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Petitioner: M. D. TAHIR VS Respondent: FEDERATION OF PAKISTAN And Other
Court Name: Lahore High Court Judge(s): Sharif Hussain Bokhari, Ch. Mushtaq Ahmad Khan Title: M. D. TAHIR vs FEDERATION OF PAKISTAN And Other Case No.: Writ Petition No.6282 of 1994 Date of Judgment:1995-03-01 Reported As: 1995 MLD 1864 Result: Petition dismissed
Judgment ORDER CH. MUSHTAQ AHMAD KHAN, J.---Mr. M.D. Tahir, Advocate who is a Muslim Citizen of Pakistan, has challenged the legality, propriety and justification of the expenditures incurred on tours of President of Pakistan to U.S.A. And that of Prime Minister of Pakistan to perform Haj-i-Baitullah, which were undertaken during the last year. 2. Report and parawise comments were called from Federation of Pakistan respondent No.1, wherein it has been explained that the questioned tours were undertaken in the public interest, in official capacity; that the expenditures incurred thereon are neither illegal nor unjustified as both the tours had been undertaken for the betterment of people of Pakistan and in the best interest of the country; that the President of Pakistan himself paid an amount of Rs.1,21,124.75, the expenditures incurred by his family members, therefore, the writ petition is liable to be dismissed. 3. Today, we have heard Mr. M.D. Tahir petitioner in person and Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who has appeared on behalf of respondent No.1 and Mr. Farooq Baidar, learned Additional Advocate-General Punjab, Lahore, who has appeared on behalf of respondent No.2. In support of this petition, the petitioner has contended that the tours conducted by both the functionaries of the State referred to above were of private nature and that the said tours were not at all needed for the betterment of the people and in the interest of Pakistan, but for private purposes as Pakistan is a poor country and every child born in this country is under a debt of Rs.5,000, therefore, the expenditures from public exchequers are not justified on such like private tours. We have asked the learned counsel as to whether he has objected to such like tours which have been undertaken by various functionaries of the State prior thereto and which are being undertaken since the creation of Pakistan? Learned counsel states that he does not
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approve of those tours as well yet he has no explanation for not challenging the legality and propriety of the aforementioned tours either in this petition or previous thereto. We have further asked the learned counsel about his locus standi to ; file this Constitutional petition in view of the protection about the issuance of process by this Court, against the President and Prime Minister of Pakistan, as contained under the provisions of Article 248 of the Constitution? Learned counsel contends that the petitioner being a Muslim Citizen of Pakistan, is entitled to ask for the details of the expenditures from the public exchequers by the public functionaries in the light Of "Nass" relatable to the rule of the great Caliph Hazrat Umar (R.A.) when a Muslim Citizen was allowed to ask the explanation from the Caliph as to wherefrom he had taken the second `Chadar'. He hence states that keeping in view the above Injunction of Islam, which is the Supreme Law of t his country, he has a locus standi to ask for the legality and justification of the expenditures referred to above through this Constitutional petition. In support of his case he has referred to the following cases and verses:--- (1) Islamic Republic of Pakistan through Secretary, Mitry of Interior and Kashmir Affairs, Islamabad v. Abdul Wail Khan, MNA, Former President-of Defunct National Awami Party (PLD .1976 SC 57), (2) Man Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and (3) M/s. Gadoon Packing (Pvt.) Ltd. v. Central Board of Revenue and 5 others (1994 SCMR 2128).
Verse No.188 Para. No.20 Verses Nos. 5, 29 & 40 from Surah `AI-Nisa' Verses Nos. 63 to 67 from Surah `A1-Furqan', Verse No. 3 from Surah ,Al-Aaran' Verses Nos.26 to 27 & 34 from Surah 'Bani israif Verses Nos.40, 76, 77, 96 & 97 from Surah `Ale Imran', Verses Nos.54 to 58 from Surah `Al_Infal Verses Nos.2 to 5 & 15 from Surah `Al-Ahzab', Verse No.177 from Surah `Al-Baqrah', Verse No.10 from Surah `Al-Fateh', . Verses Nos.1, 89 from Surah `Al-Maidah' Verses Nos.1 to 4, 7 to 9,10 to 13 and 75 to 77.from Surah `Al-Tauba' Verse No.188 from Surah `Al-Momnoon', Verses Nos.151-152 from Surah `Al-Inaam', Verses Nos.20 & 21 from Surah `Al-R'ad' Verses Nos.91 & 94 from Surah `AI-Nahal' Verses Nos.14 to 19 from Surah `Al-Mujadilah' Verse No.2 from Surah `Al-Munafqoon' Verse No.3 from Surah `Al-Tahreem' 4. In reply to the above arguments, M/s. Faqir Muhammad Khokhar, learned Deputy Attorney- General of Pakistan and Mr. Farooq Baidar, learned Additional Advocate-General, Punjab have stated that at the time when the people's Government came into power after winning of the general elections, the country was under threat of being declared as a terrorist country, on account of the policies of the previous Government, there were allegations of Narcotics trafficking by the ex- State functionaries and the country had gone at the verge of bankruptcy as a result whereof it was decided by the present regime that efforts should be made through camoflague/under-cover, diplomacy to have good relations with foreign countries including U.S.A., which country is
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undoubtedly as super power these days, and matter, in international affairs. It is in pursuance of this decision that a series of tours and visits were arranged by the Government through delegations of various tiers, headed by various diplomats including the public representatives, to visit the foreign countries and to make them understand the position and point of view of Pakistan on various disputed issues. The questioned visits were also steps taken in the same series, as in Islam even while performing Haj, there is no bar to discuss the issues of mutual interest between the Muslim countries inter se, Heads of which countries are usually present at the time of Haj, which objects were achieved as is clear from the current successful foreign policy, in-flow of foreign investment, good relations with foreign countries and the coming invited tour of Pakistan to U.S.A., that the Head of the Government and Head of the State are entitled as of right to take the decision as to what number and what type of persons are to be included in their entourage during their visit of foreign country; that family members of both the functionaries are entitled to free travel and visit; that expenditures on such like tours are form the budgeted amount and, therefore, it cannot be said that any financial irregularity was committed by the respondent No.1 to arrange for and spend on the questioned tours; that in spite of the protection enjoyed by both the functionaries of the State as per Article 248 of the Constitution, they being staunch believers of independence judiciary and being conscious of their obligation to submit their official acts open to judicial review in the light of the Injunctions of Islam, have decided to furnish complete details of their visits before this Court, which details clearly belie the contentions raised by the petitioner who has come to this Court in a mala fide manner as it is for the first time that he has objected to the legality and propriety of the questioned visits although there has been such like tours many times earlier, including the tours by Gen. Zia-ul-Haq i.e. "Cricket diplomacy tours". 5. We have considered the arguments addressed by the learned counsel for the parties and for detailed reasons to be recorded later. We hold that the questioned tours by the President and Prime Minister of Pakistan were not personal in their objects and were conducted in official capacity for the betterment of people of Pakistan and in the best interest of the country; that no financial irregularity or illegality has been committed by the respondents, while incurring expenditures on the aforementioned tours; that the President of A Pakistan has contributed the expenditure incurred by his family members from his own pocket, which has been done perhaps for the first time in the history of Pakistan, is a commendable act and can be quoted as an example/precedent; that this writ petition is not bona fide and at any rate is barred by principles of estoppel, and, hence, is dismissed. (SD.) CH. MUSHTAQ AHMED KHAN, (SD.) SHARIF HUSSAIN BOKHARI, JUDGES. Date of hearing:1st March, 1995. M.D. Tahir,In person. Petitioner Chief Secretary, etc.M/s. Faqir Muhammad Khokhar, Deputy Attorney-- Respondents byGeneral of Pakistan and Farooq Beidar, Additional Advocate-General, Punjab, Lahore. CH. MUSHTAQ AHMAD KHAN. J. This detailed judgment shall be read in addition to, as a part of and in continuation of short order dated 1-3-1995, whereby the writ petition was dismissed. 2. The facts of the case as well as the detailed arguments addressed by the petitioner and learned counsel for the respondents have been mentioned in the short order, therefore, it will not be necessary to repeat them in this part of the judgment, but the same shall form part of this judgment.
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3. Before embarking upon the detailed discussion of the contentions raised by the petitioner and the learned counsel for the respondents and decision of the issues involved in this matter, it will be appropriate to reproduce brief resume of the relevant case-law on the subject as well as the English translation of verses from Holy Qur'an referred to by the petitioner during the course of arguments. 4. In case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad. v. Abdul Wali Khan, MNA, Former President of Defunct National Awami Party (PLD 1976 SC 57), it has been held that news items in the newspapers in relation to contemporaneous events are admissible in evidence, particularly when such events are of local interest or of such public nature as would be generally known to the community, testimony of eye-witnesses whereof is not available and the same are not contradicted. Similar observations have been made in case of Mian Muhammad 'Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). 5. In case of M/s. M.Y. Electronics Inds. (Pvt.) Ltd. Through Manager. v. Government of Pakistan (Ministry of Finance), Islamabad and 5 others (1994 SCM R 2123), it has been held that the doctrine of legitimate expectations from Head of State, if violated, the power of judicial review to control the actions of the Executive Authorities shall be attracted: TRANSLATION OF VERSES FROM HOLY QUR'AN BY MARMADUKE PICKTHALL. SURAH AN-NISA Verse No. 5---Give not unto the foolish (What) is in your (Keeping of their) wealth, which Allah hath given you to maintain; but feed and clothe them from it, and speak kindly unto them. Verse No.29. --O ye who believe! Squander not your wealth among yourselves in vanity, except it be a trade by mutual consent, and kill not one another. Lo! Allah is ever Merciful unto you. Verse No.40.---Lo! Allah wrongeth not even of the weight of an ant; and if there is a good deed, He will double it and will give (the doer) from His presence an immense reward. SURAH-AL-A `RAF. Verse No.3.---(Saying): Follow that which is sent down unto you from your Lord, and follow no protecting friends beside Him. Little do ye recollect! SURAH AL-BAOARAH Verse-177.---It is not righteousness that ye turn your faces to the East and the West; but righteous is he who believes in Allah and the Last Day and the angels and the Scripture and the Prophets; and giveth his wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor- due. And those who deep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the God-fearing. SURAH AL-INFAL Verse No.54. --(Their way is) as the way of Pharaoh's folk and those before them; they denied the revelations of their Lord, so We destroyed them in their sins. And We drowned the folk of Pharaoh. All were evil doers. Verse No.55.---Lo! The worst of beasts in Allah's sight are the ungrateful who will not believe. Verse No.56.---Those of them with whom thou madest a treaty, and then at every opportunity they break their treaty, and they keep not duty to (Allah). Verse No.57. --If thou comest on them in the war, deal with them so as to strike fear in those who are behind them, that haply they may remember. Verse No.58.---And if thou fearest treachery from any folk, then throw back to them (their treaty) fairly, . Lo! Allah loveth not the treacherous". SURAH AL-TAUBAH. Verse No.1.---Freedom from obligation (is proclaimed) from Allah and His messenger toward those of the idolaters with whom, ye made a treaty.
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Verse No.2.---Travel freely in the land four months and know that ye cannot escape Allah and that Allah will confound the disbelievers (in His guidance). Verse No.3.---And a proclamation from Allah and His messenger to all men on the day of the Greater Pilgrimage that Allah is free from obligation to the idolaters, and (so is) His, messenger. So if ye repent it will be better for your; but if ye are averse, then know that ye cannot escape Allah. Give tidings (O Muhammad) of a painful doom to those who disbelieve. Verse No.4.---Excepting those of the idolaters with whom ye (Muslims) have a treaty, and who have since abated nothing of you right nor have supported anyone against you. (As for these), fulfil their treaty to them till their term. Lo! Allah loveth those who keep their duty (Unto Him). Verse No.7.---How can there be a treaty with Allah and with His messenger for the idolaters save those with whom ye made a treaty at the Invioable place of Worship? So long as they are true to you, be true to them. Lo! Allah loveth those who keep their duty. Verse No.8. ---How (can there be any treaty of the others) when, if they have the upper hand of you, they regard not pact nor honour in respect of you? They satisfy you with their mouths the while their hearts refuse. And most of them are wrongdoers. Verse No.9.---They have purchased with the revelations of Allah a little gain, so they debar (men) from His way. Lo! Evil is that which they are wont to do. Verse No.10. --And they observe toward a believer neither pact nor honour. These are they who are transgressors. Verse No.11.---But if they repent and establish worship and pay the poor due, then are they your brethern-in-religion. We detail Our revelation for a people who have knowledge. Verse No.12.---And if they break their pledges after their treaty (hath been made with you) and assail your religion, then fight the heads of disbelief--Lo! They have no binding oaths--in order that .They may desist. Verse No.13.---Will ye not fight a folk who broke their solemn pledges, and purposed to drive out the messenger and did attack you first? What! Fear ye them? Now Allah hath more right that ye should fear Him if ye are believers. Verse No.75. --And of them is he who made a covenant with Allah (saying): If He give us of His bounty We will give alms and become of the righteous. Verse No.76.---Yet when He gave them of His bounty they hoarded it and turned away, averse. Verse No.77.--So He hath made the consequence (to be) hypocrisy in their hearts until the day when they shall meet Him because they broke their word to Allah that they promised Him, and because they lied. SURAH AR-R'AD. Verse No.20.---Such as keep the pact of Allah, and break not the covenant. Verse No.21.---Such as unite that which Allah hath commanded should be joined, and fear their Lord, and dread a woeful reckoning. SURAH AL-NAHAL. Verse No.91.---Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after the asseveration of them, and after ye have made Allah surety over you. Lo! Allah knoweth what ye do. Verse No.94.---Make not your oaths a deceit between you lest a foot should slip after being firmly planted and ye should taste evil for as much as ye debarred (Men) from the way of Allah, and yours should be an awful doom. SURAH BANI ISRAIL. Verse No.26.--Give the kinsman his due and the needy and the wayfarer and squander not (thy wealth) in wantonness.
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Verse No.27.---Lo! The squanderers were ever brothers of the devils, and the devil was ever an ingrate to his Lord. Verse No.34.---Come not near the wealth of the orphan save with that which is better till he come to strength; and keep the covenant. Lo! Of the covenant it will be asked. SURAH ALE IMRAN Verse No.76.---Nay, but (the chosen of Allah is) he who fulfilleth his pledge and wardeth off (evil); for lo! Allah loveth those who ward off (evil). Verse No.77.---Lo! Those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom. Verse No.96.---Lo! The first sanctuary appointed for mankind was that at Mecca, a blessed place, a guidance to the peoples; Verse No.97. ---Wherein are plain memorials (of Allah's guidance); the place where Abraham stood up to pray; and whosoever entereth it is shall be secure. SURAH AL-FURQAN Verse, No.63.---The (faithful) slaves of the Beneficent are they who walk upon the earth modestly and when the foolish ones address them answer Peace. Verse No.64.---And who spend the night before their Lord, prostrate and standing. Verse No.65. --And those who: Our Lord! Avert from us the doom of hell; lo! The doom thereof is anguish. Verse No.66.---Lol it is wretched as abode and station; Verse No.67.---And who say: when they spend, are neither prodigal nor grudging; and there is ever a-firm station between the two; SURAH AL-AHZAB Verse No.2.---And follow that which is inspired in the from thy Lord. Lo! Allah is Aware of what ye do. Verse No.3. --And put thy trust in Allah, for Allah is sufficient as Trustee. Verse No.4.---Allah hath not assigned unto any man two hearts within his body, nor hath He made your wives whom ye declare (to be your mothers) your mothers, nor hath He made those whom ye claim (to be your sons) your sons. This is but a saying of your mouths. But Allah Sayeth the truth and He showeth the way. Verse No.5.---Proclaim their real parentage. That will be more equitable in the sight of Allah. And if ye know not their fathers, then (they are) your brethren in the faith, and your clients. And there is no sin for you in the mistakes that ye make unintentionally, but what your hearts purpose (that will be sin for you). Allah is Forgiving, Merciful. Verse No.15---And verily they had already sworn unto Allah that they would not turn their backs (to the foe). An oath to Allah must be answered for. SURAH AL-FATH Verse NO.10.---Lo! Those who swear allegiance unto the (Muhammad), swear allegiance only unto Allah. The Hand of Allah is above their hands. So whosoever breaketh his oath, breaketh it only to his soul's hurt; while whosoever keepeth his covenant with Allah, on him will He bestow immense reward. SURAH AL-MUJADALAH Verse No.14.----Hast thou not seen those who take for friends a folk with whom Allah is wroth? They are neither of your nor of them, and they swear a false oath knowingly. Verse No.15.---Allah hath prepared for them a dreadful doom. Evil indeed is that which they are wont to do. Verse No.16.---They make a shelter of their oaths and turn (men) from the way of Allah; so theirs will be a shameful doom.
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Verse No.17. --Their wealth and their children will avail them naught against Allah. Such are rightful owners of the Fire; they will abide therein. Verse No.18.---On the day when Allah will raise them all together then will they swear unto Him as they (now) swear unto you, and they will fancy that they have some standing. Lo! Is it not they who are the liars? Verse No.19.---The devil hath engrossed them and so hath caused them to forget remembrance of Allah. They are the devil's party. Lo! Is it not the devil's party who will be the losers? SURAH AL-TAHRIM Verse No.3: --When the Prophet confided a fact unto one of his wives and when she afterward divulged it and Allah apprised him thereof, he made known (to her) part thereof and passed over party. And when he told her she said: who hath told the? He said: The Knower, the Aware hath told me. 6. We have considered the arguments addressed by the petitioner and the learned counsel for the respondents, have perused the record, the case-law cited at the Bar as well as the cited verses from Holy Quran and have examined the case in the light of the aforementioned Holy verses as well as the case-law, propositions laid down wherein have no cavil, therewith. 6-A. It is a matter of common knowledge that the visit of foreign countries undertaken by the Heads of the Government and State, are presumed to be official unless otherwise proved, no matter whether the same are comouflaged/under cover or invited visits. As per provisions of the Constitution and the law Heads of the State and the Government, are entitled to certain privileges including expenditures on their travelling within and outside the country and for these expenditures, provision is made in the Budget itself. The procedure is also laid down which regulates the expenditures on visits by the High public functionaries. In the case in hand, engagements/commitments of both the Heads of State/Government, in United States of America and Saudi Arabia, during the course of their visits and after effects thereof, like improvement/normalcy of inter se relations, .Better understanding of Kashmir, atomic, terrorism and narcotic issues, reciprocal visits of foreign delegations and Heads of the Government and State, signing of memorandums of understanding of foreign investments in the country and the coming invited visit of Mohtarma Benazir Bhutto, Prime Minister of Pakistan to U.S.A., is a strong piece of evidence to draw an inference that the questioned visits cannot be described as private in nature and were conducted in public good and in the interest and welfare of the people of Pakistan. To further elaborate the above taken view, a cursery galance on the details of the functions attended and meetings, held by the President of Pakistan in U.S.A. Will clearly demonstrate that the main object of the President's visit to U.S.A. Was to discuss the matters of mutual interest between the two countries as their inter se relations had gone strained, serious differences had arisen on all the major issues referred to above and the country was at the verge of being declared as a terrorist country when the people's Government had taken over. There was a misunderstanding about the atomic policy of the Government. There were differences on Kashmir issue. There was a misunderstanding with regard to the involvement of people of Pakistan in Drug and Narcotic trafficking, which are issues of great public importance. Inflow of foreign investment and even from the international organizations like World Bank, etc. Has almost stopped. It is in these circumstances it appears, that the Government in power had decided to take steps to normalise its relations with the foreign countries particularly the U.S.A. Undoubtedly, which is a super power and does matter in the present "world order", and to explain the point of view of Pakistan on all the aforementioned major issues including the issue of foreign investment, and with this end in view various delegations headed by the Parliamentarians and Experts were decided to be sent to U.S.A., Saudi Arabia and other Muslim/other foreign countries. The tour undertaken by the President of Pakistan is also established to be one of the kind in the series of the abovesaid visits.
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The very fact that regarding private part of the visit President of Pakistan contributed expenditures from his own pocket, clearly demonstrates that the Head of the State was quite conscious of his obligation not to spend from public exchequer/funds on private part of his visit and this fact is rather commendable than to be condemned as held by us, in our short order. Similarly, the visit of Prime Minister of Pakistan at the time of Haj alongwith other members of her entourage is also not established to be private in nature. Haj is the occasion whereon most of the Heads of the Muslim countries get together, and, therefore, there is an opportunity to discuss the inter se issues and relations between brotherly Muslim countries, on this sacred occasion. In Islam one major object of collective worship is to discuss and solve internal and external issues pertaining to collective good and betterment of the people.…
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