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Petitioner: REHMAT KHAN VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of JUDGMENT
Court Name: Lahore High Court Judge(s): Irshad Hasan Khan, Muhammad Arif, Ch. Ghulam Sarwar Title:REHMAT KHAN vs FEDERATION OF PAKISTAN through Secretary, Ministry of
JUDGMENT
Reported As: PLD 1993 Lahore 70 Result: Petition dismissed Judgment JUDGMENT ' IRSHAD HASAN KHAN, J.--Rehmat Khan petitioner herein has sought the following reliefs in this Constitutional petition:-- (i) that Special Courts for Speedy Trials Ordinance XXXVIII of 1991 is not a valid law; (ii) that Ordinance XXV of 1991 having lapsed, cannot be acted upon and all rights accrued under it have ceased to have any effect; (iii) that the Supreme Appellate Court was not in existence in the eye of law and, therefore, the proceedings before the said Court are no legal proceedings; (iv) that Special Court for Speedy Trials (Mian Abdul Khaliq), Rawalpindi has ceased to exist; (v) that the reference of the petitioner's case to respondent No,3 was invalid and without lawful authority; and (vi) that the petitioner is being confined in Central Jail, Rawalpindi without any valid order of remand and conviction and that he is entitled to be released. 2. The facts in brief are that the petitioner was tried by the learned Judge Special Court for Speedy Trials, Rawalpindi Division and Islamabad Capital Territory for having murdered Tariq Mahmood, Muhammad Sabir and Muhammad Fayyaz on 17-8-1991 at 6-30 a.m. In village Waisa, District Attock, and in consequence thereof he was convicted under section 302, P.P.C., on three counts and sentenced to death. He was also ordered to pay a sum of Rs,50,000 to heirs of each deceased, in default whereof to undergo rigorous imprisonment for six months on each count vide judgment dated 31-3-1992 passed by the learned Judge, Special Court for Speedy Trials.
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3. The petitioner being aggrieved with the aforesaid judgment, filed an appeal before the Supreme Appellate Court, on 5-4-1992. The learned Appellate Court, after thorough scrutiny and re- appreciating the evidence on record and providing an adequate opportunity of being heard to the petitioner, property in dispute was not an evacuee trust property. Operative part of the order reads as under:-- "From the evidence and the arguments, it is clear that there was a drinking fountain and some rooms at the disputed spot. It also appears that the passage led to Mandir Bhaddar Kali and there was considerable traffic thereon. Otherwise fifty or forty years from now, village Kharak was just a village where hardly any facilities for passersby would have been needed. However, no evidence has been led to prove that there was a dedication or creation of a trust or a symbol to indicate any such thing. The series of owners since 1903 are shown to be individuals. Individuals can use personal property for charity. Municipalities can exempt such properties from tax. Such exemptions run parallel to the charitable use and are later withdrawn. That does not mean that a property in such cases becomes a trust property. In this case though no exemption was granted. No record shows that the property was dedicated or transferred to the community. The reference in the Lahore Municipal Corporation PA. List to Shabeel Waqf is meaningless because the same Lahore Municipal Corporation did not grant it an exemption from tax. Inayat Begum seems to be correct that the non-agriculturist Hindu purchased the property on a pretext. I, therefore, declare the property not to be a trust property". 3. Mukhtar Ahmad Butt respondent No,2 filed revision petition under section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, against the order dated 28-7-1976 of the Chairman, Evacuee Trust Property Board, on the ground that he has been in possession of the property in dispute, which was hidden evacuee trust property and on his application, the Evacuee Trust Property Board held that the property in dispute formed part of the trust pool created under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In consequence, the Secretary to the Evacuee Trust Property Board, through his letter No,43/37-68/9418, dated 4-12-1968 leased the property in dispute to the respondent and he had been in possession of the same. The revision petition filed by respondent No,2 was also accepted vide order dated 6-8-1978, which has been impugned in these proceedings. The operative part of the impugned order reads as follows:-- "5. I have heard the arguments of the parties in great detail and have also perused the record. The learned Chairman has held the property to be non-trust on the grounds that there was no dedication or creation of a trust; that the owners are shown to be individuals, and individuals can use personal property for charity; and that exemption from tax on the basis of charitable use was not granted by the municipal authorities. 6. In our prevailing social conditions, and those that have prevailed during the last 50 to 60 years, there is hardly any trust in which the five specific ingredients of a trust have been clearly laid down by the creator of the trust. One, two or even four of the ingredients are invariably missing without detracting in any way from the intention or purposes of the trust. I agree with the observation that it is the conduct of the trust which ultimately determines its true character and in this case, over the years the property has been described even in official records as Waqf Chhabeel and there is no evidence to show that the use to which it was put was not charitable or religious in nature. It is true that individuals can use personal property for charity; but it is only when they publicly state the purpose to be charitable and religious (as was done in this case) that the property acquires the attributes of a trust. The municipal documents of the period before 1947 do not show anywhere what amount of tax was actually levied on the property; it is difficult to believe that the municipal authorities would carelessly neglect the imposition of tax unless there were cogent reasons for doing so. Moreover, the argument that the Hindu owner purchased the property on a pretext and
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actually put it to family use is only a presumption and no evidence has been led or is available to substantiate this presumption. 7. In view of the above discussion, it is my considered opinion that the disputed property is evacuee trust property and I hold it as such. The petition, therefore, stands accepted. The Evacuee Trust Property Board should take necessary steps to give effect to this order." 4. Mr. Talib Haider Rizvi, learned counsel for the petitioner argued that it was vehemently urged before respondent No,1 that respondent No,2 had no locus standi to challenge the order passed by respondent No,3, but respondent No,1 failed to determine this issue, which goes to the root of the case. No written statement has been filed by respondent No,1, but in the report submitted by the Deputy Administrator (U), Evacuee Trust Property Board Office, Lahore, with reference to ground 5(a) of the writ petition it was merely stated in vague terms "not correct". A bare reading of the impugned order, however, shows that respondent No,1 failed to determine this issue which goes to the root of the case. In the written statement filed by respondent No,2, on the question of locus standi it was pleaded:-- "It is incorrect that the respondent No,2 Mukhtar Ahmad had no locus standi to challenge the order passed by the respondent No,3 Proviso to section 8(3) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, provides as follows:- ' Provided that no declaration under subsection (2) or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard.' ' Respondent No,2 is a lessee from the Evacuee Trust Property Board and has made an extensive construction over the plot in question at his 'own expense as shown by the plan Annexure R/6 on record of the writ petition. Respondent No,2 is certainly a person who has interest in the property. Under section 17 of the said Act the Federal Government or its delegatee has the suo motu power to revise an order passed by the respondent No,3 and the revision can be at the instance of an aggrieved person. As the answering respondent is an interested person in the property in question; so he is an aggrieved person if the respondent No,3 illegally held the property to be not Trust Property." 5. Ch. Fazal Hussain, learned counsel for the Evacuee Trust Property Board and the Federal Government argued that the writ petition against order of the Federal Government is liable to be dismissed in the facts and circumstances of the present case, in that, the Joint Secretary declared the property as Evacuee Trust Property relying on the fact that in the official record prepared by the Lahore Municipal Committee, the property in dispute was entered as Waqf Chhabeel; it was levied no tax by the Municipal Committee and the Chairman illegally disregarded these entries which were recorded by the public functionaries and a presumption of regularity is attached to them. It was submitted that in the PA. List of 1946, the property was mentioned as Dharam Arth, whereas it was mentioned as Ahata Chah in the Revenue Record. Ch. Fazal Hussain vehemently argued that the Chairman Evacuee Trust Property Board was mainly influenced by the fact that in the instant case, author of the Trust, detail of the property and the beneficiaries etc. Were not available. But these were not relevant considerations for holding that the property in dispute was not an evacuee trust property. Reliance was placed on Secretary, District Evacuee Trust Property v. Qazi Habibullah PLD 1991 SC 586, to contend that if sufficient prima facie evidence was adduced for showing that the property in dispute was attached to a religious or charitable institution and this evidence was not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property was attached to a religious or charitable trust was not essential and the matter could be decided on the rule of preponderance of evidence. In the present case, it was argued that in the PA. List of 1946, the property in dispute was described as `Waqf Chhabeel' and, therefore, the same was rightly treated as evacuee trust property and its auction by the
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Settlement Department was not correct. Reliance was also placed on District Evacuee Trust Committee v. Muhammad Umar 1990 SCMR 25; District Evacuee Trust Committee v. Mashraf Khan 1989 SCMR 1636; Evacuee Trust Property Board v. Rahim Khan 1989 SCMR 1605; Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner 1989 SCMR 1610; Evacuee Trust Property Board, Lahore v. Syed Abdus Saleem 1990 SCMR 143, to contend that entries in the Revenue Record regarding ownership of property are presumptive evidence of title unless contrary is proved. Reliance was also placed on Master Chiragh Din v. Abdul Hakim PLD 1974 Lah. 370, to contend that special responsibility and duty is cast on the Courts to explore all possibilities to preserve and protect the property attached to the charitable institutions. 6. Syed Muneer Hussain, learned counsel for respondent No,2 argued that the Joint Secretary, after re-appraisal of entire evidence available on record, recorded a finding of fact that the property in dispute was evacuee property. Such a finding of fact is not open to interference in the exercise of writ jurisdiction. 7. Mr. Sadiq Hayat Lodhi, learned counsel for respondent No,5 adopted the arguments of Mr. Talib H. Rizvi that the property in dispute was an evacuee property and was rightly put to auction. 8.It is, however, not necessary to examine the merits of the case and respective contentions of learned counsel for the parties, as this petition can be conveniently disposed of on a short legal ground. A preliminary question, which requires consideration is whether the revision petition filed by respondent No,2, in consequence whereof the impugned order has been passed was maintainable under section 17 of the Evacuee Trust Property (Management and Disposal) Act, 1975. A bare reading of section 17 ibid would show that the Federal Government in the exercise of revisional jurisdiction can call for the record of any case or proceedings under the Act, which is pending or in which the Chairman, an Administrator, A Deputy Administrator or an Assistant administrator of the Evacuee Trust Property or where an order has been passed by any one of them for the purpose of satisfying themselves as to the correctness, legality or propriety of such an order, can pass such order in relation thereto as they think fit. In the case in hand, no order has been passed by the Federal Government in the exercise of its suo motu jurisdiction. Here the impugned order was passed expressly on the revision petition filed by respondent No,2 and, therefore, it is to be seen whether he was an "aggrieved person" and could competently file a revision petition under section 17 ibid. The proviso to section 17 clearly provides that a revision petition on the application of any aggrieved person made after expiry of fifteen days from the date of such order shall not be entertained. Here it is alleged that the revision petition was hopelessly time-barred, inasmuch as, the order of the Chairman, Evacuee Trust Proper y was passed on 28-7- 1976 and the revision petition was A filed on 25-8-1976. Even if the delay in filing the revision petition could be condoned, for which no application was made either before the Federal Government or before this Court, the writ petition cannot succeed, inasmuch as, respondent No,2 had no locus standi to file the revision petition against the order of the Chairman, Evacuee Trust Property Board. It goes without saying that it is a sine qua non for invoking the revisional jurisdiction under section 17 that an applicant should be an "aggrieved person". He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject-matter of the proceedings. The stand of respondent No,2 throughout has been that it is at his instance that the alleged hidden evacuee property was unearthed and in consequence thereof he was rewarded to be accepted as a tenant of the Evacuee Trust Property Board. It is, however, neither stated by respondent No,2 in his written statement nor he ever claimed either before this Court or before the Settlement Department or Evacuee Trust Property Board that he was entitled to transfer of the property in dispute and indeed he was not so entitled to such transfer under the law and, therefore, on this ground alone the revision petition filed by respondent No,2 was not competent and thus the entire proceedings before respondents No,1, which culminated into passing of the impugned order, were
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coram non judice. This view finds support from the judgment of the Supreme Court in Nisar Ahmad v. Additional Secretary, Food and Agriculture, Government of Pakistan 1979 SCMR 299. In the precedent case, on a reference made by the Chief Settlement Commissioner, the Chairman, Evacuee Property Board, declared the property in dispute therein, as evacuee property. The Federal Government transferred the same in favour of a person who applied for its transfer on the basis of CH Form. Permanent Transfer Deed was also issued by the Settlement Department in his favour. Notwithstanding the fact that the Permanent Transfer Deed had not been issued prior to the stipulated date, the Federal Government validated the transfer in terms of section 10 of Act of 1975. The lessee of the evacuee trust property challenged the order of the Federal Government through a writ petition on the following grounds:-- "(a) That respondent No,1 had not been delegated power of the Federal Government under section 17; (b) that the application on which the order had been passed was moved beyond the stipulated period of fifteen days; and (c) that the case of respondents 3 and 4 was not covered by section 10 of the Act of 1975, as validation could only be made where a P.T.D. Had been issued before June, 1968." ' The High Court found it unnecessary to go into these points in view of an objection taken to the locus standi of the petitioners to maintain a petition under Article 199 of the Constitution against the order validating the transfer in favour of the respondent. ' The High Court dismissed the writ petition on the ground of locus standi. The petition for leave to appeal was also dismissed by the Supreme Court.With the observation that he had no locus standi to file the writ petition, in that, his stand throughout had been that he was tenant paying rent to the Evacuee Trust Property Board and never claimed transfer of the property and was neither entitled to the transfer. On the same analogy, the revision petition filed by respondent No,2 herein, which led to the passing of the impugned order, was liable to be dismissed. The dictum laid down in the precedent case was also followed by a Division Bench of the Sindh High Court in the case of Mahmoodul Hasan Alvi v. The Secretary, Ministry of Religious Affairs and Minorities Affairs, Islamabad 1989 CLC 168. In view of the above, the impugned order dated 6-8-1978 passed by the Joint Secretary, Ministry of Religious Affairs and Minorities Affairs, Government of Pakistan, Islamabad, is declared as without lawful authority and of no legal effect. The writ petition is accepted, but the parties shall bear their own costs. Petition accepted. PLD 1993 Lahore 70 Before Irshad Hasan Khan, Muhammad Arif and Ch. Ghulam Sarwar, JJ REHMAT KHANPetitioner versus FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and 3 others--Respondents Writ Petition No,485 of 1992, heard on 14th November, 1992. (a) Civil Procedure Code (V of 1908)-- XXVII-A-Constitution of Pakistan (1973), Ar1.199---Constitutional petition, as well as application for stay of execution of death sentence were listed before High Court for limine hearing---Relief prayed for in the stay application being interlinked with the main petition, which was still in motion, High Court decided to hear the whole case after issuing the notice to the Advocate-General, as well as, the Deputy Attorney-General, as contemplated under O.XXVII-A, C.P.C. [p. 73] A (b) Constitution of Pakistan (1973)-- ----Art. 89---Power of President to promulgate Ordinance---President is fully competent to re- enact Ordinance even if the subsequent Ordinance is word by word the same as the preceding Ordinance. [p. 74] B Tirathmal and others v. The State PLD 1959 (W.P.) Kar. 594; Ihsan Elahi and
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others v. The Custodian, Evacuee Property, Lahore and others PLD 1959 Lah. 924; The State v. Abdul Muhammad PLD 1960 (W.P.) Kar. 733; The Colony Textile Mills Ltd., Lahore v. The West Pakistan Labour Court (Northern Zone), Lahore and 5 others PLD 1971 Lah. 348 and Begum Zebun-Nisa Hamidullah, Editor and Publisher of 'The Mirror', Karachi v. Pakistan through the Secretary, Ministry of Interior, Government of Pakistan PLD 1958 SC (Pak.) 35 fol. Maulvi Tamizuddin Ahmad v. Province of East Bengal PLD 1949 Dacca 1; Tirathmal and others v. The State PLD 1959 Kar. 594 and Muhammad Miskeen v. Summandar Khan PLD 1991 Lah. 217 ref. (c) Special Courts for Speedy Trials Ordinance (XXXVIII of 1991)- ----Preamble---Special Courts for Speedy Trials Ordinance (II of 1992), Preamble---Constitution of Pakistan (1973), Art.89---President of Pakistan being fully competent to re-enact Ordinances (XXXVIII of 1991) and (H of 1992), trial, conviction and dismissal of appeal of accused by the Supreme Appellate Court was legal. [p. 74 ] C (d) Special Courts for Speedy Trials Ordinance (XXXVIII of 1991) ----Preamble-Special Courts for Speedy Trials Ordinance (H of 1992), Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Accused who did not raise any objection to the holding of the trial by Special Court for Speedy Trials but actually participated therein in the expectation of obtaining a favourable decision from the Trial Court as well as from the Appellate Court, held, was disentitled to claim, any equitable relief under the Constitutional jurisdiction of the High Court on the ground that Trial Court and Appellate Court having not been legally constituted had no jurisdiction in the matter. [pp. 74, 75] D & E Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 829; The King v. William and others Ex parte Philips LR (1914), 1 KB 608; S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236; Begum Shamsun-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat and 4 others PLD 1976 Lah. 396 ref. (e) Civil Procedure Code (V of 1908)-- ----0. XLI, R. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner made an oral petition under R.5, O.XLI, C.P.C. For stay of execution of the death warrant for a short period to enable him to file a petition for leave to appeal before the Supreme Court against the order passed by High Court dismissing the Constitutional petition---High Court suspended the execution of death warrant till a specified date with the observation that in the event of the failure on the part of the petitioner to file a petition for special leave to appeal, and seek relief in that regard from the Supreme Court, order of suspension of sentence, shall automatically lapse. [p. 75] F (f) Precedent--- ----Text of the precedent referred by party not brought before the Court---High Court declined to express any view in that regard. 1p. 761 G Asaf Fasih-ud-Din Verdag for Petitioner. Faqir Muhammad Khokhar, Dy. A.-G. For Respondents Nos.1 and 2. Maqbool Elahi Malik, A.-G. Pb. For Respondents Nos.3 and 4. Date of hearing: 14th November, 1992. JUDGMENT ' IRSHAD HASAN KHAN, J.--Rehmat Khan petitioner herein has sought the following reliefs in this Constitutional petition:-- (i) that Special Courts for Speedy Trials Ordinance XXXVIII of 1991 is not a valid law; (ii) that Ordinance XXV of 1991 having lapsed, cannot be acted upon and all rights accrued under it have ceased to have any effect;
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(iii) that the Supreme Appellate Court was not in existence in the eye of law and, therefore, the proceedings before the said Court are no legal proceedings; (iv) that Special Court for Speedy Trials (Mian Abdul Khaliq), Rawalpindi has ceased to exist; (v) that the reference of the petitioner's case to respondent No,3 was invalid and without lawful authority; and (vi) that the petitioner is being confined in Central Jail, Rawalpindi without any valid order of remand and conviction and that he is entitled to be released. 2. The facts in brief are that the petitioner was tried by the learned Judge Special Court for Speedy Trials, Rawalpindi Division and Islamabad Capital Territory for having murdered Tariq Mahmood, Muhammad Sabir and Muhammad Fayyaz on 17-8-1991 at 6-30 a.m. In village Waisa, District Attock, and in consequence thereof he was convicted under section 302, P.P.C., on three counts and sentenced to death. He was also ordered to pay a sum of Rs,50,000 to heirs of each deceased, in default whereof to undergo rigorous imprisonment for six months on each count vide judgment dated 31-3-1992 passed by the learned Judge, Special Court for Speedy Trials. 3. The petitioner being aggrieved with the aforesaid judgment, filed an appeal before the Supreme Appellate Court, on 5-4-1992. The learned Appellate Court, after thorough scrutiny and re- appreciating the evidence on record and providing an adequate opportunity of being heard to the petitioner, upheld the judgment by affirming sentence of death awarded to the petitioner on all the three counts vide judgment dated 18-4-1992, which has been impugned in these proceedings. 4. The writ petition, as well as, application for stay of execution of death sentence were listed for limine hearing today. It is stated in the stay application that on 3-11-1992, the Superintendent of Jail, Rawalpindi, issued notice of execution of the petitioner on 15-11-1992 at 6-30 a.m. The relief prayed for in the stay application is since interlinked with the main petition, which is still in motion, we thought it expedient to hear the whole case after issuing the notice to the learned Advocate- General Punjab, as well as, the learned Deputy…
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