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Official Citation: 2023 PTD 1120
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-09-19
Parties: Rizwan Ali Sayal vs Federation of Pakistan and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-09-19, officially reported as 2023 PTD 1120. In this matter between Rizwan Ali Sayal and Federation of Pakistan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 PTD 1120
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Rizwan Ali Sayal vs Federation of Pakistan and others Case No.: Writ Petition No.1938 of 2023 Date of Judgment:2023-09-19 Reported As: 2023 LHC 5587, PLD 2024 Lahore 54, 2024 PTD 32 Result: Petition Dismissed
JUDGMENT
"heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent. The law is developed by the application of old principles to new circumstances. Therein lies its genius".[1] Lord Denning in Midland Silicons Ltd v Scruttons Ltd. [1962] AC 446, 467-468 JUDGMENT JAWAD HASSAN, J. This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") assails the appointment of the Respondent No.5 (Muhammad Akram) as Member Judicial, Appellate Tribunal Inland Revenue ("ATIR"), Islamabad through Notification dated 26.04.2019 (the "impugned Notification") alleging that the said Respondent is holding the above post without lawful authority and thus is not fit to hold the public office, hence seeking a writ of quo warranto under Article 199(1)(b)(ii) of the "Constitution" by filing it on 01.06.2023 after lapse of about four (04) years. I. OVERTURE OF THE CASE 2. The Court will examine the words used in Article 199(1)(b)(ii) of the "Constitution" for determination of the maintainability of writ of quo warranto with the focus on laches and the meaning of the word 'public office' in light of recent doctrine of textualism developed by this Court in "Ms SERVICE GLOBAL INDUSTRIES LIMITED through Usman Liaqat versus FEDERATION OF PAKISTAN etc" (PLD 2023 Lahore 471 = 2023 PTD 1120), whereby the Court has held that Doctrine of Textualism envisages a method of statutory interpretation asserting that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the
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statutory purpose, or the legislative history. This judgment will first examine the (i) aetiology of filing numerous quo warranto petitions before High Court including Principal Seat and its allied Benches i.e. Lahore High Court, Rawalpindi Bench, Lahore High Court, Multan Bench and Lahore High Court, Bahawalpur Bench. The word aetiology means the investigation or attribution of the case or reason for something often expressed in terms of historical or mythical explanation. Hence, unless the good and solid jurisprudential reasons are given in the judgment and test has been made out, the Court can control the filing of such petition by limiting the heterodoxy by various Benches and Court. Moreover, this Court will also examine the (ii) anatomy of writ of quo warranto under Article 199 of the "Constitution" which is under Part-VII, Chapter-3 of the "Constitution" and (iii) pathology of Article 199 of the Constitution which deals with the Powers of High Court and its jurisdiction. The Court is aware of the fact that under writ of quo warranto there is no requirement for the Petitioner to be an aggrieved person, rather the writ of quo warranto can be instituted by a person despite he may not come within the meaning of word 'aggrieved person'. Further for issuance of a writ of quo warranto, the person invoking the jurisdiction of the High Court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person as held by the Supreme Court of Pakistan in "JAWAD AHMAD MIR versus Prof. Dr. IMTIAZ ALI KHAN, VICE CHANCELLOR, UNIVERSITY OF SWABI, DISTRICT SWABI, KHYBER PAKHTUNKHWA and others" (2023 SCMR 162). While discussing the anatomy and pathology of Article 199 of the "Constitution", the Court shall frame moot points with anatomy of the jurisprudence of the Supreme Court of Pakistan and (iv) legal anthology of quo warrnato will also be discussed in the light of Section 223-A of Government of the India Act, 1935, which was later continued in the Constitution of 1956, Constitution of 1962 and the Constitution of 1973. However, the Article 199 of the "Constitution" starts with words Jurisdiction of High Court, which is subject to the "Constitution" when there is no other remedy available, any party can bring quo warranto because Article 199(1)(a) deals with aggrieved person and Article 199(1)(b) not necessarily required to be moved by an aggrieved person. The judgments of Supreme Court of Pakistan though have annunciated that there should be a time frame in bringing the writ petition of quo warranto. This Court by framing moot points will go through the guidance regarding the issue of laches and maintainability of a writ of quo warranto in connection therewith as the appointment of the Respondent No.5 was challenged by the Petitioner after lapse of a considerable time period. II. CONTEXT OF THE CASE 3. Succinctly, the Respondent No.5 Muhammad Akram was appointed as a "Member Judicial, ATIR" vide the "impugned Notification" for a probationary period of one year under the Civil Servant Act, 1973 (the "Act") and the same was extendable for a further period of one year. As per version of the Petitioner, the Respondent No.5 is receiving benefits equivalent to a BS-21 Federal Government Officer despite being not qualified for such a position on the sole ground that previously he was accused of FIR No.297 of 2005 registered under Sections 420, 468 and 471 PPC, and his bail was cancelled by the Supreme Court of Pakistan vide order dated 15.12.2005. The case was resolved through compromise, which is not considered an honourable acquittal. Therefore, the Petitioner's stance is that the appointment of the Respondent No.5 violates proviso to Section 6 of the "Act". III. PETITIONER'S SUBMISSIONS 4. Mr. Tanveer Iqbal, ASC, inter alia argues that the Respondent No.5 was not competent for the post due to his involvement in a criminal case; that proviso to Section 6 of the "Act" requires satisfactory character verification for a civil servant's probation period, but the Respondent No.5 was appointed without this verification; that the said Respondent was not acquitted on merits but his acquittal was based on a compromise, which cannot be termed as honourable acquittal. In support of his arguments, learned counsel has relied on "PRESIDENT NATIONAL BANK OF PAKISTAN and others versus WAQAS AHMED KHAN" (2023 SCMR 766), "JAWAD AHMAD MIR versus Prof. DR.
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IMTIAZ ALI KHAN, Vice Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others" (2023 SCMR 162), "SAQIB ALI versus GOVERNMENT OF PUNJAB and others" (2023 PLC (C.S) 310) and "MIRZA SHAHZEB versus CITY POLICE OFFICER etc" (2023 PLC (C.S) 749) IV. RESPONDENTS' SUBMISSIONS Submissions of Respondents No.1 to 4 5. Malik Muhammad Siddique Awan, Additional Attorney General has raised objections to the maintainability of this petition on the ground of laches as the petition in hand was filed more than four years after issuance of the "impugned Notification". He relied on "SAQIB ALI versus GOVERNMENT OF PUNJAB and others" (2023 PLC (C.S) 310), wherein the Supreme Court of Pakistan discussed the limitation period in such like cases and also defined a public office. Mr. Arshad Mahmood Malik, Assistant Attorney General maintained that the appointment of the Respondent No.5 was made by the Federal Government strictly as per Section 130 of the "Ordinance". Submissions on behalf of the Respondent No.5 6. Barrister Asfandyar Khan Tareen, representing Respondent No.5, objected qua maintainability of the petition inter alia on the grounds that it was filed with the ulterior motive of defaming the senior-most Judicial Member after a significant delay; that Respondent No.5 was acquitted in all criminal charges before his appointment on the basis of compromise which is considered honourable; that Respondent No.5, with a 28-year legal career and having passed the Federal Public Service Commission exam, was rightly appointed as Member Judicial; that the acquittal of the Respondent No.5, in a criminal case is an honourable, leaving behind no negative impact upon his past character to create bar against his appointment in question. He has referred to judgments reported in "DR. MUHAMMAD ISLAM versus GOVERNMENT OF NWFP, etc." (1998 SCMR 1993), "MALIK MUHAMMAD EJAZ CHANNAR versus THE STATE" (PLD 2022 Lahore 427), "NAIMAT ULLAH versus THE STATE" (2021 P.Cr.L.J 1339 Sindh), "MST. KULSOOM versus SESSIONS JUDGE" (2018 MLD 1484 Sindh), "MUHAMMAD QASIM versus MUHAMMAD IQBAL" (2017 YLR 752), "MUHAMMAD ZAFAR versus RUSTAM ALI" (2017 SCMR 1639), "RAJA MUHAMMAD SAFDAR versus DISTRICT RETURNING OFFICER, Rawalpindi" (2006 CLC 87), "ISMAIL IJAZ versus THE STATE" (2023 PCr.LJ 114 Islamabad), "NADEEM AHMAD versus SAIF-UR-REHMAN" (2021 MLD 354). V. POINTS OF DETERMINATION 7. In order to examine the language of Article 199 of the "Constitution" and from the arguments advanced by the parties, the following moot points have arisen. (1) Whether the acquittal of Respondent No.5 from a criminal case, based on a compromise, can be considered an honorable acquittal? (2) Whether the Income Tax Ordinance, 2001 (the "Ordinance") provide any restrictions or conditions relating to character verification during the probationary period of Respondent No.5? (3) Whether the writ of quo warranto is maintainable? (4) Whether the writ petition is hit by laches? (5) Whether the office occupied by the respondent is a public one, and if so, is the respondent occupying this office lawfully? It is to be noted that whenever important constitutional issues are raised in a constitutional petition, the Courts always framed moot points in order to settle them strictly under Article 201 of the "Constitution". Since prudent approach to decide the cases, the Courts have to follow the principles already developed by the Superior Court and this Court under Article 189 and 201 of the "Constitution". In order to avoid deviation from heterodoxy jurisprudence as well as to decide the lis between parties on basis of orthodox principles, this Court has discussed in details regarding framing of moot points and settling them in "MUHAMMAD UMAIS Versus RAWALPINDI CANTONMENT BOARD etc" (PLD 2022 Lahore 148) by holding that "After framing of issues on constitutional moot points, this Court has narrowed down the law points and determined the
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fundamental rights of the Petitioner but while rendering judgment, the constitutional petition filed under Article 199 of the Constitution, if the writ petition is admitted for regular hearing, and after perusing the record from the report and parawise comments, the Court has to render a decision strictly as per Articles 199 and 201 of the Constitution. The decision or order could be a judgment or an order passed on the constitutional petition filed under Article 199 of the Constitution but those decisions are made under the established law of precedent under Article 201 of the Constitution, to have a binding effect and its principles have to be followed later. Article 201 of the Constitution states that a decision of High Court if (i) it decides a question of law or is (ii) based upon or (iii) enunciates a principle of law be binding on subordinate Courts. In this case, writ petition was filed on 21.04.2021 and after hearing the parties on 28.04.2021, the Court while admitting the writ petition directed the parties to file written statement. Thereafter, written statement was filed by the Respondents and perused by this Court, hence, before proceedings further, the Court framed moot points in order to render a judgment under Article 201 of the Constitution. It is a settled norm that the decision on a question of law can only be made if question of law is framed and highlighted from the pleadings. In this case the Court on 02.06.2021 framed the constitutional moot points, mentioned above, in order to render a judgment, while keeping in mind the principles of law already established by the Superior Court, relied by both the counsel for the parties, then passed its decision on it to be called a decision or a judgment. Accordingly, the judgment then passed will consists of ratio decidendi, facts, arguments of the parties, moot points involved, and stare decisis and obiter dicta. The Constitution clearly empowers the Courts in Pakistan to render on these parameters regarding the question of law or based on question enunciated a principle of law. As every judgment of the Supreme Court is binding on all Courts under Article 189 of the Constitution, the same words are used in Article 201 of the Constitution but subject to Article 189 to follow its principle for consistency". MOOT POINT NO.1 Whether the acquittal of Respondent No.5 from a criminal case, based on a compromise can be considered an honorable acquittal? 8. Mr. Tanveer Iqbal, ASC states that the criminal history of the Respondent No.5 is established vide FIR No.297 of 2005 and this factum disqualifies him from holding public office and though he was acquitted in that case on basis of a compromise, but said acquittal was not on merits, hence eventual result of said criminal case does not negate the serious allegations against him. While, Barrister Asfandyar Khan Tareen, Advocate for the Respondent No.5 submits that mere registration of an FIR against the Respondent No.5 is insufficient to deem his character as criminal, barring him from his impugned appointment and that too in a situation that aforementioned criminal case was got registered by uncle of Respondent No.5 in outcome of some family disputes. He further states that the matter was settled between the parties and the Respondent No.5 was acquitted by the Judicial Magistrate vide order dated 14.12.2006 and this order was upheld by the Additional Sessions Judge, Sargodha vide order dated 08.03.2008. 9. A careful examination of the facts and arguments from both sides reveals that the FIR against the Respondent No.5 was registered by his real paternal uncle over a property dispute. This dispute was amicably settled among the parties through compromise leading to acquittal of the Respondent No.5. Therefore, the mere registration of an FIR against Respondent No.5 cannot be used as a definitive test to label him as having a bad character. As for as argument of an honorable acquittal is concerned, the Court is of the view that all acquittals including acquittal on compromise are honorable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. There can be no acquittals, which may be said to be dishonorable and the law has not drawn any distinction between any types of acquittals. Reliance is placed on "DR. MUHAMMAD ISLAM versus
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GOVERNMENT OF NWFP, etc." (1998 SCMR 1993). The Respondent No.5 was acquitted by the Judicial magistrate vide order dated 14.12.2006 and this order of acquittal was upheld by the Additional Sessions Judge, Sargodha vide order dated 08.03.2008. It shall, therefore, be presumed that the allegations leveled against him are baseless as, he has not been declared guilty. In presence of above meaning of "acquittal" the appellant is held to have committed no offence because the competent criminal courts have cleared him from an accusation or charge of crime. Moreover, once a person was acquitted by trial court, said person would stand shorn of stigma of any allegation and he would have to be deemed thereafter as innocent and having not committed any such crime. If acquittal of accused is not assailed before higher forum, such acquittal earned by accused from trial court, on whatsoever basis, would attain finality and pandora box of allegations could not be re-opened or used against him. In short, acquittal is an acquittal simpliciter and, must entail upon all consequences of pure acquittal. Reliance is placed on "MUMTAZ ALI SHAH versus CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY LTD., H.Q., ISLAMABAD and 6 others" (PLD 2002 Supreme Court 1060). Additionally, order of acquittal of accused shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any. Reliance is placed on "SUO MOTU CASE NO. 03 OF 2017" (PLD 2018 Supreme Court 703). MOOT POINT NO.2 Whether the Income Tax Ordinance, 2001 (the "Ordinance") provide any restrictions or conditions relating to character verification during the probationary period of Respondent No.5? 10. Pertinently, the Respondent No.5 was appointed as a Judicial Member of the ATIR vide the "impugned Notification" issued under Section 130(3) of the Income Tax Ordinance, 2001 (the "Ordinance"). According to the learned counsel for the Respondent No.5, at the relevant time of his appointment, the Appointment of Income Tax Appellate Tribunal Member's Rules, 1998 were in force having been issued vide SRO No. 5(1)/98. Aforementioned Section 130 dealing with appointment of Judicial Member of ATIR is reproduced as follows: "130. Appointment of the Appellate Tribunal:- (1) There shall be established an Appellate Tribunal to exercise the functions conferred on the Tribunal by this Ordinance. (2) The Appellate Tribunal shall consist of a chairperson and such other judicial and accountant members as are appointed by the Federal Government having regard to the needs of the Tribunal. (3) A person may be appointed as a judicial member of the Appellate Tribunal if the person:- (a) has exercised the powers of a District Judge and is qualified to be a Judge of the High Court; (b) is or has been an advocate of a High Court and is qualified to be a Judge of the High Court; (c) is an officer of Inland Revenue Service in BS20 or above and is a law graduate. (underlined by me) .............. 11. For appointment as Judicial Member of Income Tax Appellate Tribunal, two categories of persons had been provided under Section 130(3) of the "Ordinance", one who had exercised powers of District Judge and the other who had been an Advocate of High Court, and both categories of persons were required to fulfil one common qualification i.e. they should be qualified to be a Judge of the High Court. Bare reading of aforementioned provision reveals that Section 130(3) of the "Ordinance" does not provide any restrictions or conditions relating to character verification during the probationary period of Respondent No.5. The provision never transpires any condition that mere involvement of a candidate in any criminal case/FIR would be sufficient to bring any clog for his appointment as a judicial member of ATIR. It is reiterated that the Respondent No.5 in
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aforementioned criminal case had never been adjudged as guilty of the charges, rather complainant of said case had entered into a compromise with him and he was acquitted on basis thereof. Furthermore, no other occasion, besides registration of aforementioned FIR pertaining to any criminal liability of the Respondent No.5 has been brought on record by the Petitioner. MOOT POINT NO.3 Whether the writ of quo warranto is maintainable? 12. The writ quo warranto is provided under Article 199 of the Constitution and the same is reproduced for ready reference: ARTICLE 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) ............... (b) on the application of any person, make an order:- (i) ... ......... (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......... 13. A meticulous study of aforementioned provision and the relevant case law on the subject reveals that for the purpose of maintaining a writ of quo warranto there is no requirement of an aggrieved person, and before a person can claim this relief he must satisfy the court, inter alia, that the office in question is a public office and is held by a usurper without legal authority. It is a settled law that granting relief in the nature of quo warranto is within the discretionary power of the superior courts and this relief cannot be allowed as a matter of course, rather the conduct and the bona fides of the petitioner, the cause and the object of filing such petition is also of considerable importance, which is to be examined. The Supreme Court of Pakistan has held in numerous judgments that the writ of quo warranto can only be issued in exceptional cases and the relief should not be allowed as a matter of course, more so when the candidature of a candidate was duly scrutinized at the time of the scrutiny of his appointment to ascertain whether he was qualified in terms of the Constitution and the law. Accordingly, the Court is not required to go into the merits of the case and should summarily dismiss the petition on the basis of lack of bona fides and extraneous motives of the petitioner and on account of the petition being frivolous. Reliance is placed on "JAWAD AHMAD MIR versus Prof. DR. IMTIAZ ALI KHAN, VICE CHANCELLOR, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others" (2023 SCMR 162),"NISAR KHAN KHATTAK versus HAJI ADAM, DIRECTOR GENERAL (Admin), PEMRA Headquarter, Mauve Area, Islamabad and another" (2021 PLC (C.S) 140), "ATTAULLAH KHAN versus ALI AZAM AFRIDI and others" (2023 PLC (C.S) 182) and "MIRZA ABDUL REHMAN versus FEDERATION OF PAKISTAN and others" (2017 PLC (C.S) 1327). 14. This Court firmly believes that a writ of "quo warranto" should only be issued in exceptional cases and the relief should not be allowed in a casual manner, especially when a candidate's qualifications were thoroughly examined during his appointment which has never been challenged by the Petitioner. The Court will not further discuss s the merits of this case as this petition is liable to be dismissed due to Petitioner's lack of bonafide, extraneous motives, and frivolous nature of petition. Further reliance is placed on "ABRAR HASSAN versus GOVERNMENT OF PAKISTAN AND Respondents" (PLD 1976 Supreme Court 315), wherein it was candidly observed that the quo warranto has never been a writ of right. The Court may in exercise of its discretion, refuse it, if the application is not bona fide or is made for a collateral purpose. Similarly, in "ASIF HASSAN and others versus SABIR HUSSAIN and others" (2019 SCMR 1720), it was held that a writ in the form of quo warranto is an extraordinary discretionary jurisdiction and the Court is not bound to exercise
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such jurisdiction in each and every case specially where on account of laches the matter has lost its significance. MOOT POINT NO.4 Whether the writ petition is hit by laches? 15. Admittedly, the FIR was registered against the Respondent No.5 on 09.08.2005 and he was acquitted from relevant case vide order of Judicial Magistrate dated 14.12.2006 which was upheld by the Additional Sessions Judge vide order dated 08.03.2008. The Respondent No.5 was appointed as Member Judicial, ATIR vide the "impugned Notification" dated 26.04.2019 but interestingly instant petition has been filed on 01.06.2023 to challenge the same after lapse of more than four (04) years without explaining any convincing reasonable cause for the inordinate delay. As such principle of laches is applicable upon this case as three months' time is considered reasonable for a party to assail an adverse order in writ jurisdiction of this Court. The Supreme Court of Pakistan in "STATE BANK OF PAKISTAN through Governor and another Versus IMTIAZ ALI KHAN and others" (2012 SCMR 280) has held that "laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party". It was further held by Supreme Court of Pakistan in "MEMBER (S&R)/CHIEF SETTLEMENT COMMISSIONER, BOARD OF REVENUE, PUNJAB, LAHORE…
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