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Petitioner: State VS Respondent: INSPECTOR-GENERAL OF POLICE, PUNJABHonorable Justice Khawaja Muhammad Sharif and Waqar Hassan Mir
P L D 2010 Lahore 326
P L D 2010 Lahore 326
Before Khawaja Muhammad Sharif, C.J., and Waqar Hassan Mir, J
THE STATE---Petitioner
Versus
INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others---Respondents
Writ Petition No.9728 of 2010, heard on 12th May, 2010.
(a) Constitution of Pakistan (1973)---
----Art. 199(1)(b)(ii) & (c)---Press news showing issuance of notification by Provincial Government posting respondent as Capital City Police Officer---Respondent already found to be responsible for acts of commissions and omissions in a very serious incident as a result of judicial inquiry held by Judge of High Court on asking of Provincial Government---Suo motu exercise of constitutional jurisdiction by High Court while treating such news item as a petition under Art.199(1)(c) of the Constitution---Validity---Respondent was serving as Regional Police Officer when said tragic incident took place, wherein number of Christians lost their lives and their houses were burnt---Respondent was held responsible for acts of commissions and omissions by such Tribunal, which had already forwarded its recommendations to Federal Government along with statements of allegations for initiating proceedings against him---Government instead of taking any action against respondent had awarded him premium of such negligent performance of his duties by giving him most important assignment as Capital City Policy Officer---Suo motu proceedings being corrective measures, whereby High Court could enquire from holder of a public office to show that under what authority he/respondent was holding said office (Capital City Police Officer) particularly in view of recommendations rendered against him by Tribunal and forwarded to Federal Government---If respondent was found to be responsible for such acts of commissions and omissions, then how could he be allowed to work during interregnum, when he was not qualified for such post---High Court declared such notification to be without lawful authority and of no legal effect while directing respondent to relinquish charge forthwith.
The State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523 distinguished.
(b) Constitution of Pakistan (1973)---
----Art. 199(1)(c)---Fundamental Rights guaranteed under the Constitution---Validity---Such rights would be regarded as inviolable under all conditions and could not be abridged by any legislative or executive orders, except by virtue of provisions of the Constitution---Constitutional jurisdiction of High Court to enforce such rights was wide---Principles.
The powers of High Court .for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution, it can pass any order which would be appropriate in the facts and 'circumstances of a case. The expression "as may be appropriate for the enforcement of any of the Fundamental Rights" appearing in Article 199 confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The object of having declaration of Fundamental Rights in the Constitution is that rights should be regarded as inviolable under all conditions. According to Article 199, the Fundamental Rights guaranteed in the Constitution arc not mere a pious enunciation of the principles on which the Constitution is based, but are made specifically justiciable in Article 199(1)(c). They are not liable to be abridged by any legislative or executive orders except by virtue of the provisions of the Constitution. Where there is clear abuse of powers/authority, the High Court is under constitutional duty to ensure that people are dealt with in accordance with law.
(c) Constitution of Pakistan (1973)---
---Art. 199(1)(b)(ii)---Quo warranto, writ of---Jurisdiction of High Court---Scope stated.
The writ of quo warranto in its nature is an information laying against person who claimed to retain such office. The Court is not only to see that the incumbent is holding the office under the order of a Competent Authority but it goes behind that and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment of such a person against whom certain recommendations have been made and if that being so, the Court cannot close eyes and has every constitutional power to declare such appointment to be without lawful authority and of no legal consequences. Article 199 is intended to enable this Court to control executive actions so as to bring it in conformity with the law. Whenever the Executive acts in violation of the law, an appropriate order can be passed which will relieve the citizen of the effects of illegal action. High Court under Article 199(1)(c) of the Constitution has the power to issue a declaration in respect of any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with affairs of the Federation, a Province or a local authority to be without lawful authority or of no legal effect.
Khawaja Haris Ahmad, A.-G., Punjab assisted by Muhammad Hanif Khatana, Addl. A.-G.
Nadeem Hassan Asif, Home Secretary, Punjab.
Tariq Saleem, I.-G., Punjab.
Sikandar Raja, Secretary Service Punjab.
Date of hearing: 12th May, 2010.
JUDGMENT
WAQAR HASSAN MIR, J.---Through the following short order of even date, this petition has been accepted:-
"For the reasons to be recorded later on, this Suo Motu Writ Petition No.9728 of 2010 is accepted and the notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as Capital City Police Officer is declared to be without lawful authority and of no legal effect. It is further directed that he shall relinquish the charge today without fail.
2. So far as matter of contempt is concerned, we are exercising judicial restraint and do not think it fit in this case to dilate upon the matter as also in view of the order passed above."
2. The present petition has arisen out of a suo motu notice dated 11-5-2010 taken on a news item appeared in a section of the press wherein it has been mentioned that after the retirement of Mr. Pervaiz Rathor, DIG, Ahmad Raza Tahir has been posted as Capital City Officer, Lahore and thus while treating such news item as a petition under Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973, the Inspector-General of Police, Punjab, the Home Secretary and the Secretary Services and General Administration, Government of Punjab, Lahore were directed to appear on the even date at 1-15 p.m. and thus when the case was taken up, the following order was passed:--
"Tanveer Ahmad Additional Inspector-General of Police, Punjab present in Court submits that Inspector-General of Police, Punjab has gone to Sabrial with Chief Minister, Punjab while Home Secretary, Government of the Punjab is at Islamabad but in what connection he does not know. The Secretary Services and General Administration, Government of Punjab is also not present despite the direction given by this Court.
2. I have told in clear terms to learned Additional Advocate-General, Punjab that Ahmad Raza Tahir, Capital City Police Officer, Lahore who has taken the charge today, is the same officer, who was held responsible for the acts of commission and omission in the incident of Gojra as a result of inquiry, which was held by a learned Judge of this Court on the asking of Provincial Government.
3. I am today exercising judicial restraint and hope that the Government will consider the matter with the seriousness it deserves and take action accordingly. To come up tomorrow i.e. 12-5-2010."
Today as stated above, after hearing all the concerns, this petition has been accepted and the Notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as CCPO has been declared to be without lawful authority and of no legal effect with the direction to relinquish the charge today without fail.
2A. Heard. First of all we would like to reproduce Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973 as under:--
"(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 1 of Part-II."
3. From the perusal of the above definition, it is obvious that the powers of High Court for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution, it can pass any order which would be appropriate in the facts and circumstances of a case. The expression "as may be appropriate for the enforcement of any of the Fundamental Rights" appearing in the above reproduced Article, confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The object of having declaration of Fundamental Rights in the Constitution is that such rights should be regarded as inviolable under all conditions. According to the above reproduced Article, the Fundamental Rights guaranteed in the Constitution are not mere a pious enunciation of the principles on which the Constitution is based but are made specifically justiciable in the clause under reference. They are not liable to be abridged by any' legislative or executive orders except by virtue of the provisions of the Constitution. It is settled law that where there is clear abuse of powers/authority, this Court is under constitutional duty to ensure that people were dealt with in accordance with law. In the present case, the authority while issuing the Notification of Ahmad Raza Tahir as Capital City Police Officer has not considered this aspect of the matter that in the tragic incident of Gojra wherein number of Christians lost their lives and their houses were burnt, the said officer, who was then Regional Police Officer of Faisalabad was held responsible for the acts of commission and omission by the learned Tribunal consisting of Mr. Justice Iqbal Hameed ur Rehman appointed by the Provincial Government. The learned Tribunal in his report has made the following recommendations against Ahmad Raza Tahir:
"Regional Officer of Police being a field officer is obliged to lead from the front but it has come on the record that Ahmad Raza Tahir RPO Faisalabad during the whole episode failed to perform his functions in efficient and diligent manner particularly, in the matters of requisitioning the Platoons of Punjab Constabulary personnel, moving and utilizing the resources under his own control. He preferred to wait for a VIP instead of coming in the arena. He is held responsible for the following commissions and omissions:--
-- He has failed to assess gravity of the situation and did not advise or guide his subordinate property.
-- He kept himself away from troubling area falling within the jurisdiction.
-- He through letter W-514/A dated 31-7-2009 did not put forward a demand to requisition sufficient number of PC Platoons for their deployment on the fateful day and also upon receipt of the placement order W-573/C of PC Platoons for 31-7-2009 only he did not react well in time to take up the matter with the concerned authorities to get extended the time and thus failed in getting resolved the matter within proper time.
-- He despite having sufficient police personnel at his own disposal as mentioned in letter No.14440 dated 4-9-2009 sent by him in pursuance of the directions of this Tribunal of Inquiry failed to provide re-enforcement to the then DPO Toba Tek Singh despite making of repeated demands in this regard as voiced by the then DPO (Witness No.512) on the day of occurrence i.e. 1-8-2009.
-- He despite having knowledge of the deteriorating situation at the site of incident opted to wait for and accompany a VIP instead of focusing his attention to get controlled the situation.
-- He kept on painting a picture of all fine before PPO and the Government against the facts prevailing at the site."
It appears that instead of taking any action against him, he has been awarded the premium of his commissions and omissions and posted as a Capital City Police Officer which is the most important assignment given U to an, officer of his rank. An officer who has been held to be negligent in performance of his duties as Regional Police Officer by the Tribunal of a learned Judge of the High Court, how can be expected and required to act in the way of the assignment now given to him. Suo motu proceedings are corrective measures and thus in the circumstances, we observe that under Article 199(1)(b)(ii), this Court in exercise of its constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority he (Mr. Ahmad Raza Tahir) is holding the said office (Capital City Police Officer), particularly in view of the above recommendations rendered against him by the learned Tribunal consisting of Mr. Justice Iqbal Hameed-ur-Rehman, constituted on the asking of the Provincial Government itself. The writ of quo warranto as is the present case, in its nature is an information laying against a person who claimed to retain such office. The Court is not only to see that the incumbent is holding the office under the order of a Competent Authority but it goes behind that and see as to whether he is legally ,qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment of such a person against F whom certain recommendations have been made and if that being so, the Court cannot close its eyes and has every constitutional power to declare such appointment to be without lawful authority and of no legal consequences. The Article 199 is intended to enable this Court to control executive actions so as to bring it in conformity with the law. Whenever the Executive acts in violation of the law, an appropriate order can be passed which will relieve the citizen of the effects of illegal action. This Court under Article 199(l)(a)(ii) of the Constitution of Pakistan has the power to issue a declaration in respect of any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with affairs of the Federation, a Province or a local authority to be without lawful authority or of no legal effect.
4. As regard the contention of learned Advocate-General Punjab that in view of the judgment reported as State v. Zulfiqar Ali Bhutto and others (PLD 1978 Lahore 523), the report submitted by the Tribunal cannot be held a judgment is concerned, suffice it to say that in the said judgment, certain guiding principles have been specified for investigation of a murder case and that no recommendations coupled with the statement of allegations have been sent to the Government but in the present case, it is otherwise. In this case, report the Tribunal has been forwarded to the Federal Government alongwith statement of allegations for initiating proceedings, which are yet to be taken and in the meanwhile his posting to the prime post is unjustified. It is unfortunate that besides Ahmad Raza Tahir, there is no other suitable candidate available with the Government to be posted as Capital City Police Officer.
5. As far as the contention of learned Advocate General Punjab that before any action could be taken by the Federal Government on the recommendations of the Tribunal, Ahmad Raza Tahir should be allowed to work as Capital City Police Officer. We are afraid that such t contention has no force because if he is ultimately found to be responsible for the commissions and omissions highlighted above, then how can he be allowed to work during the interregnum period, when he is not qualified for such post.
6. In the light of what has been discussed above, this writ petition is accepted and the notification issued by the Secretary Services and General Administration Government of the Punjab appointing Ahmad Raza Tahir as Capital City Police Officer, Lahore is declared to be without lawful authority and of no legal effect with the direction to him to relinquish the charge today without fail.
7. As far as matter of contempt is concerned, as we are exercising judicial restraint, therefore, we are not inclined to proceed further in the contempt and do not think it fit to dilate upon the matter.
S.A.K./S-89/L Petition accepted.