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Petitioner: M.D. TAHIR VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan, Muhammad Aqil Mirza Title: M.D. TAHIR vs FEDERATION OF PAKISTAN and others Case No.: Writ Petition No, 1177 of 1995 Date of Judgment:1995-01-31 Reported As: 1995 CLC 1039 Result: Petition dismissed
JUDGMENT
JUDGMENT ' CH. MUSHTAQ AHMAD KHAN, J.---This order shall be read as a part and in continuation of our short order dated 31-1-1995, whereby writ petition has been dismissed in limine. 2. Through this Constitutional Petition Mr. M.D. Tahir, Advocate, who is a citizen of Pakistan, has sought a direction in the nature of Prohibition restraining the respondents from alienating/parting with/leasing out of any territory of Coastal Region of Balochistan, particularly Gawadar port area or to provide a corridor cutting across Pakistan territory from the Gulf Region to Central Asian States. 3. Mr. Birjees Nagi, Advocate has appeared on behalf of the petitioner whereas Mr. Faqir Muhammad Khokhar, Deputy Attorney-General has appeared on Court's call at limine stage. Learned counsel for the petitioner had contended that the Coastal Area of Balochistan including the Port of Gawadar has stratgical importance, is a part of the territory of Pakistan independence whereof was attained after great sacrifices, therefore, it is the bounden duty of the people of Pakistan including its governments, to safeguard the integrity of every inch of the country. It is contended that certain news items have appeared in the press which lead to the conclusion that respondent No,1 the Federal Government of Pakistan, is going to dispose of the said Coastal Area including the Gawadar Port in favour of Sultan Qabus of Oman did also intends to provide a road link from within the territory of Pakistan to Central Asian States, which deals/acts will amount to alienation of territorial sovereignty of Pakistan. It is hence prayed that the respondents may be restrained from so doing by an appropriate writ or order. Elaborating his arguments, learned counsel has drawn our attention to the press cuttings Annexures 'A' to A-11' appended with this petition at pages 10 to 24 thereof, which news items prima facie show that a controversy is going on amongst the people of Pakistan, particularly the politicians, in relation to the issue referred to
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above. Learned counsel contends that as there is a mist and it is not clear as to whether any areas have been or is going to be alienated/parted with by the respondents, they may be directed to produce in Court necessary documents relatable to the transaction/deals in question (if any) so that the whole nation could know as to what the real factual position is? Learned counsel, however, states that the petitioner will have no objection if some land has been gifted to Sultan of Oman for the purpose of building of residence and Offices etc. Which are necessary for the purpose of development of the said coastal areas and the port of Gawadar, provided the said alienated areas remain under the sovereign control of the Government of Pakistan and the deal is free from political strings and is not a result or does not become a Centre for International conspiracies. It is alleged that the areas in question being of great stratigical importance keeping in view the present "World Order", it is necessary that the respondent-Government should make all efforts to remain aloof and not to provide a part of its territory lo the super powers of the world particularly USA, for exercise/execution of their foreign policy. Learned counsel has taken us through the preamble to the Constitution which is now a part thereof as per provisions of Article 2-A, and has contended that sovereignty of the entire universe belongs to Almighty Allah alone, and the sovereign authority is to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him; that it is the Constitutional mandate that the integrity of the territories of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air are safe-guarded so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity. He, hence, contends that as per information of the petitioner the aforementioned mandate is being violated by the Government by transferring Gawadar area to Sultan of Oman, and, therefore, this Court should interfere and direct the respondents to refrain from so doing as being the Custodian of the Constitution of Pakistan including integrity and solidarity of the territorial limits of the country. We have asked the learned counsel to explain as to why respondent No,2 Government of the Punjab has been added as a respondent in the case although said Government is not even a proper party and why Province of Balochistan has not been added as a party to the petition as the dispute relates to the land which vests in the said Government? Learned counsel is not in a position to give any satisfactory answer and insists that the petition is competent as it is. In support of his contentions learned counsel has cited the following cases:-- (1) Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others (1975 SCMR 359); (2) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others. (PLD 1972 S.C. 279); (3) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 S.C. 473); (4) Miss Benazir Bhutto. v. Federation of Pakistan and another (PLD 1988 S.C. 416) and (5) Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 S.C. 139). ' He has also referred to the provisions of Articles 4, 5 6 and 40 of the Constitution of Islamic Republic of Pakistan, 1973. 4. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who has appeared on behalf of Federation of Pakistan, has made a categorical statement on behalf of the respondents that the Government has no intention to alienate the sovereignty of even an inch of land of Pakistan including the sovereign control of the Coastal areas of Balochistan as well as the Gawadar Port. In support of his statement he has also placed on record certain press cuttings particularly relating to the statement made by Mohtarma Benazir Bhutto, Prime Minister of Pakistan as well as the statement made by Commerce Minister of Oman reported in daily' Nation' dated 30- 1-1995 and daily `Nawa-i-Waqt' dated 29-1-1995 respectively and statements of other political leaders as published in the press.
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5. As regards the competency of this Constitutional Petition learned counsel his contended that the petition is not properly constituted as respondent No,2 who is an unnecessary party has been impleaded as party to the petition with mala fide intention to file the petition at Principal Seat of this Court and Province of Balochistan who is a necessary party has not been impleaded and the petitioner is not ready to implead the said, respondent as party to this petition even now, therefore, this petition is liable to be dismissed on this short ground. It has further been contended that the issues which have-been raised in this Constitutional petition being of political nature determination thereof falls within the exclusive jurisdiction of the Parliament as well as the Government of Pakistan, hence the said issues are not justiciable in exercise of the Constitutional jurisdiction of this Court, especially when the issues relate to the foreign policies of the Government. It is contended that it is a seditious petition and has been filed malafidely just to malign the Government in power and to jeopardise relations with the friendly countries like Oman and USA. 6. Regarding legality and constitutionality of the questioned steps it is contended by the learned counsel that it is the bounden duty of the Government to develop all the areas of Pakistan generally and les:, developed areas particularly which is not possible without help and collaboration of other countries and World Organizations. Therefore, if Sultan of Oman has consented to invest in collaboration with Government of Pakistan and the Private Investors of Pakistan, to develop the coastal areas of Pakistan including Gawadar Port, the Government has rather performed its obligation which is not to be condemned or interfered with but is rather to be commended. It is for the Government to take decision in such like matters and the Courts have no jurisdiction to control such decisions and at any rate should not exercise jurisdiction in the interest of public good at the behest of a disgrunted individual, who has neither any education nor experience to judge the correctness or otherwise of the decisions taken or to be taken by the Government on such like issues, hence this petition is liable to be dismissed in limine. In support of his contentions learned counsel has placed reliance on the following cases:- (1) Managanbhai Ishwarbhai Patel. v. Union of India and another (AIR 1969 Supreme Court 783); (2) N. Masthan Sahib and S.S. Reddiar. v. Chief Commissioner, -Pondicaherry and another (AIR 1962 SC 797); (3) The Superintendent Land Customs, Torkham (Khyber Agency). v. Zewar Khan and 2 others (PLD 1969 S.C. 485); (4) R.C. Poundyal v. Union of India and others (AIR 1993 S.C. 1804); (5) Nargis Shaheen v. Federation of Pakistan and 5 others (PLD 1993 Lahore 732); (6) Chhetriya Pardushan Mukti Sangharahsh Samiti. v. State of UP and others (AIR 1990 S.C. 2060); (7) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473); (8) Inder Mohan Bhardawaj. v. Union of India and others (AIR 1980 Delhi 20) and (9) Ram Kishore Sen and others v. Union of India and others (AIR 1966 SC 644). 7. Before embarking upon detailed discussion of the issues involved in this petition, it will be advantageous to keep in view amongst others, statements of the Government functionaries regarding the controversy in questions, to reproduce the relevant paragraphs of the preamble and Articles of the Constitution of Islamic Republic of Pakistan, 1973, as well as a brief resume of the relevant case-law on the subject. 7-A. In the statement Mr. Aftab Shahban Mirani, Federal Minister for Defence made on the floor of the National Assembly, reported in daily `Frontier Post' dated 23-1-1995 stated that Gawadar was an integral part of Pakistan and there was no question of selling or leasing out any part of Pakistan including Gawadar to any foreign State. We are the ones who restored to Pakistan land lost in 1971 in Sialkot and Rajistan Sectors and not those who lost the lana in Siachin. Tikka Muhammad Iqbal Khan, Provincial Minister for Food in his statement reported in the same daily, said that lease of land to Sultan Qabus of Oman is in context of massive investment and development of Gawadar
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Port in particular and Balochistan in general and there is no question of selling Gawadar to any foreign party and that every inch of Pakistan's territory is sacred and we would defend it at all costs". Mohtarma Benazir Bhutto, Prime Minister of Pakistan, in her statement which has appeared in daily 'Nation' dated 20-1-1995 ,has categorically stated that "Gawadar is a part of Pakistan and it will remain so and that Pakistani Flag will always flutter over there, which port shall be developed like other ports of Pasni and Ormara and that people of Balochistan had also every right to benefit from modern day development". Commerce Minister of Oman Mr. Maqbool Bin All Sultan while on his way to visit Pakistan, made a categorical statement that Gawadar shall be developed by a joint company Constitution whereof shall be decided by the shareholders of both the countries and that it is absolutely incorrect that the said port has been sold by Pakistan to Oman or has otherwise been given to said country and that there is a possibility that certain other joint ventures may also be undertaken in Lahore, Karachi or Islamabad. Deputy Commissioner of the relevant District made a categorical statement that no part of Balochistan territory has been given to Sultan of Oman. Similar is the statement of Mr. Muhammad Ayub Balidi, Minister for Revenue of Balochistan who has further stated that 100 acres of land has been requested to be given to Sultan Qaboos of Oman by way of gift which request shall be considered and processed in accordance with law. Mr. Zulifqar Ali Magsi, Chief Minister of Balochistan has also made a similar statement. 6-B PREAMBLE TO THE CONSTITUTION (1) Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; (2) And whereas it is the will of the people of Pakistan to establish and order; (3) Wherein the State shall exercise its powers and authority through the chosen representatives of the people; (7) Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; 11. Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; 12. So, that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity; 17. Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny; 18. Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;" CONSTITUTION OF PAKISTAN, 1973. ' Article 2-A The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly. Article 14.---(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence. Article 15. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof. Article 19. Every Citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an Offence.
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Article 24.---(1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. (3) Nothing in this Article shall affect the validity of- (a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or (b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or (c) any law relating to the acquisition administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or (d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or (e) any law providing for the acquisition of any class of property for the purpose of-- (i) Providing education and medical aid to all or any specified class of citizens; or (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or (iii) providing maintenance to those, who on account of unemployment, sickness, infirmity or old- age, are unable to maintain themselves; or any existing law or any law made in pursuance of Article 253. (4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court. ' Article 30.---(1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned. (2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground. ' Article 34. Steps shall be taken to ensure full participation of women in all spheres of national life. ' Article 40. The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means. ' Article 172. Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal. Government. (2) All lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government. ' Article 173.---(1). The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts. (2) All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government.
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(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize. (4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. (5) Transfer of land by the Federal Government or a Provincial Government shall be regulated by law. ' Article-248.---(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: ' Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of Office. (3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office. (4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims. 7. In case of Maganbhai Ishwarbhai Patel. v. Union of India and another (AIR 1969 S.C. 783), there was a boundary dispute between Government of India and Pakistan, which was resolved in accord with the Western Boundary Case Tribunal Award, regarding Runn of Katch. Writ of Mandamus was prayed for by a citizen of India, which was not entertained on the ground that treaty of this type really concerns the political rather than judicial wing of the State and, therefore, the Municipal Courts cannot issue a writ of Prohibition in such like matters. In case of RC. Poundyal. v. Union of India and others (AIR 1993 S.C. 1804) in which case the issue was with regard to the admission of new State in the Union of India, Supreme Court took a majority view that such like issues are not justiciable in exercise of the writ jurisdiction of the Superior Courts. In case of Superintendent Land Customs, Torkham (Khyber Agency). v. Zewar Khan and 2 others (PLD 1969 Supreme Court 485) at page 489, it has been held as under:- "Both under the international law as well as the Municipal Law, the tribal territories became part and parcel of Fakistan and Were duly recognized as such by the United Kingdom and the member nations of the South East Asia Treaty Orginisation. The dominion of Pakistan through its Constitutional Assembly also formally accepted it as such. In the circumstances it was not for the Municipal Courts to hold otherwise. It is important to remember that in such matters of a political nature, namely, accession or cession of territory it is not for the Courts to take a different view. The executive authority of the State has in the exercise of its sovereign power the right to say as to which territory it has recognised as a part of its State and the Courts are bound to accept this position. Indeed this was the principle that was given statutory effect in section 4 of the Foreign
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Jurisdiction Act, 1890 and section 6 of the Governor-General's Order No,5 of 1949. If the Courts felt any doubt with regard to the status of such a territory then it was incumbent upon them to make a reference to the Government and to accept its opinion." ' In case of Chhetriya Pardushan Mukti Sangharsh Samiti. v. State of U.P. And others (AIR 1990 S.C. 2060), where a writ petition was filed against owners of mills and plants alleging therein that they are causing environmental pollution, therefore, their working should be stopped, their Lordships of the Supreme Court of India have held that where the owners had complied with the statutory provisions, the petition was mala fide and it was the duty of the Court to protect the society from so-called protectors. After a detailed discussion in paragraph-7, 8 and 9 of the report, it has been held that Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only by done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great…
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