Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: AL-JEHAD TRUST and another VS Respondent: LAHORE HIGH COURT through Registrar and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Javaid Iqbal Title:AL-JEHAD TRUST and another vs LAHORE HIGH COURT through Registrar and
JUDGMENT
Reported As: 2011 SCMR 1688 Result: Petition dismissed Judgment JUDGMENT ' JAVED IQBAL, J.---This is a Constitution petition preferred under Article 184(3) of the Constitution of Islamic. Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) on behalf of Muhammad Masroor Zaman, District and Sessions Judge/Special Judge (Central) Rawalpindi assailing different steps taken at the direction of Hon'ble Chief Justice, Lahore High Court, Lahore being mala fide and un-Constitutional including the action taken by District and, Sessions Judge, Rawalpindi whereby a surprise visit was made and certain record taken into possession, issuance of show cause notice and initiation of disciplinary proceedings of Lahore High Court Lahore and Notification of even number dated 7-2-2011 qua repatriation of the petitioner to Lahore High Court Lahore. 2. Mr. Habib-ul-Wahab-ul-Khairi, learned Senior Advocate Supreme Court entered appearance on behalf of petitioner and contended with vehemence that the learned District and Sessions Judge, Rawalpindi was not competent to conduct raid cf the Court of learned Special Judge (Central) Rawalpindi being under the administrative control of Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs and the removing of files from the Court of learned Special Judge (Central) Rawalpindi was not only unlawful but highly objectionable as surprise visit was made to humiliate the petitioner who was performing his duties entirely to the satisfaction of his superiors with unblemished record of service. It is next contended that only Ministry of Law, Justice and Parliamentary Affairs was competent to initiate action in case of any complaint and the District and Sessions Judge, Rawalpindi was not authorized legally to take cognizance of any complaint having no jurisdiction whatsoever and no concern with the Court of learned Special Judge
---
## Page 2
(Central) Rawalpindi. It is next contended that the action taken by the learned District and Sessions Judge, Rawalpindi was nothing but serious interference in the judicial performance of the petitioner being Special Judge (Central) Rawalpindi which amounts to flagrant misuse of authority which in fact was never conferred upon District and Sessions Judge, Rawalpindi. It is next contended that such interference is based on mala fides due to allotment/possession of the official accommodation by the learned Sessions Judge, Rawalpindi which in fact was meant for learned Special Judge (Central) Rawalpindi. It is next contended that the surprise visit/raid got conducted was violation of the provisions as enumerated in Article 10-A of the Constitution and infringement of Fundamental rights as conferred upon the petitioner by the Constitution which could not have been infringed merely on the ground that petitioner is a Special Judge (Central) Rawalpindi and in view of its repercussion and overall impact on the judiciary, the provisions as enumerated in Article 184(3) of the Constitution can be invoked as it has become a matter of public importance. It is next contended that the factum of mala fides, ill will and grudge has been ignored by the learned Lahore High Court and the services of petitioner were got repatriated without any lawful justification in contravention of the relevant service laws and settled norms of justice because initially the appointment of petitioner as Special Judge (Central) Rawalpindi was for a period of three years which could not have been curtailed by the learned High Court Lahore. Mr. Habib-ul- Wahab-ul-Khairi, learned Senior Advocate Supreme Court remained highly critical about the initiation of disciplinary action against the petitioner being untenable, without any substance,' mala fide and an attempt to spoil the career of the petitioner and District and Sessions Judge, Rawalpindi remained instrument in initiation of disciplinary action to settle the past account with the petitioner. It is also contended that even Lahore High Court had no jurisdiction to direct the District and Sessions Judge, Rawalpindi to make a surprise visit and procure record from the Court of learned Special Judge (Central) Rawalpindi which exclusively falls under the administrative domain of Ministry of Law, Justice and Parliamentary Affairs. In' order to substantiate the above contention Mr. Habib-ul-Wahab-ul-Khairi, learned Senior Advocate Supreme Court on behalf of petitioner has referred various authorities, which are as under:- 2007 SCMR 1328 (Capital Development Authority v. Mrs. Shaheen Farooq), Salahuddin Tirmzi v. Election Commission of Pakistan (PLD 2008 SC 735), Muhammad Bashir v. Station House Officer (PLD 2007 SC 539), Shahid Orakzai v. Pakistan Muslim League (2000 SCMR 1969), Amatul Begum v. Muhammad Ibrahim Shaikh 2004 SCMR 1934, Zahur Ellahi v. State PLD 1977 SC 273, PLD 2010 SC 878, Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11), Gul Usman Ahmero (2000 SCMR 866), Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109. Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61), Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), Federation of Pakistan v. Zafar Awan, Advocate (PLD 1992 SC 72), Zafar Awan v. Islamic Republic of Pakistan (PLD 1989 FSC 84) and Federation of Pakistan v. Nasrullah Khan Wazir (2005 TD (Service) 49. 3. Mr. Muddassir Khalid Abbasi, learned Assistant Advocate-General, Punjab entered appearance along with Muhammad Akram, Deputy Registrar (Confidential) Lahore High Court, Lahore and Mr. Dil Muhammad Khan Alizai, learned Deputy Attorney General also remained present on behalf of Ministry of Law, Justice and Parliamentary Affairs. It is mainly contended by learned Assistant Advocate General that the provisions as enumerated under Article 184(3) of the Constitution cannot be invoked and thus the petition is not maintainable because no question of law of public importance is involved which is sine qua non for such invocation and it is nothing but an individual grievance and all the contentions raised before this Court could have been raised conveniently before the Inquiry Officer who is an Hon' ble Judge of the High Court and hence the question of any prejudice or injustice does not arise. It is also contended that in view of the provisions as
---
## Page 3
enumerated in Article 203 of the Constitution, the learned High Court has the authority to supervise and control of the Courts subordinate to it which includes initiation of disciplinary action irrespective of the fact whether Judicial Officers are posted against the cadre/ex-cadre posts or otherwise and the Hon'ble Chief Justice is fully authorized to direct any Officer subordinate for inspection of any of the courts and any other order in this regard can be made as may be deemed fit and proper which cannot be questioned by the petitioner being learned Judge (Central) Rawalpindi who is under the administrative control of Lahore High Court, Lahore being his parent Institution.' It is next contended that as per well entrenched legal practice, the Administration Judge of 'Lahore High Court has also been assigned the task to monitor performance of all the Judicial Officers who are posted against ex-cadre posts and besides that all such Judicial Officers are bound to send their reports qua disposal of cases to the Lahore High Court Lahore. It is next contended that a regular inquiry has been initiated against the petitioner along with the charge sheet which has never been challenged but on the contrary petitioner has furnished his explanation and proceedings are under way. The learned Assistant Advocate-General has assured that proper opportunity of hearing would be afforded to the petitioner and all the points agitated before this Court would be dilated upon and decided by the learned, Judge of High Court. It is further submitted that the petitioner may approach the Hon'ble Chief Justice being competent authority and finally to the learned Judicial Tribunal for the redressal of his grievances, if any, and no order may be passed by this Court in exercise of jurisdiction as conferred upon it under Article 184(3) of the Constitution. In support of his arguments, the learned Assistant Advocate General has placed reliance on case titled Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642). 4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the Constitution and record made available. It transpired from the scrutiny of record that petitioner was appointed as Special Judge (Central) Rawalpindi on deputation basis for a period of three years in his pay and scale by means of Notification dated 23- 7-2009 issued by the Government of Pakistan, Law and Justice Division which is reproduced herein below for ready reference:-- "GOVERNMENT OF PAKISTAN LAW AND JUSTICE DIVISION Islamabad, the 23rd July, 2009 NOTIFICATION ' No,F.3(1)/2003-A.III:---In exercise of the powers conferred by Sections 3 and 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Federal Government is pleased to appoint Mr. Muhammad Mansoor Zaman, District and Sessions Judge as Special Judge, (Central), Rawalpindi on deputation basis for a period of three years in his own pay and scale from the date he assumes charge of his office or until further orders, whichever is earlier. (Anwer Zeb) Section Officer The Manager, Printing Corporation of Pakistan Press, Islamabad." 5. It reveals from bare perusal of the above reproduced notification that admittedly the petitioner was deputationist whose services were placed at the disposal of Government of Pakistan for posting as Special Judge (Central) Rawalpindi on deputation basis for a period of three years in his own pay and scale by means of notification dated 24-7-2009 issued by the Lahore High Court, Lahore. The parent Institution is undoubtedly Lahore High Court Lahore. There is no doubt that surprise visit was made by Mr. Mahmood Maqbool Bajwa, learned District and Sessions Judge, Rawalpindi and certain judicial files were taken without preparation of any inventory. However, a careful scrutiny of the entire record would reveal that this was so done at the instruction of Member Inspection Team, Lahore High Court Lahore and admittedly no such direction could have been given without having prior approval of Hon'ble Chief Justice. In fact the surprise visit was made
---
## Page 4
pursuant to a complaint made by one Tahir Ali Jaffary to Member Inspection Team, Lahore High Court Lahore on 2-12-2010 alleging therein that in spite of his best efforts he could not get the copy of judgment dated 22-11-2009 whereby the complainant was acquitted in a case got lodged vide F.I.R. Bearing No,224 of 2007 under sections 18/22 of the Immigration Ordinance, 1979. It was further alleged in the complaint that judgment was not found available in the judicial file and accordingly the prescribed proforma filled in this regard for having a copy was sent back to the complainant. A note written by Mr. Mahmood Maqbool Bajwa, the then learned District and Sessions Judge, Rawalpindi is available on record which is indicative of the fact that he was directed telephonically by the learned Member Inspection Team, Lahore High Court, Lahore for requisition the record of the above mentioned case. It has further been observed that the matter was brought to the notice of Hon'ble Chief Justice of Lahore High Court on 6-1-2011 who directed as under:-- "Let Sessions Judge, Rawalpindi visit and submit detail report." 6. Tt is to he noted that report of learned District and Sessions Judge, Rawalpindi dated 6-1-2011 was also brought into the notice of Hon'ble Chief Justice of the Lahore High Court by whom the following direction was given:-- "Explanation shall be called for from the Judicial Officer." 7. The Member Inspection Team also visited the Court of petitioner and furnished a comprehensive report and no substantial difference could be observed in the report sent by learned District and Sessions Judge, Rawalpindi and the one prepared by learned Member Inspection Team. Let we make it clear at this juncture that the Member Inspection Team also visited the Jail and to check the authenticity and the contents of complaint moved by Tahir Ali Jaffary. 8. The only question which needs determination would be as to whether any action initiated pursuant to the direction of Hon'ble Chief E Justice of Lahore High Court, Lahore could have been challenged by invoking the provisions as enumerated in Article 184(3) of the Constitution which is reproduced herein below for ready reference:-- "184(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." 9. A bare reading of the above reproduced Article would reveal that it has been couched in a very simple and plain language and thus hardly needs any scholarly interpretation. The jurisdiction as conferred upon this Court under Article 184(3) of the Constitution can be exercised only where a question of public importance with reference to the enforcement of any of the fundamental rights is involved meaning thereby that the question of public importance is sine qua non for invocation of the provisions under Article 184(3) of the Constitution. This is not the first occasion when we are examining the provisions as envisaged in Article 184(3) of the Constitution. It is well settled by now that "while construing Article 184(3) the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the trait of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam. ##TE# (I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041, Khuda Bakhsh v. State PLD 1988 SC 413." While dilating upon the provisions as enumerated in Article 184 (3) of the Constitution, it was observed in case of Syed Zulfiqar Mehdi and others v. Pakistan International Airlines Corporation through M.D., Karachi and others (1998SCMR 793) as under:-- "8. In order to confer jurisdiction on this Court to entertain a petition under Article 184(3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that
---
## Page 5
the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see. Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abba' si v. President of Pakistan PLD 1996 SC 632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) as follows:-- "Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit N. Secretary for India-in-Council (ILR 39 Born 279) while construing the words 'public purpose' such a phrase, 'whatever else it may meats must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned' . This definition appears to me to be equally applicable to the phrase 'public importance'. ' The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence. ' Seen in this light, there can be little doubt as to the public importance of the questions arising in this case I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance." 10. In $hahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), one of us (Justice Saiduzzaman Siddiqui), after examining the scope of the observations of this Court in Manzoor Elahi and Ms. Benazir Bhutto's cases held as follows:- "From above quoted passages, it is quite clear that whether a particular case involved the element of 'public importance' is a question which is first to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case of 'public importance' because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Elahi's case (supra), by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Ms. Benazir Bhutto's case (supra), that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals." 11. We now proceed to examine the controversies raised by the petitioners in the above cases in the light of the above stated principles. The issues arising in a case, cannot be considered as a
---
## Page 6
question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The objective "public" necessarily implies a thing belonging to people x large, the nation, the State or a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case or public importance. " 10. Article 184(3) of the Constitution was also discussed in a comprehensive manner in case of Jamat-e-Islami through Amir and others v. Federation of Pakistan and others (PLD 2008 Supreme Court 30) and it was observed as follows:-- 31. There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject matter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II, Chapter-1 of the Constitution. We, therefore, in the light of law laid down by this Court on the subject, would like to examine the question whether the present petitions qualify the above test to entertain the same under Article 184(3) of the Constitution. 32. This Court in Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632) interpreted the expression "public importance" as under: -- " it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case broughi by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals." 33.. In Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), the expression "public importance" was discussed in the following manner: "8. In order to confer jurisdiction on this Court to entertain a petition under Article 184 (3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. 'President of Pakistan PLD 1996 SC 632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) as follows:- "Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Bom 279) while construing the words 'public purpose' such a phrase, 'whatever else it may mean
---
## Page 7
must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned' . This definition appears to me to be equally applicable to the phrase 'public importance' . ' The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence. (Emphasis provided).…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.