Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2026 IHC 254454. In this matter between Maliha Malik and FOP & 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.

Full Judgment Text & Judicial Ruling

COURT: Islamabad High Court (Honourable Mr. Justice Muhammad Azam Khan) AUTHOR JUDGE: Honourable Mr. Justice Muhammad Azam Khan DECISION DATE: 12-MAR-2026 CASE NO: Writ Petition-2665-2025 CITATION: 2026 IHC 254454 PARTIES: Maliha Malik VS FOP & others LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: FOSPAH: Ombudsman for property has admitted complaint of daughter in land against her late husband's mother. report of property has been sought possessor and keeper property impugns order. ============================================================ JUDGMENT SHEET. IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

WRIT PETITION NO. 2665 of 2025 MALIHA MALIK Vs THE FEDERATION OF PAKISTAN, ETC. Petitioner by : Sardar Shabbir Hussain and Mr. Abdullah Khalid, Advocates. Respondents by : Barrister Suleman Khan, Advocate for the Respondent No.2. Barrister Sara Seerat, Advocate for the Respondent No.3. Raja Muhammad Saeed, D.A.G. Raja Zamir-ud-Din Ahmed, A.A.G. Date of hearing : 04.02.2026

MUHAMMAD AZAM KHAN, J. The Petitioner, Maliha Malik, has filed the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, assailing the Orders dated 22.04.2025, 30.04.2025, 14.05.2025, and 04.06.2025 (“Impugned Orders”) passed by the Federal Ombudsperson (“Respondent No.2”). 2. Brief facts of the case are that the Petitioner, Maliha Malik, is a widow, and Respondent No. 3, Syeda Sakina Bukhari, is the widow of the Petitioner’s deceased elder son, Fahad Malik, who died in 2016. The legal heirs of Fahad Malik include the Petitioner, Respondent No. 3, and two minor children of the latter. The Petitioner and her late husband, expatriates settled in England, lawfully acquired multiple properties, some solely for the Petitioner’s benefit. Civil disputes over family properties have been ongoing since 2012, with Respondent No. 3 and her children as parties. On 22.04.2025, the Respondent No.3 filed a complaint before the Federal Ombudsman (Respondent No. 2), claiming two properties, i.e., House No.70, F-7/2, and House No. 46, F-6/3, as exclusively belonging to her late husband. Civil suits regarding these properties are pending, and interim injunctions have been granted to maintain status quo. In this regard, the Respondent No. 2 issued notices to the Petitioner, which she has challenged through the instant petition. P a g e | 2 W.P No.2665/ 2025

3. Learned counsel for the Petitioner contended that Sections 3, 4, 5, 6, 7, 8, 9, and 11 of the Enforcement of Women’s Property Rights Act, 2020 are ultra vires Articles 8, 9, 10A, 23, 24, 175, 202, 203, and 204 of the Constitution, and thus void ab initio. Section 4 allows women to approach the Ombudsman only if no court proceedings are pending, whereas Section 6 empowers the Ombudsman to refer matters requiring evidence or detailed adjudication to the competent Civil Court, with Section 6 overriding Sections 4 and 5. The present complaint pertains to the estate of the Petitioner’s late son, in which she is also a legal heir, and relates to properties already involved in multiple civil suits pending since 2012, including a pending suit before the Learned Civil Judge (West), Islamabad, where an ad-interim injunction maintains the status quo. The learned counsel further contended that the Civil Courts are the forum of ultimate jurisdiction, and the matter involves intricate issues already under adjudication, therefore, the notices issued by the Respondent No. 2 are without lawful authority. 4. Learned counsel for the Respondents No. 2 contended that the instant petition is not maintainable at the present stage since the Federal Ombudsperson Secretariat for Protection against Harassment ("FOSPAH") has not rendered its final decision on the subject matter pending before it. Furthermore, if the Petitioner is aggrieved by any order, she can file a representation to the President of Pakistan pursuant to Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013. As per the rulings of the Honourable Supreme Court, an adjudicatory body's role is confined to assisting the Court by providing necessary information and producing record, and not to act as a primary party or to defend its orders as it has no locus standi to do so. In other words, the Ombudsman is not obligated to justify or defend his decisions, rather, it is for the aggrieved party to do so. Such a forum is simply to redress complaints by exercising its powers under the law. That FOSPAH is empowered pursuant to Section 7 of the Enforcement of Women's Property Rights Act, 2020 ("Act") to take cognizance of a matter even if a suit, relating to any property mentioned in a complaint filed by a woman, is pending before any Civil Court at Islamabad. P a g e | 3 W.P No.2665/ 2025

5. Learned counsel appearing on behalf of Respondent No. 3 argued that Barrister Fahad Sohrab Malik, the late husband of Respondent No. 3, was murdered on 15.08.2016, leaving behind his widow, two minor children, and his mother, the Petitioner. Fahad Malik was a wealthy man with multiple properties and businesses in Pakistan, the UK, and the UAE. Following his death, Respondent No. 3 entrusted his estate to his younger brother, Jawad Sohrab Malik, who, aided by the Petitioner, allegedly obstructed Respondent No. 3 and her children from accessing their inheritance. The Petitioner and Jawad Malik have also instituted multiple proceedings among family members, including civil suits, to control the estate, and have allegedly evicted Respondent No. 3 and her children from the family home. The only two residential properties presently at issue are House No. 46, F-6/3, and House No. 70, F-7/2, Islamabad. Respondent No. 3 filed a complaint before Respondent No. 2 on 21.04.2025, seeking access to the properties and other assets of her late husband. At that time, no civil proceedings were pending. Subsequently, the Petitioner instituted a civil suit on 30.04.2025 regarding the same properties and filed the present petition on 03.07.2025, shortly before the Ombudsman’s scheduled hearing on the maintainability of the complaint. It is alleged that the Petitioner concealed the Ombudsman’s prior order of 24.06.2025, amounting to fraud and obstruction of justice. The petition is also alleged to be champertous and collusive with Jawad Malik, intended to defeat the rights of Respondent No.3 under the Enforcement of Women’s Property Rights Act, 2020, particularly Sections 4 and 7, which protect the Ombudsman’s jurisdiction even during pending civil proceedings. There is no dispute over the ownership of the properties, which are owned 50% by the late Fahad Malik, and the petition concerns only the petitioner’s share in her deceased son’s estate. The proceedings are claimed to be instituted to obstruct Respondent No.3 from accessing her lawful inheritance. 6. I have heard learned counsel for the parties at considerable length, examined the record, and perused the relevant statutory framework as well as the precedents relied upon. The core controversy in the instant petition does not merely relate to the factual entitlement of the contesting parties inter se, but, P a g e | 4 W.P No.2665/ 2025

more fundamentally, concerns the legal competence, scope of inquiry, and constitutional limits of jurisdiction exercisable by Respondent No. 2/Federal Ombudsperson under the prevalent Enforcement of Women’s Property Rights Act, 2020. From the pleadings, submissions, and record, the following questions arise for determination: - 1. Whether adversarial adjudicatory functions relating to determination of proprietary rights, possession, and inter se claims of private parties, which ordinarily fall within the exclusive domain of courts established under Article 175 of the Constitution, could lawfully be exercised by Respondent No. 2/Ombudsperson, and whether the said forum can be regarded as part of the judicial limb of the State? 2. Whether Section 4 and Section 7 of the Act of 2020 are internally inconsistent, and if so, how such an inconsistency affects the assumption of jurisdiction by the Ombudsperson in the present case? 3. Whether Respondent No. 2 could lawfully exercise jurisdiction under the Enforcement of Women’s Property Rights Act, 2020, in a dispute concerning inheritance, estate property, and inter se rights of legal heirs, particularly when civil proceedings regarding the same properties were pending or had been brought to his notice? 4. Whether the controversy raised by Respondent No. 3 was of such nature as required detailed adjudication by the civil court under section 6, rather than summary inquiry before the Ombudsman? 5. Whether the impugned proceedings and orders of Respondent No. 2 are without lawful authority and liable to be set aside? POINT NO. 1: Whether adversarial adjudicatory functions relating to the determination of proprietary rights, possession, and inter se claims of private parties, which ordinarily fall within the exclusive domain of courts established under Article 175 of the P a g e | 5 W.P No.2665/ 2025

Constitution, could lawfully be exercised by Respondent No. 2/Ombudsperson, and whether the said forum can be regarded as part of the judicial limb of the State? 7. At the outset, it is necessary to clarify that this Court, in exercise of its constitutional jurisdiction, is not expected to finally adjudicate disputed questions of title, inheritance, partition, beneficial ownership, or rival civil rights requiring detailed evidence, unless the impugned proceedings demonstrably suffer from jurisdictional defect, patent illegality, coram non judice exercise, or transgression of statutory limits. The present matter squarely raises such jurisdictional questions because the challenge laid before this Court pertains to whether Respondent No. 2 has acted within the confines of the law, or has traversed into a domain reserved for Civil Courts of competent jurisdiction. 8. At this juncture, before delving into the legal intricacies, it would be advantageous to first advert to the historical origin, conceptual foundation, and constitutional placement of the office of Ombudsman before examining the impugned statutory scheme. The institution of the Ombudsman emerged as an instrument of administrative oversight. In its classical conception, the Ombudsman formed part of the executive architecture and was designed to examine complaints by citizens against public authorities, particularly in matters involving maladministration, abuse of authority, arbitrariness, delay, inaction, or unfair executive conduct. The office was, thus, not conceived as a court of law or as a substitute for the judicial process. Rather, it functioned as an internal corrective mechanism within the executive branch, whereby one public functionary reviewed the conduct of another and, upon finding maladministration, made appropriate recommendations for redress. The defining features of such an institution were, therefore, that it addressed grievances of citizens against the State or its agencies, operated through inquiry and recommendation rather than binding adjudication; and the implementation of its conclusions depended upon executive compliance, policy, propriety and institutional discipline, rather than coercive judicial enforcement. P a g e | 6 W.P No.2665/ 2025

9. This broad concept was substantially reflected in the very first legislative framework governing the Wafaqi Mohtasib under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. The purpose of the establishment of the office of Wafaqi Mohtasib is evident from the preamble of the President's Order No. 1 of 1983 ("Order") to provide for the appointment of Wafaqi Mohtasib (Ombudsman), to diagnose, investigate, redress, and rectify any injustice done to a person through maladministration. Under that dispensation, matters already sub judice before a Court of law were kept outside the Ombudsman’s jurisdiction. The powers conferred were essentially investigatory in nature and meant to facilitate an effective inquiry into maladministration. The result of such inquiry ordinarily culminated in a recommendation to the concerned executive authority for rectification. In other words, the office of Ombudsman did not ordinarily stand as an adjudicatory substitute for Courts of law deciding contested rights between private parties. Its role was essentially supervisory and corrective within the executive sphere. The matter qua the judicial powers of the Ombudsman under the abovementioned Mohtasib Act has a court or otherwise came before the Apex Court in the case of “Shafaatullah Qureshi v. Federation of Pakistan” (PLD 2001 SC 142) wherein it was held: - “12. Suffice it to say, that from above-cited cases, it is not established that the office of Wafaqi Mohtasib is a Court nor any such finding has been recorded in these matters though it has been stated that Wafaqi Mohtasib performs quasi-judicial functions. Performance of quasi- judicial functions by itself does not convert an authority into Court, whether an act is quasi-judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction. It is true that the administrative authority also is to act bona fide, but it is different from saying that it must act judicially. Many authorities are not Court, although they have to decide questions and have to act judicially in the sense that the proceedings shall be conducted with fairness and impartiality. In order to constitute a Court in strict sense, it shall have power to give a decision or a definitive judgment, which has finality and authoritativeness.” P a g e | 7 W.P No.2665/ 2025

10. Likewise, within our own legal framework, various offices of Ombudsman have been established under different statutes, such as the Federal Tax Ombudsman under the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000, the Banking Mohtasib under Section 82-A of the Banking Companies Ordinance, 1962, the Insurance Ombudsman under Section 125 of the Insurance Ordinance, 2000, and the Provincial Ombudsman under the Punjab Office of Ombudsman Act, 1997. The common thread running through these statutory offices is that they were conceived to inquire into, examine, and redress complaints relating to maladministration in their respective spheres, including public agencies, banking, and insurance sectors. In order to better appreciate the true legal character of such offices, it would be advantageous to refer to paragraph No. 38 of the judgment of the Honourable Supreme Court in “Federation of Pakistan v. Muhammad Tariq Pirzada” (1999 SCMR 2189), which reads as follows: “38. The legal status of the Mohtasib under the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983 against came under discussion before the Supreme Court in Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) and it was held that since the Wafaqi Mohtasib was not a Court nor a judicial Tribunal therefore the period consumed in proceedings before it could not be excluded under section 14 of the Limitation Act, 1908. While discussing what is a court, the Supreme Court referred to Mir Rehman Khan v. Sardar Asadullah Khan (PLD 1983 Quetta 52) which had held that the determination of the question which forum is a Court and which in not, is mainly dependent on the manner and method in which proceedings are regulated before it; that forums which are not bound by any law with regard to procedure and evidence, and only settle disputes but do not administer justice according to law, are not Courts; that Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fair conclusion. The Supreme Court observed that had the legislature intended for the Wafaqi Mohtasib to serve as a Court or Judicial Tribunal, it would have stated so in the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983; therefore the status of a Court cannot by implication be conferred on the Wafaqi Mohtasib when it cannot deliver a binding judgment; that though the office of the Mohtasib has been created for redressal of the grievance of the citizens but it is neither a Court nor a Judicial Tribunal within the P a g e | 8 W.P No.2665/ 2025

scope of Article 175 of the Constitution. While approving Tariq Pirzada-II, i.e. the Wafaqi Mohtasib was a quasi-judicial authority, the Supreme Court further held that performance of quasi-judicial functions by itself does not convert an authority into a Court, and that whether an act is quasi-judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction; that many authorities are not Court, although they have to decide questions and have to act judicially in the sense that the proceedings shall be conducted with fairness and impartiality; that in order to constitute a Court in the strict sense, it should have power to give a decision or a definitive judgment, which has finality and authoritativeness.” (Empasis Supplied) 11. Furthermore, the institution of Ombudsman is not confined to Pakistan alone, but has also found recognition in other jurisdictions, including India. In this regard, when the scope and nature of the functions of an Ombudsman came up for consideration before the Supreme Court of India in “Durga Hotel Complex v. Reserve Bank of India and others” (AIR 2007 SC 1467), the Honorable Supreme Court of India observed as follows: - “Conceptually, an Ombudsman is only a non-adversarial adjudicator of disputes. An Ombudsman by definition is only an official appointed to receive, investigate, and report on private citizen's complaints about the government; a similar appointee in a nongovernmental organization (such as a company or university). (See Black's Law Dictionary). He serves as an alternative to the adversary system for resolving disputes especially between citizens and government agencies. He is an independent and non-partisan officer who deals with specific complaints from the public against the administrative injustice and mal-administration. (See 4 American Jurisprudence 2d). Therefore, by its very nature, an Ombudsman is an alternative to an adversary system for resolution of disputes.” 12. Over the time period, however, the legislative evolution of ombudsman- related statutes in Pakistan appears to have altered the original character of the institution. With later enactments, including the Protection against Harassment of Women at the Workplace Act, 2010, and thereafter the Enforcement of Women’s Property Rights Act, 2020, the office is no longer confined to examining complaints of maladministration by public authorities. Instead, it came to be vested with powers affecting disputes between private P a g e | 9 W.P No.2665/ 2025

citizens, including matters involving civil rights, liabilities, possession, title, and monetary consequences. Thus, what was historically designed as an executive mechanism of recommendation increasingly assumed the shape of a forum capable of rendering binding determinations affecting private civil rights. It is this shift that gives rise to a constitutional concern. The distinction between an Ombudsman functioning as an executive corrective authority and an Ombudsman functioning as an adjudicator of disputes between citizens is rather important. In the latter, it undertakes the determination of civil rights and obligations of private parties. Such determination necessarily entails fact- finding, legal interpretation, adjudication of rival claims, and the making of binding decisions with enforceable consequences. These are, in their true nature, judicial functions. Reliance in this regard is placed on “Mst. Falak Shehnaz and another v. Mst. Farah Deeba and others” (PLD 2025 Peshawar 1), wherein the Honorable Peshawar High Court has observed the following: - “24. The survey of laws regulating the office of Ombudsman in various jurisdictions as well as in Pakistan and the case law referred above would show that the office of Ombudsman has been established to investigate and report on private citizen complaints about the Government or its Agencies relating to its mal-administration. The scope and functions of Ombudsman is a non-adversarial adjudicator and he cannot render definite findings on any issue rather he recommends to the relevant authority if he finds any mal- administration in any public sector organization to the relevant authority. Ombudsman thus falls in the regime of executive limb of the State though he performs his functions as quasi-judicial, he can record evidence; investigate a matter, and functions as a watch dog on government institutions. He receives his authority from Parliament.” (Emphasis Supplied) 13. Turning now to the statutory framework governing the office of Ombudsman, it may be noted that, at the Federal level, the office was provided for under the Protection against Harassment of Women at the Workplace Act, 2010, wherein Section 7 contemplates the appointment of an Ombudsman at the Federal and Provincial level. The functions of the Ombudsman are enumerated under Section 8, which, inter alia, empowers the Ombudsman to receive and P a g e | 10 W.P No.2665/ 2025

entertain complaints relating to harassment of an employee at the workplace and to inquire into such complaints. It is pertinent to mention herein that Section 10 further vests in the Ombudsman procedural powers necessary for the conduct of such inquiry, including the power to summon witnesses and receive evidence. Subsequently, through provincial legislation, namely the Enforcement of Women’s Property Rights Act, 2020, the Ombudsman appointed under Section 7 of the Protection against Harassment of Women at the Workplace Act, 2010, was additionally entrusted with the authority to entertain complaints by a woman alleging deprivation from ownership or possession of her property by any person. The preamble of the Enforcement of Women’s Property Rights Act, 2020, shows that the legislative object is to protect the ownership and possession rights of women in relation to their property, and that object, by itself, is both legitimate and socially imperative. “An Act to protect and secure the rights of ownership of women in the property Whereas it is expedient to provide for the protection of the rights of ownership and possession of properties owned by women, ensuring that such rights are not violated by means of harassment, coercion, force or fraud;” 14. There can be no cavil with the proposition that women’s proprietary rights deserve real, effective and prompt legal protection, yet the constitutional validity of a statute is determined not merely by the legitimacy of its object, but also by the legality of the means adopted for its attainment. A beneficent legislative purpose cannot, by itself, immunize a statutory scheme from scrutiny where the mechanism employed cuts across the constitutional allocation of functions. Thus, perusal of the Enforcement of Women’s Property Rights Act, 2020 shows that, by incorporating the powers of the Ombudsman under the Protection against Harassment of Women at the Workplace Act, 2010 and by coupling the same with the enforcement machinery available under the Federal Ombudsmen Institutional Reforms Act, 2013, the Legislature has vested in the Ombudsman with powers far exceeding than the traditional Ombudsman model. Under the scheme of the Act, 2020, the Ombudsman may entertain complaints regarding P a g e | 11 W.P No.2665/ 2025

ownership or possession of property, initiate proceedings even on his own motion, call for reports and conduct summary inquiry, pass orders for restoration of possession or conferment of title, direct the Deputy Commissioner and police authorities to implement such orders, award compensation or loss of rent, and proceed in a manner that is binding upon private individuals. In effect, the forum is enabled to enter upon matters concerning civil rights in property and to pass enforceable commands touching title, possession and monetary liability. 15. The position becomes more problematic when this statutory scheme is read with the provisions of the Federal Ombudsmen Institutional Reforms Act, 2013. Thereunder, powers are conferred to grant injunctions, implement orders, and invoke coercive consequences for non-compliance. The conferment of contempt jurisdiction is particularly significant. The power to punish for contempt is a…

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