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Petitioner: Dr. Rana MUHAMMAD AKHLAQ VS Respondent: FEDERATION OF PAKISTAN through Secretary, Cabinet DivisionHonorable Justice Shaukat Aziz SiddiquiAbdur Rehman Siddiqui,Zulfiqar Ahmad Bhutta
2015 P L C (C.S.) 568
[Islamabad]
Before Shaukat Aziz Siddiqui, J
Dr. Rana MUHAMMAD AKHLAQ
Versus
FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others
Writ Petition No.3476 of 2013, heard on 9th April, 2014.
(a) Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Ordinance (XLIV of 1979)---
----S. 3---Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Rules, 1980, R.5---Export Control (Animal) Order, 2004, Cl.2.53---Constitution of Pakistan, Art.199---Constitutional petition---Import of sheep---Health of animals---Determination---Plea raised by petitioners was that consignment of sheep imported from Australia was wrongly declared to be violative of food security and livestock---Validity---No documentary evidence was available on record to show that consignment in question was rejected by Bahrain authorities due to some disease in the sheep as in that case "World Alert" would have been issued by Bahrain authorities as per practice prevailed in international animal trade so that no further trade in such animals from that geographical area be carried out---Not a single document of Bahrain government was available which could prove that said government rejected the sheep due to infected by some disease except speculated media reports which were only based on hearsay---High Court declared the whole process of culling of sheep as unlawful---Respondent had been continuously harassed by officials of Provincial Government through different tactics to not to pursue constitutional petition before the Sindh High Court which resulted into withdrawal of the same by the respondent just one day before announcement of order by Division Bench of High Court of Sindh High Court---High Court directed the Provincial Government to take up matter for initiating legal action against officials responsible for the same as per service and criminal laws---Petition was allowed in circumstances.
PLD 2010 SC 1; PLD 2010 SC 265; 1998 SCMR 1863; 1994 SCMR 2244; PLD 1999 SC 1126; PLD 1997 SC 563; 2013 SCMR 1752 and Muhammad Yasin v. Federation of Pakistan PLD 2011 SC 132 ref.
(b) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----R. 6---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Petitioner assailed appointment of respondent as Animal Husbandry Commissioner in Basic Scale-20 by Provincial Government---Validity---Respondent was officer of Basic Scale-19 and he could not be allowed to hold post of Basic Scale 20 by Secretary of Ministry who was not competent authority---Competent Authority, under R.6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 for appointment against post of Basic Scale 20, was the Prime Minister---If post in question was to be looked after through acting/current charge, the same procedure was also provided under R.8(b)(4) and (5) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---High Court declared that respondent did not hold post in question for such period in prescribed manner---High Court declared the respondent as usurper and directed to refund salaries and other monetary benefits drawn by him in such behalf---Petition was allowed accordingly.
Abdur Rehman Siddiqui, Advocate Supreme Court and Ch. Asghar Ali for Petitioner.
Zulfiqar Ahmad Bhutta, for Respondent No.4.
Khawaja Azhar Rasheed and Liaqat Ali Qasim for Respondent No.5.
Adnan H. Memon for Respondent No.6.
Fazal-ur-Rehman Khan Niazi, D.A.-G.
Haseeb Muhammad Ch., Standing Counsel for Respondents Nos.1 to 3).
Respondents Nos.4 and 9 in person.
Date of hearing: 9th April, 2014.
JUDGMENT
SHAUKAT AZIZ SIDDIQUI, J.--- Petitioner invoked the constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:---
"Under the circumstances, it is, therefore, very humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to:
(1) Accept this petition and set aside all the illegal orders passed by the respondents Nos.2 to 5 with regard to food security and livestock being coram non judice, void ab initio, illegal and without lawful authority;
(2) Direct the respondent No.1 to get the matter investigated through NAB/FIA and take necessary action against the culprits in accordance with law, including disciplinary action and recovery of the looted amount on account of the reasons explained hereinabove;
(3) The illegal appointment of the respondent No.4 as animal Husbandry Commissioner w.e.f. 9-2-2012 to 21-6-2013 to with the order of recovery of salaries, perks and privileges, he has illegally received in connection with the said appointment with all consequential effects.
Any other relief which this honourable Court deems just and proper may also be awarded".
2. Brief facts relevant for disposal of instant writ petition are that allegedly respondent No.4, while posted as Animal Husbandry Commissioner, illegally in a very hastily manner permitted respondent No.6 to import 21,000 live diseased sheep from Australia through respondent No.7 in the month of September, 2012, which consignment was rejected by Bahrain authorities due to health reasons but as a result of connivance of the respondents Nos.4 to 6 with each other, respondent No.7 was able to divert the sheep towards Pakistan where the sheep were unloaded without inspection by respondent No.5 at Port Qasim, Karachi, on 4-9-2012, as required under Rule 5 of the Animal Quarantine (Import and Export Animals and Animal Products) Rules, 1980, and were shifted to the Slaughter House maintained by respondent No.6 and the Meat Company (Pvt.) Limited Musa Goat Razzakabad, Karachi, without keeping them in the Quarantine House, Karachi, established by the government for test and examination for a certain period as per Rules Nos.7, 8, and 9 of the aforesaid Rules. The matter was reported in the national and intentional press, hence the authorities concerned had taken samples for examination in the relevant laboratories and the same were found positive. Resultantly respondent No.2 had no other option except to order an inquiry through the Inquiry Committee, constituted vide letter dated 11-9-2012. Accordingly, inquiry was conducted into the matter which established the following violations:---
(i) The said live diseased sheep were originally booked for Bahrain and the ship carrying the same, had started its journey on 4-8-2012;
(ii) Upon rejection of the consignment by the Bahrain authorities for health reasons, the ship was diverted to Pakistan;
(iii) The respondent No.2, in a very hastily manner due to the reasons best known to him, had prompted to issue NOC in the name of respondent No.6 to import the said diseased sheep to Pakistan on 24-8-2012;
(iv) The importers clearing agent informed on 3-9-2012 that the ship loaded with sheep for Pakistan would arrive on 4-9-2012;
(v) The respondent No.5, i.e. the Quarantine Officer who was obliged under Rule No.5 supra to inspect the sheep on the boat and to examine the certificates of health and other relevant documents, failed to perform his duties;
(vi) The sheep were not brought to the Quarantine House to keep there for the prescribed period in order to conduct test and examination thereof but were straightly shifted to the aforesaid Slaughter House of the respondent No.6 illegally and without lawful authority.
In view of the said report Government of Sindh, vide letter dated 16-9-2012, requested the Director, Animal Quarantine Department, Government of Pakistan to destroy the said sheep. Order for destroying the sheep was passed, which was assailed by the respondent No.6 before the Sindh High Court and obtained stay order, however, ultimately the said Writ Petition was disposed of and as a consequence thereof sheep were destroyed. In the meanwhile, the Prime Minister of Pakistan, vide letter dated 17-9-2012, also pleased to direct the government of Sindh to hold an inquiry into the matter. A letter was also issued by the Government of Sindh to the Federation for urgent inquiry and report within two days. Pursuant to the inquiry so conducted respondent No.2, vide letter dated 25-10-2012, directed the respondent No.4 to blacklist the respondents Nos.6 and 7 and to furnish a complete brief to the Australian government along with taking necessary actions for implementation of the recommendations of the inquiry in letter and spirit. Subsequently, a reminder dated 20-11-2012 was also issued to respondent No.4, but he failed to take any action in this behalf, rather matter was subjected to bureaucratic approach. On 3-3-2009, Federal Government formulated a policy which was duly approved by the Federal Cabinet whereunder it was specifically provided that there would be no quota regime for specific areas. Said Policy was duly circulated amongst all concerned. However, in utter deviation therefrom, respondents Nos.2 and 4 allocated quota for different stations in the year, 2012 on quarterly basis which was circulated, vide letter dated 2-3-2012. They further deviated to revise the allocation of quota for the second quarter, vide letter dated 25-5-2012. The Animal and Meat Import and Export Association of Pakistan raised serious objections regarding violation of the aforesaid policy guidelines issued by ECC, vide their letter dated 9-4-2012, and the Federal Minister concerned pleased to restrain further export during third quarter of 2012, with immediate effect, vide letter dated 9-7-2012, which was superseded by the letter dated 10-7-2012, which was withdrawn on 27-8-2012, whereas, same was implemented by respondent No.4 vide letter dated 3-9-2012. Similarly, a good number of animals were illegally allowed for export from Islamabad to Afghanistan, via Turkhum border by respondent No.3, as Islamabad's Quarantine was meant for Islamabad Airport only. These animals were neither kept under the quarantine house as required under the rules nor the other laid down procedure was followed. Even a huge number of animals which were meant to be exported from other stations were ordered to be exported to Afghanistan via Peshawar Torkham. In this regard, the then I.G., F.C., Balochistan had written a letter dated 4-6-2009 to all concerned but no proper action was seen to have been taken by the competent authorities in this behalf. Respondent No.4 who while serving as Animal Husbandry Commissioner, proposed to revalidate the Quarantine House at Jogian G.T. Road, Peshawar through the owner of the plot who had already stood expired, which fact was pointed out by the Secretary concerned with the remarks that "How a rent agreement was made with a dead man?". But still no action was taken by the respondent No.1 regarding inefficiency and misconduct evident on behalf of respondent No.4. Petitioner kept pointing out the aforesaid illegalities as a result whereof respondents Nos.3 and 4 restrained the subordinate officers of the petitioner to allow him to have any access to any of the files and despite his all out efforts, files were not being routed through the petitioner for onward submission to respondent No.3. Petitioner filed a representation before respondent No.2 in this regard but no action was taken thereon.
3. Learned counsel for the petitioner submitted that there is no such provision available in law to accept a consignment which has not been directly routed from the exporting country. If the consignment was rejected by the Bahrain Government, it should have been returned to Australia and could not have been diverted to Pakistan in the absence of NOC, health certificate, commercial invoice and bill of lading in the name of Pakistani importer/respondent No.6, issued prior to loading of the animals/sheep in the vessel. Whereas, ship carrying the sheep was diverted to Pakistan on 23-8-2012, at the request of the respondent No.5, who applied for NOC on 24-8-2012, issued by the respondent No.4 illegally and without lawful authority. Regarding NOC learned counsel submitted that it does not mention that the sheep were originally meant for Bahrain and not for Pakistan, which means that either the respondent No.6 concealed the same or the respondents Nos.4 and 6 joined hands with each other. Moreover, the same was issued subject to conditions mentioned under para 2 thereof. It means that said conditions/pre-requisites were not fulfilled prior to issuance of NOC. This also shows that respondent No.4 was all out to issue the said NOC to the respondent No.6. Learned counsel contended that section 3 of the Pakistan Animal Quarantine (Import and Export of Animals and Animal Products) Ordinance, 1979, specifically provides not only to regulate and prohibit import and export of animals but it lays certain conditions on the same under subsections (2) and (3) of the Ordinance. Responding to the contention of the respondents regarding requirement of NOC for import of the said sheep learned counsel submitted that the same is belied by respondents' own conduct as the respondent No.5 himself applied for the same and respondent No.4 issued NOC without fulfilling the codal formalities. Learned counsel further contended that respondents Nos.1 to 5 were required to perform their duties and functions strictly in accordance with law and follow the due process but they failed to do so. Reliance was placed on the case-law reported as (PLD 2010 SC 1), (PLD 2010 SC 265), (1998 SCMR 1863), (1994 SCMR 2244), (PLD 1999 SC 1126), (PLD 1997 SC 563). Learned counsel added that, vide order dated 25-10-2012, respondent No.2 directed respondent No.4 to blacklist the respondents Nos. 6 and 7, but he as well as his successor in the office/respondent No.3 remained sitting over the file and did not take any action in this behalf which shows their connivance and collaboration in the offence and misconduct. Furthermore, as per decision of ECC duly approved by the Federal Cabinet, that there will be no quota regime for specific areas regarding export of live animals, respondents Nos.2 to 4 deliberately, maliciously and malafidely, deviated therefrom and specified/revised quota according to their desires. However, letters specifying quota were subsequently withdrawn but the motive was to promote certain mafias for illegal gains. Learned counsel added that the attitude of the respondents Nos.3 and 4 towards their duties is also evident from their act that they failed to take action on the reports regarding smuggling of animals furnished by the I.G.\F.C., Balochistan, vide letter dated 4-6-2009. In addition to that respondent No.4 allowed an agreement with an expired person for which the respondent No.2 had specifically raised a question as is evident from the note sheet dated 20-4-2011. Moreover, they also kept on restraining the inferior officers of the petitioner from putting up any file before the petitioner and made the petitioner sit in the office without any work due to reason that he was pointing out their irregularities. While objecting to the appointment of respondent No.4 as Animal Husbandry Commissioner (BS-20), learned counsel contended that the same was to be filled by promotion through CSB with approval of the Prime Minister of Pakistan or even if the same was required to be held on current charge/acting charge basis by an inferior officer of BS-19, and the same also has to be done with the approval of the Prime Minister and not otherwise. But respondent No.4 an officer of BS-19 was appointed as such in his own pay scale by the Secretary and not by the Prime Minister, illegally and without lawful authority, as there is no provision under any rule supporting such appointment. About the Report submitted by FIA, learned counsel submitted that culling of the sheep has been made its focal point in the whole inquiry report and recommendations regarding action against the persons involved in the same has been made, whereas, corrupt practices and irregularities committed by the respondent No.6 regarding import of said sheep and fabrication of documents has not been addressed. Moreover, respondent No.8/FIA, in its report has also failed to answer the question as to how an officer of BS-19 was allowed to hold the post of BS-20 and that too by the Secretary, Ministry of NFS&R/respondent No.2.
4. Learned counsel for respondent No.4 submitted that respondent No.4 has performed his duties within four corners so his official capacity and allegations levelled against him through instant Writ Petition which are result of official grudge of petitioner against respondent No.4 and report submitted by FIA are vague and without any solid evidence. Respondent No.4 further submitted that Senate Standing Committee for Ministry of National Food Security and Research as well as National Assembly Standing Committee for Ministry of National Food Security and Research examined the administrative role of ministry on the in question incident i.e. culling of the sheep but did not find out any act of colourful exercise of their powers and even negligence against the Ministry as well as concerned employees of Government. Learned counsel further contended that after issuance of letter No.DY1601/AHC-2012 dated 16th September, 2012, by which Animal Quarantine Department was directed to take legal and lawful action in the matter against the importing firm and cooperate with the Livestock and Fisheries Department Government of Sindh, due to media reports and reports which were prepared by the Government of Sindh, under the urgent circumstances and immediate threat to life of the citizens, there were no other option available with the Federal Government except to accept and take prompt action in the light of letters/reports of the Sindh Government in the greater interest of the public-at-large. But, unfortunately FIA in their report submitted before this Court deliberately submitted that copy of the letter upon which endorsement of the high ups of the Animal Husbandry Commissioner were not shown, which is a calculated mala fide move on the part of the FIA officials to twist the circumstances against respondent No.4 i.e. Animal Husbandry Commissioner of that time. Whereas, the Federal Government letter addressed to the Secretary, Government of Sindh signed by the respondent No.4 had endorsement of high ups as reflected in the record. Moreover, Investigating Officer of FIA Islamabad, has not recorded fresh statements of the then Secretary and Additional Secretary to know the exact level of involvement of high ups in Provincial and Federal Governments in such high profiled issue which remained on ground for about 45 days including its proceeding in Division Bench of Sindh High Court at Karachi for more than 30 days. Learned counsel further explaining the situation at that time submitted that Director, Animal Quarantine Department was directly submitting the reports of the imported sheep to Additional Secretary of the Ministry which fact is evident from his letter No.F.5-9/86-AQD(770) dated 10th September, 2012 on the subject of import of 21000 sheep from Australia. Further, the senior most technical officer of the Ministry of National Food Security and Research, the then Member Animal Sciences, Islamabad/respondent No.3 was enquiry officer in lieu of guiding the ministry about the health status of the imported sheep whose advice diverted the mind of the Ministry towards black listing of the importing and exporting firms of in question sheep. Moreover, as per second Enquiry Committee Report submitted to the Ministry by "Dr. R.H. Usmani/respondent No.3, Member Animal Sciences, PARC Islamabad, who joined the rest of team of the Board/Committee members and the experts at 12.30 p.m., three of the five sheep were showing the symptoms of haemorrhage after death, tympany and poor clotting blood stained fluids oozing from natural orifices. Based on these symptoms, the experts pointed Anthrax in imported sheep and it became matter of grave concern for Provincial and Federal Governments as well as for Divisional Bench of Hon'ble Sindh High Court. Federal Government was not in a position at any stage to take a decision in favour of importer due to suspected disease of Anthrax and also due to sub-judicious nature of the case. Learned counsel while commenting on the FIA Report submitted that as per this report FIA Officer witnessed alive sheep with somebody, creating mystery whether all the sheep were culled? Or distributed among some officials or persons after Sindh High Court decision? And when he came to know that importer was punished for political reasons then what were the compelling circumstances under which he preferred to be silent on this issue and not to speak even a single word on this very important issue? Moreover, as to why FIA officer could not assess/directly record fresh statements of Sindh Government officials affectively involved in the incident to know about the facts including Dr. Nazeer Kalhoro, who originally highlighted one disease named Actinnomyces ovis which subsequently after detail scrutiny and inquiry found to be a bogus name of disease which never existed in the world. Introduction of this fake disease in the laboratory report prepared by Dr. Nazeer Kalhoro actually created a havoc in the society. In addition to that statements of other two persons of Sindh Government i.e. Mr. Abid Ali Shah (the then Secretary Livestock and Fisheries Department, Government of Sindh) and Dr. Pervaiz Imrani who found mention in the said report but their statements were not directly recorded by the Investigating Officer, which fact also creates doubts upon the credibility of the instant FIA report and conduct of the I.O. Whereas, Federal Government Employees including the respondent No.4 have been falsely implicated by the I.O. in the matter. Learned counsel further contended that when even the Divisional Bench of Sindh High Court had no option except to order disposing of the sheep, then how action of the Federal Government can be declared mala fide. Learned counsel argued that in the instant matter, only aggrieved party is the Importer/respondent No.6, who after order of culling could file appeal to the Federal Government under section 14 of the Animal Quarantine Act, 1979 which he did not. Even the remedy of filing writ petition under extreme emergent circumstances i.e. Writ Petition preferred in shape of Writ Petition No.3329 of 2012 at Sindh High Court at Karachi, was withdrawn, whereas, petitioner under any stretch of imagination was not an aggrieved person, hence, instant petition on this score alone is liable to be dismissed. Body of the writ petition also reflects that the same was not to serve any painful aspect on the part of nation but to malign his official colleagues due to personal grudge.
5. Learned counsel for respondent No.5 argued that respondent No.5 was responsible for issuance of Provisional Release Order and then the final Release order after the expiry of quarantine period, accordingly he issued the Provisional Release order of the said live animals on 4-9-2012 for shifting the animals to Government Quarantine House but the said order was reviewed by Dr. Ehsan-ul-Haq, the then Director, Animal Quarantine Department by ordering shifting the said animals to the premises of P.K. Livestock and Meat Company, District Malir, Karachi, on the ground that the space was not enough for 21000 animals in the Government Quarantine House and how could respondent No.5 disagree with a genuine reasoning given by his superior officer? However, Animal Quarantine Act, 1979, also provides that Quarantine Officer cannot be made responsible for all the acts relating to import of sheep. In addition to that Director, AQD, had assigned the duty of supervision, observation and conduct test/examination to Dr. Arif Saleem Memon, vide letter No.F-5-9/86-AQD(760) dated 4-9-2012. The FIA report fails to give the relevant provision of law which can substantiate the allegations levelled against the respondent No.5 in the said report. Further, there were no powers vested with the respondent No.5 to stop or interfere in any action of the Government of Sindh. Learned Counsel responding to the allegations levelled against the respondent No.5 in the FIA Report argued that the culling/destruction of the sheep was ordered by Secretary, National Food Security, and Research on the advice of respondent No.4, whereas, respondent No.5 had nothing to do with the culling of the sheep, who had thought the animals to be diseased, otherwise he had the power under Rule 6(2) of the above said Act to order the destruction of imported diseased animal. Moreover, the fact that despite having powers to call for culling, respondent No.5 not doing so proved that he did not agree that the animals were diseased, whereas, order regarding culling of sheep was communicated by the Secretary, Livestock and Fisheries Department, Government of Sindh to Director, Animal…
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