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Petitioner: DANISH KANERIA VS Respondent: PAKISTAN and others
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Imam Bux Baloch Title: DANISH KANERIA vs PAKISTAN and others Case No.: Constitutional Petition No,2377 of 2011 Date of Judgment:2011-11-10 Reported As: PLJ 2012 Karachi 1, 2012 CLC 389 Result: Petition dismissed
JUDGMENT
JUDGMENT ' IMAM BUX BALOCH, J.--- Brief facts of the instant petition are that the petitioner was selected on merit by the respondent No,2 on account of his outclass performance in domestic cricket as a specialist leg spinner and after selection he played for the Country in test cricket, one day internationals and twenty/twenty matches and became the fourth ever highest wicket taker in the test cricket for Pakistan. The petitioner submitted that due to his best performance the Pakistan won the matches many times for which he has been awarded "man of the match" awards many times. He claimed that due to his performance he was selected to play for the Essex County in the U.K. Wherein he also performed meritoriously and his selection in both the squads i,e, Pakistan's Cricket Squad as well as the Essex County was purely on merit. He submitted that despite the fact that after the retirement of Australian Cricketer Shane Warne the petitioner is perhaps the only leg spinner of high standard in the world of cricket, the respondents are not willing to utilize the petitioner for Pakistan. It has been further stated that Essex County team players namely Tony Palladino and Mervyn Westfield during a night out, most probably in drunken state, talked about spot fixing, which was undertaken in a Pro 40 Match between Essex County and Durham County of September, 2009. The rumour spread around and ultimately came to the notice of the management of the Essex County by way of a ridiculous complaint by one Mr. Tony Palladino. The management reported the matter to the ECB who reported the same to ICC suggesting that the matter should be given to the local Essex Police for further investigation. All the gossip mongering had taken place when the petitioner was in Pakistan. He further submitted that when the petitioner returned to UK to play for Essex County in April/May, 2010 he was required to attend some interview with British Police, before whom he appeared and the interview was conducted on 14-5-2010,
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whereafter the petitioner was required to again attend on 15-9-2010, the U.K. Police technically arrested the petitioner and released him on police bail. The petitioner received a letter from the England and Wales Cricket Board dated 27-5-2010 by way of a show-cause notice as to why the petitioner's registration with the Essex Country/ECB should not be suspended. On receipt of such notice the petitioner along with his Lawyer and Consultant met with the Chief Executive of the ECB and explained his position as well as the actions of the authorities and urged that until the petitioner is found guilty, his registration cannot be suspended or cancelled. The Petitioner's contentions were accepted and no further action was taken by the ECB and kept his registration intact, neither the U.K. Police nor the Essex County Cricket stopped him from playing cricket and he continued to play such county as well as for Pakistan with Australia and England in July and August, played in England, whereafter he was dropped. The petitioner was reregistered with the ECB to play for the Essex Cricket County in August, 2010. The petitioner received a letter from the British Police, informing that he is no longer required for interview scheduled on 15-9-2010 and the entire investigation against him was dropped. The petitioner returned to Pakistan and was selected for national cricket squad to play the test series against South Africa in Dubai in October, 2010 and after attaining three weeks' training camp of PCB held at Ghaddafi Stadium Lahore, just two days before the scheduled departure to Dubai the petitioner received a telephone call from one of the officials of the PCB informing that he is no longer required to travel to Dubai with the National Squad, upon which the Petitioner made inquiries from Mr. Wasim Bari, the then Chief Executive Officer of PCB who pleaded ignorance and directed him to contact Mr. Zakir. The petitioner contacted Mr. Zakir Khan, Director Cricket Operations (International), who informed the petitioner that PCB has some reservations against the petitioner but did not disclose any one of them. Thereafter, the petitioner repeatedly requested Mr. Zakir Khan to at least divulge the reasons for dropping the petitioner from the National Cricket, ultimately via telephone and email Mr. Zakir confirmed to the petitioner that his clearance was required by PCB from the Essex County, English Cricket Board, the International Cricket Council and the British Police. Upon such requisition the petitioner approached the concerned Boards and secured two letters, both of which contained no adverse allegations against the petitioner, the same was informed to the PCB. After providing such information to the PCB the petitioner presumed .That it will essentially end the matter, however, for the reasons best known to the respondents they did not consider the petitioner for selection in the ensuing cricket series against South Africa, West Indies and New Zealand so also for the World Cup, all such took place in the year 2010-2011. The petitioner addressed many letters himself and through his lawyer but no heed was paid. The petitioner also stated in his petition that he has attended the meetings of the Integrity Committee of the respondent No,2 in December, 2010 and January, 2011 but till filing of the petition the fate of the petitioner has been kept in dark. He further stated that the respondents are demanding the police tapes, which were in possession of British Police. He further stated that the petitioner has been referred to be a tainted player. Such demand of the respondent No,2 for police tapes is unreasonable. 2. The respondent No,2 has filed counter-affidavit, and amongst other, raised preliminary objection that the order against the petitioner was passed by the Pakistan Cricket Board, having its Central Office at Lahore, as such this Court has no jurisdiction to entertain the instant petition. By accepting the selection, unique skills and exceptional performance of the petitioner over the years, they denied several averments made by the petitioner in the instant petition. In parawise comments, the respondent No,2 submitted that events narrated in paragraphs 8 to 13 of the petition came to its knowledge through different sources and the petitioner was asked directly to clarify his position before the Integrity Committee of respondent No,2 in order to avoid any misunderstanding but he is reluctant till date in providing information/material required from him. It has been further stated that cricket has become a very lucrative sport, which involves glamour and money for all the
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affiliated individuals including the Players. The International Cricket Council (ICC) is the regulator of cricket worldwide and has taken serious notice of the corruption in cricket and devised strict rules and regulations to curtail and assassinate this menace from the sport. The respondent No,2 being the member of ICC is bound to follow such rules and regulations and has also taken stern steps against corruption and other issues affecting the integrity of the players for which it has formulated Rules to control the same. After the unfortunate incident took place in 2010 involving three Pakistani Cricketers and attack on Sri Lankan Guest Team in Lahore and the International Teams had already refused to visit Pakistan, in consultation of and approval of ICC the respondent No,2 formed an Integrity Committee, whose sole function was to scrutinize the players whose integrity seems to be doubtful. After coming into the knowledge of the respondent No,2 the arrest of the petitioner in UK it became necessary that he may be called by the Integrity Committee in order to examine carefully the circumstances of his arrest and the charges involving integrity. The petitioner was required by the Integrity Committee to provide certain documents including tapes of his police interview by the British Police but he failed to do so. Respondent No,2 admitted the selection of petitioner for the national squad to play test series against South Africa in Dubai and after he was stopped to play he was asked to provide clearance from the Essex County and ICC, in reply to which the petitioner through his counsel managed to get a letter from ICC, which did not serve the purpose. After exchange of communication the respondent No,2 assured the petitioner's counsel that the petitioner will soon be called to discuss the matter. Later on, he was called on 9-12-2010 and after several discussion on the issue he was requisitioned to provide (a) transcript of police interview; (b) copy of the complaint (c) any other police document, (d) details of bank accounts (Pakistan and Abroad) and properties (movable and immovable) during last three years; (e) details of contracts from the sponsoring party and amount received and amounts received; (f) details of agents and their terms and conditions (g) details of amount paid to the agents for the said sponsorships and other endorsement for the last three years, to which he agreed to provide the same by 13-12-2010 and he was asked to again appear before the Integrity Committee on 15-12- 2010. On 13-12-2010 the petitioner's counsel sent an email to respondent No,2 stating that "those tapes are held by the Police and are only released to Mr. Kaneria's lawyer, no other person or organization is permitted to have a copy." On 15-12-2010 the petitioner appeared before the Committee and assured that he will approach his lawyers for the tapes but the petitioner's counsel extended threats that the name of respondent No,2's Adviser had been provided to Essex Police, to which the petitioner was asked to behave properly and provide the requisite articles. It has further been stated in the parawise comments that England and Wales Cricket Board has confirmed the respondent No,2 that Essex County had not issued any clearance certificate and upon such confirmation the petitioner was again asked to provide clearance certificate, which he failed to on pretext that neither of them (Essex County and ICC) knows what the clearance certificate is and the failure and lame excuses of the petitioner to bring on record the requisitioned documents and tapes only lead to the conclusion that the petitioner is hiding something. It has been further stated that till date no order has been passed by the respondent No,2 against the petitioner and in the event of any grievance the petitioner can avail remedy under paragraph 35 of the PCB Constitution. 3. We have heard Mr. Dr. Muhammad Farogh Naseem, learned Counsel for the petitioner and Mr. Taffazul. Hussain Rizvi, learned Counsel for the respondent No,2. 4. The learned Counsel for the respondent No,2 at the very outset contended that this Court has no jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan to entertain the instant petition. He submitted that the respondent No,2 having its Central Office at Lahore and all the correspondence has taken place at Lahore, the petitioner time and again has been called by the respondent No,2 is out of the jurisdiction of this Court, in such circumstances he submitted that
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this Court may dismiss the petition of the petitioner on the sole ground of jurisdiction. He has placed reliance on the following case-law:--- (1) Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others (PLD 1997 Supreme Court 334) (2) The Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Dacca v. Ataul Huq (PLD 1965 Supreme Court 201) (3) Mst. Shahida Maqsood v. President of Pakistan through Secretary, Law Justice and Human Rights Division and another (2004 CLC 565) (4) Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others (PLD 1986 Karachi 525) (5) R v. Disciplinary Committee of the Jockey Clubm, ex parte Massingberd-Mundy (All England Law Reports Page 2007) (6) Mst. Shahida Maqsood v. President of Pakistan and another (2005 SCMR 1746) (7) M/s. Nadia Ghee Mill (Pvt.) Limited v. The Federation of Pakistan (1992 MLD 2154) (8) M/s. Ibrahim Fibers Limited v. Federation of Pakistan through Secretary/Revenue Division and 3 others (PLD 2009 Karachi 154) (9) Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others (1979 SCMR 555) (10) Election Commission, India v. Saka Venkata Rao (AIR 1953 Supreme Court 210) (11) Lt. Col. Khajoor Singh v. Union of India and another (AIR 1961 Supreme Court 532) 5. On the other hand the learned Counsel for the petitioner contended that the respondent No,2 (PCB) having its branch at Karachi and that the petitioner is performing throughout Pakistan and outside of Pakistan, all the High Courts of Pakistan have jurisdiction to entertain such petitions against the Pakistan Cricket Board. He contended that the petitioner has received the letters at Karachi, hence this Court is competent under Article 199 to adjudicate the instant petition and that this Court has territorial jurisdiction. He has placed reliance on the following cases:--- (1) A.R. Khan & Sons (Pvt.) Ltd. v. Federation of Pakistan (2010 CLD 1648) (2) Nawabzada Muhammad Shahabuddin v. Chairman Federal Land Commission (1996 CLC 539) (3) Mehboob Ali Malik v. The Province of West Pakistan and another (PLD 1963 (W.P.) Lahore 575) (4) Asghar Hussain v. The Election Commission of Pakistan and others (PLD 1968 Supreme Court 387) (5) Trading Corporation of Pakistan (Pvt.) Limited v. Pakistan Agro Forestry Corporation (Pvt.) Limited (2000 SCMR 1703) (6) Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan, Islamabad (PLD 1997 Lahore 643) (7) Itehad Cargo Services, National Hotel, Lahore v. Rana Rafaqat Ali and 3 others (PLD 2002 Karachi 420) (8) The Collector, Customs and Central Excise, Peshawar and others v. M/s. Rais Khan Limited through Muhammad Hashim (1996 SCMR 83) (9) M/s. Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) (10) Ghulam Haider Badini and 520 others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another (1995 CLC L027) (11) Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others (2007 SCMR 1126) (12) Chaudhry Akbar Ali. v. Secretary, Ministry of Defence Rawalpindi and another (1991 SCMR 2114) (13) Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) (14) Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue, Islamabad (1997 SCMR 1874)
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(15) M/s. Fecto Belarus Tractors Limited Karachi v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives, Islamabad and others (PLD 2006 Karachi 479) and submitted that this Court is competent to adjudicate the petition as cause of action accrued to the petitioner at Karachi and so also at Lahore and contended that both the Courts at Karachi and Lahore have jurisdiction to entertain the petition. He further contended that the case of the petitioner falls within the category of judicial review of administrative/public action and that the superior Courts having jurisdiction in accordance with the . Concept of checks and balances, which his integral part of the separation of powers enshrined in the Constitution of Islamic Republic of Pakistan. He further contended that this Court being a constitutional Court is required to see whether the functionaries of the State in connection of the affairs of the Federation, the Provinces or the local authorities have done the things in accordance with the law or actions have been taken otherwise. In such circumstances, the learned Counsel for the petitioner contended that the basic principles are that in the realm of public actions every thing should be done with complete transparency and the decisions should be taken objectively on the basis of criteria as already has been determined and fixed in the Constitution. 6. Before going through merits and demerits of the instant petition we have decided to take first preliminary objection raised by the learned. Counsel for the respondent No,2 regarding the territorial jurisdiction of this Court. Article 199 of the Constitution of Islamic Republic of Pakistan reads as under:--- 199. Jurisdiction of High Court.--- (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--- (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; or (b) on the application of any person, make an order-- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II. 7. A perusal of the memo of petition indicates that the thrust of the attack of the petitioner was directed against the letters of respondent No,2 calling upon the petitioner to appear before the Integrity Committee which is housed at Central Office of PCB, Lahore, all the correspondences were issued to the petitioner from the Central Office of the respondent No,2 which is housed at Lahore. In our view this fact would not be sufficient to oust the jurisdiction of Lahore High Court within whose jurisdiction the main cause of action accrued. Article 199(1)(a)(i)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) and that perusal of above clause (a)(i) of the above Article indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything which he is not permitted
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by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a) (ii) the High Court has powers to declare any act done or proceedings 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 lbcal authority. 8. We have observed that the Central Office of the respondent No,2 is located at Lahore and the petitioner has to attend the Central Office of the respondent at Lahore for appearing before the Integrity Committee and not before the sub-office, which is located at Karachi. We have also observed that all the correspondences have taken place at Lahore. The arguments of the learned Counsel for the petitioner that the petitioner is residing at Karachi and he has received all the correspondences at Karachi, hence part of cause of action may be seemed to be taken place at Karachi is without any substance. 9. As regards the contention of the learned counsel for the petitioner that cause of action accrued to the petitioner at Karachi and so also at Lahore in our view Article 199 as it stands does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of-action accrues being within its territorial jurisdiction. Provisions under Article 199 are not suits, they provide for extraordinary remedies by a special procedure and give powers of correction to the High Court over person and authorities and these special powers have to be exercised within the limits set for them. The powers under Article 199 vis-a-vis the reach of the High Court's powers have been considered in the decisions of the honourable Supreme Court in cases of Mst. Shahida Maqsood, Sandalbar Enterprises and Sabir Din (supra) and so also in two cases from Indian jurisdiction. Article 199 of the Constitution and Article 226 of the Indian Constitution are parallel. In case of Lt. Col. Khajoor Singh, the Indian Supreme Court has noted the following observations:--- (16) Article 226 as it stands does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction. Proceedings under Article 226 are not suits; they provide for extraordinary remedies by a special procedure and give powers of correction to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them. These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction. It is possible then to overlook this Constitutional limitation and say that the High Court can issue a writ against a person or authority even though it may not be within its territories simply because the cause of action has arisen within those territories? It seems to us that it would be going in the face of the express provision in Article 226 and doing away within an express limitation contained therein if the concept of cause of action were to be introduced in it. Nor do we think that it is right to say that because Article 300 specifically provides for suits by and against the Government of India, the proceedings under Article 226 are also covered by Article 300. It seems to us that Article 300 which is on the same line as S.176 of the Government of India Act 1935, dealt with suits as such and proceedings analogous to or consequent upon suits and has no reference to the extraordinary remedies provided by Article 226 of the Constitution. The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provisions contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, .Nor can the concept
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of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it. 10. Facts of the case of Shahida Maqsood case are that the petitioner addressed a letter to the Collector Sales Tax and Central Excise Rawalpindi, informing him about the evasion of Excise Duty by Pakistan Telecommunication Company Limited, Headquarters Islamabad, while referring to the balance sheets of the Company for the years 1996-97 to 1998-1999 and made a disclosure of the fact that the PTCL was not paying central excise duty in respect of overseas calls made from Pakistan at the prescribed rate and duty, thereby causing huge loss of revenue. She filed a complaint before the Federal Tax Ombudsman, which was disposed of with the observations that the Collectorate of Sales Tax had already taken action and settled the matter upto June, 1998 with the PTCL. Being dissatisfied, the petitioner filed an appeal against it before the President of Pakistan which was entertained and lastly the petitioner received an intimation dated 17-10-2001 from the Section Officer, Law, Justice and Human Rights Division that the President vide his order dated 11- 10-2001 was pleased to…
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