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Official Citation: 2023 PLJ 534
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-06-16
Parties: Dr. Mohammad Aslam Khaki vs Khawaja Khalid Farooq Khan and others
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-06-16, officially reported as 2023 PLJ 534. In this matter between Dr. Mohammad Aslam Khaki and Khawaja Khalid Farooq Khan 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 PLJ 2023 SC 534
Court Name: Supreme Court of Pakistan Judge(s): Qazi Faez Isa, Syed Hasan Azhar Rizvi Title: Dr. Mohammad Aslam Khaki vs Khawaja Khalid Farooq Khan and others Case No.: Civil Petition No. 3203 of 2017 Date of Judgment:2023-06-16 Reported As: 2023 SCP 174, PLJ 2023 SC 534 Result: Petition Converted into Appeal and Allowed
JUDGMENT
JUDGMENT Qazi Faez Isa, J. The petitioner had filed Writ Petition No. 1573 of 2010 in the High Court under Article 199 of the Constitution, which was dismissed by the learned Chief Justice of the Islamabad High Court through the impugned judgment dated 5 July 2017. In his petition the petitioner alleged that the National Police Foundation ('the Foundation') had illegally allotted another plot to its Managing Director, namely, Mr. Khalid Farooq (also referred to as Khawaja Khalid Farooq Khan) (hereinafter 'Mr. Farooq'), who already had been allotted a plot. The petitioner also alleged that the second plot allotted to Mr. Farooq was designated as a park/green area in the layout plan of the Foundation approved by the Capital Development Authority's ('CDA'). Mr. Farooq, the Foundation, CDA and the Government of Pakistan were arrayed as respondents in the petition before the High Court. 2. When this case had come up for hearing on 15 December 2021 the counsel of the Foundation pointed out that the second plot had been transferred on 9 August 2010 from Mr. Farooq to Mr. Muhammad Zahir Shah (hereinafter 'Mr. Shah'). However, the transfer of the second plot to Mr. Shah was not disclosed to the High Court in the replies filed to the petition. Therefore, since Mr. Shah could be affected our decision he was arrayed as respondent No. 5. In addition to the notices issued to the respondents, notice in terms of Order XXVIIA of the Code of Civil Procedure, 1908, was also issued to the Attorney-General for Pakistan as interpretation of Federal laws and the Constitution of the Islamic Republic of Pakistan ('the Constitution') may be involved. 3. A plot was allotted by the Foundation to Mr. Farooq in the year 1991, which was plot No. 334 in the National Police Foundation Housing Scheme, Sector O9, Islamabad ('the first plot'). The 'Terms & Conditions' stipulated in the 'Application/Membership Form' of the Foundation, which Mr. Farooq signed and submitted to the Foundation, stipulated that, 'an applicant can apply for only one plot'.
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Mr. Farooq sold the first plot, and the transfer in favour of the buyer was confirmed by the Foundation through its letter dated 7 June 2010. 4. Mr. Farooq as Managing Director of the Foundation sought allotment of another plot on 1 June 2009. On his direction Mr. Khuda Bakhsh, Deputy Director (A & H) of the Foundation submitted the following report: 'As directed, the Site Engineer Sector E-11 was deputed to carry out a detailed survey to see whether any piece of land other than the land earmarked for parks/club/mosques etc. is available to consider the request of the Managing Director for allotment of a 500 Sq. plot. Site Engineer reported vide his report placed at Flag/A that a piece of land is available adjacent to plot No. 478.' 5. On the same day that the above report was submitted, the Foundation is stated to have passed the following resolution: 'RESOLUTION The Board of Directors in its meeting held on 01-06-2009 approved the allotment of a 500 Sqy. Yds. plot to MD NPF in NPF Housing Scheme Sector E-11, Islamabad adjacent to plot No. 478 on the prescribed rates i.e. Rs.15,50,000/- (11,50,000/- cost of land + 4,00,000/- development charges). The officer will also pay Rs.25,000/- as sui gas charges. The number of plot being allotted will be 478-A. Since the schedule of installments has been expired, the above stated amount will be paid in lump sum. (SHAFIQUE AHMAD KHAN) (A. JAMAL KHAN) Secretary/Director Housing Director Finance/Director Welfare (KHALID FAROOQ) PSP Managing Director' Despite Mr. Farooq's clear conflict of interest he presided over the meeting which allotted to himself the second plot, being plot No. 478-A, situated in the National Police Foundation Housing Scheme, Sector E-11, Islamabad ('the second plot'). 6. The second plot allotted to Mr. Farooq was also not utilized by him. Within a year of the allotment of the second plot Mr. Farooq sold it for sixteen million and five hundred thousand rupees (Rs.16,500,000) making a profit of fourteen million, nine hundred and fifty thousand rupees (Rs.14,950,000), which was a profit of about ten times. 7. The Chief Justice of the Islamabad High Court dismissed the petitioner's writ petition on the ground that since the Foundation was a private trust a writ cannot be issued against it, but observed that the petitioner 'may avail remedy before the court of competent jurisdiction'. We had heard the submissions made by the learned counsel and by the learned Additional Attorney- General, however, the petitioner and respondent No. 1 also requested to file written submissions; three weeks were granted to do so. We have also considered these submissions. 8. The learned counsel representing the Foundation and those representing the private respondents raised objections to the maintainability of this petition, which has been filed under Article 185(3) of the Constitution. They submitted that against the impugned judgment an appeal lay before the High Court under sub-section (2) of section 3 of the Law Reforms Ordinance, 1972 ('the Ordinance'), and relied on the decisions in the cases of Muhammad Ilyas v Chief Election Commissioner[1] and Government of Punjab v Metropole Cinema.[2] Reference was also made to a judgment of a Division Bench of the High Court[3] in which the Foundation had succeeded on the very same ground, which was that since the Foundation was a charitable trust a writ could not be issued against it and only a 'court of ordinary jurisdiction' could exercise jurisdiction against the Foundation; reliance was placed on the cases of Pakistan Telecommunication Co. Ltd v Iqbal Nasir[4] and Hirjibhai Behrana Dar-e-Meher v Bombay Steel Works.[5] Learned counsel also referred to two orders of learned Single Judges of the High Court which had held that since the Foundation is 'a private organization, registered under the Charitable Endowments Act, 1890 writ jurisdiction could not be invoked against it'.[6]
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9. In view of the legal objections that an intra-court appeal under the Ordinance had to be filed and that the Foundation is not amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution, we proceed to first consider these objections. 10. Pursuant to the recommendations made by the Law Reforms Commission the Ordinance was enacted.[7] Section (3) of the Ordinance is reproduced hereunder: '3. Appeal to High Courts in certain cases. (1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. (3) No appeal shall lie under sub-section (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance, shall be construed as affecting: (a) any appeal under the Provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972.' 11. Before the Ordinance was enacted an appeal/petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court was filed in the Supreme Court (under Article 185 of the Constitution). Section 3 of the Ordinance granted an additional right of appeal against a decision of a Single Judge of the High Court under Article 199 of the Constitution, provided it did not arise out of proceedings in which the applicable law, if any, did not provide for an appeal, revision or review to any Court, Tribunal or authority against the original order.[8] Such an appeal was to a Bench of two or more Judges of a High Court. 12. This Court considered the scope of section 3 of the Ordinance in the following cases, in addition to the abovementioned cases (relied upon by the counsel of the respondents): Karim Bibi v Hussain Bakhsh,[9] Muhammad Abdullah v Deputy Settlement Commissioner,[10] Col. (Retd.) M.R. Hassan v SHO Margalla, Islamabad,[11] Muhammad Aslam Sukhera v Collector of Land Acquisition,[12] Board of Governors v Farah Zahra,[13] Accountant-General for Pakistan v Zia Mohy-ud-Din,[14] Abrar-ul-Haq Shami v Federation of Pakistan[15] and S. M. Waseem Ashraf v Federation of Pakistan.[16] In all these cases it was decided that since the Ordinance provided for an appeal the appellate forum should not be bypassed unless it attracted one of the stated exceptions. 13. However, there are also decisions of this Court in which the decisions of a Single Judge of the High Court were directly challenged before this Court in an appeal/petition under Article 185 of the Constitution, despite the fact that the stated exceptions mentioned in section 3(2) of the Ordinance were not attracted. In the case of Commissioner of Income Tax v Media Network[17] this Court entertained an appeal against an order of a Single Judge, against whose judgment an appeal was available under the Ordinance, by holding that:[18]
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'36. The objection as to filing of these appeals without availing remedy of Intra-Court Appeals has been taken by the respondents at a belated stage of final hearing of these appeals. Ordinarily, this Court does insist the petitioner or appellant to avail the remedy of Intra-Court appeal, in the first instance, as was done in the case of Imtiaz Ali Malik (supra) referred to by Mr. Shahid Hamid, Senior Advocate Supreme Court. However, this is a rule of practice for regulating the exercise of discretion which does not oust or abridge the constitutional jurisdiction of this Court. Therefore, in certain circumstances, this Court can entertain petitions, or as the case may be, direct appeals even where the remedy of Intra-Court appeal under section 3 of the Law Reforms Ordinance, 1973 [sic] has not been availed by a party. Reference may usefully be made to the cases of Mst. Shohrat Bano v. Ismail Dada Adam Soomar (1968 SCM R 574), Province of Punjab through Secretary Excise and Taxation, Government of Punjab and others v. Sargodha Textile Mills Ltd., Sargodha and others (PLD 2005 SC 988) and Punjab Employees Social Security Institution Lahore and others. Manzoor Hussain Khan and others (1992 SCM R 441). The present appeals involve important questions of law of great public importance having far-reaching consequences. Therefore, the objection of the respondents is not tenable in the peculiar facts of this case.' Reliance in the aforesaid judgment was placed on the case of Shohrat Bano v Ismail Dada Adam Soomar[19]in which a five-Member Bench of this Court rejected the objection to the maintainability of the appeal though the remedy of a Letters Patent had not been availed. The legal provision under consideration in the case of Shohrat Bano was different but there is no reason why the principle enunciated therein would not be applicable to cases under the Ordinance. 14. Similarly, in the case of Province of Punjab v Border Area Committee[20] this Court, by referring to the case of Commissioner of Income Tax v Media Network (above), held, that:[21] '... a window had been kept open by this Court for entertaining a petition or appeal before this Court without insisting upon filing of an Intra-Court Appeal before the High Court if the exceptional circumstances of a case so warranted. A similar approach had subsequently been adopted by this Court in the case of Chaudhry Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan and others (Civil Petition No. 317 of 2010 decided on 31-3-2010 by a Bench of seven Honourable Judges).' 'It goes without saying that the issue involved in this respect is based upon a rule of practice regulating exercise of discretion which does not oust or abridge the constitutional jurisdiction of this Court.' In the case of the Federation of Pakistan v Dewan Petroleum (Pvt.) Ltd[22] the Federation had filed an appeal before this Court without availing of the intra-court appeal under the Ordinance. The objection to the maintainability of the appeal was set aside by this Court, by holding that:[23] '23. As to the objection of non-maintainability of this appeal under Article 185(3) of the Constitution, suffice it to observe that in the peculiar facts and circumstances of the case, we find it appropriate to entertain this appeal as an exception to the general rule of first availing the remedy of ICA against the impugned judgment of learned Single Judge of the High Court... .' And, in a recent decision of a three-Member Bench of this Court, in the case of Naeem Tahir v Jahan Shah,[24] it was held that the requirement of filing an intra-court appeal did not oust the constitutional jurisdiction vested in this Court under Article 185(3) and that in exceptional cases petitions thereunder may be entertained in matters of public importance: 'It is settled law that where the right to file an ICA before the High Court under section 3 of the Ordinance exists, then a petition before this Court without exhausting the said remedy, and thereby circumventing the forum below, is ordinarily not maintainable. The requirement of filing an ICA is a rule of practice for regulating the procedure of the Court and does not oust or abridge the constitutional jurisdiction of this Court. Such petitions, however, have been entertained by this Court only when certain exceptional circumstances exist, such as, where the matter involves
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important questions of law of great public importance having far-reaching consequences, questions of law as to the interpretation of the Constitution and validity of provincial statutes, and substantial questions of law involving fundamental rights.' 15. Article 175(2) of the Constitution stipulates that jurisdiction on a court is to be 'conferred on it by the Constitution or by or under any law'. The jurisdiction conferred by the Constitution ranks higher than jurisdiction conferred by law.[25] The jurisdiction which has been conferred by law may also, by law, be revoked, but the jurisdiction conferred by the Constitution cannot be revoked by law. The appellate jurisdiction created by the Ordinance and through other laws[26] does not take away the appellate jurisdiction of the Supreme Court conferred by the Constitution under its Article 185. However, since the Ordinance created an appellate forum, this Court will not ordinarily permit it to be bypassed, which does not mean that the appellate jurisdiction, which the Constitution vests in this Court, is made redundant. In appropriate cases this Court will not insist that an intra-court appeal provided under the Ordinance, be availed of first. 16. The impugned judgment had dismissed the petitioner's writ petition by holding that it was not maintainable because the Foundation was 'neither a department of Federal Government nor an autonomous body created through a statute, therefore, it cannot be called a person performing functions in connection with the affairs of federation within the meaning of Article 199 of the Constitution' and as it did not 'receive funds from the state for achievement of its aims and objectives.' It also held that the Foundation was not susceptible to the writ jurisdiction of the High Court because it was a private trust 'established & registered under Charitable Endowment Act, 1890'. 17. This case involves important questions of law, however, these have already been decided by this Court. In the matter of Suo Moto Case No. 11 of 2011[27] this Court had entertained a petition under Article 184(3) of the Constitution because illegalities were being conducted in the running of the Foundation, including the illegal allotment of plots. This Court was also cognizant that the Foundation was a charitable organization established under the Charitable Endowments Act, 1890. It would be appropriate to reproduce the relevant portions from the judgment: '45. While summing up our discussion made above, we declare that the National Police Foundation was a charitable organization established under section 5 of the Charitable Endowments Acts, 1890 aiming at helping the poor and for those who had lost their lives while being in service or on duty in the shape of education, medical relief etc. the Committee of administration/Rule Making Body was not authorized to make rules in conflict with or in derogation of the substantive provisions of law or the statute under which the rules are framed. Rules cannot go beyond the scope of the Act but the rules/regulations were made by the Committee of Administration of the Police Foundation according to their own whims and not according to the purpose envisaged by the Charitable Endowment Act. The persons mentioned in para 36 above have been allotted plots who were not entitled for such allotment and in some cases they have been allotted more than one plot or even a single plot without observing any bye-laws/rules, as such, the allotment of plots was not made by the Foundation in a transparent manner.' '45. ...The allotment of plots in the National Police Foundation can be termed a bad example of mal-administration as every officer of the said foundation at the helm of affairs tried to loot the Foundation by allotting plots to their nears and dears without observing any codal formalities required for the purpose.' '47. While making allotments of plots the then Board of Directors allotted plots to their near and dears ignoring legal heirs/family members of those police personnel who had laid down their lives for this nation. Under the Constitution of Islamic Republic of Pakistan no one can be permitted even though he be the head of the department to purchase all the plots for himself, or to give out the same as per his own choice. There are number of examples of such malpractices on the part of the
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police high ups who remained at the helm of affairs in the National Police Foundation. Most of the poor policemen were left up without allotment of any plot, though some have been allotted. The high-ups of the police hierarchy have purchased a good number of plots in violation of the purpose the Foundation was established for. Not only that, they after having acquired such plots started business. The Board of Directors without observing any legal or codal formalities such like advertisement in the press and without framing any bye-laws for the allotment of plots doled them out, whereas poor policemen are still facing hardships to acquire a roof to live under. Even the land earmarked for lawns/parks was also converted into plots for allotment to the higher police officers of the ranks of I.G., D.I.G., S.S.P. etc.' The instant case too involves the conversion and allotment of a designated park/green area. Every designated park/green area must be preserved; these areas may also be for the use and/or benefit of the public. Designated parks and green areas must not be allowed to be converted for exclusive private use and/or private profit. 18. The judgment in the abovementioned case was also considered in the case of Anjum Aqeel Khan v National Police Foundation[28] (which was a review petition) and this Court observed that deserving police officials were being deprived and that only one plot could be allotted to an individual: '10. ...we have found that it is a classic case of public importance where loot sale of plots was going on in the name of generation of funds depriving the deserving poor police officials and the same squarely fell within the ambit of Article 184(3) of the Constitution.' '12. ...the main purpose of the establishment of NPF [National Police Foundation] was to provide relief to the poor and deserving police officials of all over the country and not to only higher and influential persons as also to their families. The purpose could be justly and fairly met if only one plot was allotted to only deserving police officials, but unfortunately the same has not been done.' 19. This Court in the abovementioned cases (Suo Motu Case No.11/2011 and Anjum Aqeel Khan v National Police Foundation) entertained petitions under Article 184(3) of the Constitution even though jurisdiction thereunder is narrower to the jurisdiction of the High Court under Article 199, as the High Court is not constrained by the stated requirements of Article 184(3) which is to be invoked when 'a question of public importance with reference to the enforcement of any of the Fundamental Rights' is involved.[29] The impugned judgment does not refer to either of these judgments even though they were in the field and respectively reported in the law reports of 2014 and 2015. 20. There is another aspect of the case to be considered and one which makes an intra-court appeal against the impugned judgment effectively redundant. A Divisional Bench of the same High Court had already held that since the Foundation was a charitable trust it was 'not amenable to the jurisdiction under article 199 of the Constitution',[30] which was the same point on which the petitioner had been non-suited by the learned Single Judge of the High Court. However, this determination, that the Foundation was a private charitable trust and was not amenable to writ jurisdiction, is factually and legally incorrect. 21. The Government of Pakistan had paid an amount of twenty million rupees in trust for a charitable purpose to be known as the National Police Foundation which was vested in the Treasurer of Charitable Endowments for Pakistan.[31] The Government spends or allocates money from public funds and such money cannot be stated to constitute private money or fund. The Government had set up the Foundation and had stipulated that 'the Federal Government is pleased to order that the said amount shall vest in the Treasurer of Charitable Endowments for Pakistan and that the said amount and the income thereof shall be applied in accordance with terms of a scheme to be settled under section 5 of the said Act'.[32] The 'Scheme of Administration for the National Police Foundation' was established, amongst others, 'to provide for
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construction of low-cost houses of various categories... to beneficiaries whether retired or serving'. [33] The stated beneficiaries[34] are serving or retired personnel of the Police Force. The 'Administration of the Foundation' is to be by a 'Committee of Administration' which comprises of senior government servants: Secretary of the Ministry of Interior as Chairman, Director General of the Federal Investigation Agency as Vice Chairman, and its other Members are the Inspector Generals of Police, Commandant of the National Police Academy, a representative of the Ministry of Finance, a representative of the Ministry of Industry and the Managing Director of the Foundation. 22. The Federal Government had paid a considerable amount and had established the Foundation which is a charitable endowment with stated objectives to be adhered to. The Committee of Administration of the Foundation comprises of serving government officers. The Foundation's property can only be used as stipulated in its Scheme of Administration. In presence of these facts to contend that the High Court did not have jurisdiction under Article 199 of the Constitution is inexplicable. Article 199(1)(c) of the Constitution also requires the High Court to ensure the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and empowers the High Court to give such directions to any person or authority to ensure compliance therewith. In the present case a number of Fundamental Rights are also involved, including the right to life which is given a wide interpretation by this Court,[35] and dignity…
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