And investment in Pakistan. What are the contents of these agreements, no body knows about them. Even the Parliament was not taken into confidence regarding these agreements and treaties. What will be consequences of these agreements it will reveal in the future when respondent No.3 will not be in power. She would have migrated to France
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or Switzerland where she owns valuable immovable property and bank balance of billion of dollars including gold weighing about 1-1/2 ton according to the report of some Journals (Takbeer etc.) but the consequences will have to be faced of these treaties by future Government and the whole nation. This act of respondent No3 is also prejudicial to the sovereignty, integrity and security of Pakistan". No decision as yet had been taken by the Speaker of the National Assembly, on the said application. 3. On 6-12-1994, the petitioner filed this Constitutional petition with the following prayers: "It is, therefore, respectfully prayed that a Writ of Mandamus may kindly be issued directing the Speaker, National Assembly of Pakistan to send the matter of reference against respondent No.3 to the Chief Election Commissioner who will decide the reference in accordance with law. It is further prayed that act of handing over the territory of Pakistan comprising Gawadar, 100 acres of land with rest house, may kindly be declared null and void and respondents Nos.1 and 7 may kindly be directed to get back the valuable territory of Pakistan from Oman. It is further prayed that ban on the retirement of Army Personnel may kindly be declared null and void and without lawful authority. It is further prayed that through ad interim order respondent No.1 may kindly be directed to restrain to take further action with regard to Gawadar in dealing with Oman." 4. In the writ petition, the petitioner also impleaded Mohtarma Benazir Bhutto and Gen. Abdul Waheed, the Chief of Army Staff (G.H.Q. Rawalpindi) as respondents. Subsequently however, he struck off the names of the aforementioned respondents. Today, during the course of arguments before he has also abandoned all the prayers taken note of, in the last paragraph except the prayer for issuance of writ or order, directing the Speaker of the National Assembly to send the reference of disqualification against the Prime Minister to the Chief Election Commissioner, for decision thereof in accordance with law. 5. The petitioner himself addressed arguments in support of this petition. He has vehemently contended that the petitioner, being a voter citizen of Pakistan, has a locus standi to move the Speaker of National Assembly, for making of a reference to the Chief Election Commissioner in terms of Article 63(2) of the Constitution against Mohtarma Benazir Bhutto, Prime Minister of Pakistan, for declaring her, to have become disqualified, to remain member of the National Assembly on the grounds mentioned in the application, which are sufficient in law for grant of such a declaration, and as the Speaker has not forwarded the reference to the Chief Election Commissioner, he has failed to perform his lawful duty, hence, writ of mandamus may be issued to him, directing him to forward the reference to the Chief Election Commissioner. 6. Elaborating his arguments, the petitioner has contended that bounden obligation of the Speaker was that, on receipt of the application he should have sent the reference to the Chief Election Commissioner, but he is just sitting over the application, hence has failed to perform his lawful duty, the petitioner as such is possessed of an actionable cause of action, to approach this Court, seeking issuance of a direction as prayed for under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his arguments he has referred to the provisions of Article 63(2) of the Constitution, section 8-B of the Political Parties Act, 1962 and has further placed reliance on the case of "President v. Ms. Benazir Bhutto" PLD 1991 Kar.164. 7. In reply to the above arguments, M/s. Masud Mirza and Faqir Muhammad Khokhar, learned Deputy Attorneys-General of Pakistan, have contended that the writ of Mandamus can only be issued at the behest of an "aggrieved person" and as the petitioner does not fall with the definition of an "aggrieved person", therefore, the writ petition is liable to be dismissed on this short ground; that the application has been submitted to the Speaker and no decision has been taken by him as yet, which is to be taken after judicious application of mind, therefore, the petitioner has no actionable cause of action in praesenti; that the case does not fall within the ambit of the
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provisions of Article 63(2) of the Constitution whereunder the reference to be sent only when a "question" arises on account of alleged post-election disqualifications, which "question" has neither "arisen" in this case, nor can arise, on the basis of the false/frivolous allegations, levelled in the application, majority whereof pertain to pre-election period, whereas others are general in nature, are baseless, scandalous and are patently untenable, hence the writ petition does not disclose a cause of action that the allegations on the basis whereof disqualification is being sought are vexatious, politically motivated and are intended to malign the Prime Minister of Pakistan, as the contents of allegations are being published in press again and again, although formal arguments have been addressed today, hence no relief should be granted to the petitioner in exercise of discretionary jurisdiction of this Court, whose main abject is not to seek justice but to malign the highest functionary of the Government; that the High Court should not interfere in the matters which are relatable to the business of the legislature which is represented through Speaker and that the principle of "judicial restraint", may be followed by this Court, as the issues being raised by the petitioner, can more appropriately be ailed and resolved on political forums rather than in this Court. In support of their contentions, reliance has been placed on the following cases: (1) Ch. Zahoor Elahi v. Director, Anti-Corruption and 2 others PLD 1975 Lah. 532. (2) Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166. (3) Muhammad Ishaq Haji Dost Muhammad v. Abdul Ghani and others PLD 1960 Kar.155. (4) Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah. 370. (5) Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan PLD 1969 Lah. 602. (6) Election Commission India v. Saka Venkata Rao AIR 1953 SC 210. (7) Humayun Saifullah Khan v. Federation of Pakistan PLD 1990 SC 599. (8) Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142. (9) Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160. (10) Muhammad Ahmad Khan Maneka v. President of Pakistan 19'95 SCMR 571. (11) Pir Sabir Shah v. Shad Muhammad Khan, MPA PLD 1995 SC 66. (12) Brundaban Nayak v. Election Commission of India and another AIR 1965 SC 1892. (13) Election Commissioner of Pakistan v. Javed Hashmi PLD 1989 SC 396. (14) Ghulam Haider v. S.H.O., P.S. Quetta etc. PLD 1989 SC 479. 8. Mian Abdus Sattar Najam, learned Advocate-General Punjab has taken us through the provisions of Articles 49, 63(2), 68, 69, 175 and 199 of the Constitution of Islamic Republic of Pakistan, 1973 and has contended that jurisdiction of this Court is ousted to entertain the petition in hand as the alleged lapse on the part of the Speaker is relatable to the business of the House, as such is immune from being scrutinized in exercise of power of judicial review of this Court. 9. In reply to the aforementioned arguments, the petitioner has reiterated the arguments addressed by him earlier and has contended that the provisions of section 69(2) are not attracted in the instant case as the subject --matter of the dispute is not relatable to the business of House, as, such, this Court has jurisdiction to issue a writ of Mandamus; that the petitioner is entitled to challenge the validity and legality of action/omissions of .The Speaker of the National Assembly as .He falls within the definition of Federation, therefore this writ petition is competent and that the petition is not politically motivated and has been filed by the petitioner in a bona fide manner, in public interest, on the basis of valid and lawful grounds. 10. Before embarking upon discussion and decision of various issues involved in this case, it will be appropriate, if the relevant Articles of the Constitution of Islamic Republic of Pakistan, 1973 and resume of the relevant case-law is reproduced for the purpose of ready reference as under:--- "Article 63(2): If any question arises, whether a member of the Majlis-e-Shaora (Parliament), has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer
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the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant (Underlining is by us). Article 69(1): The validity of any proceedings in Majlis-e-Shoora (parliament) shall not be called in question on the ground of any irregularity of procedure. (2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in (Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers. (3) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article 66. Article 175(1): There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (3) The Judiciary shall be separated progressively from the Executive within (fourteen) years from the commencing day." Article 199(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--- (a) on the application of any aggrieved party, make an order--- Section 8-B of the Political Parties Act. 1962: Disqualification on ground of defection, etc.---(1) If a member of a House--- (a) having been elected as such as a candidate or nominee of a political party, or (b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless has been re-elected at a bye-election held after his disqualification. (2) If any question arises whether a member of a 'house has become disqualified under subsection (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary party concerned, be determined by the Election Commission. (3) An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision. Resume of Case-Law. 10. In case of President v. Ms. Benazir Bhutto (supra) question had arisen as to whether a Special Court, constituted under the Parliament disqualification for Membership Order 17 of 1977 can disqualify, a person, after he has been elected a member thereof, it has been held that it is the Chief Election commissioner alone who has the exclusive jurisdiction to decide the matter via the Speaker of the National Assembly or the Chairman of the Senate. "9. There is yet another aspect of this petition which is even more important. The petitioner seeks relief in the nature of a writ of mandamus. Before a writ of mandamus can issue under Article 199 of the Constitution, the applicant must satisfy the Court at the very outset that he is an aggrieved party, who has no other adequate remedy available to him. As to what locus standi the petitioner has to maintain these proceedings, there is not a word in the petition, except that he gave some information to the Anti-Corruption Establishment which according to his thinking, amounted to criminal misconduct on the part of respondent No.3. When during the course of hearing of the
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petitioner we called upon Dr. Khalid Ranjha to state what was the personal interest of the petitioner in this particular case, he, at first, replied that both the petitioner and respondent No.3 were political rivals, but when it was pointed out to him that the writs of mandamus were not issued solely to serve the political ends of any person he resiled from that position and took up a totally different stand that the petitioner had the interest of a complainant in a criminal case. In support of his contention, learned counsel for the petitioner relied on Abida Khatoon v. Ghulam Shabbir PLD 1964 SC 793. In that case the Supreme Court was considering the competency of an informant to institute proceedings for the issuance of a writ where, after holding a preliminary inquiry, the Settlement Commissioner had declined to act on the information supplied to him. While holding that such an informant had no locus standi to move the Court on the writ side, Cornelius, CJ., speaking for the Court observed: "At the most, should there have been no inquiry or if the proceedings were merely colourable, with no visible effort to investigate the allegation of irregularity, certiorary may perhaps be available to oblige the authority to act in accordance with law". It is difficult to see how these observations can be of any assistance to the petitioner. The learned Chief Justice was not recording any considered view on the point, but merely assumed a possibility, without expressing any definite opinion thereon. Once a person has laid some information regarding commission of an offence amounting to criminal misconduct on the, part of a public servant the parties to the action are the State and the individual complained against. The complainant can, at best, appear as a witness to depose in favour of the allegations he has levelled against the public servant. In the instant case, however, the petitioner is admittedly not a witness to any of the allegations attributed to the respondent No.3. His own position is that he prepared his report after analysing the available data. Since the petitioner cannot be a party to the proceedings, he cannot thereby claim any right or interest in him. The existence of some right or interest, though it may not be in the strict juristic sense is the foundation of the exercise of jurisdiction by the Court under Article 199 of the Constitution. Even under the Common Law of England, an application for a writ of mandamus can be filed only by a person whose some right is infringed. As observed by Lord Goddard, Chief Justice, in R. v. Dunsheat Ex parte Meredith (1950) 2 All ER 741, mandamus is writ of course nor a writ of right and can be granted only if the duty is in the nature of a public duty and specifically affects the rights of an individual. Mere fact of a person being interested in the proper performance of a duty by a public functionary is not enough for granting far writ of mandamus. Therefore, a person applying for a writ of mandamus must, in the first instance, show a right or interest in him to compel the performance of a legal duty through the interference of the Court. The words "aggrieved party" have been specifically mentioned in Article 199(1)(a) of the Constitution and, therefore, no person unless he is an aggrieved party can maintain a writ petition for either (i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. In Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, it was held by their Lordships of the Supreme Court that "the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in strict juristic sense but it is enough if applicant discloses that he had a personal interest in the performance of the legal duties, which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise". Learned counsel has failed to show how the petitioner has suffered the loss of any personal benefit or advantage or had any of his privileges, liberties or franchise curtailed by the failure of respondent No.1 to register a case against
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respondent No.3. It is also not his case that if respondent No.1 does not submit his report to the Special Judge, it would result in the loss of some personal benefit or advantage to him, or the curtailment of his privileges, if any. In Muhammad Yunus v. Islamic Republic of Pakistan PLD 1972 Lah. 847, it was held: "The legal right to enforce the performance of the duty must be in the applicant himself. The right must be a specific right, as distinguished from a general interest in the performance of the public duty which a member of the public has in common with the other members equally interested where the applicant has no such immediate and particular interest to the performance of the act he cannot ask for a writ to serve some ulterior purpose of his own". It was further observed that "except in cases of writs in the nature of habeas corpus and qua warranto, in all other matters the petitioner should be an aggrieved person". A similar view was taken in Muhammad Boota v. Commissioner, Sargodha Division PLD 1973 Lah. 580. Thus a writ of mandamus cannot be sought pro bon' opublico. The petitioner has utterly failed to show that he had any personal interest in the matter which he wishes to agitate. It was not his case, as observed already that the report prepared by him was based upon his personal knowledge. Or that he was, in any way, directly affected by any of the allegation recited therein. In the circumstances, he has no locus standi to bring this petition, for, he can, by no stretch of imagination, be regarded as an aggrieved party within the meaning of clause (1) of Article 199 of the Constitution." "It is urged that the duty of the Courts is to ascertain the legal position, declare it and allow the law to take its course. After having found that the action of dissolution of the Assemblies was not sustainable in law, the Court cannot and…
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