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2008 S C M R 1631

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and


Muhammad Farrukh Mahmud, JJ

TARIQ MAHMOOD----Petitioner

Versus

THE STATE and others----Respondents

Civil Petition No.682 of 2008, decided on 24th June, 2008.

(On appeal from the order, dated 26-5-2008 of Islamabad High Court, Islamabad, passed
in Writ petition No.2784 of 2006).

(a) Penal Code (XLV of 1860)---

----Ss. 302/324/148 & 149/341/506---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---


Constitution of Pakistan (1973), Art.185(3)---Transfer of case to the Court of ordinary
jurisdiction was assailed by the complainant---Case of accused who had clean past rested
on a lower pedestal than that of terrorists and sectarian criminals who killed innocent
persons either to weaken the State or to cause damage to the parties of the rival sect---
Terrorists or the sectarian killers did not have any personal grudge or motive against the
innocent victims---In the present case admittedly a feud existed between the parties over
a piece of land prior to the occurrence---No independent evidence was available on
record to show that the act of accused led to striking of terror among the masses---Site
plan had denied the claim of the complainant that the occurrence had taken place in a
"Bazaar" which was heavily populated---Criminal cases should be tried and decided by
the Courts having plenary jurisdiction until and unless extraordinary circumstances
existed justifying the trial of the case by special Courts---Impugned order did not call for
any interference---Leave to appeal was declined to complainant accordingly.

Ziauallah v. Special Judge, Anti-Terrorist Court, Faisalabad and 7 others 2002 SCMR
1225; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; State through
Advocate-General N.-W.F.P. Peshawar v. Muhammad Shafique PLD 2003 SC 224;
Azizullah and another v. The State and another 2005 SCMR 802 and Mirza Shaukat Baig
and others v. Shahid Jamil and others PLD 2005 SC 530 distinguished.

Mohabat Ali and another v. The State and another 2007 SCMR 142 ref.

(b) Criminal trial---

---Forum---Determination---Principles---Criminal cases should be tried and decided by


the Courts having plenary jurisdiction, until and unless extraordinary circumstances
existed justifying the trial by Special Courts.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.G. for Respondents Nos.1 and 2.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Respondents Nos.3 to 9.

ORDER

MUHAMMAD FARRUKH MAHMUD, J.--- The petitioner, who is complainant of


case F.I.R. No.61 registered at Police Station Shahzad Town, Islamabad on 24-2-2006 for
offences under' sections 302, 324, 148, 149, 341, 506 P.P.C. read with section 6-7 of Anti-
Terrorist Activities, Act 1997, has assailed the order dated 26-5-2008 handed down by the
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learned Division Bench of Islamabad High Court, Islamabad whereby the petition
seeking setting aside order dated 3-11-2006 passed by the learned Judge Special Court-II,
Anti-Terrorism whereby the case was transferred to the Court of ordinary jurisdiction,
was dismissed.

2. Precisely, the relevant facts are that on 24-2-2006 at about 3-00 p.m., the complainant
party was criminally assaulted by respondent-accused who were armed with deadly
weapons like rifle, repeater, 12 bore gun and rifles resembling Kalashnikov. Due to firing
of the respondent-accused Shahid Mahmood lost his life while Sardar Asghar and Azram
P.Ws. received injuries on the complainant side. Ghazanfar Shah, a passerby also
received injuries. According to F.I.R., the occurrence took place at Sahi Chowk Kuri
Road when the deceased along with P.Ws. was going back to his house while driving his
car. The complainant in his own car along with Iqbal was following the car being driven
by Shahid Mahmood deceased. The motive behind the occurrence was that a feud existed
between Shahid Mahmood deceased, Tahir Mahmood and the respondent-accused over a
piece of land and an altercation took place between the parties, earlier, at 10-00 a.m. on
the same date.

3. After investigation report under section 173, Cr.P.C./challan was submitted against the
accused in-the Anti-Terrorism Court. The accused moved application on 24-5-2006 under
section 23 of the Anti-Terrorism Act, 1997 seeking transfer of the case to the Court of
ordinary jurisdiction. The learned Judge Anti-Terrorism Court, after recording the
statements of complainant and eye-witnesses, vide order dated 3-11-2006 deemed it fit to
accept the application of the respondent and transferred the case to the Court of ordinary
jurisdiction. The complainant filed petition against the said order of the learned Judge,
Anti-Terrorism Court which was dismissed by the Division Bench of Islamabad High
Court, Islamabad as mentioned above. Hence this petition.

4. The learned counsel for the petitioner has heavily relied on the provision of section 6
(as amended in 2001) and referred to subsections (2) and (3) of section 6 of the said Act.
The same is being re-produced for ready reference:---

"6. Terrorism.--- (1) -----------------------------

(2) An "action" shall fall within the meaning of subsection (1), if it:

(a) involves the doing or anything that causes death;

(b) involves grievous violence against a person or grievous bodily injury or harm
to a person;

(c) involves grievous damage to property;

(d) involves the doing of anything that is likely to cause death or endangers a
person's life;

(e) involves kidnapping for ransom, hostage-taking or hijacking; (ee) involves use
of explosives by any device including bomb blast;

(ee) incites hatred and contempt on religious, sectarian or ethnic basis to stir up
violence or cause internal disturbance;

(f) involve stoning, brick-batting or any other form of mischief to spread panic;

(g) involves firing on religious congregations, mosques, Imam Bargahs, churches,


temples and all other places of worship, or

(h) random firing to spread panic, or involves any forcible takeover of mosques or
other places of worship;

(i) creates a serious risk to safety of public or a section of the public, or is


designed to frighten the general public and thereby prevent them from coming out
and carrying on their lawful trade and daily business, and disrupts civic life;
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(j) involves the burning of vehicles or any other serious form of arson;

(k) involves extortion of money (Bhatta) or property;

(l) is designed to seriously interfere with or seriously disrupt a communication


system or public utility service;

(m) involves serious coercion or intimidation of a public servant in order to force


him to discharge or to refrain from discharging his lawful duties; or

(n) involves serious violence against a member of the police force, armed forces,
civil armed forces, or a public servant.

(3) The use or threat or use of any action falling within subsection (2), which
involves the use of fire-arms, explosives or any other weapon, is terrorism,
whether or not subsection 1(c) is satisfied."

5. The learned counsel has further submitted that the occurrence took place in a Bazaar
and that the respondent accused resorting to indiscriminate firing which was evident from
the fact that 63 empties were recovered from the spot; that the respondent accused used
automatic and semi-automatic weapon during the occurrence which attracted the
provisions of subsection 3 of section 6 of the said Act and that the act of respondent
created sense of fear and insecurity in the public. In this regard, he referred to the place of
occurrence and the fact that one passerby, Ghazanfar Shah, also received injuries. The
learned counsel further argued that the learned Judge Anti-Terrorism Court kept pending
the application under section 23 of the Act filed by the respondent and decided the same
after considerable delay on 3-11-2006 after about five and a half month of filing of the
application. The learned counsel has relied on the following judgments of this Court:---

(1) Ziauallah v. Special Judge, Anti Terrorist Court, Faisalabad and 7 others 2002
SCMR 1225, (2) Mst. Raheela Nasreen v. The State and another 2002 SCMR 908,
(3) State through Advocate-General N.-W.F.P. Peshawar v. Muhammad Shafique
PLD 2003 SC 224, (4) Azizullah and another v. The State and another 2005
SCMR 802, (5) Mirza Shaukat Baig and others v. Shahid Jamil and others PLD
2005 SC 530.

6. The Deputy Prosecutor-General Punjab appearing on behalf of respondents Nos.1 and


2 has adopted the line of arguments of the learned counsel for the petitioner.

7. Conversely, the learned counsel for the respondent-accused has submitted that the
application seeking transfer, of the case was filed without any delay, after submission of
challan but the same was decided after recording of statements of complainant and eye-
witnesses by the learned Judge Anti-Terrorism Court in the light of the judgment passed
by this Court in the case of Mirza Shaukat Baig's case supra. The learned counsel has
further argued that it was admitted in the F.I.R. itself that dispute existed between the
parties over a piece of land, hence it was a case of private motive. The learned counsel
has further argued that in the F.I.R., it was mentioned as follows:---

8. But during the trial witnesses made dishonest improvement in order to bring the case
within the ambit of provisions of Anti-Terrorism Act; that mere use of fire-arms would
not be enough to bring the case within the scope of Anti-Terrorism Act; that both the
Courts below after considering the whole case concluded that there was no evidence that
the act of respondent accused struck any terror among the masses. The learned counsel
has further submitted that the learned Judge Anti-Terrorism Court has correctly referred
to site-plan according to which the place of occurrence was not a busy, populated area
rather the occurrence took place on a service road and the place of occurrence was
situated neither in the populated area nor in bazaar. The learned counsel has further
argued that prosecution opted not to produce Ghazanfar Shah, injured passerby, before
the learned Judge Anti-Terrorism Court. While relying on the case of Mirza Shaukat
Baig's case supra and the case of Mohabat Ali and another v. The State and another 2007
SCMR 142 the learned counsel summed up his arguments that each criminal case was to
be decided on its merits and circumstances and that the case-law on the circumstances of
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the case could not be referred to as binding.

9. We have heard the learned counsel for the parties at length and have also gone through
the relevant record of the case. In our opinion, the case of the respondent accused, who
have clean past, rests on a lower pedestal than that on terrorists and sectarian criminals
who killed innocent persons either to weaken the State or to cause damage to the parties
of the rival sect. The terrorist or the sectarian killers do not have any personal grudge or
motive against the innocent victims. The instant case is clearly distinguishable as
admittedly a feud existed between the parties over a piece of land prior to the occurrence.
There is no independent evidence available on the record to show that the act of the
respondents led to striking of terror among the masses. The site-plan denies the claim of
the complainant that the occurrence took place in a bazaar which was heavily populated.
It is a well-settled law that criminal cases should be tried and decided by the Courts
having plenary jurisdiction until and unless extraordinary circumstances existed
justifying the trial of the case by Special Courts. The cases cited by the learned counsel
for the petitioner do not apply to the circumstances of this case as in Ziaullah's case
(supra), the occurrence took place within the court vicinity and the deceased advocate
was done to death while he was on his way to conduct trial of a murder case. In the case
of Mst. Raheela Nasreen (supra), the accused murdered her husband who was a serving
army officer with the connivance of Batman and this incident struck terror and insecurity
amongst the army officers. In the case of State through Advocate-General, N.-W.F.P.
Peshawar v. Muhammad Shafique supra, the accused firstly sprinkled petrol on the
deceased and then fired at him with his Kalashnikov. The body of the deceased was
completely charred and the charred dead body of the deceased when brought for funeral
rites caused shock, fear and insecurity among the residents of the vicinity. The very act
was barbaric. In the case of Azizullah and another (supra), the abductees were kidnapped
for ransom and kept hostage in the house of the accused. So the learned Division Bench
was correct in holding that the circumstances of the referred to cases did not apply to the
instant case.

10. In the above-noted circumstances, we are not inclined to interfere with the impugned
order passed by the learned Division Bench of Islamabad High Court, Islamabad. This
petition is dismissed. Leave refused.

N.H.Q./T-7/SC Leave refused.

Page No. 4 of 1
P L D 2005 Supreme Court 806

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

PAKISTAN RED CRESCENT SOCIETY and another---Appellants

Versus

Syed NAZIR GILLANI---Respondent

Civil Appeal No. 1080 of 1998, decided on 1st June, 2005.

(On appeal from the judgment dated 19-3-1997 of the Lahore High Court, Rawalpindi
Bench, passed in I.C.A. No.2 of .1992).

Pakistan Red Crescent Society Act (XV of 1920)---

----Ss. 2, 4 & 5---Pakistan Red Crescent Society (Staff) Service Regulations, 1974---
Constitution of Pakistan (1973). Art.199---Constitutional petition before High Court by
employee of the Society seeking his reinstatement in Society's Service---
Maintainability----Legal Character of Pakistan Red Crescent Society---Determination---
Society could not be treated as a person performing function in connection with the
affairs of the Federation or the Province---Pakistan Red Crescent Society (Staff) Service
Regulations, 1974 being non-statutory, employee of the Society would not be legally
entitled to the invocation of Constitutional jurisdiction of High Court seeking his
reinstatement---Employee of a Corporation, in the absence of violation of law or any
statutory rules could not press into service the Constitutional jurisdiction of High Court
or Civil jurisdiction for seeking relief of reinstatement in service as in the case of such an
employee where protection could not be sought under any statutory instrument or
enactment the relationship between the employer and employee was that of a Master and
Servant---Remedy for such an employee against wrongful dismissal or termination was to
claim damages--Constitutional jurisdiction as conferred upon the High Court under
Art.199 of the Constitution could not have been invoked by the employee of the Society.

Muhammad Saleemullah v. Trustees of the Port of Karachi and others PLD 1975
Kar.358; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Walayat Ali Mir v.
P.I.A.C. 1995 SCMR 650; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC
101; Managing Director, SSGC Ltd., v. Ghulam Abbas PLD 2003 SC 724; I.A Sharwani
v. Government of Pakistan 1991 SCMR 1041; I)r. Naveeda Tufail v: Government of the
Punjab 2003 SCMR 291; Zalar All Shah v. Pervez Musharraf, Chief' Executive of
Pakistan PLD 2000 SC 869; Karachi Development Authority v. Wali Ahmed Khan 1991
SCMR 2434; Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549: Tahira Almas v.
Islamic Republic of Pakistan PLD 2002 SC 830; Muhammad Nazir Khan v. Mubashar
Page No. 1 of 1
Hasan PLD 1974 Lab. 49 and Muhammad Baran v. Member (Settlement and
Rehabilitation) PLD 1991 SC .691 distinguished.

Principal, Cadet College, Kohat. v. Muhammad Shoab Qureshi PLD 1975 SC 678; Anwar
Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Chairman
WAPDA v. Syed Jamil Ahmed 1993 SCMR 346: Muhammad Umar Malik v. The Muslim
Commercial Bank Ltd. 1995 SCMR 453, Habib Bank Ltd. v. Syed Zia-ul-Hassan Kazmi
1998 SCMR 60; .Mrs. Anisa Rehman v. 1994 SCMR 2232; Muhammad Salimullah v.
Trustees of the Port of Karachi PLD 1975 Kar. 758; Ziaullah Khan Niazi v. Chairman
Pakistan Red Crescent Society 2004 SCMR 189; Chairman' WAPDA v. Jamil Ahmed
1993 SCMR 346; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation
PLD 1981, SC 224; The Principal, Cadet College, Kohat and another v. Muhammad
Shoaib Qureshi PLD 1,984 SC 170; National Bank of Pakistan v. Sindh Labour Appellate
Tribunal and others 1990 PLD 197; National Bank of Pakistan v. Manzoorul Hassan 1989
SCMR 832; Muhammad Mumtaz Javed v. Pakistan through, Secretary, Ministry of
Communication, Government of Pakistan and` 2 others 1988 PLC (C.S.) 705; Mrs. M. N.
Arshad and others v. Miss Naeema Khan and others. PLD 1990 SC 6.12; Messrs Malik
and Haq and another v: Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961
SC 531; Zainul Abidin v. Multan Central Cooperative Bank `Limited Multan PLD 1966
SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and
`another v. Rustom Aim and another PLD 1966 SC 848;, Abdul Salani Mehta v.
Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt.
Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566: R.T.A.
Janjua v. National Shipping Corporation PLD 1974 SC 146; Syed Akbar Ali Bokhari v.
State Bank of Pakistan and others PLD 1977 Lah. 234 and The Evacuee Trust Property
Board and another v. Muhammad Nawaz 1983 SCMR 1275 ref.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and Ejaz Muhammad
Khan, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali,
Advocate-on-Record for Respondent.

Date of hearing: 16th December, 2004.

JUDGMENT

JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment
dated 19-3-1997 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi,
whereby the Intra-Court Appeal preferred on behalf of Syedh Nazir Gillani (respondent)
has been accepted and judgment dated 10-12-1991 passed by the learned Single Judge
dismissing the writ petition of the respondent has been set aside.

2. Leave to appeal was granted by this Court vide order dated 30-6-1998 which is
reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:--

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"The respondent challenged termination of his services by the petitioner No.1 before the
Lahore High Court. Contention raised on behalf of the respondent was that under the
Pakistan Red Crescent National Headquarters (Staff) Service Regulations 1974, the
Executive Committee of the petitioner was not empowered to terminate the respondent's,
services. An objection was raised on behalf of the petitioners that the said regulations had
no statutory character nevertheless, the petition was allowed by the High Court and the
respondent was ordered to be reinstated in service.

Maulvi Anwarul Haq, learned counsel for the petitioners has argued that firstly, even
assuming that the said Regulations were framed under the rule making power vesting in
the Managing Body of the petitioners under section 5 of the Pakistan Red Crescent
Society Act No.XV of 1920 nevertheless, the said regulations are not statutory in
character as no condition has been prescribed in Rule 5 reserving the power of
supervision to the Government or any other body but the power to frame regulations has
been left to the discretion of the said Society with no protection under the statute itself.
Therefore, the relationship between the parties is purely governed by the principle of
master and servant. Secondly, the contention was that the respondent was purely
governed by a contract of service under which the petitioners had reserved for themselves
the right to terminate his services which was within their own discretion. Reliance in this
regard has been placed on the Principal, Cadet College, Kohat, v. Muhammad Shoab
Qureshi (PLD 1975 SC 678), Anwar Hussain v. Agricultural Development Bank of
Pakistan (PLD 1984 SC 194), Chairman WAPDA v. Syed Jamil Ahmed (1993 SCMR
346), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. (1995 SCMR 453)
and Habit) Bank Ltd., v. Syed Zia-ul-Hassan Kaznii (1998 SCMR 60).

Mr. M. Akram Shaikh, learned counsel for the respondent on the other hand, has argued
that no condition providing for such protection to the regulations has been made in Rule 5
of the said Act and power to frame rules has been left entirely to the discretion of the
Managing Body of the Society therefore, the said regulations which have strictly been
framed within the power conferred upon the Managing Body under the said section have
the same force as statutory rules. Reliance has been placed by the learned counsel on the
cases of Mrs. Anisa Rehman v. P.I.A.C. (1994 SCMR 2232) and Muhammad Salimullah
v. Trustees of the Port of Karachi (PLD 1975 Kar. 758).

In our view, the question raised on behalf of the petitioners requires consideration. Leave
is, therefore, granted."

3. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court entered


appearance on behalf of appellants and urged with vehemence that the legal and factual
aspects of the controversy have not been appreciated in its true perspective which
resulted in serious miscarriage of justice as the learned Lahore High Court has ignored
that, the services of the respondent were not governed by any statutory rules. It is
contended emphatically that the Pakistan Red. Crescent Society Act, 1920 (hereinafter
referred to as the "Act") does not confer upon the Federal Government or its departments
any power to make rules or regulations qua the service of employees of the Pakistan Red
Crescent Society. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court
while elaborating the said contention argued that section 5 of the Act requires the
Managing Body of the appellants to make rules for the management, control and
procedure of the Society. No approval of the Federal Government is required for such
purposes. It is also argued that it is well-entrenched legal proposition that where the
Government, while setting up the Corporation, 'does, not reserve to itself the power to
regulate the terms of the services of the Corporation employees under the relevant statute
and does not prescribe any condition but leaves it to the discretion of the Corporation by
empowering it to frame Rules or Regulations in respect thereof without the intervention
of the Government then the Corporation will be the sole arbiter in the matter of
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prescribing the terms and conditions of its employees and will he competent to deal with
them in accordance with the terms and conditions prescribed by it. It is pointed out that in
the writ petition there was no allegation that the order of termination of service has not
been issued by the Competent Authority. It is further argued that the learned Division
Bench has erred while holding that the order of termination was passed by some
incompetent authority because order dated 10-6-1978 was issued by the Secretary
General informing the respondent under directions of the Chairman of the Managing
Body of the Society regarding termination of his services after one month's notice in
accordance with the terms and conditions of his services duly incorporated in his
appointment letter. It is urged emphatically that the learned High Court has ignored that
under the relevant rules the Chairman of the Managing Body is also the Chairman of the
Executive Body. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court
has referred the provisions as contained in Rule 18(f) of the Act whereby the Executive
Body is empowered to perform any duty laid on the Managing Body subject to the
condition that any action taken by it shall be informed to the Managing Body during the
next meeting. It is pointed out that the decision regarding the termination of respondent's
service was taken in the meeting of the Executive Committee dated 8-6-1978 and it was
reported to the Managing Body during its meeting held on 21-9-1978 which was
subsequently confirmed on 16-12-1978 and accordingly the order was passed in
accordance with the rules and regulations. It is contended that for the sake of argument if
it is admitted that some irregularities were committed and the regulations in question
were not followed in letter and spirit even then it would have no substantial bearing on
the merits of 'the case because all such regulations are not statutory and are directory in
nature enacted to run the business of the Society in a befitting manner. Khawaja
Muhammad Farooq, learned Senior Advocate Supreme Court on behalf of appellants
contended that the dictum laid down in case of Muhammad Saleemullah v. Trustees of
the Port of Karachi and others (PLD 1975 Kar. 358) has been misconstrued and
misinterpreted which cannot be made applicable to the case of respondents as the
regulations framed by the Board of Karachi Port Trust were statutory in nature which
aspect of the matter has been ignored by the learned High Court without any rhyme and
reason. It is argued that neither the writ petition was maintainable nor the civil suit could
have been filed by the respondent for reinstatement and the only remedy available in
such-like cases is that where wrongful dismissal is alleged, the suit for damages could
have been filed by invoking the principle of Master and Servant which escaped from the
notice of the High Court causing serious prejudice to the appellant.

4. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court entered
appearance on behalf of respondent and has strenuously controverted the views point as
canvassed at bar on behalf of appellants by supporting the judgment impugned for the
reasons enumerated therein with further submission that the rule of Master and Servant
does not apply in cases where the terms and conditions of service are regulated by rules
irrespective of the fact whether the same are statutory or otherwise. It is pointed out that
in case of violation of statutory rules the remedy of an aggrieved person is invocation of.
Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of
Pakistan as well as a civil suit and in case of non-statutory rules the remedy of Service
Tribunal was held to be available. In this regard reliance has been placed on the following
cases:

Mrs. M. N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Walayat Ali Mir v.
P.I.A.C. (1995 SCMR 650), Dr. Anwar Ali Sahto v. Federation of Pakistan (PLD 2002 SC
101), Managing Director, SSGC Ltd., v. Ghulam Abbas (PLD 2003 SC 724).

5. It is also argued that the concept of Master and Servant is no more available as with the
passage of time various drastic changes have been made in it and now it has been
universally accepted that the right of an individual could not hang to the fancies of
individuals yielding State power which is a serious matter to be left to their arbitrary or
capricious whims. When the discretion is structured, then adherence to such structured
Page No. 4 of 1
exercise of authority is insisted by all Courts upholding to the principle of rule of law and
supremacy of Constitution. In this regard reference has been made to the dictum laid
clown in case of Walayat Ali Mir v. Pakistan International Airlines Corporation (1995
SCMR 650). Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court by
elaborating the said argument further contended that the employees in public undertaking
have a fundamental right enshrined in Article 9 of the Constitution of Islamic Republic of
Pakistan and such right is not only enforceable horizontally but also vertically. In this
regard reference has been made to the case of I.A. Sharwani v. Government of Pakistan
(1991 SCMR 1041) and Dr. Naveeda Tufail v. Government of the Punjab (2003 SCMR
291). It is argued with vehemence that the Pakistan Red Crescent Society is not an
independent entity and a vital part of its functions have been assigned to the Government
hence by no stretch of imagination it can be inferred that the rules and regulations of the
Society can be enacted or framed by the Society itself without any interference from the
Government. Mr.' Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court on
behalf of respondent specifically mentioned section 3(i)(ii)(iii) of the Act whereby
President of Pakistan is authority to appoint thirty members of the first Managing Body
being President of the Society. It is pointed out that pursuant to section 8(1-A) of the Act,
it is the President who appoints the Chairman of the Branch Committee of the capital of
Federation and the Property pertained to the Society vests in the Branch Committee of
each Province in the manner and to such extent as may be determined by the President of
Pakistan. It is pointed out that Vice President of the Society shall be the Minister Incharge
of Health as ex .officio and besides the general meetings are required. to be presided over
by the President of Pakistan and such meetings are also convened by the President who is
also authorized to call extraordinary general meeting of the Society whenever so
considered. It is pointed out that the President of Pakistan also nominates the Chairman
of the Managing Body and also appoints three officers of the Federal Government on the
Managing Body. It is also mentioned that the President of Pakistan through Provincial
Governors and the President of Azad Kashmir appoints five Chairmen of Branch
Committees and one Chairman of Azad Kashmir Branch of the Managing Body. It is next
argued that the Society plays a significant role in the affairs of the Federation specially
during suffering or distress caused by the operation of war in Pakistan or any other
country in which ,expeditionary forces from Pakistan, may, from time to time, be
employed and for purposes cognate to that object and in maintaining Red Crescent
Depots for military purposes. Mr. Muhammad Akram Sheikh, learned Senior Advocate
Supreme Court after relying upon the various provisions of the Act, as mentioned
hereinabove, concluded that Pakistan Red Crescent Society is not an independent entity
having no exclusive domain or function but requires to play a significant role in the
affairs of Federation which cannot be done by keeping the Pakistan Red Crescent Society
aloof or in isolation. It is next argued that any action of the Pakistan Red Crescent Society
is justiciable and subject to judicial review. In this regard reference has been matte to the
case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC
869) and Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434). It is
argued that a private body, while performing certain functions, could be subject to the
judicial review. In this regard reference has been made to the book titled "Judicial Review
of Administrative Action" by de Smith, Woolf & Jowell. It is contended that learned High
Court was fully competent to dilate upon the controversy and decide the same pursuant to
Article 199 of the Constitution of Islamic Republic of Pakistan whereby such controversy
could be examined and decided. In this regard reliance has been placed to the case of
Anwar Aziz v. Federation of Pakistan (PLD 2001 SC 549), Tahira Almas v. Islamic
Republic of Pakistan (PLD 2002 SC 830). It is urged with vehemence that the
functionaries of State, statutory bodies and statutory corporations including statutory
Universities were required to act strictly within the defined spheres of their authority
conferred by law. Any transgression, abuse of power or colourful exercise thereof by such
functionaries was open to judicial review by the High Court in its Constitutional
jurisdiction. Reference in this regard has been made to Muhammad Nazir Khan v.
Mubashar Hasan (PLD 1974 Lah. 49) and Muhammad Baran v. Member (Settlement &
Rehabilitation) (PLD 1991 SC 691). While concluding the said point it is argued that the
High Court in exercise of its extraordinary Constitutional jurisdiction tinder Article 199
of the Constitution enjoys very wide and immense powers to correct error, issue any
order or direction in the interest of justice and to safeguard the fundamental rights of the
citizens guaranteed by the Constitution. Lastly it is argued that the Pakistan Red Crescent
Society being a statutory entity cannot violate its own regulations having the sanctity of
law and all such actions Fan be declared null and void.
Page No. 5 of 1
6. We have carefully examined the respective contentions as agitated .on behalf of the
parties and perused the judgment passed by learned Single Bench of the Lahore High
Court, Lahore in writ petition as well as the judgment impugned whereby Intra-Court
appeal was disposed of. After having gone through the relevant record we are of the view
that the entire controversy revolves around the legal character of Pakistan Red Crescent
Society, which requires determination to set the controversy at naught. There is no cavil
to the proposition that the precise and prime object of the Society is to provide relief and
other aid to the sick and wounded and other purposes of a like nature. It is to be noted
that the nature and character of the Pakistan Red Crescent Society was examined in
Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society (2004 SCMR 189) and it
was observed as follows:-

"5. We have heard the learned counsel for the parties at length. We find that the
respondent-Society was constituted by the provisions of section 2 of the Pakistan Red
Crescent Society Act (XV of 1920) (hereinafter referred to as the Act). Its operational
area covers the whole of Pakistan. The President of Islamic Republic of Pakistan is the
President of the Society as provided by section 3 of the Act. By section 4 of the Act it is a
body corporate having perpetual succession and a common seal with power to hold and
acquired property, movable and immovable and may sue or be sued by the name of the
Society. As enumerated in the General Principles of Society, its object and principal aims
include the prevention and alleviation of the suffering with complete impartiality both at
national and international level and to render voluntary aid to the sick and wounded of
the armed forces in times of war in accordance with spirit and conditions of the Geneva
Conference and the Treaties of Red Cross to which Pakistan has given its adhesion. The
Act, being an existing law was amended by the Central Legislature/Parliament from time
to time. The Society cannot be treated as a person performing functions in connection
with the affairs of the Province. Therefore, the employees of the Society cannot be treated
as civil servants of the Province of Punjab, by any stretch of imagination. They cannot
invoke the jurisdiction of the Punjab Service Tribunal merely on the ground that they are
employed in the provincial branch of the Society. The impugned judgment of the Tribunal
suffers from defect of jurisdiction."

7. A careful perusal of the above mentioned observations would reveal that it has been
decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as
'a person performing function in connection with the affairs of the Federation or
Province. We are conscious of the fact that the President of Pakistan is the President of
the Pakistan Red Crescent Society and Minister Health, Government of Pakistan, is the
ex officio Vice-President but it would have no substantial bearing on the legal character
of the Society because no budget allocation A has been made by the Federal Government
and np share capital is involved. The Pakistan Red Crescent Society generates its income
from the donation made by public and allocation from International Agencies having a
charitable character. Occasionally the Pakistan Red Crescent Society may get some
"grant" and "aid" from Government but it cannot be equated to that of "regular budget
allocation" and thus its independent entity remains unaffected. Besides that the Managing
Body patrons arerequired to contribute Rs.10,000, Life Time Members Rs.500 and the
Annual Members and Associate Members contribute Rs.12 and Rs.2 per annum
respectively. The Society may request for foreign assistance and donation usually made
by various Governments at the time of emergency. Besides that to raise funds, the Society
holds Red Cross weeks, raffles Meena Bazaar and general appeals soliciting public
donations. It is pertinent to point out that under section 5 of the Act the management and
control of the affairs of the Society exclusively vests in A the Managing Body. Basically
the Society has its genesis in Geneva Convention which was initially held on October 26,
1863 which was followed by Hague Convention and it was universally agreed that Red
Cross/Red Crescent Societies are going to be absolutely non-political and they would
have access to take care of the sick and wounded without any hindrance, In the light of
what has been mentioned hereinabove, the only inescapable conclusion would be that
Page No. 6 of 1
Federal or Provincial Governments have nothing to do with the affairs of the Society and
vice-versa.

8. The other important question would be whether the services of respondent were
governed by any statutory rules or otherwise? It transpired from the scrutiny of record
that the disciplinary proceedings were initiated against the respondent under the Pakistan
Red Crescent Society (Staff) Service Regulation, 1974 (hereinafter referred to as the
'Regulation'). First of all we have to examine the nature of the Regulation to see as to
whether it is statutory or non-statutory. The Regulation was framed pursuant to powers as
conferred upon the Managing Body of the Pakistan Red Crescent Society under section 5
of the Act, which is reproduced hereinbelow for ready reference:-

"5. Power to make Rules. The Managing Body shall within 6 months of its constitution
make Rules for the management, control and procedure of the Society. The Rules may
provide among other matters for the following namely:----

(a) the conditions of membership of the Society;

(b) the appointment and term of office of members of the Managing Body;

(c) the choice of representatives of international and other Committees;

(d) representation on the Managing Body of Provincial and State Branch Committees and
affiliated societies and bodies;

(e) the constitution of Finance, Medical and other Committees and the delegation of
powers to them; and

(f) the regulation of the procedure generally of the Society and Managing Body."

9. A careful perusal of the said rule would indicate that the "Managing Body" is
competent to frame rules for the management, control and procedure of the Society. The
rule-making powers has been conferred upon the Managing Body in an unambiguous
manner and from whatever angle it is interpreted no role for framing of rules has been
assigned to the Government and moreso no such role has been reserved by the
Government for itself. It is worth-mentioning that no sanction or approval from any
quarter including the Government is required for framing of such rules, which shall be
framed by the "Managing Body" alone. It can thus safely be inferred that the powers qua
rule-making exclusively fall within the jurisdictional domain of "Managing Body" and
the ultimate conclusion would be that the rules'' or regulations framed by the Managing
Body are non-statutory. It is well-settled by now that "where the Government while
setting up a Corporation does not reserve to itself the power to regulate the terms of
service of the Corporation's employees under the relevant statute and does not prescribe
any condition, but leaves it to the discretion of the Corporation by

Page No. 7 of 1
empowering it to frame rules or regulations in respect thereof without the Government's
intervention, then the Corporation will be the sole arbiter in the matter of prescribing
the terms and conditions of its employees and will be competent to deal with them in
accordance with the terms and conditions prescribed by it. In such a case neither a suit
nor a writ petition for the relief of reinstatement will be competent and the remedy of an
employee, for wrongful dismissal from or of termination of service will be a suit for
damages as the principle of master and servant will be applicable. However, where the
terms and conditions of service of an employee of a statutory Corporation is regulated by
a statute or statutory rules, any action prejudicial taken against him in derogation or in
violation of the statute and/or the statutory rules will give him a cause of action to file a
suit or a writ petition for the relief of reinstatement, as the power of the Corporation will
be fettered with the statutory provisions and the principle of master and servant will not
be applicable. For the purpose of deciding the factum, whether the rules or the regulations
of a Corporation have the statutory force, the determining factor will not be their form or
name, but the source under which they have been framed." (Emphasis provided)
Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346), Muhammad Yusuf Shah v.
Pakistan International Airlines Corporation (PLD 1981 SC 224).

10. We have also examined the Regulation in the light of criterion as mentioned
hereinabove and we are of the considered opinion that the Regulation having been framed
under section 5 of the Act did not have the statutory force and therefore, the respondent
would not be legally entitled for the invocation of Constitutional jurisdiction for seeking
his reinstatement. In this regard reference can be made to the following authorities:--

Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224;
The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD
1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984
SC 194; National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others 1990
PLC 197; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Muhammad
Mumtaz Rived v. Pakistan through Secretary, Ministry of Communication, Government
of Pakistan and 2 others 1988 PLC (C.S.) 705 and Mrs. M. N. Arshad and others v. Miss
Naeema Khan and others PLD 1990 SC 612.

11. We have also adverted to the question as to whether the respondent could have
invoked the Constitutional jurisdiction for the redressal of his grievances or otherwise? It
is settled law that an employee of a corporation in the absence of violation of law or any c
statutory rule could not press into service the Constitution jurisdiction or civil jurisdiction
for seeking relief of reinstatement in service. His remedy against wrongful dismissal or
termination is to claim damages. In this regard we are fortified by the dictum laid down
in the following authorities:-

M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612, Messrs Malik and Haq and
another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531:
Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445;
The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v.
Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and
Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad
v. Oil & Gas Development Corporation 1971 SCMR 566, R.T.A. Janjua v. National
Shipping Corporation PLD 1974 SC 146, The Principal, Cadet College, Kohat and
another v. Muhammad Shoab Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural
Development Bank of Pakistan and another PLD 1984 SC 194, Syed Akbar Ali Bokhari
v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v.
Pakistan International Airlines Corporation PLD 1981 .SC 224, the Evacuee Trust
Property Board and another v. Muhammad Nawaz 1983 SCMR 1275.

Page No. 8 of 1
12. It may not be out of place to mention here that this Court has consistently held that in
the case of an employee of a corporation where protection cannot be sought under any
statutory instrument or enactment D the relationship between the employer and employee
is that of a Master and Servant as enunciated in various judicial pronouncements which
still hold the field are as under: -

(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC
848);

(ii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak)
210);

(iii) Shahid Khalil v P.I.A.0 Karachi (1971 SCMR 568);

(iv) A. Ceorge v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748)

(v) Muhammad Umar Malik v. The Muslin Commercial, Bank Ltd. through its President,
Karachi and 2 others (1995 SCMR 453);

(vi) Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60);

(vii) Raziuddin v. Chairman, P.I.A.C (PLD 1992 SC 531);

(viii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836)

(ix) Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR
1404)

(x) Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597)

(xi) Zeba Mumtaz v. First Women Bank Ltd (PLD 1999 SC 1106)

13. We have also examined the case-law as referred to by Mr. Muhammad Akram Sheikh,
learned Senior Advocate Supreme Court which is not applicable being distinguishable.

Page No. 9 of 1
14. The upshot of the above mentioned discussion is that the appeal is accepted and
judgment impugned is set aside. The Constitutional jurisdiction as conferred upon the
High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan
could not have been invoked by the respondent. The respondent may approach the forum
concerned for rederssal of his grievance, if so desired.

M.B.A./P-39/S Appeal accepted.

Page No. 10 of 1
P L D 2004 Supreme Court 682

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

CHIEF ENGINEER, IRRIGATION DEPARTMENT, N.-W.F.P. PESHAWAR and 2


others---Petitioners

Versus

MAZHAR HUSSAIN and 2 others---Respondents

Civil Petition No. 14-P of 2004, ,decided on 22nd April, 2004.

(On appeal from the judgment dated 30-10-2003 of the Peshawar High Court, Peshawar
passed in Writ Petition No.820 of 2003).

(a) Qanun-e-Shahadat (10 of 1984)-----

----Art. 133---Fact in examination-in-chief not cross-examined---Effect---Such part of the


statement given in examination-in-chief shall be deemed to be admitted and accepted.

Waqar v. Faqir Ali 1969 SCMR 189 ref.

(b) North-West Frontier Province Public Property (Removal of Encroachment) Act (V of


1977)----

----Ss. 11, 12, 13 & 14---Constitution of Pakistan (1973)., Art. 185(3)--Removal of


encroachment---Public property---Determination--Jurisdiction of Civil
Court---Respondents invoked jurisdiction of the Tribunal constituted under S.12 of
North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977
seeking declaration regarding disputed plot owned and possessed by them being not a
public property---Tribunal decided the matter in favour of the respondents and declared
the plot as not a public property---Against the decision of the Tribunal, the authorities
filed Constitutional petition which was dismissed by' High Court---Plea raised by the
authorities was that the Tribunal had no jurisdiction to pass such declaration
---Validity--Tribunal had exclusive jurisdiction under S.13 of North West Frontier
Province Public Property (Removal of Encroachment) Act, 1977, to adjudicate upon a
dispute as to whether any property was not a public property and for that purpose the
respondents had rightly invoked jurisdiction of the Tribunal---Bar was imposed under
S.11 of North-West Frontier Province Public Property (Removal of Encroachment) Act,
1977, on Civil Courts to entertain any proceedings, grant any injunction or make any
Page No. 1 of 1
order in relation to a dispute that any property was not a public property---No Court
except the Tribunal had the jurisdiction to adjudicate upon a dispute that any property
was not a public property--Tribunal on assessment of the evidence on record, both oral
and documentary, held that the plot was not public property and declared the same to be
owned and possessed by the respondents---Such decision of the Tribunal whereby the
rights of the parties with regard to the controversy were conclusively determined under
the provisions of North West Frontier Province Public Property (Removal of
Encroachment) Act, 1977, had attained finality and was binding on the parties under
S.14(1) and (2) of North-West Frontier Province Public Property (Removal of
Encroachment) Act, 1977---Tribunal by adjudicating the controversy between the parties
and declaring the plot to be the property of the respondents and not a public property, had
exercised its lawful jurisdiction vested in it by virtue of S.13 of North-West Frontier
Province Public Property (Removal of Encroachment) Act, 1977---High Court had rightly
upheld the judgment of Tribunal being legal, proper and in accordance with law ---Leave
to appeal was refused.

Imtiaz Ali, Addl. A.G., N.-W.F.P. for. Petitioners.

Muhammad Jamil Khan, Advocate Supreme Court and S.M, Muhammad,


Advocate-on-Record for Respondents Nos. 1 and 2.

Date of hearing: 12th February, 2004.

JUDGMENT

MIAN MUHAMMAD AJMAL, J.---Leave to appeal is sought against the judgment of


the Peshawar High Court, Peshawar dated 30-10-2003, whereby Writ Petition No.820 of
2003 of the petitioners was dismissed in limine.

2. Brief facts are that respondents Nos.1 and 2 instituted a suit against the petitioners
before the Tribunal constituted under section 12 of the N.W.F.P. , Public Property
(Removal of Encroachment) Act, 1977 (hereinafter to be called the Act), seeking
declaration that they are owners in possession of plot measuring 9-1/2 Marlas out of
Khasra No.1338/1059/11, Khata No.74/190, situated in Tukra No.3 outside Kohati Gate,
Peshawar City, on the basis of Mutation No. 13140 attested on 7-7-1993, that the
petitioners have no concern with their plot and they have no lawful right or authority to
interfere with their possession. The petitioners resisted the suit by filing their written
statement. On divergent pleadings of the parties, the learned Tribunal framed issues,
recorded evidence of the parties and after hearing the learned counsel decreed the suit
vide its judgment dated 28-3-2003 whereby it was held that the suit property is situated in
Khasra No.1338/1059/11 and is owned and possessed by the plaintiffs/respondents and
defendants/petitioners have no concern therewith who were directed to restrain
interference therein.

3. Feeling aggrieved with the said judgment and decree the petitioners approached the
Peshawar High Court, Peshawar in its Constitutional jurisdiction under Article 199 of the
Constitution of Islamic Republic of Pakistan through Writ Petition No.820 of 2003 which
was dismissed in limine by the learned Division Bench of the High Court vide its
judgment dated 30-10-2003 impugned herein, the operative paragraphs therefrom are as
under:-
Page No. 2 of 1
"Sardar Shaukat Hayat, the learned Additional Advocate General representing the
petitioners argued that respondent No.3 was vested with very limited jurisdiction and the
learned Court below had no jurisdiction to determine the rights between the parties and
declare the respondent No. 1 as owner of the property in dispute.

The argument of the learned counsel for the petitioners, we are afraid, has no force.
Under section 13 of the N.W.F.P., Public Property (Removal of Encroachment) Act, 1977,
the Tribunal has the exclusive jurisdiction to adjudicate upon dispute that any property is
not a public property or that any lease or licence in respect of such public property has
not been determined. Likewise under sub section (2) of section 14 ibid Act an order made
by the Tribunal which conclusively determined the rights of the parties with regard to all
or any of the matter in controversy under this Act would be final and binding on the
parties.

The perusal of the above mentioned provisions shows that the Tribunal could riot only
declare that a property which was in dispute was not public property but it could also
decide and conclusively determine the rights of the parties with regard to all or any of the
matter in controversy. In the case in hand the respondents Nos.1 and 2 sought declaration
that property in dispute was not public property but was owned and possessed by them on
the basis of Mutation No.13140 attested on 7-7-1993. The Tribunal has correctly passed
decree prayed for in favour of respondents Nos. 1 and 2.

We have not been able to find out any illegality warranting interference in exercise of our
Constitutional jurisdiction. Resultantly, the writ petition is dismissed in limine."

4. The learned Additional Advocate General reiterated the same arguments as were
addressed before the High Court contending that the Tribunal constituted under the Act
was not a civil Court and thus had no jurisdiction to adjudicate the suit, wherein
declaration had been sought that the plot in dispute belonged to the respondents and the
same was not a public property, as such, the entire proceedings in the suit which was not
maintainable and the judgment/decree passed therein by the Tribunal was without lawful
authority. He further contended that the plot in dispute was a public property which was
unlawfully claimed by the respondents to be their property, therefore, a complaint was
lodged with the Canal Magistrate against the respondents for interfering with the plot and
creating hindrance in their official work. He submitted that the report of the Local
Commissioner, who was appointed by the Tribunal for the demarcation of plot in dispute,
was vague and ambiguous therefore, suit could not be decreed on the basis of such a
report.

5. On the other hand, learned counsel for the respondents contended that the petitioners
could not argue the case on factual side on two-fold grounds, firstly that it has attained
finality under section 14 (2) of the Act and is binding on the parties, secondly they did not
question the factual aspect of the case before the High Court but only urged that the
Tribunal had no jurisdiction to determine the rights of the parties to declare the
respondents to be the owners of the property. He added that as per report of the Local
Commissioner the property in dispute is situated in Khasra No.1338/1059/11 and not in
Khasra No.54. He referred to the statement of Syed Mehmood Shah, Revenue Circle
Girdawar, the Local Commissioner CW 1 and submitted that he visited the spot on
15-9-1999 alongwith Patwari Halqa and Patwari Irrigation, demarcated the land in
presence of the parties and submitted his report Exh.CW1/3 alongwith site plan
Page No. 3 of 1
Exh.CW1/4.-He stated that according to the record the canal is situated in Khasra No.54
while the suit property is situated in Khasra No.11. He with reference to the statement of
Muhammad Ajmal Khan Canal Magistrate RW1, asserted that the Local Commissioner
visited the spot in presence of the said Canal Magistrate, Saif Ullah Khan Sub-Engineer.
Abdul Samad, Canal Inspector and Jalaluddin, Vernacular Clerk and carried out the
measurements in their presence. He stated that Khasra No.54 measuring 31 Kanals, 2
Marlas is situated in Mauza Tukra No.3, out of which 29 Kanals, 2 Marlas consist of
canal and 2 Kanals is Banjar Qadeem on which two primary schools and office of
Irrigation Department have been constructed. The witness again said that out of 2 Kanals,
10 Marlas are lying vacant. In cross examination he stated that he did not know the exact
area of the two primary schools and the office of Irrigation Department. He admitted that
there is a metalled road between the canal and the disputed plot and further admitted that
there are houses owned by the people adjacent to the suit plot. He admitted that Primary
Schools and the plot in dispute are situated on one side while Irrigation Office is situated
on the other bank of the canal. If one has to go to the office from the plot in dispute he
-has to cross over the canal. He admitted that measurement given by him was provided to
him by the Patwari concerned and he had not measured the area himself. Learned counsel
in support of the impugned judgment submitted that the respondents are owners in
possession of the plot on the basis of Mutation No.13140 sanctioned on 7-7-1993 and the
petitioners have no right whatsoever to usurp the respondents property and they should be
restrained from harassing the respondents by malicious and mala fide actions.

6. We have heard the learned counsel for the parties at length and have gone through the
record of the case. It would be pertinent to first refer to the definition of 'public property'
which has been defined in clause (h) of section 2 of the Act as ' a building, land, place or
premises, which vests in, or is in the possession or under the management or control of
Government, Local Council, autonomous body, or such other authority' and the"
unauthorized occupant" has been defined in clause (j) of the said Section which means ' a
person who has made encroachment on, or is in occupation of, any public property
without the express permission or authority of a competent authority and includes a
lessee or licensee who after the expiry of the period of lease or licence or on
determination of such lease or licence, continues to remain in occupation of any public
property; a person inducted into any public property by the lessee or licensee thereof; and
every member of the lessee's or licensee's family who remains in occupation of any
public property after the expiry of the period of lease or licence or after the determination
of the lease or licence in respect of the same.' In the present case the respondents' claim is
that they are owners in possession of the plot measuring 9-1/2 Marlas bearing Khasra
No.1338/1059/11 on the basis of Mutation No.13140 attested on 7-7-1993 and is not a
public property whereas the petitioners claim it to be a public property being situated in
Khasra No.54 which belongs to Government of N.-W.F.P. The plaintiffs /respondents
appeared as PWs, 1 and 2, who stated that they purchased the suit property vide Mutation
No. 13140 attested on 7-7-1993 and the same is not situated in Khasra No.54. The
petitioners interfered with their possession claiming it to be a public property, therefore,
they filed a suit being the owners in possession of the disputed land which was not a
public property. The trial Court appointed a Revenue-Officer as Local Commissioner to
demarcate the disputed land in presence of the parties. Syed Mehmood Shah, Local
Commissioner appeared as CW 1 who stated that he visited the spot on 15-9-1999
alongwith Patwri Halqa and Patwari Irrigation, inspected the spot and demarcated the
plot in presence of the parties. The statements of both the parties were recorded vide
Exh.CW1/2, and the report Exh.CWI/3 and site plan Exh.CW1/4 were prepared.
According to the record, the canal is situated in Khasra No. 54 while the suit property is
situated in a separate Khasra No. 11 and there is about 12 feet Kacha Road in between the
plot in dispute and the canal. The Local Commissioner (CW1) has unambiguously stated
that the plot in dispute, is situated in Khasra NO. 11 and not in Khasra No. 54, he was not
cross-examined on the above vital points and the aforesaid A statement remained
un-challenged, hence the facts given in examination in-chief would be deemed to be
admitted and accepted by the petitioners to be correct,. Reference can be made to Waqar
v. Faqir Ali (1969 SCMR 189). The petitioners' witness Muhammad Ajmal Khari, Canal
Magistrate (RW1) admitted that the Local Commissioner visited the spot in his presence
and he carried out the measurements, and apart from him, Saifullah Khan Sub-Engineer,
Abdul Samad Canal Inspector and Jalauddin Vernacular Clerk were also present at that
Page No. 4 of 1
time. He stated that Khasra No.54 measuring 31 Kanals, 2 Marlas is situated in Muaza
Tukra No.3. out of 31 Kanals, 2 Marlas, 29 Kanals, 2 Marlas consists of canal while 2
kanals is 'Banjar Qadeem', On this 2 Kanals of area Education Department has
constructed two Primary Schools and there is also an office of Irrigation Department.
Again said that out of 2 Kanals, an area of 10 Marlas is lying vacant which is disputed. In
cross-examination he stated that he did not know the exact area on which two Primary
Schools and office of Irrigation Department have been constructed. He admitted that
there is a metalled road between the canal and disputed plot and according to the record
road is part of the canal. He also admitted that there are houses owned by the people
adjacent to the suit plot. He admitted that they had not raised any objection on the
permanent spots for the purpose of measurement at the time of inspection. He admitted
that Primary Schools and plot in dispute are situated on one side while the Irrigation
Office is situated on the other bank of the canal and one has to cross over the canal if he
goes to the office from the plot. He stated that he cannot produce any document which
can show that how much area was given by the Irrigation Department for the construction
of schools. He admitted that the measurements given by him were provided to him by the
Patwari concerned and that he had not measured the area himself. Jalauddin Vernacular
Clerk (RW2) produced ' Naqsha Tasweeri' in respect of Khasra No.54 Exh.RW2/1
(subject to objection) which was prepared by him at his own and Fard Jamabandi'
Exh.RW2/2. He admitted that neither Exh.RW2/1 was prepared according to the
established principles nor the same was prepared in presence of the plaintiffs/respondents
nor it was signed by any higher authority. He denied his presence at the time when Local
Commissioner inspected the spot whereas RW/1 has mentioned his presence. Saifullah
Sub-Engineer (RW3) stated that Khasra No.54 measuring 31 Kanals, 2 Marlas situated in
Mauza Tukra No.3 belongs to Irrigation Department, out of which canal is situated on 29
Kanals, 2 Marlas and on remaining 2 Kanals two primary schools and office of Irrigation
Department are situated and are of 10 Marlas is lying vacant. In cross-examination, he
stated that he was in the knowledge of the fact that the Local Commissioner was
appointed by the Court for demarcation of Khasra No .1338/1059/11 and Khasra No.54
but he was not associated with the demarcation proceedings whereas RW1 has stated that
he was present at the time when the Local Commissioner inspected and made
measurements at the spot. He also stated that he cannot say about the area over which two
schools have been constructed. The evidence of RW2 and RW3 is not confidence
inspiring as they have denied their presence at the time of inspection of the plot by the
Local Commissioner whereas Canal Magistrate RW 1 has categorically stated that when
measurements were carried out by the Local Commissioner, he alongwith Saifullah Khan
Sub-engineer, Abdul Samad Canal Inspector and Jalaluddin Vernacular Clerk was present
at the spot. The site plan Exh.RW2/1 which was placed on record under objection was an
inadmissible document as it was prepared by RW2 at his own without notice to the
respondents and without any authority from his superior officers. The petitioners' case is
that according to record canal is situated over an area of 29 Kanals, 2 Marlas and piece.
of 2 Kanals is Banjar Qadeem whereupon two primary schools and office of Irrigation
Department have been constructed and a plot of 10 Marlas is lying vacant. None of the
petitioners' witnesses could give the exact area over which two primary schools and
office of Irrigation Department have been constructed. It appears that they have
deliberately suppressed this fact and as such presumption can be drawn against them that
the area on which two schools and office of Irrigation Department have been constructed,
would in any case not be less than 2 Kanals and this fact came out from the mouth of RW
1 who later on departed from his words. It is also notable that the width of the canal
varies at different places and the area of 19 feet wide road has also has not been given by
any of the witnesses. This all goes to show that the cannal, road, two schools and the
office have covered the total area of 31 Kanals, 2 Marlas and the petitioners attempted to
unauthorisedly occupy the respondent's plot. It has been admitted by the petitioners'
witnesses that the plot in dispute is situated adjacent to private houses which according to
the Local Commissioner was demarcated and found to be situated in Khasra No. 11
which has been purchased by the plaintiffs/respondents through a mutation and as such,
they were rightly declared to be its lawful owners by the Tribunal whose decision was
final and binding on the parties. The argument of the learned Additional Advocate
General that the Tribunal had no jurisdiction to declare the plot to be the property of the
plaintiffs/respondents, has no force, for, section, 13 of the Act provides that the Tribunal
has exclusive jurisdiction to adjudicate upon a dispute that whether any property is not a
public property and for that purpose the plaintiffs/ respondents invoked the jurisdiction of
the Tribunal. Section 11 of the Act imposes a bar on the civil Courts to entertain any
Page No. 5 of 1
proceedings, grant any injunction or make any order in relation to a dispute that any
property is not a public property, therefore, in view of 11 bar of jurisdiction of the civil
Court, no Court except for the Tribunal has the jurisdiction to adjudicate upon a dispute
that any property is not a public property. The Tribunal on assessment of the evidence on
record both oral and documentary, held the property to be not a public property and
declared it to be owned and possessed by the respondents, as such, the decision rendered
by it, whereby the rights of the parties with regard f to the controversy were conclusively
determined under the Act which attained finality and was binding on the parties under
section 14(1) and; (2) of the Act, could not be questioned. The Tribunal by adjudicating
the controversy between the parties and declaring the plot to be property of the
respondents and not a public property, has exercised its lawful jurisdiction vested in it by
virtue of section 13 of-the Act and the High Court has rightly upheld its judgment being
legal, proper and in accordance with law. This petition is accordingly dismissed and
leave; refused.

M.H./C-3/S Petition dismissed.

Page No. 6 of 1
P L D 2004 Supreme Court 600

Present: Iftikhar Muhammad Chaudhary, Sardar Muhammad Raza Khan and Falak Sher,
JJ

ALL PAKISTAN NEWSPAPERS SOCIETY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.35 of 2002, decided on 8th April, 2004.

(a) Words and phrases----

----"Entertain"---Meanings.

The State Life Insurance Employees Federation v. Federal Government of Pakistan


(1994) PLC (C.S.) 964; Mitra's Legal and Commercial Dictionary, p.270; Words and
Phrases by Surendra Malik, p.232; Hidustan Commercial Bank v. Punnu Sahu AIR 1970
SC 1384 and Pakistan Steel Peoples Worker's Union v. Registrar of Trade Unions,
Karachi 1992 PLC 715 ref.

(b) Constitution of Pakistan (1973)-----

----Art. 184(3)---Supreme Court Rules, 1980, O.V, R.3 & O.XXVII, R.7---Constitutional
petition before Supreme Court---Refusal of Registrar to entertain such petition---Single
Judge of Supreme Court accepted appeal filed under O.V, R.3 of Supreme Court Rules,
1980 and directed office to entertain such petition, register same and fix before the
Bench---Petitioner in response to question of maintainability of such petition raised by
respondent contended that as order passed by Single Judge had attained finality, thus,
such question could not be re-opened--Validity---Expression "entertain" would be defined
in its ordinary Dictionary meanings i.e. "to receive"---O.XVII, R.7 of Rules, 1980 was
mandatory in nature---Such petition would be heard by a Bench consisting of not less
than two Judges of Supreme Court---Single Judge was fully aware that entertain ability of
such petition could only be decided by a Bench consisting of not less than two Judges of
Supreme Court, thus, he had accepted appeal to the extent of registering such
petition---Contention of petitioner was repelled in circumstances.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and
another PLD 1997 SC 781 ref.
Page No. 1 of 1
(c) Supreme Court Rules, 1980----

----O. V, R.3 & O.XVII, R.5---Appeal under O.V. R.3 or O.XVII, R.5 of Supreme Court
Rules, 1980 against order of Registrar---Single Judge of Supreme Court, while disposing
of such appeal, could not decide question of maintainability of a petition.

(d) Administration of justice--

----Judges of Supreme Court, responsible to administer justice, are fully aware of relevant
provisions of law on the subject and unless it is proved otherwise, it would be deemed
that orders have been passed in. accordance with law.

(e) Constitution of Pakistan (1973)-----

----Art. 184(3)---Constitutional petition before Supreme Court--Admission of such


petition for regular hearing and its subsequent dismissal for being
non-maintainable---Validity---Question of maintainability of such petition would be open
for consideration---Such petition once admitted for hearing even in accordance with rules
by requisite number of Judges could be dismissed subsequently on failure of petitioner to
establish violation of any fundamental rights under Chap. I, Part II of the Constitution.

State Life Insurance Employees Federation v. Federal Government of Pakistan 1994 PLC
(C S.) 964 rel.

(f) Constitution of Pakistan (1973)---

----Art. 184(3)---Constitutional petition before Supreme Court---Delay in raising


objection as to jurisdiction of Court and maintainability of such petition---Effect---Delay
caused by any party in raising such objection, ipso facto, would not constitute a ground to
overrule such objection and assume jurisdiction without determining whether essential
conditions had been fulfilled by claimant to persuade Court that same had jurisdiction to
decide such case.

(g) Jurisdiction-----

--------Determination of jurisdiction by Court seized with the matter is one of the


important elements in administration of justice as if justice has been provided basing
upon corum non judice orders, then same would have no legal sanction behind it.

Page No. 2 of 1
(h) Constitution of Pakistan (1973)-----

----Art. 184(3)---Invoking original jurisdiction of Supreme Court under Art.184(3) of the


Constitution---Essentials conditions---Art.184(3) of the Constitution provided an
expeditious and inexpensive remedy for protection of fundamental rights from legislative
and executive interference---Such jurisdiction would be exercised subject to establishing
by petitioner, by furnishing convincing evidence, as to non availability of any other
adequate remedy and that question of public importance with reference to enforcement of
fundamental rights had been made out---Without establishing such essential conditions,
Supreme Court would not assume such jurisdiction.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Abdur Rehman v. Haji
Mir Ahmed Khan PLD 1983 SC 21 rel.

(i) Words and phrases-----

----"Class or Representative action"---Meanings.

Black's Law Dictionary, p.249 ref.

(j) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)--

----Ss. 2(d) & (h)---S.R.O. No.744(I)/2001, dated 25-10-2001--Constitution of Pakistan


(1973), Art.184(3)---Constitutional petition before Supreme Court by Society of
Newspapers Workers challenging vires of 7th Wage Board
Award---Maintainability---Such award being valid to the extent of working journalists to
all intents and purposes, would not give rise to question of public importance involving
fundamental rights of petitioner to their extent.

(k) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)-----

----Ss. 2(d) & 9---Constitution of Pakistan (1973), Art. 184(3)--Constitutional petition


before Supreme Court challenging validity of 5th Wage Board Award as being violative
of fundamental rights and the Constitution and in excess of jurisdiction of Wage
Board--Maintainability---Such controversy could hardly be questions of public
importance---Challenge to validity of award would depend on investigation into disputed
questions of fact, claims and counter claims of parties involving appreciation of
voluminous evidence on record---Such investigation under Art. 184(3) of the Constitution
might not be permissible particularly, when questions raised were not of public
importance---Supreme Court dismissed petition.

(l) Words and phrases----


Page No. 3 of 1
----"Ratio decidendi"---Connotation.

Fundamental Law of Pakistan by A.K. Brohi, p.609 and Modern English Legal System
from Smith and Bailey ref.

(m) Words and phrases-----

----"Obiter dicta"---Connotation.

Judicial Dictionary of Words and Phrases 5th Edn. p.1721; Law Lexicon Vol. II, p.243;
Words and Phrases Vol. 29, p.16 and Shorter Constitution of India 12th Edn. p.141 ref.

(n) Words and phrases----

----"Ratio decidendi" and "Obiter dicta"---Distinction.

Law Lexicon Vol. II, p.243 ref.

(o) Precedent---

----Issue raised in subsequent case before Bench of Supreme Court comprising of three
Judges stood earlier resolved by a Bench of Supreme Court comprising of five
Judges---Effect---Bench comprising of three Judges could not take different view qua
judgment passed by a Bench comprising of five Judges, which had binding effect upon
such issues.

Province of East Pakistan v. Azizul Islam PLD 1963 SC 296; Province of East Pakistan v.
Sirajul Haq Patwari PLD 1966 SC 854, Pir Baksh v. Chairman, Allotment Committee
PLD 1987 SC 145; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423;
Muhammad Saleem v. Fazal Ahmed 1997 SCMR 314; Babar Shehzad v. Said Akbar
1999 SCMR 2518; Ardeshir Cowasjee v. Karachi Building Control Authority 1999
SCMR 2883; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR
793 and Watan Party v. Chief Executive PLD 2003 SC 74 fol.

(p) Words and phrases-----

Page No. 4 of 1
----"Question of public importance"---Connotation.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 fol.

(q) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)-----

----Ss. 2(d) & 9---S.R.O. No.744(I)/2001, dated 25-10-2001--Constitution of Pakistan


(1973), Art.184(3)---Dispute between employer and employees relating to payment of
wages under 7th Wage Board Award---Constitutional petition before Supreme Court
challenging validity of such Award being , violative of fundamental rights of petitioners
(employers) and ultra vires the Constitution--Maintainability---Petitioners had got
fundamental right to establish business of newspapers, but their fundamental right was
not that how they would be managing finances to run business, which would include
payment of wages to their employees---If petitioners had no finances, .then their business
was bound to collapse---Mere non-availability of funds would not involve fundamental
rights of petitioners nor same would give rise to a question of public
importance---Dispute between employer and employees in terms of Newspapers
Employees (Conditions of Service) Act, 1973 would not give rise to a question of public
importance being an essential condition to attract jurisdiction of Supreme Court under
Art. 184(3) of the Constitution---Supreme Court dismissed petition while observing that
petitioners, if desired or advised, might avail appropriate remedy before competent forum
in accordance with law.

Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793 and
Watan Party v. Chief Executive PLD 2003 SC 74 rel.

(r) Constitution of Pakistan (1973)-----

----Art. 184(3)---Words "public importance" as used in Art. 184(3) of the


Constitution---Supreme Court would consider each case on its own merits, whether
element of "public importance" was involved in enforcement of fundamental rights
irrespective of individual's violations of the infractions of a group or a class of persons.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 fol.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Siddiqui, Senior Advocate
Supreme Court, Akram Chaudhry, Senior Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Petitioners.

Raja Muhammad Irshad, D.A.-G. and Nasir Saeed Sheikh, Standing Counsel for
Respondents Nos. 1(a)(b), 2, 5-8.

Nemo for Respondents Nos. 3(i) to 3(iii).


Page No. 5 of 1
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and Ch. Akhtar Ali,
Advocate-on-Record for Respondent No.3(vii).

Abid Hasan Minto, Senior Advocate Supreme Court and Ch. Akthar Ali
Advocate-on-Record for Respondents Nos. 3(vi) to 3(x) & v(i) to V(iii).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondent No.3(viii).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi,
Advocate-on-Record for Respondent No.4.

Respondent No.6 (in person).

Muhammad Aurangzeb, Dy. Secy. M/o L&M; Tariq Saeed Hashmi, S.O.M/o. L&M;
Tahira Zia, JS M/o Information; Zaheer Ahmed Ch., Dy. Secy. and Sheraz Latif, Director
Media for the Department.

Dates of hearing: 5th to 8th April, 2004.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHARY, J.---Above noted petition has been filed by


the petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan
[hereinafter referred to as the Constitution].

2. Essential facts which have given rise to instant petition are that on 8th July, 2000,
Government of Pakistan constituted the 7th Wage Board under the Newspapers
Employees (Conditions of Service) Act (LVIII of 1973) [hereinafter referred to as the
Act, 1973], for the purpose of fixing the rates of wages of the newspaper employees. The
Wage Board (hereinafter referred to as `the Board'), comprising of 10 members, five each
representing the employer and employees and the Chairman Mr. Justice Raja Afrasiab
Khan (Retd.) Judge of the Supreme Court of Pakistan, pronounced its award, published
by the Government of Pakistan vide S.R.O. No.744(I)/2001, dated 25th October, 2001.

3. It is stated that petitioners represented to the Government of Pakistan through


Secretary, Information and Media Development and Secretary Labour Manpower and
Overseas Pakistanis for the redressal of their grievances against the award but no relief
was given to them. Thus petitioners invoked the original jurisdiction of this Court and
filed instant petition, inter alia, challenging the Constitutionality of the newspapers
`Employees (Conditions of Service Act, 1973 being violative of the fundamental rights of

Page No. 6 of 1
the petitioners and ultra vires the Constitution, and the award being void ab initio and of
no legal effect and consequences.

4. The Registrar of the Court vide following order declined to entertain the petition:--

"Take notice that the above cited Constitution petition filed by you is not entertainable as
it relates to the grievance of a section of the people and not the whole of the nation, as
such, it does not come within the ambit of Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973 as held by this Court vide its judgment titled as Syed Zulfiqar
Mehdi v. P.I.A. and another, reported as 1998 SCMR 793.

This petition is, therefore, returned herewith in original alongwith its paper books.

(Sd.)

Assistant Registrar (Civil)

For Registrar.

Against the aforesaid cider of the Registrar, petitioners preferred Civil Miscellaneous
Appeal No.23 of 2002 before a learned Single Judge in Chambers under Order V, Rule 3
of the Supreme Court Rules, 1980 [hereinafter referred to as the Rules, 1980] which has
been accepted vide order dated 16th July, 2003 which reads as under thus:--

"In view of the rule laid down in the judgment dated 9-10-1996 passed in Constitutional
Petition No.30 of 1996, Civil Aviation Authority, Islamabad and others v. Union of Civil
Aviation employees and another PLD 1997 SC 781 and number of other cases relied
upon by the learned counsel for the appellant this civil miscellaneous appeal is accepted,
order dated 8-7-2002 of the Registrar set aside and the office is directed to entertain the
Constitutional petition, register it and fix before the Bench."

5. In compliance of the aforesaid order, office fixed the petition before the Court.

6. On 23rd January, 2003 during the pendency of petition, Mr. Muhammad Akram
Sheikh, Senior Advocate Supreme Court for respondents objected on the maintainability
of the petition. The objection has been recorded as under:--

"It has been seriously argued that this petition under Article 184(3) of the Constitution of
Islamic Republic of Pakistan is not maintainable. Mr. Makhdoom Ali Khan,
Attorney-General for Pakistan is present and accepts the notice to address this Court on
the question of maintainability of this petition. Relist on 25th of February, 2003"

Page No. 7 of 1
7. Learned counsel for the petitioners was asked to first of all address arguments on the
maintainability of the petition in view of above objection. Thus he got recorded following
formulations for consideration:--

(a) The order dated 16th July, 2002 passed by learned Single Judge accepting Civil
Miscellaneous Appeal No.23 of 2002 filed by petitioners is final thus cannot be
re-opened.

(b) The expression `entertainable' as it has been used in the order dated 16th July,
2002 is synonymous with the word `maintainable', and it has always been considered
interchangeably by this Court as well as also by the Indian Supreme Court in context of
corresponding provisions of the Article of Indian Constitution to Article 184(3) of the
Constitution.

(c) Article 184(3) of the Constitution confers special original jurisdiction on the
Court notwithstanding the fact that identical relief could be granted by the High Court in
exercise of the jurisdiction under Article 199 of the Constitution, subject to the condition
laid down therein, therefore, in view of the principle that no provision of the
"Constitution is redundant, and Court is bound to give effect to its each part, instead of
non-suiting the petitioners after a period of two years, from the date of filing of petition,
it may be disposed of on merits in the interest of justice.

(d) It is the consistent practice of the judicial forums in Pakistan that the Courts
always extend their jurisdiction instead of curtailing the same on technical grounds,
therefore, instant petition be disposed of on merits.

(e) That to avoid the multiplicity of the litigation between the parties before the
different High Courts of the country, where a good number of the Constitution petitions
under Article 199 of the Constitution would be filed by the owners of 256 Newspapers,
Magazines, Journals, etc., if instant petition is not found competent for hearing which
besides increasing the pendency of the cases would also involve huge expenditure,
therefore, to provide inexpensive remedy to both the sides, in the interest of justice,
petition may be heard on merits.

8. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court in reply to
above arguments contended as follows:--

(i) The question of entertaining the petition by Mr. Justice Munir A. Sheikh (as he
then was) vide order dated 16th July, 2003 is not final because in the Supreme Court,
according to Rules, cases are not heard by the learned Judges sitting singly like the High
Courts and particularly in respect of the petition under Article 184(3) of the Constitution,
a Bench of at least two Hon'ble Judges hear the petition in terms of Order XXV, Rule 7 of
the Rules, 1980, therefore, order dated 14th July, 2003 passed by a learned Judge in
Chambers in Civil Miscellaneous Appeal at the best, could be construed as an order
directing the petition to be placed before the Court for decision according to law.

Page No. 8 of 1
(ii) The expression `entertainable' and `maintainable' are not interchangeable because
the Court comprising at least two Hon'ble Judges can dismiss such petition at any stage.
Reliance was placed by him on State Life Insurance Employees Federation v. Federal
Government of Pakistan 1994 PLC (C.S.) 964.

9. It is to be noted that as per the definition of expression `entertain' by Mitra's Legal and
Commercial Dictionary (page 270) and Words and Phrases by Surendra Malik (page 232)
are identical i.e. `entertainment' means `proceed to consider on merits' or `adjudicate
upon', whereas the expression `entertain' has also been defined in Hindustan Commercial
Bank v. Punnu Sahu AIR 1970 SC 1384 and Pakistan Steel Peoples Worker's Union v.
Registrar of Trade Unions, Karachi 1992 PLC 715 referred to by the learned counsel for
petitioners according to which, it means not merely filing of an application or institution
of proceedings but would mean adjudicated upon or proceed to consider on merits. In
these judgments such definition has been assigned to the expression `entertain' with
reference to the specific provision of the law discussed therein. Therefore, for the purpose
of instant case, expression `entertain' would be defined with reference to the Rules, 1980,
which regulate the proceedings of this Court.

Learned counsel for petitioners stated that under Order V, Rule 1(6) of the Rules, 1980,
the Registrar exercises the powers of the Court in respect of the matters enumerated
therein, which also includes the powers of registration of petitions, appeals, suits and
other matters but the Registrar vide order dated 8th July; 2002 declined to register the
petition as such against this order, miscellaneous appeal was fled before the Judge in the
Chambers under Order V, Rule 3 of the Rules 1980. The learned Judge after having taken
into consideration the order passed by this Court in Constitution Petition No.30 of 1996
and the judgment in case of Civil Aviation Authority v. Union of Civil Aviation
Employees PLD 1997 SC 781 and in number of other cases relied upon by the petitioners'
counsel, accepted the civil miscellaneous petition and set aside the order of the Registrar
dated 8th July, 2002 with the direction to the office to entertain the petition, register it and
fix before the Bench. Therefore, according to him, this order has achieved finality,
therefore, question of maintainability of the petition is not open to debate.

It is to be seen that under the scheme of the Rules 1980, there are two types of provisions,
one which deals in respect of filing of ordinary petitions for leave to appeals, etc., and
secondly there are some of the provisions which are meant for dealing of special types of
cases like, application for enforcement of fundamental rights under Article 184(3) of the
Constitution, Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto, etc.
Order XXV of the Rules, 1980. Rule 7 of Order XXV provides that such applications
shall be heard by a Bench consisting of not less than two Hon'ble Judges of the Court,
therefore, with all humility at our command, we are of the considered opinion that the
learned Single Judge while disposing of appeal filed before him, either under Order V,
Rules 3 or under Order XVII, Rule 5 of the Rules, 1980, cannot decide the question of
maintainability of a petition. Thus with reference to these rules in the instant case,
expression 'entertain' would be defined in its ordinary dictionary meanings i.e. 'to
receive'. This definition seems to be more appropriate because the learned Single Judge in
Chamber has directed the office 'to entertain the Constitution petition, register it and fix
before the Bench'. Needless to observe that the Hon'ble Judges responsible to administer
justice are fully aware about the relevant provisions of law on the subject and unless it is
proved otherwise, it would be deemed that E orders have been passed in accordance with
law. Since Order XXV, Rule 7 of the Rules 1980 is mandatory in nature, therefore,
learned Single Judge was fully aware that entertain ability of petition under Article
184(3) of the Constitution can only be decided by a Bench of not less than two members
of this Court. Thus he accepted the miscellaneous appeal only to the extent of registering
the petition by using the word `register it'.

Page No. 9 of 1
It is to be noted that if a petition has been admitted for hearing even in accordance with
rules by the requisite number of the Hon'ble Judges, the same can also be dismissed
subsequently as it had happened in the judgment relied upon by the learned counsel Mr.
Muhammad Akram Shiekh, Senior Advocate Supreme Court i.e. State Life Insurance
Employees Federation (ibid), wherein the petition has been admitted but it was dismissed
subsequently on coming to the conclusion that the petitioner has failed to establish that
any fundamental rights under Chapter I, Part II of the Constitution has been violated,
therefore, the argument raised in this behalf by the learned counsel for petitioners being
devoid of force is repelled and it is held that question of maintainability of petition under
Article 184(3) of the Constitution is open for consideration.

10. Learned counsel for petitioners made another attempt to dislodge the impression that
the question of maintainability of the petition is not open for consideration on the
premises that at this belated stage after a period of about two years from the date of
institution of petition, it would not be in the interest of justice to non-suit the petitioners
on a technical ground, particularly in view of the fact that when the respondents remained
indolent as they did not raise n objection on maintainability of the petition at the earliest.

Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court for respondents
seriously controverted to this argument of the petitioners counsel and pointed out that
after institution of the petition, it was not enlisted for hearing for a considerable time.
However, on the first effective date of hearing i.e., 23rd January, 2003 he being counsel
of one of the respondents raised objection on its maintainability. Later on case could not
proceed for one or the other reasons, which too cannot be attributable to the respondents,
however, no sooner the hearing of the petition commenced, they raised the objection on
its maintainability. Similar was the position of the official respondents because while
submitted concise statement they also took exception to the maintainability of the
petition.

A perusal of case file transpired that effective hearing of the case took place on 23rd
January, 2003, when learned counsel for respondents specifically objected on the
maintainability of the petition. Relevant contents of the order have already been
reproduced in the para. supra. Subsequent thereto the Federation of Pakistan i.e.
respondent No.1 in the concise statement categorically raised the objection about the
maintainability of the petition. Surprisingly thereafter effective hearing of the case could
not take place. However, on 23rd February, 2004, when the matter came up for hearing
on the pointation of the respondents' counsel, learned counsel for petitioners was called
upon to address the Court on the question of maintainability of the petition. Therefore,
the contention raised by the learned counsel being contrary to the facts available on
record needs no serious consideration. However, it may be noted that delay caused by any
of the parties in raising objection on the jurisdiction of the Court including the
maintainability of the proceedings, ipso facto, do not constitute a ground to overrule the
objection and assume the jurisdiction without determining whether essential conditions
have been fulfilled by the claimant to persuade the Court that it has -jurisdiction to decide
the case. Needless to observe that in the administration of justice determination of the
jurisdiction by the Court seized with the matter is one of the important elements because
if justice has been provided basing upon corum non judice orders, it would I have no
legal sanction behind it. Thus with reference to instant case jurisdiction under Article
184(3) of the Constitution has to be exercised subject to establishing by the petitioners
that question of public J importance with reference to the enforcement of fundamental
rights has been made out. If both these essential components are missing then the Court
would not assume the jurisdiction.,

11. Learned counsel for petitioners contended that to; avoid the multiplicity of the
litigation and to provide inexpensive remedy, entertaining of the instant petition would
Page No. 10 of 1
advance cause of justice. In support of his contention he has cited definition of Class or
representative action" from Black's Law Dictionary (page 249) according to which "a
class action provides a means by which, where a large group of persons are interested in a
matter, one or more may sue or be sued as representative of the class without needing to
join every member of the class". On the question of providing inexpensive remedy, he
referred the case of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 wherein
it has been observed that "it is obvious from the language of Article 184(3) that it
provides a direct access to the highest judicial forum in the country for the enforcement
of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the
protection of Fundamental Rights from legislative and Executive interference". As far as
the propositions discussed in this authority are concerned, there is no cavil with the same.
However, before applying stated procedural principles, it is all the more necessary to look
whether proof has been provided that proceedings have been instituted validly, after
having fulfilling the conditions precedent for assuming jurisdiction by the Court and no
other adequate remedy is available. Undoubtedly, without establishing the essential
conditions mentioned in Article 184(3) of the Constitution and furnishing convincing
evidence that no other adequate remedy is available, the argument raised by the learned
counsel for petitioners seems to be premature. In this behalf, however, reference to the
case of Abdur Rehman v. Haji Mir Ahmed Khan PLD 1983 SC 21 would not be out of
context, wherein it has been held that "the High Court can exercise the Constitutional
jurisdiction only on proof of non availability of adequate remedy". In this report the
petitioner had a right of appeal having wide scope and he instead of availing the, same,
invoked the Constitutional jurisdiction of the High Court, therefore, in this context the
principle highlighted above was pronounced.

12. Learned counsel for petitioners then contended that:--

(1) Instant petition involves the question of fundamental right of the public under
Article 19 of the Constitution because freedom of press is a people's personal right rather
than the proprietary rights of petitioners and if it is not protected from the exorbitant
financial burdens being imposed upon the petitioners through 7th Wage Board Award,
except the few amongst the petitioners, others would be forced to close down their
business, resulting in dissemination of information to the general public.

(2) The freedom of press is not only the right of the petitioners but it is the right of
the people of Pakistan, therefore, question of public importance is involved in the instant
petition, thus petition is maintainable under the law.

(3) An oppressive law i.e. the Act, 1973 has been promulgated by the Government to
keep its hold upon the press because one man has been authorized to pronounce Wage
Award by delegating him excessive authority against which no right of appeal, revision
and review is provided, therefore, it being a law ultra vires the Constitution deserves to
be struck down.

13. On the other hand learned counsel appearing for respondents contended that:

(a) Instant petition does not involve enforcement of any of fundamental rights of the
petitioners, therefore, the same is not maintainable nor it gives rise to the question of
public importance, as such, deserves to be dismissed.

Page No. 11 of 1
(b) A larger Bench of this Court comprising of five Hon'ble Judges in Constitution
Petition No.3-K of 1999 decided on 14th December, 1993, has held that Wage Board
Award hardly constitutes a question of public importance, therefore, instant petition is not
maintainable under Article 184(3) of the Constitution.

(c) The controversy between the parties relates to dispute between the two groups i.e.
employer and employees, arising out of the 7th Wage Board Award, therefore,, no
question of curtailing the freedom of press arises.

(d) The vires of the Act, 1973 is under consideration in I. -C.A. arising out of the
judgment of the Lahore High Court, in Writ Petition No.8926 of 1996, declaring that 6th
Wage Board Award does not suffer from any legal infirmity, therefore, till its decision, in
view of the judgment in the case of Manzoor Elahi v. Federation of Pakistan PLD 1975
SC 66 the question of Constitutional status of the Act, 1983 may be postponed.

(e) Besides it, on account of non-providing remedy of appeal, revision or review, a


law cannot be struck down.

14. Before dilating upon the contentions of the parties counsel, summarized hereinabove,
we consider it appropriate to record the statement of Mr. Abdul Hafeez Pirzada, learned
Senior Advance Supreme Court; made by him at the bar that "petitioners/owners of the
newspapers are ready and willing to implement the 7th Wage Board Award to the extent
of working journalists. As far as the implementation of the award qua the non-working
journalists including Qasid, peons, Malis, etc. are concerned, it is not implementable
because their wages have been increased arbitrarily/discriminately qua the employees
enjoying equal status working in the other organizations". This statement has narrowed
down the scope of the controversy between the parties. Although learned counsel for
respondents particularly Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court
has pointed out that there is no distinction between the working and non-working
journalists, as section 2(d) of the Act, 1973 only defines the newspapers employees,
therefore, the award has to be applied to all the newspapers employees without any
discrimination. Be that as it may, on the basis of the statement so made by the learned
counsel for petitioners, it can safely be held that the award is valid for all intent and
purposes to the extent of working journalists, therefore, it does not give rise to question
of public importance involving fundamental rights of the petitioner to their extent.

In addition to above, it may be seen that this Court in its earlier decision in Constitution
Petition No.3-K of 1990, dated 14th December, 1993, while dismissing a petition under
Article 184(3) of the Constitution against interim 5th Award, pronounced by the five
Hon'ble Judges has held that the controversy does not give rise to the question of public
importance. For convenience relevant para. from the judgment is reproduced
hereinbelow;--

"……………. Petitioners Nos. 2 to 9, who are owners and publishers of newspapers,


magazines and other publications while petitioner No. 1 is their representative body, have
raised the questions whether the Act is violative of fundamental rights and whether the
award is "viotative of the Constitution and in excess of jurisdiction of the Wage Board".
These questions in the relevant controversy can hardly be questions of public importance
Furthermore, challenge to the validity of the award depends on investigation into
disputed questions of fact, claims and counter claims of the parties involving appreciation
Page No. 12 of 1
of voluminous evidence on record. Such investigation under Article 184(3) may not be
permissible particularly when questions raised are not of public importance. "

15. Learned counsel for petitioners contended that the above judgment was pronounced
in a petition which has become infructuous, therefore, the observations made therein are
obiter dicta, as such have no binding force on present proceedings.

16. In the Constitution Petition No.3-K of 1990 which has been disposed of on 14th
December, 1994 by means of above judgment, initially interim award pronounced by 5th
Wage Board was challenged before this Court under Article 184(3) of the Constitution.
During its pendency, the Wage Board announced the final award, therefore, learned
counsel appearing for petitioners submitted an application seeking amendment, which
was declined and by means of above order petition as a whole was dismissed. As such
question for consideration would be as to whether observation recorded by a larger Bench
of this Court is an obiter dicta or it is the ratio decidendi of the judgment?

17. Mr. Muhammad Akram Sheikh, learned counsel appearing for respondents to resolve
the controversy relied upon Fundamental Law of Pakistan by A.K. Brohi (page 609) to
substantiate that judgment of five Hon'ble Judges has got binding effect on present
proceedings being the ratio decidendi of the judgment. He referred to the following
principles, from the above Book:--

"How to Determine the Ratio Decedendi of a case.--We would, to begin with, notice
some of the important definitions that have been offered by prominent English Jurists, of
terms like Ratio Decidendi and Obiter Dicta with a view to discovering the rule by resort
to which the binding authority of a judicial precedent and its application to the facts of a
given case could be determined:

1. "The underlying principle of a judicial decision", says Stephen in his commentaries on


the Laws of England, Vol. 1, p. 11, "which forms its authoritative element for the future,
is termed Ratio Decidendi. It is contrasted with an Obiter Dictum, or that part of a
judgment which consists of the expression of the Judge's opinion on a point of law which
is not directly raised by the issue between the litigants. Obiter dicta are often valuable
though not binding, statement of the law."

2. Sir John Salmond in his Jurisprudence says (at p.1910):

"A precedent, therefore, is a judicial decision which contains in itself a principle. `The
underlying principle which this forms its authoritative element is often terms the ratio
decidendi. The concrete decision is binding between the parties to it, but it is the abstract
ratio decidendi which alone has the force of law as regards the world at large."

3. So also Professor Chipman Gray-says in his book `Nature and the sources of Law'
about a judicial precedent (p.261).

Page No. 13 of 1
"It must be observed that a common law not every opinion expressed by a Judge forms a
judicial precedent, two things must concur: it must be, in the first place, an opinion given
by a Judge, and, in the second place, it must be an opinion the formation of which is
necessary for the decision of a particular, case; in other words, it must not be obiter
dictum."

4. Similarly, Professor C.K.Allen, in his `Law in the making' says (at p.241).

"Any judgment of any Court is authoritative only as to that part of it, called the ratio
decidendi, which is considered to have been necessary to the decision of the actual issue
between the' litigants. It is for the Court, of whatever degree, which is called upon to
consider the precedent, to determine what the true ratio decidendi was."

5. In Halsbury's Laws of England (Volume 19, Second Edn, para.556) the rule is stated as
follows;

"It may be laid down as a general rule that that part alone of a decision of a Court of law
is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of
the enunciation of the reasons or principle upon which the question before the Court has
really been determined. This underlying principle which forms the only authoritative
element of a precedent is often termed the ratio decidendi."

Besides the above, he also referred definition of `ratio decidendi' from Smith and Bailey
on The Modern English Legal System.

1. RATIO AND DICTUM

" ... ... ... ... The ratio decidendi of a case is any rule of law expressly or impliedly treated
by the Judge as a necessary step in reaching his conclusion, having regard to the line of
reasoning adopted by him, or a necessary part of his direction to the jury .. .. ... ...

On the definition of the obiter dicta, reliance was placed on the following books:--

1. Stroud's Judicial Dictionary of Words and Phrases (5th Edition) (page 1721)

"OBITER DICTA" Obiter dicta are what the words literally signify, namely, statements
by the way. If a Judge thinks it desirable to give his opinion on some point which is not
necessary for the decision of the case, that of course has not the binding weight of the
decision of the case, and the reasons for, the decision (Flower v. Ebbo Vole Steel, Iron &
Coal Co. (1934) 2 K.B. 132, 154).

Page No. 14 of 1
2. The Law Lexicon [Vol.II] (page 243).

"OBITER DICTA, DICTA AND RATIO DECIDENDI" The question which is necessary
for the determination of a case would be the ratio decidendi the statements made in
passing are in the nature of obiter dicta.

3. Words and Phrases [Vol. 29] (page 16).

"Obiter dicta" is that part of an opinion which does not express any final conclusion on
any legal question presented by case for determination or any conclusion on any principle
of law which it' is necessary to determine as basis for final conclusion on one or more
questions to be decided by Court."

4. Shorter Constitution of India [12th Edition] (page 141).

"Obiter dicta.--(1) An obiter dictum is an observation by a Court on a legal question


suggested by a case before it, but not arising as to require decision. It is not binding as a
precedent, because the observation was unnecessary for the decision pronounced by the
Court.

(2) But though not binding as a precedent, an obiter of the Supreme Court, being the
highest Tribunal, is worthy of respect and considerable weight."

(3) But the law which will be binding under Art.141 would extend only to observations
on points raised and decided by the Court, in a case. It is, therefore, a practice of the
Court not to make any pronouncement, particularly in Constitutional matters, on points
not directly raised for its decision.

(4) While the decision in a judgment of the Supreme Court cannot be assailed on the
ground that certain aspects were not considered or the relevant provisions were not
brought to the notice of the Court, the position is different as regards obiter.

(5) Because an obiter-is not binding as the law declared under Art.141, it cannot be relied
upon solely.--

"to hold certain statutory rules as invalid."

It is to be noted that in the Constitution Petition No.3-K of 1990, newspaper owners i.e.
petitioners before us challenged interim 5th Wage Board Award as well as the Act of 1973
being violative of the Articles 4, 18, 19 and 25 read with Article 2-A of the Constitution
as well as arbitrary and unreasonable/ultra vires the Constitution etc. pending decision of
Page No. 15 of 1
the petition, the Wage Board announced its award. Petitioner sought permission to amend
the petition but the Court did not grant the permission to amend the petition as
application for amendment was filed after a period of 2 years but the Court proceeded to
examine the question about its maintainability and opined that "relevant controversy can
hardly be questions of public importance". It may be that these findings were given by
five Hon'ble Judges, taking into consideration law already available .on the subject, in the
light of facts and circumstances of the case. Therefore, such findings cannot be
considered to be obiter dicta as the questions pondered upon were very much involved in
the matter as per the contents of the petition which has been referred to hereinabove.
Thus the judgment dated 14th December, 1993 in Constitution Petition No.3-K of 1990
has settled the question T that challenging of award of the Wage Board does not give rise
to a question of public importance involving enforcement of any of the fundamental
rights, conferred by Chapter I, Part II of the Constitution.

18. Next question for examination would be as to whether a different view qua the
judgment dated 14th December, 1993, passed by a Bench comprising of five Hon'ble
Judges, can be taken by this Bench comprising three Judges in the light of the arguments
raised before us by the learned counsel for the petitioners. Answer to this question is in
negative in view of the ratio decidendi of the following cases:--

S.No.
Citation
Conclusion/discussion

1.
Province of East Pakistan v. Azizul Islam PLD 1963 SC 296 relevant at 308
In this judgment binding effect of the judgment reported in AIR 1959 SC 814 on the same
point was considered and it was held that if the learned Judges of the High Court are
inclined to take different view, they should have, in accordance with the rules of their
own Courts, referred the matter to a larger Bench.

2
Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 relevant at 923
In this case principle discussed in the case of Province of East Pakistan (ibid) has been
followed.

3
Pir Baksh v. Chairman, Allotment Committee PLD 1987 SC 145 relevant at 163).
Relevant portion from this judgment is reproduced hereinbelow:--

"In a controversy raising a dispute inter parties, the thing adjudged is conclusive as
between the parties both on question of fact and law, but as to what the Court decides
generally is the ratio decidendi. or rule of law for which it is the authority. It is this ratio
decidendi which is applicable to subsequent cases presenting the same problem between
third parties not involved in the original case nor will either of the original parties be
bound in a subsequent dispute with a third party. It will be misnomer to say that this rule
of law acts in rem, this is, as against the whole world as conceptually the applicability of
the rule of law is either founded on the doctrine of, precedent as under the English law or
rule of stare decisis, and none of the doctrines in its application is inflexible for what has
been recalled elsewhere in or the judgment. Therefore, the judgment cannot act in rem, as
is sought to be argued.

The above principles have been reiterated in the cases of Multiline Associates v. Ardeshir
Cowasjee PLD 1995 SC 423 and Muhammad Saleem v. Fazal Ahmed 1997 SCMR 314.

Page No. 16 of 1
For sake of convenience relevant para. from the last noted judgment is reproduced
hereinbelow:--

We, therefore, hold that the earlier judgment of equal Bench in the High Court on the
same point is binding upon the second Bench and if a contrary view had to be taken, then
rest constitution of larger Bench should have been made.

Likewise, above principle has further been reaffirmed in the cases of Babar Shehhzad v.
Said Akbar 1999 SCMR 2518 and Ardeshir Cowasjee v. Karachi Building Control
Authority 1999 SCMR 2883. Relevant para. from me latter is reproduced hereinbelew:--

" .. .... ..It may be pointed out that a Bench of the same number of Judges
of the same High Court, o- of the Supreme Court, cannot deviate from the view of an
earlier Bench as rightly has been held in the case of Multiline Associates v. Ardesher
cowasjee and others PLD 1995 SC 423 (supra) in relation to the High Court. "

19. It is to be observed that number of judgments were cited at the bar by both the sides
to elucidate that what is the definition of public importance. Mr. Abid Hassan Minto,
learned counsel emphasized that basic judgment in this behalf is in the case of Manzoor
Elahi v. Federation of Pakistan PLD 1975 SC 66. Relevant para there-from reads as a
thus:--

"Now, what is meant by a question of public importance. The term `public' is invariably
employed in contradistinction to the terms private or individual, and connotes, as an
adjective, something pertaining to, or belonging to the people, relating to a nation, State
or community. In other words, it refers to something which is to be shared or participated
in or enjoyed by the public at large, and is not limited or restricted to any particular class
of the community. As observed by the Judicial Committee of the Privy Council in
Hamabai Framjee Petit v. Secretary for India in Council (ILR 39 Bom 279) while
construing the words `public purpose' such a phrase, `whatever else it' may mean---must
include a purpose, that is an object or aim, in which the general interest of the
community, as opposed to the particular interest of individuals is directly and vitally
concerned'. This definition appears to me to be equally applicable to the phrase `public
importance'."

20. Raja Muhammad Akram, learned Advocate Supreme Court contended that after the
pronouncement of above judgment, a good number of cases have been decided by this
Court involving question of life and liberty of a citizen but in none of the cases the
controversy relating to a dispute of the payment of wages between the employer and an
employee has been considered to be a question of public importance We may observe that
as far as petitioners are concerned, they have got a fundamental right to establish the
business of newspapers but it is not their fundamental right that how he/they would be
managing finances to run the business, which also include payment of wages to its/their
employees because if he/they have no finances, then his/their business is bound to
collapse and merely non-availability of the funds would not involve fundamental rights of
the petitioners nor it will give rise to a question of public importance because if this
argument is accepted then in respect of every industrial dispute between employers and
employees relating to the payment of wages, either of them would be filing a petition
under Article 184(3) of the Constitution without considering whether such dispute has
given rise to the question of public importance or not.

Page No. 17 of 1
21. Thus, we feel no hesitation in holding that each case put up before the Court under
Article 184(3) of the Constitution has to be determined on its own merits, as it has been
observed in the case of Benazir Bhutto (ibid) relevant para. therefrom is reproduced
hereinbelow:-

"Having regard to the connotation of the words `public importance' it will be for the
Supreme Court to consider in each case whether the element of `public importance' is
involved in the enforcement of the Fundamental Rights irrespective of the individual's
violations of the infractions of a group or a class of IX persons."

22. Learned counsel for petitioners, however, contended that this Court in respect of
identical subject-matter i.e. relating to dissemination of information to general public
through cable, TN. and F.M. Radio Stations, has admitted a Constitution Petition being
No.30 of 1996, inter alia, to examine that the term `freedom of press' as occurring in
Article 19 of the Constitution also refers to `freedom of radio, T.V. and other modern
mass media'. On our query he stated that this petition is pending and yet has not been
decided. In this behalf firstly it is to be noted that petition was filed against the State run
machinery i.e. T.V. etc. wherein a question of granting the licence to operate the Cable
System, T.V. F.M. Radio Station by the Federal Government of Pakistan to some private
persons involved and the case of petitioner is that citizen of Pakistan has got an equal
right to receive information through these medias, therefore, licence in respect thereto
cannot be issued arbitrarily; secondly no comments in this behalf are required to be made
as the matter is still pending adjudication on the file of this Court. Besides it, with
reference to the case in hand, it is to be observed that five Hon'ble Judges of this Court
have already pronounced the judgment, ratio decidendi of which is that the controversy
between the petitioners and respondents does not constitute a question of public
importance therefore, being judgment of an authoritative nature has binding effect upon
the issues which already stand resolved.

23. Raja Muhammad Akram learned counsel for respondents stated that in an identical
case where a dispute has arisen between two groups i.e. employers and employees
namely Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793
this Court did not grant relief to the petitioner and dismissed the petition by making
following observations:--

"11. We now proceed to examine the controversies raised by the petitioners in the above
cases in the light of the above stated principles. The issues arising in a case, cannot be
considered as a question of public importance, if the decision of the issues affects only
the rights of an individual or a group of individuals. The issue in order to assume the
character of public importance, must be such that its decision affects the rights and
liberties of people at large. The objective `public' necessarily implies a thing belonging to
people at large, the nation, the State or a community as a whole. Therefore, if a
controversy is raised in which only a particular group of people is interested and the body
of the people as a whole or the entire community has no interest, it cannot be treated as a
case of public importance Firstly, the controversy raised in the above petitions that the
petitioners who were dismissed under M.L.R. 52 were not allowed back-benefits on
re-employment in the service of P.I.A.C. cannot be treated as on issue of "public
importance" as the decision of this issue is hardly of any significance to the people at
large or to the whole community."

Page No. 18 of 1
He pointed out that above dictum has been approved again by five Hon'ble Judges of this
Court in the case of Watan Party v. Chief Executive PLD 2003 SC 74. For convenience
relevant para. therefrom is reproduced hereinbelow:--

"The issues arising in a case, cannot be considered as a question of public importance. If


the decision of the issues affects only the rights of an individual or a group of individuals.
The issue in order to assume the character of public importance, must be such that its
decision affects the rights and liberties of people at large. The adjective `public'
necessarily implies a thing belonging to people at large, the nation, the State or a
community as a whole. Therefore, if a controversy is raised in Which, only a particular
group of people is interested and the body of the people as a whole or the entire
community has no interest, it cannot be treated as a case of public importance."

Therefore, he contended that the principle laid down in. the case of Zulfiqar Mehdi (ibid)
has been approved by five Hon'ble Judges in Watan Party's case, as such on the question
of public importance qua dispute between employers and employees has become final
and it cannot be overruled by this Bench unless larger Bench is constituted in this behalf.
We; are in agreement with him.

24. We enquired from Mr.Afzal Siddiqui, Senior Advocate Supreme Court who is holding
brief on behalf of the petitioners to explain that in view of the different provisions of the
Act, 1973 which essentially deals with the terms and conditions of the newspapers
employees including fixation of the wages, may be higher or lesser, if a dispute has
arisen, whether it would constitute a question of public importance. He could A not
answer satisfactorily except saying that pronouncement of Wage Board Award if
implemented will curtail the freedom of press. We are not impressed from his this
explanation in view of the discussion made hereinabove, therefore, we are inclined to
hold that a dispute between employ' and employees in terms of the Act, 1973 would not
give rise to the question of public importance one of the essential conditions to attract he
jurisdiction of this Court under Article 184(3) of the Constitution.

25. Raja Muhammad Akram learned Advocate Supreme Court cited a good number of
judgments from the Indian Jurisdiction to contend that non providing of right of appeal,
review or revision in the Act, 1973 cannot be considered a valid reason to strike down the
same. He also cited the judgment on the point that newspaper employees have got an
absolute right of life and liberty under Article 9 of the Constitution which is tagged with
earning of livelihood and on account of nonpayment of their wages, the employer cannot
enforce fundamental right enshrined in Article 19 of the Constitution. These questions are
left open for the time being lest it may cause prejudice to the case of any of the parties if
put up before appropriate forum at a latter stage.

Thus for the foregoing reasons, instant petition under Article 184(3) of the Constitution of
Islamic Republic of Pakistan is not maintainable, therefore, the same is dismissed.
Petitioners may avail appropriate remedy before the competent forum, if desired or
advised, to accordance with law. No order as to costs.

S.A.K./A-43/S Petition dismissed.

Page No. 19 of 1
P L D 1996 Supreme Court 827

Present: Saiduzzaman Siddiqui and Muhammad Bashir Khan Jehangiri, JJ

SAMIULLAH and another --- Petitioners

versus

FAZLE MALIK and another--Respondents

Civil Petition for Special Leave to Appeal No. 175-P of 1995, decided on 21st May, 1996.

(On appeal from the judgment/order of the Peshawar High Court, Peshawar, dated
16-4-1995 passed in Civil Revision No. 484 of 1994).

North-West Frontier Province Waqf Properties Ordinance (IV of 1979)--

---- S. 21 --- Civil Procedure Code (V of 1908), O.XLI, R.23 --- Constitution of 'Pakistan
(1973), An-185(3,, --Canceliation of lease deed --- Plaintiff's suit to the effect that
cancellation of lease deed was mala fide and violative of law will dismissed by Trial
Court on ground of bar of jurisdiction --- Appellate Court affirmed finding of trial Court
--- High court in revisional jurisdiction setting aside judgments and decrees of Courts
below remanded case to Trial Court for enabling defendants to file their written
statements and after recording evidence to determine ouster of jurisdiction of Courts in
terms of S.21, North-West Frontier Province Waqf Properties Ordinance, 1979 ---
Validity --- Trial Court had dismissed suit 'on ground of bar of jurisdiction --- Where
jurisdiction of Civil Court was barred and jurisdiction was conferred upon Special
Tribunals, Civil Courts being Courts of ultimate jurisdiction would be competent to
examine acts of such forums to see whether their acts were in accordance with law or
were even illegal or mala fide---High Court was legally correct to hold that for
determination of allegations as to whether orders in question were in accordance: with
law or even mala fide, filing of written statement and recording of evidence was a sine
qua non --- Order of remand by High Court was, thus, perfectly valid and warranted no
interference by Supreme Court --- Leave to appeal was refused in circumstances.

Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 and Hamid Hussain v.
Government of West Pakistan and others 1974 SCMR 356 rel.

Muhammad Aman Khan, Advocate Supreme Court with Jan Muhammad Khan,
Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st May, 1996.

Page No. 1 of 1
ORDER

MUHAMMAD BASHIR KHAN JEHANGIRI, J---- This petition for leave to appeal is
directed against the judgment of Peshawar High Court, Peshawar, dated 16-4-1995
whereby the order of respondent No.2 non-suiting respondent No. I on the ground of bar
of jurisdiction of the Civil Courts under section 21 of the N.W.F.P. Waqf Properties
Ordinance, 1979 (hereinafter called as the Ordinance) by the trial Court and maintained
by the Appellate Court was reversed and the suit was remanded to the trial Court for
recording evidence 'on the controversial facts' after the written statement is filed by the
defendants.

2. Respondent No. I filed a suit in the Court of Senior Civil Judge, Peshawar, for a
declaration that he was a lessee of a shop situate in Namak Mandi, Peshawar City, owned
by respondent No.2 on the basis of lease deed dated 1-4-1992; and that the order of
cancellation of the lease deed dated 19-1-1993 and that in appeal dated 24-4-1993 passed
by defendant No. 1 was "violative of the law and mala fide". Another relief claimed was
of permanent injunction so as to restrain respondent No.2 from dispossessing him from
the disputed shop. Samiullah aid Naveedullah, petitioners herein, were arraigned as
defendants it the suit as the disputed shop was initially tenanted by their father Attaullah
Jan and after his death, the business merent was being carried on under a partnership
6urween the widow of Attaullah Jan , on behalf of her son and the father of respondent
No. 1. The suit shop was later on !eased out to respondent No. I by virtue of lease deed
dated 16-12-1992 for a period of two years commencing from 173-1992 at the rate of
Rs.1,200 per annum. This allotment was made in pursuance of the findings of the inquiry
report dated 4-9-1990 submitted by the Manager, Auqaf Department and conducted upon
the directions of the Administrator to look into "the allegations about subletting of the
suit shop". The lease was, however, cancelled by respondent No.2 on the application of
the petitioners to whom the shop had been restored by the same order. As stated earlier,
the appeal preferred there against to the Chief Administrator Auqaf under section 10 of
the Ordinance was dismissed on 14-4-1993 and both the Courts declined to exercise the
jurisdiction in view of the bar under section 21 of the Ordinance which is as under:--

"21. Bar of jurisdiction. --Save expressly provided in this Ordinance, no Civil or Revenue
I Court or any other authority, shall have jurisdiction--

(a) to question the legality of anything done under this Ordinance by or at the instance
of the Chief Administrator; or

(b) in respect of any matter which the Chief Administrator is empowered by or under
this Ordinance to determine or settle; or

(c) to grant an injunction or other order in relation to any proceeding before the Chief
Administrator under this Ordinance or anything done or intended to be done by or at the
instance of the Chief Administrator under this Ordinance.

After hearing the learned counsel fur the parties, the learned judge in Chambers of the
High Court observed that the learned trial Judge had passed the impugned order on an
Page No. 2 of 1
application submitted by the Auqaf Department praying for the dismissal of the suit on
the ground of ouster of jurisdiction within the contemplation of section 21 (ibid); that the
case of the petitioners before the trial Court was that there was no allegation of violation
of any conditions of the lease deed within are purview of section 9 of the Ordinance
which warranted inquiry, into the violation or otherwise of the terms of the lease deed
and, therefore, the Civil Court would not be debarred from adjudicating upon the facts so
as to see whether the power conferred by the Ordinance could be exercised in the
circumstances of the case; that it was thus necessary for the defendants to have filed their
written statements to enable the trial Court to determine as to under which provision of
the Ordinance the impugned order was passed and whether such an order could be
competently be passed under the Ordinance. It was thus concluded by the learned Judge
in the High Court that in the present case the question of existence or otherwise of
jurisdiction in the matter was dependent upon "the resolution of controversial facts"
which could not be determined on the basis of averments in the plaint but would require
the filing of the written statements as well as recording of evidence of the parties.
Resultantly, the revision petition was accepted and, as stated earlier, the impugned
judgments and the decrees of the . two Courts below were set aside and the case was
remanded to the trial Judge for enabling the defendants to file their written statements '
and after recording the evidence to determine the ouster of jurisdiction under section 21
(ibid).

4. Mr. Muhammad Aman Khan, learned counsel appearing for the petitioners,
contended that the question of jurisdiction was purely of law which could b ' e
determined without any written statement and without recording of evidence before the
trial Court and that, therefore, the learned Single Judge in the High Court had erred to
hold that the question of jurisdiction was dependent upon the resolution of controversial
facts which could not be determined on the basis of averments in the plaint alone. The
learned counsel further urged that the learned Judge in the High Court had already
assumed that the cancellation of lease was only permissible under the provision of section
9 of the Ordinance, in that, section 21 of the Ordinance clearly bars the jurisdiction of
Civil or Revenue Court or any other authority to go into the question of legality of any
act done under the Ordinance. According to the learned counsel, the property in dispute
being admittedly owned by respondent No.2, therefore, the legality and propriety of the
impugned order of cancellation of the lease of the shop in dispute could not be
determined by any forum including the Civil Court. To this argument, "this Court's
judgment in Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 is a
complete answer which has been consistently followed by this Court including the case
of Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356). It is a
well-established principle that even where the jurisdiction of Civil Courts is barred and
conferred upon Special Tribunals, Civil Courts being Courts of ultimate jurisdiction
would be competent to examine the acts of such forums to see whether their acts are in
accordance- with law or/are illegal or even mala fide. The learned Judge in the Chambers
of the High Court was, therefore, legally correct to hold that for the determination of
allegations as to whether the impugned orders are in accordance with law or/are even
mala fide, the filing of the written statements and recording of evidence was a sine qua
none. The impugned order of remand for the purpose was thus perfectly valid and
warrants no interference by us in our Constitutional jurisdiction.

5. For the foregoing reasons, there is no merit in this petition for leave to appeal which is
hereby dismissed.

A.A/S-1057/S Leave refused.

Page No. 3 of 1
P L D 1975 Supreme Court 624

Present: Hamoodur Rahman, C. J., Salahuddin Ahmed, Anwarul Haq and Muhammad
Afzal Cheema, JJ

Civil Appeal No. 194 of 1970

Mst. HAMIDA BEGUM-Appellant

versus

Mst. MURAD BEGUM AND OTHERS-Respondents

Civil Appeal No. 195 of 1970

Mst. MURAD BEGUM AND OTHERS-Appellants

versus

Mst. HAMIDA BEGUM-Respondent

Civil Appeals Nos. 194 and 195 of 1970, decided on 8th September 1975.

(On appeal from the judgment and order of the High Court of West Pakistan at Lahore
made on the, 7th of December 1966 in Letters Patent Appeal No. 134 of 1961).

(a) Civil Procedure Code (V of 1908)-

-- O. XXII, rr. 3 & 11-Abatement of appeal-Death of respondent pending appeal-Legal


representatives already parties to appeal--Appeal does not abate for n m-filing application
in time for bringing such legal representatives on record.

(b) West Pakistan Land Reforms Regulation, 1959 [M. L. R. 64]-

Page No. 1 of 1
-- Para. 10-Applicable only if a valid wakf in nature described in S. 3 Mussalman Wakf
Validating Act, 1913 be in existence - Wakf disputed and question of title as well as
questions regarding existence of jurisdictional facts requiring determination-Para. 10 not
applicable prior to determination of such questions-Mussalman Wakf Validating Act (VI
of 1913), S. 3.

Paragraph 10 of the Martial Law Regulation No. 64 of 1959 would apply only if there is
in existence a valid wakf of the nature described in section 3 of the Mussalman Wakf
Validating Act, 1913. Only in that case the land shall be divided among the beneficiaries,
non-heirs receiving share in proportion to the benefit reserved for them under the wakf,
and heirs according to the law of inheritance, as if succession had opened on the day the
donor died. Now, in the present case, there is the contention of the plaintiff that no valid
wakf-alal-aulad was created by her father and there is also the assertion by she defendants
that the plaintiff is not an heir of the donor. These are not only questions of title, but also
questions regarding the existence of Jurisdictional facts, the prior determination of which
is necessary for the application of paragraph 10 of the Regulation.

(c) West Pakistan Land Reforms Regulation, 1959 [M. L. R. 64]-

-- Paras. 3, 4 & 27-Jurisdiction, ouster of-Matter or dispute falling outside ambit of


Regulation or raising question as to jurisdiction of Land Commission itself-Jurisdiction
of civil Courts to deal with such matter or dispute not barred-No provision in Regulation
empowers Land Commission to give binding decisions on questions of title and personal
status like legitimacy and inheritance - Civil Procedure Code (V of 1908), S. 9-Specific
Relief Act (I of 1877), S. 42.

The correct position in law appears to be that under paragraphs 3, 4 and 27 of the West
Pakistan Land Reforms Regulation, the ordinary Courts are barred from questioning the
validity of any provisions of the Regulation as well as any rule or order made thereunder,
thit all disputes arising in connection with the implementation of the provisions of this
Regulation are to be finally decided by the Land Commission, and no Court or authority
has jurisdiction in respect of any matter which the Commission or an Officer acting under
the authority of the Commission is empowered to determine. If any matter or dispute falls
outside tire ambit of the Regulation, or raises a question as to the jurisdiction of the Land
Commission itself, then the jurisdiction of the civil Courts to deal with such matter or
dispute is not barred. The Land Commission is not the final Judge of facts and
circumstances constituting the foundation of its jurisdiction, although it has necessarily to
decide such questions for the purpose of administering the Regulation. Its decisions on
such jurisdictional facts are open to challenge in the ordinary Courts, and in any case
there does not appear to be any provision in the Regulation empowering the Land
Commission to give binding decisions on questions of title and personal status like
legitimacy and inheritance. That jurisdiction continues to remain with the civil Courts in
terms of section y of the Code of Civil Procedure read with section 42 of the Specific
Relief Act. It follows, therefore, that while undoubtedly it is for the Land Commission to
apply and administer the provisions contained in Paragraph 10 of the Regulation in
respect of land forming the subject-matter of a wakf-alai-aulad, but if the question be
whether a valid wakf of this nature is indeed in existence, or whether a particular person
is an heir or a legitimate child of the donor, then any determination made by the Land
Commission would not be final, as these are not matters which the Land Commission is
empowered to determine under the Regulation.

Page No. 2 of 1
There is no indication in the Regulation that it was intended to apply retrospectively to
disputes which had arisen prior to the promulgation of the Regulation, and involved
controversies independent of the provisions of the Regulation.

Bibi Ayesha v. Chief Land Commissioner, West Pakistan P L D 1966 S C 84; Hajiani v.
West Pakistan Land Commission P L D 1966 S C 114; Nasir Ahmed v. Ismat Jehan 1968
S C M R 667; Feroze Shah v Mohammad Umar Khan P L D 166 S C 340; Mst Ahmedi
Begum v. Mohammad Mushtaq Ali Khan P L D 1971 S C 736 and Khair Mahammad
Khan v. State P L D 1966 S C 604 held not relevant.

Mohammad Jamil Asghar v. Improvement Trust, Rawalpindi P L D 1965 S C 698;


Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner and others P
L D 1965 S C 35: and Abdul Rauf v. Abdul Humid Khan P L D 1965 S C 671 ref.

(d) Specific Relief Act (I of 1877)-

-- S. 39-Cancellation of document-Person claiming through or as successor-in-interest of


a party to instrument-Obliged to have instrument set aside if it constitutes impediment in
way of relief sought by him.

Sajjad Ali v. Mohammad Zulfiqar Ahmed Khan 83 P R 1916; Vithu v. Devidas A I R


1918 Nag. 20; Kunji(al v. Chandar Singh A I R 1921 Nag. 74 and Ganapathi Iyer v.
Sivamalal Goundan I L R 36 Mad. 575 ref.

(e) Specific Relief Act (I of 1877)-

--S 39-Cancellation of document-Deed or instrument ab initio null and void-Nullity-No


need of having it cancelled or set aside--Instrument if voidable-Requires setting aside or
cancellation.

Where the deed or instrument is ab initio null and void, it can be treated as a nullity
without having to be cancelled or set aside. If, on the other hand, the instrument is only
voidable, then it would be necessary to have it set aside or cancelled in order to remove
the impediment in the way of the plaintiff. It is perhaps not possible to enumerate
exhaustively the circumstances which would render an instrument null and void, but it is
at least clear that if the person who executes the document had no authority in law to do
so, or if he had only a conditional authority to dispose of property, and the conditions
under which authority could be exercised were not fulfilled, then the instrument could be
regarded as null and void. Similarly, if the instrument is executed by a person suffering
under a legal disability at the time of its execution, say by reason of minority,
unsoundness of mind etc., the document would be null and void. If, however, the
instrument is executed by a person competent to do so, but it is alleged that he was forced
or persuaded to execute the same under coercion, fraud, misrepresentation or undue
influence, then it would be a voidable instrument in accordance with the principles
embodied in sections 19 and 19-A of the Contract Act. The instrument would remain
operative as long as it was not set aside by a , competent Court.

Page No. 3 of 1
Radhu Ram v. Mohan Singh A I R 1915 Lah. 200; Unni v. Kunchi Amma I L R 14 Mad.
26; Mt. Izhar Fatima Bibi v. Mt. Ansar Fatima Bibi A I R 1939 All. 348; Minalal
Shadiram v. Kharsetji Jivajishet I L R 27 Bom. 560; Janki Kunwar v. Ajit Singh I L R 15
Cal. 58; Govindasamy Pillai v. Ramaswamy Pillai I L R 32 Mad. 72: Mohant Gayan
Prakash Das v. Mt. Dukhan Kuar A I R 1938 Pat. 69; Sh. Ibrar Ahmed v. Mt. Kamni
Begum A I R 1938 All. 451 and Ramchandra Jivail Kanago v. Laxam Shirini Vas Naik A I
R 1945 P C 54 rej:

(f) Limitation Act (IX of 1908)-

---Art. 91-Article 91 not applicable to suit where cancellation of instrument is merely


incidental or ancillary to substantial relief claimed by plaintiff.

Article 91 of the Limitation Act, 1908 does not apply to a suit where the cancellation of
the instrument is merely incidental or ancillary to the substantial relief claimed by the
plaintiff, for example, recovery of possession, or a declaration that the instrument is
ineffective as against the plaintiff's right.

The principle is that if the plaintiff is not bound by the document, or of he is not claiming
under the same, and the substantial relief prayed for by him is not the cancellation or
setting aside of the instrument, then the suit is not governed by Article 91. Applying this
principle to the present case it is clear that the plaintiff, claiming, as she does, through the
executor of the impugned instruments cannot succeed in reserving her snare in the
inheritance unless she prays for the cancellation or setting aside of these documents. As a
successor-in-interest of her father she is bound by these instruments as long as they
remain operative, with the result that the property to dispute would not be available for
her to inherit. It follows from what has been said in the preceding paragraphs that the
appellant's suit was indeed governed by Article 91 of the Limitation Act.

Bachchan Singh v. Kamta Prasad I L R 32 All. 392; Mt. Bageshra v. Sheo Nath A I R
1916 All. 3 39; Chhaju Yal v. Multan Singh A I R 1936 Lah. 995; Unni v. Kunchi Amma I
L R 14 Mad. 26 and Rampal Singh v. Balbhaddar Singh I L R 25 All. 1 ref.

(8) Limitation Act (IX of 1908)-

-- Art. 91 and Specific- Relief Act (I of 1877), S. 39-Phrase "when the facts entitling the
plaintiff to have the instrument cancelled or set aside become known to plaintiff" in Art. 9
t-Must be construed to mean when having knowledge of such facts a cause of action has
accrued to him and he is in a position to maintain a suit -Limitation under Art. 91
commences not when plaintiff acquires knowledge of facts which render instrument
voidable but of facts "entitling the plaintiff to have the instrument cancelled or set aside"-
Muhammadan Law does not recognise spes successionis and as such suit brought by a
Muslim during the lifetime of his father to challenge gift made by the latter on ground of
undue influence is not maintainable-Limitation under Art. 91 in such a case would start
running from date of death of father-Muhammadan Law-Succession.

Page No. 4 of 1
The Muhammadan Law does not recognise spes successionis i.e. an expectation or hope
of succeeding to the property of another by survival. Till that death occurs a presumptive
heir has no right at all in the property of his ancestor.

A suit brought by a son, during the lifetime of his father, to challenge a gift made by the
latter on the ground of undue influence was bound to be dismissed as the son had no
interest in praesenti in his father's property during the latter's lifetime.

Mulla's Muhammadan Law, 13th Edn., S. 52; Abdul Wahid Khan v. Mist. Nuran Bibi 12 I
A 91; Mirza Kurratulain Bahadur v. Nawab Nuzhat-ud-Dowla Abbas Hussain Khan 32 I
A 244 and Hasan Ali v. Nazo (1889) 11 All. 456 ref.

The words in Article 91 "when the facts entitling the plaintiff to have the instrument
cancelled or set aside become known to him" must be construed to mean "when having
knowledge of such facts a cause of action has accrued to him, and he is in a position to
maintain a suit."

Under Article 91, the limitation commences not when the plaintiff acquires knowledge of
facts which render the instrument voidable, but of facts "entitling the plaintiff to have the
instrument cancelled or set aside:" As such a suit falls under section 39 of the Specific
Relief Act, it is obvious that the right to sue accrued to the plaintiff only when he has
reasonable apprehension that the instrument, if left outstanding, may cause him serious
injury. Such an apprehension cannot arise at a time when the plaintiff has no right or
interest in the property forming the subject-matter of the instrument in question. It
follows, therefore, that the starting point in limitation under this Article is the date when
the plaintiff acquires knowledge of facts which gives him a cause of action and entitles
him to have the instrument cancelled or set aside; mere knowledge of facts bearing on the
true character of the instrument is not enough. On this view of the matter, the appellant
could not maintain the present suit in the lifetime of her father, even though she had come
to know of the execution of impugned wakf deeds and the circumstances surrounding
their execution. Limitation against her must, therefore, run from the date of his death.

Ram Samran v. Sarioo Pershad A I R 1929 Oudh 67; Tawangar Ali. v. Kura Mal I L R 3
All. 394; Meda Bibi v. Imaman Bibi I L R 6 All. 207; Mahabir Parasad Singh v. Harrihur
Pershad Narain Singh I L R 19 Cal. 629; Ali Mirza Beg v. Hassan Raza Khan A I R 1917
Oudh 188; Balasundara Pandiam Piltai v. Authlamulum Chittiar A I R 1919 Mad. 679 (1)
and Mulani v. Maula Baksh I L R 6 All. 260 ref.

(h) Constitution of Pakistan (1973)-

-- Art. 185 - Appeal to Supreme Court - Scope of jurisdiction exercised by Supreme Court
in appeal-Appeal from judgment delivered by High Court in first or second appeal
--Supreme Court proceeds on basis that it too is vested with some power of doing
complete justice which High Court had-Remand of case not to be lightly ordered-Fact
that period of 25 years elapsed in litigation and all material evidence on issues arising in
suit already on record--Supreme Court considered case fit one where remand was not
justified and case was disposed of by Supreme Court on merits although High Court had

Page No. 5 of 1
disposed of case not on merits but on account of erroneous view on question of
limitation.

Karamat Ali v. Mohammad Younas P L D 1963 S C 191; Ataullah Malik v. Custodian,


Evacuee Property P L D 1964 S C 236; Abdul Salam v. Alah Miah Serang P L D 1971 S
C 189 distinguished.

Mohammad Yousuf v. S. M. Ayoob P L D 1973 S C 160; Abdul Jabbar v. Abdul Waheed


Khan in P L D 1974 S C 331 and Pramatha Nath Choudhry v. Kamir Mondal P L D 190-5
S C 434 ref.

(i) Evidence Act (I of 1872)-

---S. 112-Legitimacy-Rules of Muslim Personal Law-Apply to Muslims after repeal of S.


2 of the Act in matters of legitimacy, etc.-Case-law discussed.

On the repeal of section 2 of the Evidence Act by Act I of 1938, the rules of Muslim
Personal Law stood revived, and would apply in matters of legitimacy etc. where the
parties are Muslims.

Rehmat Ali v. Mst. Allahdi 1 P R 1884; Waras Mohammad v. All Bakhsh 76 P R 1891;
Umra v. Mohammad Hayat 79 P R 1907; Nurul Hasan v. Mohammad Hasan 78 P R 1910;
Mst. Hujira Khatoon v. Mst. Amina Khatoon A I R 1923 All. 570; Syed Sibt Mohammad
v. Mohammad Hameed A I R 1926 All. 580; Ghulam-Mohy-ud-Din Khan v. Khizar
Hussain I L R 10 Lah. 470; Mst. Rahim Bibi v. Chiragh Din A I R 1930 Lah. 97; Mst.
Sampatia Bibi v. Mir Mahboob Ali A I R 1936 AIL 5261 Mohammad Allahdad v.
Mohammad Ismail Khan I L R 10 All. 289; Mst. Bibee Fazilat-un-nessa v. Mst. Bibee
Kamar-un-nissa (1905) 9 Cal. W N 352; Zakirall v. Bograli A I R 1918 Nag. 32; Abdul
Ghani v. Mst. Talib Bibi P L D 1962 Lah. 531; Muhammadan Law by Syed Ameer All
(1965 Edn. by Roja Said Akbar), p. 179; Anglo-Muhammadan Law by Wilson, 5th Edn.,
p. 162; Mulla's Principles of Muhammadan Law, 13th Edn., S. 340; Teyyabi's
Muhammadan Law, 3rd Edn., p. 259; Islamic Law in Africa by J. N. D. Anderson; Fatwa
Alamgiri, Hedaya; Durre Mukhtar; Abdur Rahim's Muhammadan Jurisprudence, Chap.
10; Capt. T. W. King v. Mrs. F. E. King A I R 1945 All. 190 and Mohammad Munir's
Principles and Digest of the Law of Evidence ref.

(j) Interpretation of statutes--

Repeal-Repeal of repealing Central Act or Regulation-Would not automatically revive


wholly or partially enactment which had been repealed by such Central Act or
Regulation.

Mohammad Safi v. State of West Bengal A I R 1951 Cal. 97; Municipal Board, Lucknow
v. Ram Autar A I R 1960 All. 119 and Abdul Maiid v. The Custodian of Evacuee Property
P L D 1962 Kar. 306 ref.
Page No. 6 of 1
(k) General Clauses Act (x of 1897)-

-- Ss. 3 (17) & 7 (1)-Words "Enactment"-Connotation-Anything in nature of rules,


whether of evidence or substantive law, not contained in Statute, Regulation or Act
formally promulgated or enacted-Not "enactment"-Rules of Muslim Personal Law-Not
included in term "enactment" as used in cl. (1), S. 7, General Clauses Act, 1897.

The term "enactment" connotes something, which has been formally promulgated or
enacted by an authority having the power to make laws in respect of the subject-matter of
the law as well as its territorial operation. To put it differently, the term "enactment" can
only refer to a formal law made by the State in accordance with the relevant
constitutional procedures applicable to law-making; it cannot extend to anything in the
nature of rules, whether of evidence or substantive law, not contained in any Statute,
Regulation or Act formally promulgated or enacted. Rules of Muslim Personal Law
derive their authority and sanction from the Quran and Sunnah, and they have been
developed, over a long period of time, by the deliberation of Muslim jurists, but they
have not been formally enacted or promulgated as a municipal law in Pakistan, save to a
limited extent in the matter of succession and dissolution of marriage etc. The only other
legislation, promulgated in this behalf from time to time, has been to declare the
application of these rules of Muslim Personal Law to parties who are Muslims. It follows,
therefore, that the rules of Muslim Personal Law are not included in the term "enactment"
as used in clause (1) of section 7 of the General Clauses Act.

(l) Muhammadan Law

-- Legitimacy, status of---Law relating to.

Under the Muhammadan Law, as in all civilised systems of law, the child follows the bed
(firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the
husband of the mother without any acknowledgment or affirmation of parentage on his
part and such child follows the status of the father. According to the Sunni schools the
presumption of legitimacy is so strong that in cases where a child is born after six months
from the date of marriage and within two years after dissolution of the marital contract,
either by the death of the husband or by divorce, a simple denial of paternity on the part
of the husband would not take away the status of legitimacy from the child. Of course,
presumption based on the bed is subject to the right of disavowal on the part of the
husband for want of access. This right has to be exercised in accordance with the custom
of the locality either on the day of the child's birth or at the time of purchasing articles
necessary in view of its birth or during the period of rejoicing. If the husband is absent,
he must disown the child immediately he is informed of its birth. The shortest period of
gestation, according to all the schools, is six months. If, therefore, a child is born within
six lunar months of the marriage, no affiliation would take place unless the man
acknowledge it to be his issue. In other words, it is the right of the man to legitimate a
child born within this time by acknowledging expressly or impliedly that the conception
took place in wedlock. According to the Hanafis, contrary to the Shafi'is, the husband is
entitled to claim the child born in wedlock as his, even if he had no access to the wife. If
the husband wishes to repudiate a child so born, he can only do so by the procedure of
laan that is to say, if he swears before the Qazi that the child is illegitimate and fruit of
adultery, in which case the Court will pass a decree not only dissolving the marriage but
declaring the child to be illegitimate.
Page No. 7 of 1
Legitimacy is a status which results from certain facts, whereas legitimation is a
proceeding which creates a status which did not exist before. This proceeding becomes
necessary where either the existance of a valid marriage cannot be expressly proved or
where the child is born within six months of the marriage as stated above. In such cases,
acknowledgement of legitimacy in favour of the child may ba either express, or by
necessary implication from the course of treatment by the man of the mother and the
child, or from the evidence of repute and notoriety amongst the members of the family,
community and respectable members of the locality. Such an acknowledgement raises a
presumption of a valid marriage and legitimate birth.

Syed Habib-ur-Rehman Choudhry v. Syed Altaf Ali Choudhry A I R 1922 P C 159;


Khwaja Hidayatullah v. Rai Jan Khanum (1844) 3 Moors I A 295; Muhammad Bauker
Hussain Khan Bahadour v. Shurfoon Nissa Begum (1860) 8 Moors I A 136; Ashrafood
Dowlah Ahmed Hussain Khan Buhadoor v. Haider Hussain Khan (1866) Moors I A 94;
Mohammad Allahdad Khan v. Mohammad Ismail Khan I L R 10 All. 289; Abdul Razzaq
v. Agha Mohammad Jaffar Bindanfm I L R 2 1 Cal. 665; Mst. Bibee Faztlatunnessa v.
Mst. Bibee Kamarunnessa (1905) 9 C W N 352; Sadiq Hussain Khan v. Hashim Ali Khan
(1916) 43 I A 212; Zakirali v. Sograbi A I R 1918 Nag. 32; Zamin Ali v. Azizunnessa I L
R 55 All. 139 and BIN Amu v. Mst. Asiat P L D 1958 Kar. 420 ref.

(m) Evidence Act (I of 1872)-

-- S. 90-Presumption under S. 90-Would stand negatived if there is internal evidence of


forgery.

Tikamdas v. Abdul Wall P L D 1968 S C 241 ref.

(n) Civil Procedure Code (V of 1908)-

-- S. 100-Second Appeal-Undue influence -Finding of fact-Not susceptible to interference


in Second Appeal.

Vankatrama Alyar v. Krishnammal A I R 1927 Mad. 255 and Ladli Parshad v. Karnal
Distillery Co. Ltd. A I R 1963 S C 1279 ref.

(o) Contract Act (IX of 1872)-

--S. 16-Undue influence-When can be inferred.

Page No. 8 of 1
Undue influence may be inferred when the benefit is such as the faker had no right to
demand, either in law or in equity, or even as a moral claim, and the grantor had no
rational motive to give. Wherever one member of the family exercises weighty influence
in the domestic councils either from age, from character or from superior position
acquired from other circum. stances, an inference as to the existence of undue influence
can legitimately be drawn.

Where undue influence is alleged it is necessary to examine very closely all the
circumstances of the case.

Where the relation between the donor and the donee raises a presumption that the donee
had influence over the donor, the Court will set aside the gift unless the donee establishes
that it was the spontaneous act of the donor acting in circumstances which enabled him to
exercise an independent will, and which justified the Court in holding that it was the
result of a free exercise of the donor's will.

Muhammad Bakhsh Khan v. Hussaini Bibi I L R 15 P C 684 and Inche Noriah v. Shaikh
Allie Bin Omar 1929 A C 127 ref.

M. Shafi, Senior Advocate instructed by S. Inayat Hussain, Advocate-on-Record for


Appellant (in Civil Appeal No. 194 of 1970).

Raja Mohammad Anwar, Senior Advocate instructed by Sh. Abdul Karim, Advocate-on-
Record for Respondents (in Civil Appeal No. 194 of 1970).

Raja Mohammad Anwar, Senior Advocate instructed by Sh. Abdul Karim, Advocate-on-
Record for Appellants (in Civil Appeal No. 195 of 1970).

M. Shafi Senior Advocate instructed by S. Inayat Hussain, Advocate-on-Record for


Respondent (in Civil Appeal No. 195 of 1970).

Dates of bearing: 27th, 28th, 29th, May; 2nd and 3rd June 1975:

JUDGMENT

ANWARUL HAQ, J.-This judgment will dispose of cross-appeals bearing Trios. 194 and
195 of 1970, both of which are directed against the judgment dated the 7th of December
1966 passed by a Division Bench of the former High Court of West Pakistan at Lahore in
an appeal under clause 10 of the Letters Patent.

On 2-10-1950, Mst. Hamida Begum (appellant in Civil Appeal No. 194) instituted a suit
in the Court of the Subordinate Judge, III Class, at Khanpur, in the District of Rahim Yar
Page No. 9 of 1
Khan, for a declaration to the effect that the two deeds dated respectively the 4th of
October 1944 and the 11th of June 1945 executed by her late father Sh. Mehar Din,
purporting to create a wakf-alal-aulad were null and void and ineffective against the
plaintiff's rights for the reason that they were obtained by undue influence and fraud, and
at a time when Sh. Mehar Din was not possessed of a sound disposing mind. By these
deeds the entire property of Sh. Mehar Din was dedicated to the wakf, his wife Mst.
Murad Begum was appointed as the Mutwalli, and the plaintiff was excluded from the list
of beneficiaries, which was confined to Mst. Murad Begum and her two daughters, Mst.
Mumtaz Begum and Mst. Zubaida Begum. The plaintiff also prayed for the grant of a
perpetual injunction against the defendants restraining them from interfering with the
property in dispute.

The suit was contested by the defendants, who are appellants in Civil Appeal No. 195 of
1970, on the grounds that the plaintiff was not the legitimate daughter of Sh. Mehar Din,
that the two deeds were executed by the deceased of his own free will, and that they had
been given effect to during his lifetime. They also contended that the suit was barred by
time, having been filed after more than three years from the date of the execution of the
documents, and even from the date of the plaintiff's knowledge of the same.

The learned Subordinate Judge came to the conclusion that Mst. Hamida Begum was not
a legitimate daughter of Sh. Mebar Din, that the suit was barred by time as it was
governed by Article 91 and not by Article 120, of the Schedule to the Limitation Act, and
that the deeds had created an effective wakf-alal-aulad. He accordingly dismissed the suit
by his judgment dated the 10th of October 1955.

The plaintiff thereupon filed an appeal in the Court of the Senior Subordinate Judge at
Rahim Yar Khan, exercising appellate powers of the District Court. After reviewing the
evidence on the record at some length the learned Senior Subordinate Judge reversed the
finding of the trial Court on the question of the legitimacy of Mst. Hamida Begum. He
also found that the deeds bad been executed under undue influence, as the elderly Sh.
Mehar Din was under the thumb of his young wife Mst. Murad Begum. Finally, he
expressed the view that the suit was governed by Article 120 of the Limitation Act, and
was, therefore, within time. Accepting the appeal, he decreed the suit by his judgment
dated the 25th of August 1956.

The defendants filed a second appeal in the High Court, which was accepted by a learned
Single Judge by his judgment dated the 11th of April 1961. He found that the two deeds
had created a valid wakf, and for that reason the plaintiff was obliged to ask for their
cancellation, with the result that the suit was governed by Article 91 of the Limitation
Act. Having found the suit barred by limitation, the learned Judge did not examine the
question of the status of the plaintiff.

The plaintiff's appeal under clause 10 of the Letters Patent was dismissed by a Division
Bench of the High Court by its judgment dated the 7th of December 1966 on the ground
that it had become infructuous in view of the provisions contained in paragraph 10 of
Martial Law Regulation No. 64 of 1959. The learned Judges observed that according to
this paragraph all lands included in any wakf of the nature, described in section 3 of the
Musalman Wakf Validating Act, 1913 had ceased to form part of such wakf on the
commencement of the Regulation, namely, the 7th of February 1959, and bad to be
divided among the beneficiaries, non-heirs receiving shares in proportion to the benefit
reserved for them under the wakf and heirs according to the law of inheritance, as if
succession had opened on the day the donor died. They did not accordingly feel the
necessity of examining the case on merits.
Page No. 10 of 1
Leave to appeal was granted to the plaintiff, Mst. Hamida Begum, to examine the
contention that even for the application of paragraph 10 of Martial Law Regulation No.
64, it was necessary for the Letters Patent Bench to record a finding on the question of
the validity of the wakf as well as on the question of the legitimacy of Mst. Hamida
Begum. It was also felt that even the question of limitation had to be considered, and the
suit could not have been allowed to remain dismissed on the ground of Letters Patent
appeal having become infructuous.

On behalf of the defendants the main ground urged for seeking leave to appeal was that
the learned Judges of the Letters Patent Bench had erred in observing that the learned
Single Judge bad not disturbed the finding recorded by the first appellate Court on the
question of the legitimacy of the plaintiff. It was submitted that the learned Single Judge
having found the suit barred by limitation, had not rightly adverted to the question of
legitimacy.

A preliminary objection was raised by Raja Mohammad Anwar, learned counsel for the
defendants, that Mst. Murad Begum had died on 3-11-1973, but the application for
bringing her legal representatives on the record in Civil Appeal No. 194 of 1970 was not
made until 4-2-75. The objection, is, however, without substance, for the reason that Mst.
Murad Begum's two daughters, who are her only legal representatives, were already
parties to this appeal. It is also interesting to note that even in the defendants' appeal
bearing No. 195 of 1970, the necessary application was not made until after the expiry of
six months from the date of Mst. Murad Begum's death. In these circumstances, we are of
the view that there is no question here of the abatement of either of these appeals owing
to the death of Mst. Murad Begum.

The first question which calls for consideration in these appeals is whether the learned
Judges of the Letters Patent Bench were right in thinking that the appeal before them had
become infructuous in view of the provisions contained in paragraph 10 of Martial Law
Regulation 64 promulgated on the 7th of February 1959.

It was submitted by Sh. Mohammad Shafi, learned counsel for Mst. Hamida Begum, that
Martial Law Regulation 64 of 1959 had since been repealed by Martial Law Regulation
115 of 1972, and accordingly the view taken by the learned Judges of the High Court was
no longer sustainable in law, and on that short ground alone we should ignore the order
made by the Letters Patent Bench, and proceed to consider the merits of the case in the
light of the judgment delivered by the learned Single Judge in the Regular Second
Appeal. This submission, however, overlooks the provisions contained in clause (2) of
paragraph 32 of Martial Law Regulation 115, which provides, inter alia that the repeal of
the earlier Regulation shall not affect the previous operation of the said Regulation or the
validity, invalidity, effect or consequences of anything already done or suffered
thereunder. It follows, therefore, that if the wakf created by Sh. Mehar Din was indeed
affected by the provisions contained in paragraph 10 of Martial Law Regulation No. 64,
then it would not stand revived owing to the repeal of the said Regulation. It is, therefore,
necessary to examine the effect of the said paragraph on the wakf in question.

The relevant portions of paragraph 10 of Martial Law Regulation No. 64 are in the
following terms:-

Page No. 11 of 1
"10. Wakfs--(1) Land included in any Wakf of the nature described in section 3 of the
Mussalman Wakf Validating Act, 1913 (VI of 1913), shall, on the commencement of this
Regulation cease to form part of such Wakf.

(2) Such land, except the portion, if any, already specifically dedicated for a religious,
pious or charitable purpose, shall be appropriated as follows:-

(a) ………………………..

(b) ……………………….

(c) If the donor is dead, the land shall be divided among the beneficiaries, non-heirs
receiving share in proportion to the benefit reserved for them under the Wakf, and heirs
according to the law of inheritance, as if succession had opened on the day the donor
died.

(d) …………………

It will be seen that this paragraph would apply only if there is in existence a valid wakf of
the nature described in section 3 of the Mussalman Wakf Validating Act, 1913. Only in
that case the land shall be divided among the B beneficiaries, noon-heirs receiving shale
in proportion to the benefit reserved for them under the wakf, and heirs according to the
law of inheritance, as if succession had opened on the day the donor died. Now, in the
present case, there is the contention of the plaintiff that no valid wakf-afal-aulad was
created by her father Sh. Mehar Din; and there is also the assertion by the defendants that
the plaintiff is not an heir of the donor. These are not only questions of title, bait also
questions regarding the existence of jurisdictional facts, the prior determination of which
is necessary for the application of paragraph 10 of the Regulation.

Relying upon BIN Ayesha v. Chief Land Commissioner. West Pakistan (P L D1966 S C
84), Hajiani v. West Pakistan a and Commission (P L D1966 S C 114) arid Nasir Ahmad
v. Ismat Jehan (1968 S C M R 667), it was submitted by the learned counsel for the
defendants that these matters fell within the exclusive jurisdiction of the Land
Commission, and accordingly, we should remit the case to that body for flea disposal.

According to the learned counsel, on the promulgation of Martial Law Regulation 64, the
civil Court lost its jurisdiction to determine the dispute raised by the plaintiff, and any
decree obtained by her would not be binding, on the authorities of the Land Commission.

Paragraphs 3, 4 and 27 of the Regulation appear to be relevant to the question of


jurisdiction. Paragraph 3 provides that "the provisions of this Regulation and any rule or
order made thereunder, shall have effect notwithstanding anything to the contrary in any
other law, or in any order or decree of Court or other authority, or in any rule of custom or
usage, or in any contract, instrument, deed or other document." Paragraph 4 provides for
Page No. 12 of 1
the constitution of the Land Commission and its powers, and clause (6) thereof prescribes
that "where any dispute arises in carrying into effect the provisions of this Regulation,
such dispute shall be referred to the Commission, whose decision thereon shall be final."
Finally, clause (1) of papa-a graph 27 provides that "no provision of this Regulation or of
any rules or orders made thereunder shall be called into question in any Court including,
the High Court and the Supreme Court or before any authority other than an authority
appointed under this Regulation, and no such Court or authority shall have jurisdiction in
respect of any matter which tile Commission or an Officer acting under the authority of
the Commission is empowered to determine."

In the present case, there is no challenge to any of the provisions of the Regulation or any
rule or order made thereunder, and the only question, therefore, is whether the dispute
between the parties concerns any matter which the Commission or an officer acting under
its authority is empowered to determine. In the case of Bibi Ayesha and Hajiani, the Court
was dealing directly with matters which fell within the competence of the Land
Commission to determine, and in respect of which the Land Commission had in fact
made certain orders. In those circumstances, the Court came to the conclusion that the
final decision of the disputes cone; reed rested with the Land Commission, which was not
bound by any decree of the civil Court, even if the dispute had been taken to that Court
with the permission of the Land Commission, or under its directions. The Court was
careful to limit the ouster of jurisdiction of the civil Court to matters which the
Commission was empowered to determine. The same view was reiterated in Feroze Shah
v. Mohammed Umar Khan (P L D 1966 S C 340). In Nasir Ahmad v. Ismat Jehan it was
observed that, in view of paragraph 27 of the Regulation, it was the exclusive function of
the Land Commission or of the Chief Land Commissioner to decide whether an
alienation of land under a dower deed was invalidated under paragraph 25 of tire
Regulation. In the view of the Court this was a dispute properly arising before the Land
Commission, which was not bound by a decree of the civil Court in this behalf. The
appellant was accordingly directed to approach the Chief Land Commissioner for
adjudication of the matter. Again in Mst. Ahmedi Begum v. Mohammad Mushtaq Ali
Khan (P L D 1971 S C 736) after interpreting the true meaning and scope of clausal (2)(c)
of paragraph 10 of the Regulation, a direction was made that the Land Commission shall
decide the case accordingly.

It will be seen that in all these cases the matters in dispute were such as were regarded as
falling squarely within the jurisdiction of the Land Commission. However, in Khair
Mohammad Khan v. State (P L D 1966 S C 604), while dealing with a case in which it
was made to appear that the impugned order had not been made by the learned Chief
Land Commissioner in accordance with the provisions of the Regulation, the Court
observed that "by paragraph 27 of the Regulation, it is provided that no order made
thereunder shall be called into question in any Court including the High Court and the
Supreme Court. The words are not "any order purporting to be made", but "any order
made" and therefore the requirement is that any order in respect of which immunity may
be claimed under paragraph 27 must be an order made in accordance with the Regulation
in its relevant provisions . . . . the bar of jurisdiction under paragraph 27 was limited to
orders which were in substance and form made in compliance with the Regulation. . ."

Strictly speaking, the cases noticed in the preceding paragraphs are not of direct
relevance in the present context, and they have been mentioned primarily for the reason
that they were cited at the Bar by one party or the other. The question before us is more
fundamental, touching the jurisdiction of administrative or quasi judicial tribunals to
determine the existence of facts and circumstances which are essential as providing the
foundation of their jurisdiction. This question fell for examination by this Court, in
relation to the bar of jurisdiction contained in paragraphs 22 and 25 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1958, in Mohammad Jamil Asghar v.
Improvement Trust, Rawalpindi (P L D 1965 S C 698). It was observed that "so far as
special judicial tribunals are concerned they are given jurisdiction to determine certain
Page No. 13 of 1
facts but they are not Judges of the facts which are the foundation of their jurisdiction,
nor can they define the limits of their own jurisdiction. . . It is possible of course that a
special tribunal may be made the Judge of its own jurisdiction, but this would be a very
exceptional provision and one which should be made by altogether clear words".
Applying this principle to the exclusive powers enjoyed by the Settlement Officers, the
Court observed that "the foundation of the jurisdiction of the Settlement Officers for
transfer of property is that the property should be that which was evacuee property, which
has vested in the Central Government and which is liable to be transferred under the
provisions of the Displaced Persons (Compensation and Rehabilitation) Act. If the
property be in fact such, the settlement authorities exercise with respect to it quasi-
judicial functions, They determine whether i possession of a party exists, whether a
person is a claimant, what is the date of his possession and so on. With respect to the
nature of the property, however, the settlement authorities have no jurisdiction to record a
binding a determination. If the property was in fact not evacuee property, and was not
vesting in the Central Government, the settlement authorities could not grant to
themselves any jurisdiction to deal with it by holding that it was evacuee property. Their
orders would always be liable to challenge in an ordinary civil Court on the ground that
they had no jurisdiction with respect to the property transferred at all. The Displaced
Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to
settlement authorities to bring all property within their jurisdiction on their own
findings." It was concluded that "the order of the settlement authorities would be binding
by virtue of sections 22 and 25 in respect of matters which the law intended should be
decided by them only (subject of course to the jurisdiction of the High Court under
Article 98 of the Constitution), but would not be binding with respect to findings of facts
which form the foundation of their jurisdiction."

The same principle was re-affirmed in Devachand Muljimal v. Deputy Settlement &
Rehabilitation Commissioner etc. (P L D 1965 S C 356). In Abdul Rauf v. Abdul Hamid
Khan (P L D 1965 S C 671), it was observed that "civil Courts have jurisdiction as
provided in section 9 of the Code of Civil Procedure to try all suits of a civil nature,
excepting those the trial of which is expressly or impliedly barred . . . the question as to
whether the act of an executive or an administrative officer or a quasi judicial or judicial
tribunal is without jurisdiction, illegal and not binding on a party, being a matter of a civil
nature, is always to be decided by the civil Courts except to the extent to which such
jurisdiction may have been taken away."

The correct position in law thus appears to be that under paragraphs 3, 4 and 27 of the
Regulation, the ordinary Courts are barred from questioning the validity of any
provisions of the Regulation as well as any rule or order made thereunder, that all
disputes arising in connection with the implementation of the provisions of this
Regulation are to be finally decided by the Land Commission, and no Court or authority
has jurisdiction in respect of any matter which the Commission or an Officer acting under
the authority of the Commission is empowered to determine. If any matter or dispute falls
outside the ambit of the Regulation, or raises a question as to the jurisdiction of the Land
Commission itself, then the jurisdiction of the civil Courts to deal with such matter or
dispute is not barred. The Land Commission is not the final Judge of facts and
circumstances constituting the foundation of its jurisdiction, although it has necessarily to
decide such questions for the purpose of administering the Regulation. Its decisions on
such jurisdictional facts are open to challenge in the ordinary Courts, and in any case
there does not appear to be any provision in the Regulation empowering the Land
Commission to give binding decisions on questions of title and personal status like
legitimacy and inheritance. That jurisdiction continues to remain with the civil Courts in
terms of section 9 of the Code of Civil Procedure read with section 42 of the Specific
Relief Act.

It follows, therefore, that while undoubtedly it is for the Land Commission to apply and
administer the provisions contained in paragraph 10 of the Regulation in respect of land
Page No. 14 of 1
forming the subject-matter of a wakf-alai-aulad, ''but if the question be whether a valid
wakf of this nature is indeed in existence, or whether a particular person is an heir or a
legitimate child of the donor, then any determination made by the Land Commission
would not be final, as these are not matters which the Land Commission is empowered to
determine under the Regulation. The learned Judges of the Letters Patent Bench were,
therefore, in error in thinking that the appeal before them had become infructuous. For
the application of paragraph 10 itself, the questions in controversy between the parties
needed to be resolved by a civil Court.

There is yet another aspect of the matter, It will be recalled that in this case the suit was
instituted by the plaintiff on 2-10-50, and the proceedings in appeal being in the nature of
a continuation of the suit and constituting a substantive right, they could not abate in the
absence of a clear stipulation to this effect in the Regulation, even if the matters were
otherwise within the competence of the Land Commission to decide. We have not been
able to find any indication in the Regulation that it was intended to apply
restrospectively to disputes which had arisen prior to the promulgation of the Regulation,
and involved controversies independent of the provisions of the Regulation.

We may now turn to the question of limitation. It was contended by Sh. Mohammad Shafi
that the learned Single Judge in the High Court was in error in thinking that the limitation
for the suit was governed by Article 91 of the Schedule to the Limitation Act. He
submitted that this Article did not apply to the suit as (a) the plaintiff was not a party to
the impugned documents; (b) in any case the two deeds were null and void, and.
therefore, there could be no question of having them cancelled or set aside; (c) the
substantial relief sought by the plaintiff was to the effect that the two wakf deeds were
ineffective as against her rights in the property of her father; and (d) even if Article 91
applied to the suit, the starting point for limitation could not have been earlier than the
death of the plaintiff's father, Sh. Mehar Din, which occurred sometime during the year
1.948, as it was only on his death that she became entitled to have the instruments
cancelled or set aside.

Article 91 provides a period of three years for a suit to cancel or set aside an instrument
not otherwise provided for, and the limitation is to commence "when the facts entitling
the plaintiff to have the instrument cancelled or set aside become known to him"

It is correct that the Article does not apply where the plaintiff was not a, party to the
instrument sought to be avoided, for the reason that in that cease he is not bound by it and
it is not necessary for him to have it set aside. At the same time, it is also clear that a
plaintiff, claiming through, or as a successor-in-interest of, a party to the instrument is in
the same position as the principal, and would be obliged to have the instrument set aside
if it constitutes an impediment in the way of the relief sought by him. (See Sajjad Ali v.
Mohammad Zulfiqar Ahmed Khan (83 P R 1916), Vithu v. Devidas (A I R 1918 Nag. 20),
Kunjilal v. Chandar Singh (A I R 1921 Nag. 74) and Ganapathi Aiyar v. Sivamalai
Goundan (I L R 36 Mad. 575). In the present case the appellant has no other right or
locus standi except as a successor-in-interest of her father Sh. Mehar Din, and she must,
therefore, ask for avoidance of the two instruments in question before she can succeed to
the property in dispute.

From the language of the Article itself, it is clear that it will not apply when the
cancellation of an instrument is not an essential part of the plaintiff's relief. An obvious
case of this kind would be where tee deed or instrument is ab initio null and void, in
which case it can be treated as a nullity without having to be cancelled or set aside. If, on
the other hand, the instrument is t only voidable, then it would be necessary to have it set
Page No. 15 of 1
aside or cancelled in P order to remove the impediment in the way of the plaintiff. It is
perhaps not possible to enumerate exhaustively the circumstances which would render an
instrument null and void, but it is at least clear that if the person who executes the
document had no authority in law to do so, or if he had only a conditional authority to
dispose of property, and the conditions under which authority could be exercised were rot
fulfilled, then the instrument could be regarded as null and void. Similarly, if the
instrument is executed by a person suffering under a legal disability at the time of its
execution, say by reason of minority, unsoundness of mind etc., the document would be
null, and void. If, however, the instrument is executed by a person competent to do so,
but it is alleged that he was forced or persuaded to execute the same under coercion,
fraud, misrepresentation or undue influence, then it would be" a voidable instrument in
accordance with the principles embodied in sections 19 and 19-A of the Contract Act. The
instrument would remain operative as long as it was not set aside by a competent Court.
As authority for this proposition, we may mention Redhu Ram v. Mohan Singh (A I R
1915 Lah. 200), Unni v. Kunchi Amma (I L R 14 Mad. 26) Mt. Izhar Fatima Bibi v. Mt.
Ansar Fatima Bibi (A I R 1939 All. 348), Minalal Shadiram v. Kharsetji Jivajishet (I L R
27 Bom. 560), Janki Kunwar v. Ajit Singh (I L R 15 Cal. 58), Govindasamy Pillai v.
Ramaswamy Pillai (I L R 32 Mad. 72), Mahant Gyan Prakash Dos v. Mt. Dukhan Kuar
(A I R 1938 Pat. 69), Sh. Ibrar Ahmed v. Mt. Karrni Begum (A I R 1938 All. 451),
Ramchandra Jivajg Kanago v. Laxam Shrini Vas Naik (A I R 1945 P C 54).

No doubt in the plaint the allegations made by the appellant were to the effect that the
two wakf deeds were null and void, as they bad been obtained by the defendants by
collusion and fraud from the plaintiff's father who was about 90 years of age at the time
of their execution and was not mentally fit, yet the finding of fact recorded by the lower
appellate Court is that the deeds were got executed by the young wife of Sh Mehar Din
through fraud and undue influence. Before the trial Court the plea that at the time of the
execution of the deeds in question, Sh. Mehar Din was not of a sound disposing mind,
was abandoned by the plaintiff, and the question was not agitated in first appeal. In these
circumstances; the two deeds could not be treated as being void ab initio; they were
merely voidable on account of the alleged exercise of undue influence and fraud on the
donor. It follows, therefore, that it is not a case where the plaintiff could regard the
impugned deeds as null and void, without the necessity of having them set aside or
cancelled.

Learned counsel for the appellant is right in contending that Article 91 does not apply to a
suit where the cancellation of the instrument is merely incidental or ancillary to the
substantial relief claimed by the plaintiff, for example, recovery of possession, or a
declaration that the instrument is ineffective as against the plaintiff's rights. This
proposition finds support from a number of precedent cases, namely, Bachchan Singh v.
Kamta Prasad (I L R 32 All. 392), Mt. Bageshra v. Shoo Nath (A I R 1916 All. 339),
Chhaju Mal v. Multan Singh (A I R 1936 Lah. 996), Unni v. Kunchi Amma (I L R 14
Mad. 26) and Rampal Singh v. Balbhaddar Singh (I L R 25 All. 1). In all these cases the
principle enunciated is that if the plaintiff is not bound by the document, or if he is not
claiming under the same, and the substantial relief prayed for by him is not the
cancellation or setting aside of the instrument, then the suit is not governed by Article 91.
Applying this principle to the case before us, we find that the plaintiff, claiming, as she
does, through the executor of the impugned instruments cannot succeed in recovering her
share in the inheritance unless she prays for the cancellation or setting aside of these
documents. As a successor-in-interest of Sh. Mehar Din she is bound by these instruments
as long as they remain operative, with the result that the property in dispute would not be
available for her to inherit.

It follows from what we have said in the preceding paragraphs that the appellant's suit
was indeed governed by Article 91 of the Limitation Act. The question, however, is
regarding the starting point of limitation. The learned Judge in the High Court has taken
the view that the right to sue ha accrued to the plaintiff during the lifetime of her father,
Page No. 16 of 1
Sh. Mehar Din; that time started to run against her from the date of the execution of the
deeds; and that in any case she had come to know about these instruments on or about the
14th of November 1945, on which date her Mukhtar, Taj Din, had applied for copies of
the mutations attested in this behalf on the 4th of August 1945. On these facts, the learned
Judge has concluded that the suit filed on the 2nd of October 1950 was clearly barred by
limitation, as the period allowed under the law wag only three years.

In observing that the right to sue had accrued to the plaintiff during the lifetime of her
father, the learned Judge has overlooked a basic principle of Muslim Law, namely, that
"the right of an heir-apparent or presumptive comes into existence for the first time on the
death of the ancestor, and he is not entitled until then to any interest in the property to
which he would succeed as an heir if he survived the ancestor " (Section 52 of Mulla's
Muhammadan Law, 13th Edn.). The Muhammadan Law does not recognise) spes
successionis, i.e., an expectation or hope of succeeding to the property of t another by
survival. Till that death occurs a presumptive heir has no right at all in the property of his
ancestor.

It is interesting to observe that the illustration given by the learned author under this
section is almost identical with the facts of the instant case. He has observed that a suit
brought by a son, during the lifetime of his father to challenge a gift made by the latter on
the ground of undue influence was bound to be dismissed a, the son had no interest in
praesenti in his father's) property during the latter's lifetime.

This principle finds support from Abdul Wahid Khan v. Mst. Nuran Bibi (12 I A 91),
Mirza Kurratulain Bahadur v. Nawab Nuzhat-ud-Dowla Abbas Hussain Khan (32 I A
244), as well as from Hasan Ali v. Nazo (I L R 11 All. 456).

However, in the last mentioned case an interesting principle was laid down, namely, that
although the plaintiff had, during the donor's lifetime, no reversionary or vested interest
in the estate, but a mere possibility of inheritance, yet the right which accrued to the
plaintiff at the donor's death, was affected by the donor's acts and dispositions; and that as
a suit by the donor to set aside the deed would, at the time of his death, be barred by
Article 91 of the Limitation Act, such a suit was also barred against the plaintiff who
claimed through him, the cancellation of the deed being a substantial and necessary
incident of the claim, and the necessity which rested upon the plaintiff for obtaining such
cancellation before he could dislodge the donees not being obviated by his choosing to
call the suit one for possession of immovable property. The learned Judges lave indeed
arrived at an intriguing conclusion, namely, that during the donor's life-time the plaintiff
had no right to sue for setting aside the instrument, and yet iris suit was barred by time
although brought within three years of the donor's death, as the same would have been
barred if brought by the donor himself.

It seems to us that the learned Judges, who decided this case, were primarily influenced
by the consideration that the word `plaintiff', as defined in clause (8) of section 2 of the
Limitation Act, includes any person from or through whom a plaintiff derives his right to
sue, and, therefore, the necessary knowledge possessed by the predecessor-in-interest
must also be attributed to the actual plaintiff in the suit, even though he did not personally
possess the same. Observations to this effect were also made in a much later case,
namely, Ram Samran v. Sarjoo Pershad (A I R 1929 Oudh 67).

Page No. 17 of 1
While this rule would undoubtedly ordinarily apply to a suit brought by a plaintiff as
successor-in-interest of a party to the instrument, it is clear that such a rule would be
completely unrealistic and inapplicable in a case where the actual plaintiff, claiming
through a party to the impugned instrument, had no right or interest in the property at the
time of the execution of the document fin spite of possessing knowledge of the facts
which would render it voidable. As observed in Tawangar Ali v. Kura Mal (I L R 3 All.
394), the words in Article 91 "when the facts entitling the plaintiff to have the instrument
cancelled or set aside become known to him" must be construed, to mean "when having
knowledge of such facts a cause of action has accrued to him, and he is to a position t
maintain a suit."

This view has been consistently followed in a large number of cases, namely, Meda Bibi
v. Imaman Bibi (I L R 6 Cal. 207), Mahabir Parasad Singh v. Hurrihur Pershad Narain
Singh (I L R 19 Cal. 629), Ali Mirza Beg v. Hason Raza Khan (A I R 1917 Oudh 188),
Balasundara Pandiam Pillai v. Authiamulam Chittiar (A I R 1919 Mad. 679), and Mulani
v. Maula Bakhsh (I L R 46 All. 260).

We consider that the view adopted in these precedent cases is correct for, under Article
91, the limitation commences not when the plaintiff acquires knowledge, of facts which
render the instrument voidable, but of facts "entitling the plaintiff to have the instrument
cancelled or set aside." As such a suit falls under section 39 of the Specific Relief Act, it
is obvious that the right to sue accrues to the plaintiff only when he has reasonable
apprehension that the instrument, if left outstanding, may cause him serious injury. Such
an apprehension cannot arise at a time when the plaintiff has no right oil interest in the
property forming the subject-matter of the instrument in question. It follow, therefore,
that the starting point of limitation under this Article is the date when the plaintiff
acquires knowledge of facts which give him a cause of action and entitle him to have the
instrument cancelled or set aside; mere knowledge of facts bearing on the true character
of the instrument is not enough.

On this view of the matter, the appellant could not maintain the present suit in the lifetime
of her father, even though she had come to know of the execution of the impugned wakf
deeds and the circumstances surrounding their execution. Limitation against her must,
therefore, run from the date of his death. Unfortunately, the exact date of the death of Sh.
Mehar Din has not been brought on the record by either party, and it is only stated in
general terms that he died in 1948. Calculating on this basis, the plaintiff could institute
her suit within three years of 1948, i.e., until 1951. The present suit having been instituted
on 2-10-1950 was clearly within time in terms of Article 91 of the Limitation Act.

As we have found that the learned Judges of the Letters Patent Bench were in error in
thinking that the plaintiff's appeal under clause 10 of the Letters Patent had become
infructuous owing to the promulgation of paragraph 10 of Martial Law Regulation 64,
and that the learned Single Judge, who decided the plaintiff's second appeal in the first
instance, was also in error in taking the view that her suit was barred by limitation under
Article 91 of the Schedule to the Limitation Act, both these judgments have to be set
aside. As a result, the only operative judgment in the field would be that of the first
appellate Court, without there being any finding by the High Court on the questions in
issue between the parties.

It was submitted by the learned counsel for the respondents that, in these circumstances,
the case should be remitted to the High Court for deciding afresh the plaintiff's second
appeal on merits. Learned counsel for the appellant, on the other hand, opposed this
suggestion and submitted that such a course would cause great hardship to the plaintiff
Page No. 18 of 1
who had already spent the best part of her life, almost twenty-five years, in pursuing this
litigation. He contended that all the material evidence, on the issues arising in the suit
being already available on the record, it was a fit case where this Court ought itself to
decide these questions finally so as to do complete justice between the parties, without
forcing them to another round of litigation in the High Court, and possibly again in the
Supreme Court.

In support of his submission that the case be remanded to the High Court, Raja
Muhammad Anwar drew our attention to Karamat All v. Muhammad Younas (P L D 1963
S C 191), Ataullah Malik v. Custodian, Evacuee Property (P L D 1964 S C 236) and
Abdul Salam v. Alah Miah Serang (P L D 1971 S C 189). It appears to us, however, that
these cases are clearly distinguishable. In the first case, the Supreme Court allowed
certain amendments to be made in the plaint and remanded the suit to the trial Court for
further disposal in accordance with law. In the second case, the minority view was that
the matter should be remitted to the Custodian of Evacuee Property for deciding certain
questions which did not appear to have been considered by that authority in the original
proceedings. In the last case relied upon by Raja Muhammad Anwar, the matter was
remanded to the High Court for disposal of the second appeal in terms of section 103 of
the Code of Civil Procedure on the ground that the learned Judge had failed to examine
the relevant evidence before reaching certain, conclusions on facts. In none of these cases
was the Court called upon to consider whether the case ought to be disposed of finally by
this Court in view of the time that had already elapsed since the litigation was
commenced, and the fact that all the material evidence was already available on the
record.

In a situation like the present, where the High Court has failed to examine the plaintiff's
second appeal on merits on account of an erroneous view on the question of limitation,
the rule laid down by this Court in Muhammad Yousuf v. S. M. Ayoob (P L D 1973 S C
160) appears to be directly applicable. While examining the scope of the jurisdiction
exercised by this Court in appeal, it was observed as under:-

" . . But once leave has been granted and the appeal is before this Court, this Court has
vested in it, by clause (1) of Article 189 of the Interim Constitution itself, all the powers
necessary for doing complete justice in any cause or matter pending before it. In the
exercise of this power, it certainly has the jurisdiction to do all that the Court, from whose
decision the appeal is brought, could do. Thus, in an appeal from a judgment of a High
Court in a proceeding, brought before it, under Article 201 of the Interim Constitution,
the Supreme Court while considering whether the High Court has proceeded upon correct
principles keeps in view the nature and scope of the jurisdiction given by that Article to
the High Court, and where it becomes necessary to correct the High Court, the Supreme
Court proceeds on the basis that it too has the same jurisdiction as the High Court.
Similarly, in appeals, from judgments delivered by the High Court in a second or first
appeal, the Supreme Court proceeds on the basis that it too is vested with the same
powers of doing complete justice, which the High Court had."

Similar observations were made in Abdul Jabbar v. Abdul Waheed Khan (P L D 1974 S C
331) while dealing with a case of judicial review of an order made by a statutory tribunal.
It was stated that "the principle is well established that if a statutory tribunal fails to
exercise jurisdiction vested in it by law, such a failure would be open to correction in the
exercise of the, power of judicial review vesting in the superior Courts under the
Constitution. The Court may, in appropriate circumstances, remit the case to the tribunal
concerned for deciding the question left undecided or it may itself proceed to determine
the matter if the relevant material is already present on the record, and such determination
does not entail any inquiry into disputed questions of fact."

Page No. 19 of 1
As to the scope of the power enjoyed by the High Court in second appeal, it would
suffice to mention that under section 103 of the Code of Civil Procedure the High Court
may, if the evidence on the record is sufficient, determine any issue of fact necessary for
the disposal of the appeal which has not been determined by the lower appellate Court, or
which has been wrongly determined by such Court by reason of any illegality, omission,
error or defect, such as is referred to in subsection (1) of section 100. Instances of such
cases are where the finding is based upon inadmissible evidence, or where evidence has
not been considered, or where the finding is based upon wrong presumptions. The object
underlying the section appears to be to avoid the necessity of remanding a case where the
relevant evidence is already available on the record. As observed in Pramatha Nath
Choudhry v. Kamir Mondal (P L D 1965 S C 434) a remand should not be lightly ordered
if the evidence on the record is sufficient for the appellate Court to decide the question
itself. There can be no bar to the Court doing so."

Keeping in view the powers available to the High Court under section 103 of the Code of
Civil Procedure and consequently to this Court in the present appeal, as well as the fact
that this litigation involving, inter alia, the rather sensitive question of the personal status
of the appellant, has been pending in the Courts for nearly twenty-five years, we consider
that this is indeed a fit case where we should not remand the matter to the High Court but
should ourselves proceed to determine the questions in controversy on the basis of the
ample material already brought on the record by the contending parties. Learned counsel
for both sides agree that the evidence adduced at the trial is sufficient for this purpose.

It will be recalled that the two main questions touching the merits of the case are:-

(a) Whether the plaintiff is a legitimate daughter of the late Sh. Mehar Din; and

(b) Whether the two wakf deeds in question are voidable on account of having been
executed by the plaintiff's father under undue influence of his latest wife Mst. Murad
Begum.

Both these questions have been answered in favour of the plaintiff by the learned Senior
Subordinate Judge at Rahimyar Khan, acting as the first appellate Court. Learned counsel
appearing for the respondents has challenged both these findings.

On the question of the legitimacy of the plaintiff, it was submitted by Raja Muhammad
Anwar that the lower appellate Court had erred in deciding the question under section
112 of the Evidence Act, instead of applying the rule of Muslim Law to the effect that any
child born within six months of the marriage is presumed to be illegitimate. He contended
that with the repeal of section 2 of the Evidence the rule of Muslim Law stood revived
and had to be applied in the present case. He further submitted that the learned Senior
Subordinate Judge had completely ignored the defendant's evidence which clearly
established the fact that the plaintiff was born on 19-10-1916. i.e, within six months of
the marriage of the late Sh. Mehar Din with the plaintiff's mother Mst. Ghulam Zainab or
9-5-1916.

Page No. 20 of 1
Before we examine the mass of evidence adduced by the parties on the question of the
legitimacy or otherwise. of the appellant, it is necessary to decide whether the matter is
governed by the provisions of section 112 of the Evidence Act, or by the rules of the
Muslim Law.

Section 2 of the Indian Evidence Act, as originally enforced on the 1st of September
1872, provided that:-

"On and from that day the following laws shall be repealed:-

(1) All rules of evidence not contained in any Statute, Act or Regulation in force in any
part of British India;

(2) all such rules, laws and regulations as have acquired the force of law under the 25th
section of Indian Councils Act, 1861, in so far as they relate to any matter herein
provided for; and

(3) the enactments mentioned in the schedule hereto, to the extent specified in the third
column of the said schedule;

But nothing herein contained shall be deemed to affect any provision of any Statute, Act
or Regulation in force in any part of British India and not hereby expressly repealed."

On that day the Punjab Laws Act (IV of 1072). enacted on 2 3-1872,. was in force.
Section 5 of this Act provided, inter alia, that where the parties were Mohammedans, the
Muhammadan Law shall be the rule of decision in questions regarding succession,
special property of females, betrothal, marriage, divorce, dower, adoption, guardianship,
minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage
or institution, except in so far as such law has been altered or abolished by legislative
enactment, or is opposed to the provisions of this Act, or has been modified by any such
custom as is referred to earlier in the section. The question is whether clause (1) of
section 2 of the Evidence Act had the effect of repealing the provisions of the Muslim
Personal Law on the subject of legitimacy and bastardy.

There appears to be a considerable conflict of judicial opinion on this point. As early as


1884, it was held by the Punjab Chief Court in Rehmat Ali v. Mst. Allahdi (1), that
although the rules of Muslim Personal Law can the subject of legitimacy were a part of
substantive law, yet with reference to the definitions of the terms "proved" and
"disproved" in section 3 of the Evidence Act and the rule embodied in section 112 thereof
they had to be regarded as rules of evidence, and, therefore, stood repealed by clause (I P
R 1884 ) of section 2 of the Evidence Act. This view was followed in Warms
Muhammad v. Ali Bakhsh (76 P R 1891), Umra v. Muhammad Hayar (79 P R 1907),
Nurul Hassan v. Muhammad Hasan (78 P R 1910), Mst., Hajira Khatoon v. Mst. Amina
Khatoon (A I R 1923 All. 570), Syed Sibt Muhammad v. Muhammad Hameed (A I R
1926 All. 589), Ghulam Mohy-ud-Din Khan v. Khizar Hussain (I L R 10 Lah. 470), Mt.
Rahim Bibi v. Chiragh Din (A I R 1930 Lah. 97) and Mst. Sampatia Bibi v. Mir Mahboob
Ali (A I R 1936 All. 526).
Page No. 21 of 1
A contrary view was expressed in Muhammad Allahabad v. Muhammad Ismail Khan (I L
R 10 All. 289) by a Full Bench of the Allahabad High Court, observing "the rules of the
Muhammadan Law relating to acknowledgement by a Muhammadan of another as a son
are rules of the substantive law of inheritance." The question whether these rules stood
superseded by section 112 of the Evidence Act was, however, not finally decided, as
would be apparent from the following observations appearing in the judgment of
Mahmood, J.

"Such being my view of the facts of the case, it is not necessary to enter into any
elaborate discussion as to how far the provisions of section 112 of the Indian Evidence
Act as to birth during wedlock being conclusive proof of legitimacy, would affect a case
as this . . . . . it may some day be a question of great difficulty to determine how far the
provisions of that section are to be taken as trenching upon the Muhammadan Law of
marriage, parentage, legitimacy, and inheritance, which departments of law under other
statutory provisions are to be adopted as the rule of decision by the Courts in British India
.... . . ."

In the two Allahabad cases, mentioned in the preceding paragraph, the learned Judges of
the same High Court did not, however, subscribe to this view, and held that the provisions
of section 112 of the Evidence Act applied in supersession of the relevant rules of the
Muslim Law.

In Mst. Bibee Fazilatunnessa v. Mst. Bibee Kamarunnessa ((1905) 9 Cal. W. N 352), the
observations made in the case of Mohammad Allahabad Khan by the Full Bench of the
Allahabad High Court were referred to with approval, and it was held that the doctrine of
acknowledgement was not a mere rule of evidence, but an integral portion of
Muhammadan family law with the result that the question of legitimacy must be
determined with reference to Muhammadan Jurisprudence rather than to the Evidence
Act. The same view was adopted in Zakirali v. Bograli (A I R 1918 Nag. 32) and Abdul
Ghani v. Mst. Talib Bibi (P L D 1962 Lah. 531).

The views expressed by some of the eminent writers on Muhammadan Law on this
question may also be noticed at this stage. On page 179 of Muhammadan Law by Syed
Amir Ali (1965 Uri. by Raja Said Akbar), it is, stated that "section 112 of the Indian
Evidence Act embodies the English rule of law, and cannot be held to vary or supersede
by implication the rules of Muhammadan Law." The conclusion is not supported by any
reasoning or authority.

The statement of the law appearing on page 161 of Anglo-Muhammadan. Law by Wilson
(5th Edn.) is more elaborate:-

"The rule of the Indian Evidence Act, section 112, that legitimacy is, conclusively
presumed from birth during the continuance of a valid marriage or within two hundred
and eighty days after its termination unless it be shown that the married partners had no
access to each other at any time when the alleged child could have been begotten, is
really, notwithstanding its place in the Statute book, a rule of substantive marriage law,
rather than of evidence, and, as such, has no application to Mohammedans, so far as it

Page No. 22 of 1
conflicts with the Muhammadan rule that a child born within six months after the
marriage of its parents is not legitimate."

The view expressed by Ameer Ali and Wilson is, however, not shared by Mulla and
Tayyabji. Section 340 of Mulla's Principles of Muhammadan Law (13th Edn.) merely
reproduces the contents of section 112 of the Indian Evidence Act of 1872, and the notes
thereunder appear to cite with approval cases which apply these provisions in
supersession of the rules of the Muslim Law. '

While stating the rules having a bearing on the determination of the paternity of a chili,
Tayyabji rematks, in subsection (2) of section 215 of his Book 'Muhammadan Law' (3rd
Edn.) that "the rules stated in this ..section are subject to the Indian Evidence Act, section
112, so far as it is ,.applicable." On page 259, the point is elaborated as under:-

"The rules in sections 215-221 must be taken to be repealed by the Indian Evidence Act,
section 112. The general intention of the Legislature seems clearly to be that section 112
should govern questions arising with reference to persons of every- denomination. That
section gives effect to the same principles, on which the rules of Muhammadan law are
grounded, but on the basis of present day information. Its general application has the
additional advantage of removing difficulties about the choice of law that would arse if
the Muhammadan law were to be applied in cases between parties both of whom are not
governed by the same school of law. The policy underlying these presumptions equally of
Muhammadan Law, of English law, and of the rules laid down in the Indian Evidence
Act, and the reasons why some of the Muslim exponents of law stretched the length of
the period of gestation to two and four years, are not difficult to surmise. There was, no
doubt, an initial want of scientific knowledge, though the latest scientific authorities show
that the period of gestation is always subject to doubt. Added to this was the desire not to
take any risk of bringing down on the head. It even of an erring woman, the extremely
severe punishment that adultery involved. English law abounds in cases in which the
rigour of the law is lessened by fictions and technicalities."

In a comparatively recent publication, namely, Islamic Law in Africa by J. N. D.


Anderson, it is stated while dealing with the administration of Muslim law in Aden and
East Africa, that "it has been held in Zanzibar that while the status of legitimacy is a
matter of substantive law as is also the rule that a legitimate child is one born, or
presumed to be born, of a valid marriage, yet the rules governing the means by which that
presumption is to be arrived at are not so. Such cases therefore are now covered in
Zanzibar by sections 2, 112 and 114 of the Evidence Decree, and a child is conclusively
proved legitimate if born within 280 days of the dissolution of its mother's marriage,
provided she has not re-married . . . . . ." The sections of the Evidence Decree, as
operative in Zanzibar, are identical with the relevant sections of the Evidence Act
applicable in Pakistan.

On a consideration of the authorities noticed in the preceding paragraphs, the views


expressed by well-known writers on Muslim law, as well as the scheme of classification
of the rules of Muslim law as adopted in well-known texts like Fatawa Alamgiri. Hedaya
had Durrul Mukhtar, we are inclined to the view that rules of Muslim law on the question
of legitimacy are a part of the substantive family law, dealing with the subjects of validity
of marriage, paternity, guardianship, succession and inheritance. In no authoritative
textbook on Muslim law have the rules regarding legitimacy been included in the
Chapters dealing with adjective law comprising procedure and evidence. "Kitab al-
shahadat" constitutes a separate part of all these texts, and contains elaborate discussion
on the questions of admissibility of evidence, the rules for testing the credibility of
Page No. 23 of 1
witnesses, and instructions relating to the conduct of cases, but there is no mention
anywhere of the legal presumptions relating to paternity and legitimacy. In his excellent
discussion on the subject of procedure and evidence in Chapter 10 of his book
Muhammadan Jurisprudence, Abdur Rahim has not apt all touched the subject, thus
showing that in the scheme of Muslim law it is not regarded as a rule of evidence.

This conclusion is, however, not decisive on the question whether clause (1) of section 2
of the Indian Evidence Act, as originally promulgated in 1872, had the effect of repealing
the rules of Muslim law on the subject of legitimacy in view of the specific provisions
contained in this behalf in section 112 of that Act. The preamble to that Act states
"Whereas it is expedient to consolidate, define and amend the law of evidence." The
object of the repealing provisions included in section 2 of the Act was clearly to pave the
way for the application of the rules of evidence embodied in she Act in supersession of
those mentioned in the several clauses of the section. The phrase, "all rules of evidence"
as employed in clause (1) of this section must, therefore, be interpreted in the sense in
which it is employed in this Act, and not under the scheme of classification adopted in
other systems of law. It may be mentioned that section 112 is included in Chapter VII of
the Act, which deals with the subject of "the burden of proof". This Chapter also includes
another important section, namely, section 114 containing certain presumptions as to the
existence of certain facts. The subject of presumptions is itself dealt with in section 4 of
the Act. Certain special presumptions as to documents are contained in sections 79 to 90
of the Act. It appears to us, therefore, that the Evidence Act adopts an elaborate scheme
of its own by treating the subject of presumptions and the burden of proof as regards the
question of legitimacy as a part of the law of evidence, and it is in this light that the scope
of the repealing provisions contained in section 2 of the Act must be judged.

It follows, therefore, that although under the classification adopted by writers on Muslim
law, the subject of legitimacy and paternity is treated as a part of the substantive law, yet
in view of the scheme underlying the Evidence Act, 1872, the rules governing legitimacy
must be regarded as rules of evidence, for otherwise the legislative intent underlying the
promulgation of the Evidence Act, namely, "to consolidate, define and amend the law of
evidence," was likely to be defeated, by excluding from its purview several subjects
which have been specifically dealt with in this Act, but are not described as rules of
evidence under other systems of law which were then in operation under the Punjab Laws
Act of 1872 and corresponding laws obtaining in other Provinces of India. On this view
of the matter, we consider that the rule enunciated by the Punjab Chief Court as early as
1884 in the case of Rehmat All v. Mst. Allahdi, and since followed in a large number

Of cases, was indeed correct, namely, that for the purposes of section 2(i) of the Evidence
Act the rules of Muslim law on the question of legitimacy must be treated as rules of
evidence, and accordingly repealed by it, with the consequence that the matter would be
governed by section 112 of the Evidence Act even in those cases where the parties were
Muslims.

This position continued to prevail until 1938 when section 2 of the Evidence Act was
repealed by the Repealing Act, 1938 (Act I of 1938). The preamble to this Act stated as
under:-

"Whereas it is expedient that the enactments specified in the Schedule which are spent or
have otherwise become unnecessary or have ceased to be in force otherwise than by
express or specific repeal, should be expressly and specifically repealed: it is hereby
enacted as follows."

Page No. 24 of 1
In the case of Capt. T. W. King v. Mrs. F. E. King (A I R 1945 All. 190), while
considering the question of admissibility in divorce cases of evidence regarding non
access by husband or wife, it was observed that the English rule did not apply in India
because it was a rule of evidence and was subject to the provisions of the Indian Evidence
Act, 1872. It was, further observed that the repeal of section 2 of the Evidence Act by the
amending and Repealing Act of 1938 did not make any difference because it did not have
the effect of re-enacting the rules which the said section had earlier repealed. This,
judgment has been cited with approval by Mr. Mohammad Munir in his Principles and
Digest of the Law of Evidence. It is, however, interesting to, observe that neither in the
judgment in question, nor in Mr. Munir's book is there any discussion of the reasons on
which this conclusion is based. It is not shown whether this conclusion flows from the
saving clauses contained in the Repealing Act itself or in the relevant sections of the.
General Clauses Act which was then in force.

This question came up for direct examination by a Division Bench of the High Court of
West Pakistan in the case of Abdul Ghani, to which reference has already been made in
another context. It was held that "as a result of repeal of section 2, by virtue of section 6-
A of the General Clauses Act, the rules, laws, regulations and enactments mentioned in
clauses (2) and (3) of section 2 would not be revived, but the rules of evidence mentioned
is clause (1) of section 2 of the Evidence Act being not part of a Central Act. or
Regulation, the same would not stand repealed after the Repealing Act, namely. section 2
of the Evidence Act, bad itself been repealed. On this view of the matter . . . . . after the
repeal of section 2 of the Evidence Act the rules of Muhammadan Law which had been
repealed by clause (1) have been revived and are now part of the law of evidence."

It seems to us that the view taken by the High Court of the West Pakistan is correct. In the
Repealing Act of 1938, the reason given for the repeal of the enactments mentioned in the
Schedule to that Act is that these enactments have either spent themselves or have
otherwise become unnecessary or have ceased to be in force otherwise than by express or
specific repeal. According to Mr. Munir, "the repeal was necessitated by the textual
modifications effected in the existing statute law by the Government of India Act
(Adaptation of Indian Laws) Order, 1937, in pursuance of section 293 of the Government
of India Act, 1935". While this reason may apply to some of the enactments and
regulations mentioned in the Schedule to Act It of 1938, it does not appear to have any
application to the said section 2 itself or to the rules of Muslim law which we are
considering here. These rules have not in any manner been affected by the legislative
changes or adaptations necessitated by the Government of India Act, 19x5, or the
adaptation Orders issued thereunder. We also find that the Repealing Act contains saving
clauses in the 3rd and 4th sections which deal with previous enactments. No provision
appears to have been made in regard to the body of rules mentioned in clause (I) of
section 2 of the Evidence Act, namely, "all rules of evidence not contained in the statute,
Act or Regulation in force in any part of British India". It is, therefore, fair to conclude
that the repeal of section 2 of the Evidence Act would ordinarily have the elect of
reviving these rules of evidence, unless there is anything in the General Clauses Act to
the contrary. It may be mentioned that, according to Maxwell, until the passing of the
Interpretation Act of 1850, the common law rule was that where an Act was repealed and
the repealing enactment was repealed by another which manifested no intention that the
original Act was to continue repealed, then the repeal of the second Act revived the first
ab initio and not merely from the passing of the reviving Act. This rule, however, ceased
to apply on account of a specific provision having been made to the contrary in the
Interpretation Act of 1850.

In the case of Abdul Ghani, the High Court confined its attention to the effect of section
6-A of the General Clauses Act, 1897, which was in force at the time the Repealing Act
of 1938 was enacted. It reads as under:-
Page No. 25 of 1
"Where any Central Act or Regulation made after the commencement of this Act repeals
any enactment by which the text of any Central Act or Regulation was amended by the
express omission, insertion or substitution of any matter, then, unless a different intention
appears, the repeal shall not affect the continuance of any such amendment made by the
enactment so repealed and in operation at the time of such repeal."

'This section is not directly applicable in the present context, for the reason that section 2
of the Evidence Act had not amended the rules of Muslim Personal Law; on the contrary,
clause (1) of that section had repealed all rules of evidence not contained in any statute,
Act or Regulation in force in any part of British India. This being not a case of
amendment of the previous law, by the repealed enactment, namely, section 2 of the
Evidence Act, the question arising here has to be answered witty reference to section 7 of
the General Clauses Act, which is directly relevant.

This section reads as under:-

"7.--(1) In any Central Act or Regulation made after the commencement of this Act, it
shall be necessary, for the purpose of reviving, either wholly or partially, any enactment
wholly or partially repealed, expressly to state that purpose.

(2) This section applies also to all Central Acts made after the third day of January 1868,
and to all Regulations made on or after the fourteenth day of January 1887."

It will be seen from clause (1) of this section that it deals with the question of the revival
of a repealed enactment. On this point, the rule is clear, namely, that the repeal of a
repealing Central Act or Regulation would not automatically revive, wholly or partially,
any enactment which had been repealed by such Central Act or Regulation. (See
Mohammad Safi v. State of West Bengal (A I R 1951 Cal. 97), Municipal Board,
Lucknow v. Ram Autar (A I R 1960 All. 119) and. Abdul Majid v. The Custodian of
Evacuee Property (P L D 1962 Kar. 306).

The question, therefore, is whether the rules of evidence of Muslim Personal Law can be
regarded as falling within the definition of an "enactment". If so, then they will not stand
automatically revived, unless, the repealing enactment expressly states that purpose. The
term "enactment" is defined in clause (17) of section 3 of the General Clauses Act as
including "a Regulation and any Regulation of the Bengal or Bombay Code, and shall
also include any provision contained in any Act or in any such Regulation as aforesaid."
The term "Regulation" itself is defined in clause (46) of the same section as meaning a
Regulation made by the Central Government under the successive Government of India
Acts of 1870, 1915 or 1935. In other words, the term "enactment" connotes something
which has been formally promulgated or enacted by an authority having the power to
make laws in respect of the subject-matter of the law as well as its territorial operation.
To put it differently, the term "enactment" can only refer to a formal law made by the
State in accordance with the relevant Constitutional procedures applicable to law-making;
it cannot extend to anything in the nature of rules, whether of evidence or substantive
law, not contained in any statute, Regulation or Act formally promulgated or enacted.
Rules of Muslim Personal Law derive their authority and sanction from the Quran and
Sunnah, and they have been developed, over a long period of time, by the deliberations of
Page No. 26 of 1
Muslim jurists, but they have not been formally enacted or promulgated as municipal law
in Pakistan, save to a limited extent in the matter of succession and dissolution of
marriage etc. The only other legislation, promulgated in this behalf froze time to time, has
been to declare the application of these rules of Muslim Personal Law to parties who are
Muslims. It follows, therefore, that the rules of Muslim Personal Law are not included in
the term "enactment" as used in clause (1) of section 7 of the General Clauses Act. It was
precisely for this reason that the original section 2 of the Evidence Act of 1872 contained
a separate clause for dealing with such rules. Section 7 of the General Clauses Act having
no application to these rules, their revival shall be governed by the ordinary principle of
law, namely, that the repeal of a repealing Act has the effect of reviving the original rules
or law, as if the repealing Act had never intervened. We consider, therefore, that, on the
repeal of section 2 of the Evidence Act by Act I of 1938, the rules of Muslim Personal
Law stood revived, and would apply in matters of legitimacy etc. where the parties are
Muslims.

It seems to us that it is an appropriate case where mention may be made of the directives
enshrined in the Constitution of the Islamic Republic, of Pakistan (1973), regarding the
enforcement of Muslim law. The preamble to the Constitution enjoins, inter alia, that the
Muslims of Pakistan "shall be enabled to order their lives in the individual and collective
spheres in accordance with the teachings and requirements of Islam as set out in the Holy
Quran and Sunnah." This directive is then repeated in Article 31 of the Constitution as
one of the Principles of Policy. Finally, it is provided in clause (1) of Article 227 that "all
existing laws shall be brought in conformity with the Injunctions of Islam as laid down in
the Holy Quran and Sunnah . . . . . and no law shall be enacted which is repugnant to such
injunctions." The subsequent Articles contained in this Part of the Constitution, namely,
Part IX, proceed to provide a machinery for implementing these directives and Principles
of Policy. While the responsibility for bringing the existing laws in conformity with the
Injunctions of Islam, and ensuring that no law shall he enacted which is repugnant to such
Injunctions, must rest with the executive and the legislative organs of the State,
responsibility also devolves on the Judiciary to implement the spirit underlying these
provisions of the Constitution. If, therefore, in any given situation, two interpretations are
possible, one of which is conducive to the application of the laws of Islam, then the
Courts ought to lean in favour of its adoption.

On the basis of this principle as well, we would be inclined to hold, in the present case,
that with the repeat of section 2 of the Evidence Act, the rules of Muslim Personal Law
stood revived as the General Clauses Act does not contain any provision applicable to
these rules which are not contained in any formal enactment.

This result also reems to be in accord with the intention underlying the various laws
promulgated from time to time for the purpose of the application of the Muslim Personal
Law to Muslims in India and Pakistan. 'I he first in the field is Act No. XXVI of 1937,
called the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of this Act
provided for the application of the Muslim Personal Law in all questions, save questions
relating to agricultural land, regarding intestate succession, special property of i'„males,
marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust
properties and wakfs, notwithstanding any custom or usage to the contrary. These
provisions were supplemented by the West Punjab Muslim Personal Law (Shariat)
Application Act, 1948, (Punjab Act IX of 1948) as amended by Act XI of 1951. Section 2
of this Act did away with the previous exemption granted in respect of agricultural land,
and also enlarged the scope of questions to which Muslim Personal Law was to apply by
including subjects like minority, legitimacy or bastardy. The 1948 Act was followed by
the West Pakistan Muslim Personal Law (Shariat)Application Act, 1962, West Pakistan
Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963, another Ordinance in
1964 and finally, the Punjab Muslim Personal Law (Shariat) Application (Removal of
Doubts) Ordinance, 1972.

Page No. 27 of 1
Now, what are the rules of Muslim law relevant to the present case. As the parties before
us are Sunnis, they are governed by Hanafi law and the case was argued on that basis.

Learned counsel on both sides have referred us to the statements of law, appearing in the
well-known textbooks on Muslim law, namely, Fatawa, Alamgiri, Radd-ul-Mukhtar,
Baflie's Digest of Muhammadan Law, Institutes of Mussalman Law by Nawab A. F. M.
Abdur Rehman, Muhammadan Law by Syed Ameer Ali, Muhammadan Jurisprudence by
Abdur Rahim, and Principles of Muhammadan Law by Mulla. It is not necessary to quote
separately, from these authoritative writings on Muslim law, as the rules enunciated,
therein are identical. They may be summarised as follows:-

Under the Muhammadan Law, as in all civilised systems of law, the child follows the bed
(firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the
husband of the mother without any acknowledgement or affirmation of parentage on his
part and such child follows the status of the father. According to the Sunni schools the
presumption of legitimacy is so strong that in cases where a child is born after six months
from the date of marriage and within two years after band or by divorce, a simple denial
of paternity on the part of the husband would not take away the status of legitimacy from
the child. Of course, presumption based on the bed is subject to the right of disavowal on
the part of the husband for want of access. This right has to be exercised in accordance
with the custom of the locality either on the day of the child's birth or at the time of
purchasing articles necessary in view of its birth or during the period of rejoicing. If the
husband is absent, he must disown the child immediately he is informed of its birth.

The shortest period of gestation, according to all the schools, is six months. If, therefore,
a child is born within six lunar months of the marriage, no affiliation would take place
unless the man acknowledge it to be his issue. In other words, it is the right of the man to
legitimate a child born within this time by acknowledging expressly or impliedly that the`
conception look place in wedlock. According to the Hanafis, contrary to the Shafi'is, the
husband is entitled to claim the child born in wedlock as his, even if he had no access to
the wife.

If the husband wishes to repudiate a child so born, he can only do so by the procedure of
laan that is to say, if he swears before the Qadi that the child is illegitimate and fruit of
adultery, in which case the Court will pass a decree not only dissolving the marriage but
declaring the child to be illegitimate.

As observed by their Lordships of the Judicial Committee in Syed Habibur Rehman


Choudhry v. Syed Altaf Ali Choudhry (A I R 1922 P C 159) legitimacy is a status which
results from certain facts, whereas legitimation is a proceeding which creates a status
which did not exist before. This proceeding becomes necessary where either the existence
of a valid marriage cannot be expressly proved or where the child is born within six
months of the marriage as stated above. In such cases, acknowledgment of legitimacy in
favour of the child may be either express, or by necessary implication from the course of
treatment by the man of the mother and the child, or from the evidence of repute and
notoriety amongst the members of the family, community and respectable members of the
locality. Such an acknowledgment raises a presumption of a valid marriage and legitimate
birth. (See Khajah Bidayatoolah v. Rai Jan Khanum ((1844) 3 Moors I A 295),
Muhammad Backer Hussain Khan Bahadoor v. Sharfoon Nissa Begum ((1860) 8 Moors I
A 136), Ashrufood Dowalah Ahmed Hussain Khan Bahadoor v. Hyder Hussain Khan
(1866 Moors I A 94), Muhammad Allahdad Khan v. Muhammad Ismail Khan (I L R 10
Page No. 28 of 1
All. 289), Abdul Razzaq v. Agha Muhammad Jaffar Bindanim (I L R 21 Cal. 666), Mst.
Bibee Fazilat-un-nessa v. Mst. Bibee Kamar-un-nessa ((1905) 9 C W N 352), Sadiq
Hussain Khan v. Hashim Ali Khan ((1916) 43 I A 212), Zakirali v. Soqrabi (A I R 1918
Nag. 32), Zamin Ali v. Aziz-un-nisa (I L R 55 All. 139) and Bibi Amu v. Mst. Asiat (P L
D 1958 Kar. 420).

We may now proceed to examine the facts and evidence of the present t case in the light
of these rules.

It is common ground between the parties that the appellant Mst. Hamida Begun was born
during the subsistence of marriage between her mother Mst. Ghulam Zainab and the late
Sh. Mehar Din. In accordance with the principle that "the child follows the bed", the
plaintiff would be presumed to be a legitimate child of Sh. Mehar Din, unless it was
proved that no valid marriage could take place between Sh. Mehar Din and cost. Ghulam
Zainab, or that the plaintiff was born within six lunar months from the date of the
marriage, and that she was not acknowledged as a legitimate child by Sh. Mehar Din on
that account.

As there is no evidence to show that there was any obstacle in the way of a valid marriage
between Mst. Ghulam Zainab and Sh. Mehar Din, the whole controversy centres round
the date of birth of the plaintiff, and the assertion of the defendants that Sh. Mehar Din
had repudiated the plaintiff arid never acknowledge her as his legitimate daughter.
According to Nikah Nama (Exh. D. Z.) the marriage between Mst. Ghulam Zainab and
Sh. Mehar Din was solemnised on 9-5-1916. It is the defendant's assertion that the
plaintiff was born ors the 150, of October 1916, i.e. after five months and six days of the
marriage. In support of this assertion they have relied on the birth certificate Exh. D. J.
This birth certificate was accepted as genuine by the trial Court, but has been rejected by
the first appellate Court.

The question is whether the learned Senior Subordinate Judge, acting in first appeal, has
erred in this behalf, and whether his finding is liable to be set aside in second app eat. We
find that he has fully discussed the question of the genuineness of the register of births
which was said to contain the relevant entry regarding tide plaintiff's birth at serial No. 67
dated the 15th of October 1916, before coming to the, conclusion that the register was not
reliable. It was produced in Court by Reham Shah (P. W. 19), Executive Officer of the
Municipal Committee, Khanpur, who admitted that there were several blank pages in the
said register, that two pages of entries had been inserted subsequently, and that the
monthly statements from the 3rd of April 1916 to the 29th of October 1917 did not bear
the signatures of any clerk or officer of the Municipal Committee. It also transpired that
there was no register for the years 1917, 1918, and the register produced in Court had
been closed after the month of October 1917 although blank pages were still available in
it, On the basis of these glaring defects in the births register, the learned Senior
Subordinate Judge came to the finding that "the entry of such a register carries no
weight".

We have ourselves examined the register and we do not see any reason to differ from the
finding arrived at by the lower appellate Court. It is true that at the time of its production
in Court the register purported to be more than thirty years old and, therefore, ordinarily
under section 90 of the Evidence Act a presumption of genuineness would attach to it.
However, as observed in Tikamadas v. Abdul Wali (P L D1968 S C 241) the presumption
would stand negatived if there was internal evidence of forgery. Now, in the case of this
register the official producing it hat to admit that it suffered from material defects,
namely, that the relevant entries were not authenticated by any Municipal official, that
Page No. 29 of 1
two pages had been inserted subsequently an 4d that there were several blank pages
available at the end of entries relating to October 1917 and yet no further entries were
made in this register. Our examination of the register confirms the existence of these
defects. In the circumstances, no presumption of genuineness can attach to this register
under section 90 of the Evidence Act, and the authenticity of the entry relating to the
plaintiff's birth as appearing in this register has been rightly rejected by the lower
appellate Court.

There does not appear to be any other direct evidence as to the date of the appellant's
birth except the statement made by her at the trial, as P. W. 17, that she had been told by
her father that she was born on the 30th of March 1917. She has added that her father had
shown to her a note-book in which this date was recorded. This note-book has, however,
not been brought on the record by either side.

From the plaintiff's side the only other document having a baring on her date of birth is
her Nikah Narna (EXIT. P. L.), drawn up on the 23rd of April 1934. In this document she
is described as aged 18 years. She has explained in her evidence that she was described as
eighteen years because she bad entered the eighteenth year of her age. We shall have
occasion to notice some other aspects of this Nikah Nama later when we deal with the
question of acknowledgement.

The defendants have sought to rely on a number of documents as providing indirect proof
of their assertion that the plaintiff was born only five months after her mother's marriage
with Sh. Mehar Din. The earliest of these documents in point of time is Exh. CD/K,
which has been described by the defendants as a muafinama executed by the plaintiff's
mother Ma. Ghulam Zainab, daughter of Ataullah Khan, on the 17th of February 1917.
By this document Mst. Ghulam Zainab purports to forego her right to the agricultural
land gifted to her by Sh. Mehar Din in lieu of her dower, and she also adds that "I have
obtained forgiveness from my husband for my dereliction." The precise words in Urdu
are:-

This document was proved at the trial by Mst. Bhagan (D. W. 4), whereas Mst. Murad
Begum (D. W. 10) only proved the handwriting of Mst. Ghulam Zainab. The evidence of
Mst. Bhagan makes interesting reading. She is a near relation of the defendant Mst.
Murad Begum, being the wife of Mst. Murad Begum's uncle. At the time of the birth of
the plaintiff she was a young woman of about 20/22 years of age and happened to visit
the house of Sh. Mehar Din on the day the plaintiff was born, nearly six months after the
marriage of the plaintiff's mother with Sh. Mehar Din. In her presence, Sh. Mehar Din
had an altercation with Mst. Ghulam Zainab, demanding to know as to why was the girl
born only five months after the marriage. He also declared that the girl was not from his
"Nutfa". According to Mst. Bhagan, Mst. Ghulam Zainab thereupon confessed her sin
and asked for forgiveness from Sh. Mehar Din, and executed the Muafi Nama (Exh.
CD/K). She has deposed that this document was written in her presence, and she also
identified Mst. Ghulam Zainab's handwriting and signatures thereon.

If Mst. Bhagan's evidence is correct, then it does appear to be somewhat strange that an
elderly and experienced man of nearly sixty years of age, as Sh. Mehar Din was at the
time of the plaintiff's birth, should have kept quiet at the condition of his new wife Mst.
Ghulam Zainab for several months, and then suddenly raised the question of the
illegitimate birth of the plaintiff on tire very day she was born, and that too in the
presence of a young woman still in her early twenties. Assuming, however, that Mst.
Bhagan was indeed present at the time the document Exh. CD/K was executed, then her
evidence clearly establishes the fact that the plaintiff was born on the 17th February 1917,
Page No. 30 of 1
as the document bears this date, and was executed on the day of the plaintiff's birth. This
fact is sufficient to negative the story put forward by the defendants to the effect that the
plaintiff was born in October 1916. On this evidence the plaintiff must be found to be a
legitimate child of Sh. Mehar Din.

It appears that later on, during cross-examination it dawned on Mst. Bhagan that she bad
not done the right thing by deposing to the execution of this muafi nama on the date of
the plaintiff's birth, and accordingly, she changed her position several time, by saying that
the document was written on the day of the plaintiff's birth, five or six days after the
birth, and five or six months after that event. In view of these contradictory statements
made by Mst. Bhagan and the admitted close-relationship which she had with toe
defendants, it is clear that no reliance could be placed on the testimony of this woman.
Apart from this, the document itself does not establish that the deceased mother of the
plaintiff was dealing with the question of the illegitimate birth of the plaintiff. She had
agreed to forego her dower for the reason that she had asked for forgiveness from her
husband for some dereliction on her part, which was not specified in the document itself.
It is clear that the legitimacy of a child could not be put in jeopardy on the basis of a
document which is couched in such dubious and ambiguous terms, even if it were
otherwise satisfactorily proved to be a genuine writing of the plaintiff's mother. If the
plaintiff had already been born in October 1916, there is no explanation why the drafting
of this document was left over for another five months after the birth.

Contemporaneously with Exh. CD/K, Mst. Ghulam Zainab also appears to have signed a
relinquishment deed on the 18th of February 1917, in respect of agricultural land which
had been gifted to her in lieu of dower. This document is Exh. C. D. As no reason is
mentioned for relinquishing the dower, this document is of no avail on the question we
are considering here.

The defendants have also brow-ht on the record some documents showing repudiation of
the plaintiff by her father Sh. Mehar Din. Exh. D. G. is a will said to have been executed
by Sh. Mehar Din on 4-4-1918, which recites at some length the disappointment suffered
by him on the first night of his marriage with Ms t. Ghulam Zainab when he discovered
that she was not a virgin. He goes on to state that on his insistence Mst. Ghulam Zainab
confessed that she was pregnant owing to illicit intercourse with a cousin, and that she
should be forgiven. In order to save his fair name and position in Khanpur society he
forgave Mst. Ghulam Zainab, but made it clear that he would not be responsible for
bringing up this illegitimate child. He goes on to add that when Mst. Hamida Begum was
born, he informed Mst. Ghulam Zainab that as the girl was not from his "Nutfa" she will
not be brought up in his house, nor she will inherit anything out of his property. The girl
was then handed over to Sh. Mehar Din's second wife bearing the name Mst. Zainab Bibi,
who was childless at that time and was living separately in Amritsar. According to the
averments made in this will, Mst. Hamida Begum was accordingly brought up at
Amritsar. Sh. Mehar Din has also mentioned that Mst. Hamida Begum's mother Mst.
Ghulam Zamab bad relinquished her dower on this account and executed a
relinquishment deed as well as a Muafi Nama on the 17th and 18th of February 1917,
which documents were in his custody. He then proceeds to declare that for this reason,
Mst. Hamida Begum could not inherit his property. Finally, he bequeaths his property to
his only living son Nur Din directing him to look after his step-mothers Mst. Zainab Bibi
and Mst. Ghulam Zainab, i.e. the plaintiff's mother.

The genuineness of the will Exh. D. G. has been seriously questioned on behalf of the
plaintiff appellant. In the first place, it is submitted that the contents of the will have not
been satisfactorily proved fur the reason that the marginal witness Khuda Bakhsh son of
Ladhe Khan, who appeared at the trial as D. W. 6, is not worthy of credit, as he is a man
of no substance and appears to have been procured by Mst. Murad Begum to give
Page No. 31 of 1
evidence against the plaintiff. He had merely stated that "it seems to me that signatures
Exh. DG/1 are those of Mehar Din". He tried to clarify the position later by saying that
these were the signatures of Mehar Din, but it is clear that being a man of nearly ninety
years of age on the date he was giving evidence, he was not in a position to correctly
identify the signatures of the executant of this document, nor hiss own signatures thereon.
It is submitted by Sh. Muhammad Shafi that on the basis of the evidence of this witness it
cannot be said that the document stands proved.

It is next submitted that in any case there is inherent evidence that this particular
document is a forgery, as in the schedule of property the very first item is shown as
agricultural land situate in Tehsil Shahdara of district Sheikhupura, which averments are
factually incorrect as in 1918 neither Shahdara was a tehsil nor Sheikhupura was a
district. This point was not contradicted on behalf of the defendants, but it was asserted
that this interpolation had been made by or on behalf of the plaintiff while the document
was in the custody of the trial Court. This allegation was refuted by the learned counsel
for the plaintiff by submitting that after the original of this document had been filed in
Court by the defendants they had applied for a certified copy of the same, and bad then
applied for the return of the original on 2-2-1952, which request was granted on 5-2-
1952, and the will was later refiled in Court.

It seems that it is not necessary for us to go into this controversy, for the reason that the
authenticity of the document Exh. D. G., as placed on the record by the defendants, has
been thrown into serious doubt by the evidence of Munshi Abdul Aziz Khan (P. W. 11),
Nazir of the Court of Additional District Magistrate, Rahimyar Khan. He produced in
Court two registers bearing the title "Execution of Registration" commencing from 1890
to the date of evidence, namely, the 2nd of December 1951. The first register was from
1890 to 1920 and the second commenced from 1921 up-to-date. Both the registers were
in form No. V and contained particulars of wills which are kept under seal in the
department of the Registrar. The first register showed that on the 2nd of April 1918, the
late Sh. Mehar Din deposited a will with the Registrar in favour of his son Nur Din, his
wife Mst. Zainab Bibi, daughter of Nizam Din resident of Amritsar, his minor daughter
Mst. Hamida Begum, his wife Mst. Ghulam Zainab and his nephew (sister's son) Ghulam
Hussain resident of Amritsar, and latter's son Nabi Bakhsh caste Kakazi resident of
Lohari Gate. Before the trial Court the admissibility of this evidence was questioned on
behalf of the defendants, but the learned trial Judge allowed this evidence to be brought
on the record on the ground that the evidence was being given out of a public document.
It appears that the original register was seen by the trial Court and returned to the witness,
as the same is not available on the record. Bat the evidence of Munshi Abdul Aziz Khan
is in detail, and it clearly establishes that in the relevant register there is an entry of a will
dated the 2nd of April 191.8, deposited with the Registrar by Sh. Mehar Din, and in this
will the plaintiff Mst. Hamida Begum was clearly described as a daughter of Sh. Mehar
Din and entitled to inherit as an heir alongwith her mother Mst. Ghulam Zainab and
others. This official was cross-examined at great length, but his credibility was not
damaged in any manner. The learned lower appellate Court appears to have rightly placed
reliance on his evidence. The extract contained in the register produced by Munshi Abdul
Aziz Khan does not support the contents of the will Exh. D. G. From the date mentioned
in Exh. D. G., and the date appearing in the register produced by Munshi Abdul Aziz
Khan, it is reasonable to infer that there was indeed a will deposited with the Registrar by
Sh. Mehar Din on or about the 2nd of April 1918, but that will did not repudiate or
disinherit Mst. Hamida Begum; on the contrary, it recognised her as a daughter of Sh.
Mehar Din and mentioned her as one of the heirs under the will. We would accordingly
reject Exh. D. G., and instead place reliance on the extracts from the register as proved by
Munshi Abdul Aziz Khan in favour of the plaintiff. Exh. D. G. has obviously been forged
at a later date.

The evidence of Munshi Abdul Aziz Khan (P. W. 11) further makes it clear that the will of
1913 was withdrawn by Sh. Mehar Din on the 6th of November 1920, and subsequently
Page No. 32 of 1
another will was deposited by him in a sealed cover on the 3rd of May 1921. This will
was also withdrawn on the 10th of January 1923, and a third will was then deposited by
him on the 25th of November 1925, which was also withdrawn on the 19th of August
1930. As the witness was not questioned as to the brief extracts of the contents of the
subsequent wills it is not possible to say anything on this point, nor is any other evidence
available in this behalf.

The next document, which, according to the defendants, contains a repudiation of the
plaintiff by her father is Exh. D. B. dated the 13th of December 1941, described as a
codicil to the will of Sh. Meher Din dated 2nd/4th April 1918. In this will there is a brief
sentence:

This document was sought to be proved at the trial by Haji Abdul Sattar and petition-
writer, Allah Wasaya. While the evidence of Haji Abdul Sattar relates only to the identity
of his own signatures as a marginal witness, Allah Wasyaya proves the execution of this
document by Sh. Mehar Din and also the identity of his signatures. Learned counsel
appearing for the appellant has criticised the integrity and impartiality of Allah Wasaya
on the ground that this man was, in fact, a domestic servant of the appellant's step-mother
Mst. Murad Begum and was deposing falsely at her instance. These questions were put to
this witness but he denied the suggestions. It is, therefore, not possible for us to hold that
the execution of Exh. D. B. is not proved on the record. It is, however, significant to note
that the repudiation of the plaintiff's legitimacy contained in just one sentence appearing
in Exh. D. B. was made twenty-five years after her birth. In no system of law such a
repudiation has any value.

Next in point of time is Exh. D. H. dated the 14th of December 1941, which is described
as a pedigree table said to have been prepared by Nur Ahmed (D W. 11) at the instance of
Sh. Mehar Din. It was proved by Haji Abdul Sattar, Nur Ahmed and Allah Wasaya. As in
the case of Exh. D. B., Haji Abdul Sattar has simply proved his own signatures as a
marginal witness on this document, but the other two have spoken of the identity of Sh.
Mehar Din's signatures thereon. This pedigree table shows that Sh. Mehar Din bad only
two daughters named Mumtaz Begum and Zubaida Begum. Even if this document is
accepted as having been executed by Sh. Mehar Din, it has no value for the purpose of
proving the legitimacy or otherwise of Mst. Hamida Begum. The mere omission of the
name of a child from a pedigree table, deliberately prepared in undisclosed circumstances
cannot lead to the inference that the omitted child is not legitimate. Exh. D. H., therefore,
is of no consequence as against the plaintiff.

The last three documents falling in this category are the two impugned wakf deeds
namely, Exh. D. E. dated the 4th of October 1944 and Exh. D. D. dated the 11th of June
1945, as well as an explanatory memorandum Exh. D. C. dated the 22nd of June 1945. In
the two wakf deeds, there is no mention at all of the plaintiff-appellant Mst. Hamida
Begum. Apart from the fact that the question whether they were executed by Sh. Mehar
Din under the undue influence of his young wire Mst. Murad Begum, has yet to be
considered, these documents, by the mere omission of the plaintiff from the list of
beneficiaries, do not constitute a repudiation of her legitimacy; they only seek to deprive
her of her inheritance.

The third document Exh. D. C. dated the 22nd of June 1945, really forms part of the two
wakf deeds, and its validity is similarly subject to the consideration of the question of
undue influence at the time of its execution. However, at the present stage, it is of some
interest to point out that it recites exactly the same details of the disappointing experience
of Sh. Mehar Din on the first night of his marriage with Mst. Ghulam Zainab, as are
Page No. 33 of 1
contained in the will Exh. D. G., which we have already discussed and discarded. This
document opens with the recital that ha should have mentioned the detailed facts about
Mst. Hamida Begum in the two wakf deeds, but he failed to do so and accordingly he
thought it necessary to record these details in a separate document. There is an inherent
contradiction in the contents of this document. While narrating that he was married to
Mst. Ghulam Zainab on the 9th of May 1916 and he discovered on the first night that she
was not a virgin, he has gone on to state that when she confessed her sin, she wrote out a
document to that effect and relinquished her dower, and that he was in possession of both
these documents. The narrative on the first page of this document leaves no doubt that the
confession as well as the relinquishment deed were executed by Mst. Ghulam Zainab on
the very first night of the consummation of her marriage with Sh. Mehar Din, but
strongly enough, on the second page the dates of these two deeds are mentioned as 17th
and 18th of February 1917. This document, therefore, provides inherent evidence that a
man of eighty-six years of age was being made to sign this shameless document under an
extraneous influence, and persuaded to attribute two documents of a much later date to a
fact discovered by him on the nuptial night.

As a result of the above analysis of documents, Exhs. D. G., D. H., D. B , D C., D. D. and
D. E., relied upon by the respondents as evidence of the plaintiffs repudiation by her
father, we have come to the conclusion that they are either not satisfactorily proved, or
contained inherent evidence of contradictions and forgery, and that Exh. D. G. in
particular stands fully contradicted by the evidence of Munshi Abdul Aziz Khan, who had
the custody of the Register of Wills. Individually or taken together they do not at all
establish that Sh. Mehar Din at any time declared the plaintiff to be an illegitimate child.
In any case, the repudiation, if any, would be of no avail in view of the rule of Muslim
Law that it must be made as soon as possible after the birth of the chill, either on the day
of the birth itself, or at the time of purchasing articles necessary in view of its birth, or
during the period of rejoicing. From the evidence produced by the defendants themselves,
it appears that Sh. Mehar Din acquiesced in the child remaining in the house, and the
earliest date on which he compelled the child's mother Mst. Ghulam Zainab to execute a
self-condemnatory document was the 17th of February 1917. His own repudiation was
not made until April 1918, i.e, at least a year and a half after the alleged birth of the
plaintiff. It is an established position in Muslim law, that a child cannot be bastardised by
such a belated declaration.

Besides producing this documentary evidence of repudiation by Sh. Mehar Din himself,
the defendants have placed reliance on two other documents, which need to be noticed at
this stage. One is a letter (Exh. D. W) said to have been written on 31-1-1925, by the
plaintiff's father-in-law Sh. Mehar Ali, to late Sh. Mehar Din, stating that in spite of
knowing that Mst. Hamida Begum was not the legitimate daughter of Sh. Mehar Din, he
was still desirous of asking of her hand for his son Sit. Mohammad Rashid. The
document was said to be proved at the trial, by the evidence of one Mohammad Kabir (D.
W. 13). We cannot, however, help remarking that this is a very clumsy attempt at forgery.
In the first place, it is to he noticed that on the day when this letter is said to have been
written, Mst. Hamida Begum was not even ripe years of age, and her future husband was
only studying in the sixth class. The writer of this letter, namely, Sh. Mehar Ali, was not
related to the plaintiff's mother, Mst. Ghulam Zainab, but only to the plaintiff's father Sh.
Mehar Din owing to the fact that Sh. Mehar Ali's wife was a cousin of Sh. Mehar Din.
Keeping in view the ordinary course of human conduct, it would be most unusual for Sh.
Mehar Ali to insist on demanding the hand of a girl for his son, when the girl's alleged
father is openly declaring her to be illegitimate and the girl is not even of marriageable
age.

A still more damaging fact is that Sh. Mehar Ali has been demonstrated to be an illiterate
person as when his son Mohammad Rashid got married in 1934, Sh. Mehar Ali was not
able to sign the Nikah Nama Exh. D. L., instead he affixed his thumb-mark on it. It is
unbelievable that a man who could write a detailed letter in January 1925 to Sh. Mehar
Page No. 34 of 1
Din became absolutely illiterate nine years later so as not to be able to sign the nikah
nama of his own son. These facts leave us in no doubt that Exh D. W. is an utter
fabrication.

The other document is a letter (Exh. D. X.) written by the plaintiff herself to her step-
mother Mst. Murad Begum, containing certain statements which the defendants want to
construe as an admission of her own illegitimacy. Although the date of this letter is not
apparent from the letter itself, yet :t is clear that it was written after Mst. Hamida Begum
had got married in 1934. The letter contains an angry outburst by Mst. Hamida Begum
against the activities and insinuations of Mst. Murad Begum and the latter's aunt
(CHACHI) who apparently lived either in Lahore or Amritsar. The particular sentences
relied upon by the defendants may be translated as follows:-

"Look mother, I may repeat a hundred thousand times that Murad is not my mother you
may say that Hamida is not my daughter, but the world does not say so. Similarly. Sh.
Mehar Din may say that Hamida is not my daughter, and I may also say that I am not Sh.
Mehar Din's daughter but the world will not say so."

Reading the letter as a whole, as well as the particular sentences translated above, we find
that it is indeed ridiculous to clam that this letter contains an admission by the plaintiff of
her own illegitimacy; on the contrary she is emphasizing the fact that even if her step-
mother arid her father declare that she is not their daughter, the world will not accept such
a statement. There is no sentence at all to say that she knows that she is not the legitimate
daughter of Sh. Mehar Din. The letter was put to the appellant in her cross-examination at
the trial, and she explained that she bad written the same to protest against the activities
of her step-mother. This is indeed a very plausible explanation of the contents of this
letter.

Besides the documents noticed in the preceding paragraphs, the defendants produced oral
evidence to the effect that the late Sh. Mehar Din did not treat Mst. Hamida Begum as his
legitimate daughter. These witnesses include Allah Wasaya, Ghulam Nabi Peon, Khuda
Bakhsh and Mohammad Aslam Chishti, besides of course Mst. Bhagan whom we have
already mentioned with regard to the Muafi Nama said to have been executed by the
plaintiff's mother Mst. Ghulam Zainab. According to them, the late Sh. Mehar Din had
declared at one time or the other that Mst. Hamida Begum was not his daughter, and that
it was for this reason that he had sent her away to Amritsar to be brought up by his other
wife Mst. Zainab Bibi, Mst. Bhagan and Mohammad Hussain have even gone to the
extent of saying that Sh. Mehar Din had first refused to sign the Nikah Nama of the
plaintiff-saying that he was not her father. We shall deal with this aspect of the matter a
little later in this judgment, but suffice it to say at this stage that apart from the oral
declaration attributed to Sh. Mehar Din these witnesses do not show that Sh. Mehar Din
had refused to have anything to do with Mst. Hamida Begum. They do not explain who
paid for the maintenance and up-bringing of the plaintiff, nor do they explain as to why
her Nikah was performed at the house of Sh. Mehar Din, seventeen or eighteen years
after her birth, if indeed he had repudiated her right from the beginning. The evidence of
these witnesses has been rejected by the learned lower appellate Court on the ground that
these witnesses were men of no substance, and also appeared to be interested in Mst.
Murad Begum. We have found no reason to disagree with this assessment.

As against this mass of evidence adduced by the defendant, the plaintiff has also brought
on the record a considerable number of documents, besides producing oral evidence, in
support of her assertion that she had all along been treated by Sh. Mehar Din as his
legitimate daughter, until the time he was persuaded to execute the impugned wakf deeds
Page No. 35 of 1
and the explanatory memorandum dated the 22nd of June 1945, under the undue
influence of Mst. Murad Begum.

Taking the documentary evidence first, we find that there is, in the first place, the will
deposited by Sh. Mehar Din with the Registrar on the 2nd of April 1918 as proved by
Munshi Abdul Aziz Khan (P. W. 11). We have already discussed the evidence of this
witness while dealing with the defendant's document Exh. D. G., and had seen that
according to the extract appearing in the Register of Wills, the late Sh. Mehar Din had
stated in his will, deposited on the 2nd or April 1918, that his minor daughter Mst.
Hamida Begum was one of his heirs.

According to the evidence of Munshi blur Ahmed (h. W. 14), a licensed petition-writer of
Khanpur, Sh. Mehar Din had driven up another will on 6th of June 1935. It was written
by this witness, and a brief extract thereof was entered by him in his register at serial No.
659. According to this extract, Sh. Mehar Din had drawn up the will in favour of his
wives Mst. Murad Begum and Mst. Zainab Begum and his daughters Mst. Hamida
Begum, Mumtaz Begum and Zubaida Begum and placed it in a sealed -cover. It may be
stated here that the plaintiff's mother Mst. Ghulam Zainab bad died in the meantime and
Sh. Mehar Din had married the deceased-defendant, Mst. Murad Begum in 1925 and she
had given birth to two daughters, Mst, Mumtaz Begum and Mst. Zubaida Begum who are
the respondents before us. According to Munshi Nur Ahmed the will, after being placed
in a sealed cover, was filed in the Court of the District Judge, Rahimyar Khan.

Munshi Nur Ahmed has proved the execution of two other documents by Sh. Mehar Din,
one being a Mukhtar Nama by him and the defendants in favour of one Munshi Allah
Wasaya (D. W. 2), and the second being a document disinheriting the plaintiff which has
not been placed on the record by the defendants, but the extract from the petition-writer's
register shows that Sh. Mehar Din was doing so because of "an act of disobedience" by
the plaintiff and not because he did not regard her as his legitimate daughter. This
document is entered at serial No. 1056 in the register, and is dated the 11th of June 1945.
Munshi Nur Ahmed has proved the signatures of Sh. Mehar Din in his register as they
were appended there in his presence and he was also familiar with them. On this
evidence, the legitimacy of Mst. Hamida Begum stands fully proved on the basis of
acknowledgement by Sh. Mehar Din right up to 1945.

As already stated, Mst. Hamida Begum was married to Sh. Mohammad Rashid on the
23rd of April 1934. Her Nikah Nama has been proved on the record as Exh. P. L. In this
document, she is described as daughter of Sh. Mehar Din, who has signed under one of
the columns, and it is also stated that "the father of the bride accepted personally after
obtaining consent" It is true that one of the marginal witnesses of this Nikah Nama
namely, Sh. Din Mohammad, appearing as P. W. 10 has stated that the late Sh. Mehar Din
was hesitating to sign the Nikah Narna, saying that Mst. Hamida Begum was not his
daughter, but later he was persuaded to act as the guardian. The same statement has been
made by the defendants witness Mst. Bhagan, but it is significant that it is common
ground between the parties that Mgt. Hamida Begum's carriage was performed at the
house of Sh. Mehar Din and that in the Nikah Nama she was described as his daughter.
The document also bears his signatures. In view of the contents of the Nikah Nama the
oral evidence of Mst. Bhagan as well as of Sh. Mehar Din is obviously false, and
procured by the defendants. If indeed Sh. Mehar Din did not acknowledge Mst. Hamida
Begum to be his legitimate daughter there is no explanation why her marriage should be
performed at his house and she should be described as his daughter, and the document
should be attested by him. The fact that the marriage was not attended by a large number
of persons is hardly material for determining the question of legitimacy. We consider that
the Nikah Nama (Exh. P. L.) provides direct proof of acknowledgement of paternity by
Sh. Mehar Din.
Page No. 36 of 1
The next document is Exh. P. A., which is a verification as well as an application written
by Sh. Mehar Din on 14-1-1938 requesting for the grant Bahawalpur State domicile to
Mst. Hamida Begum's husband, Sip. Mohammad Rashid. In this application, Sh. Mehar
Din has declared that he has only daughters who are the inheritors of his property, that he
regards his son-in-law Sh. Mohammed Rashid like his own son, and that he bad been
bearing all the expenses of Sh. Mohammed Rashid, and, therefore, a domicile certificate
may be granted to him as his heir. This document was proved on the record by Fazalur
Rehman (P. W. 2) and Sh. Nazir Hussain (P. W. 3), who had occasion to deal with this
application in their official capacities, the former having made an endorsement on it as
Exh, P. B. in token of the verification of its contents by Sh. Mehar Din in his presence.
The original was produced before the Court from a file maintained in the office of the
Prime Minister of Bahawalpur State. This application contains a clear acknowledgment
of the fact that Sh. Mohammed Rashid's wife Mst. Hamida Begum was a legitimate
daughter of Sh. Mehar Din.

The plaintiff has also proved some letters written by Sh. Mehar Din either to herself or to
her husband Sh. Muhammad Rashid, which disclose the existence of an affectionate
relationship of father and daughter or father-in-law and son-in-law between the
correspondents. These letters could not have been written if Sh. Mehar Din did not regard
Mst. Hamida Begum as his legitimate daughter. These letters are:-

(1) Exh. P. A. A. dated 8th of May 1938, addressed by Sh. Mehar. Din to Mst. Hamida
Begum;

(2) Exh. P. F. dated 3rd of November 1938, written by Sh. Mehar Din to Munshi
Muhammad Rashid:

(3) Exh. P. H., without date, written by Sh. Mehar Din to Munshi Muhammad Rashid;

(4) Exh. P. H/l, without date, but apparently written a few days before the 27th of January
1939, as disclosed by the text, from Sh. Mehar Din. to Sh. Muhammad Rashid. The
closing part of this letter indicates that Sh. Mehar Din was intending to stay at the house
of Sh. Muhammad Rashid on reaching Bahawalpur by train, for the purpose of attending
to some litigation pending there.

Then there is a second lot of letters, also proved on' the record, written by the defendaht
Mst. Murad Begum to her step-daughter Mst. Hamida Begum. These letters also disclose
a normal family relationship, making, particular mention of Mst. Hamida Begum's eldest
child Ishfaq, and also showing that on different occasions Mst. Hamida Begum,
alongwith her son Ishfaq had been staying at the house of Sh. Mehar Din as any other
married daughter would do. These letters are:-

(1) Exh. P. C., without date; which is particularly significant, as it mentions that Mst.
Hamida Begum had been staying at her father's house immediately before this letter was
written. and it also talks about the disposition of Sh. Mehar Din's property by stating that.
"the rest you understand that you three sisters are the inheritors Don't worry. All this is
Page No. 37 of 1
meant for you three sisters." It is clear that three sisters are the appellant Mst. Hamida
Begum and the two defendants Mst. Mumtaz Begum and Mst. Zubaida Begum. The
envelope of this letter was also proved on the record as Exh. P D and appears to bear the
date, 3rd November 1938.

(2) Exh. P E dated the 20th of September 1938, in which Mst. Murad Begum has
informed the appellant about an injury sustained by the appellant's father, but adding that
he was now feeling better and the appellant should not worry She expresses affectionate
feelings for Mst. Hamida Begum and her son Ishfaq Ahmed and the letter is sent to the
appellant at the house of her father-in-law Sh. Mehar Ali is village Kalalwala in the
district of Shiekhupura; and (3) Exh. P. F/1, without date, containing a mention of certain
domestic matters, and conveying love of Mumtaz and Zubaida to their dear nephew
Ishfaq Ahmed.

Finally, there is the oral evidence of highly respectable witnesses like Fazalur Rehman (P.
W. 2), Deputy Commissioner of the Bahawalpur district; Sh. Nazir Hussain (P. W. 3)
Naib Tehsildar, Khanpur; Sh. Nur Muhammad (P. W. 4) Settlement Officer, Bahawalpur
State; Saadullah (P. W. 5) a landlord of Khanpur; Mahboob Alam (P. W. 6) a businessman
of Khanpur; and Maulvi Akhtar Ali (P. W. 7) a retired Deputy Rehabilitation
Commissioner, who were on visiting terms with Sh. Mehar Din, and had seen Mst.
Hamida Begum being brought up at his house. Later on, Sh. Mehar Din spoke to them for
the advancement of his son-in-law Sh. Muhammad Rashid, including the business of
obtaining a domicile certificate for him so as to enable him to take up employment in the
Bahawalpur State. The lower appellate Court has rightly placed reliance on the evidence
of these gentlemen as showing continued acknowledgment of the appellant as a
legitimate daughter by the late Sh. Mehar Din.

The appellant also produced her Khalu, Sadiq Muhammad, as P. W. 8, but we need not
dilate on his evidence on account of his close relationship with the appellant.

Our conclusions on the question of legitimacy of the appellant may now be summed up.
She was born during the existence of a valid marriage between her mother Mst. Ghulam
Zainab and the late Sh. Mehar Din and, therefore, she must be presumed to be a
legitimate child, unless it is shown otherwise. The defendants have failed to prove that
the plaintiff was born within six months of the marriage. They have also failed to prove
by reliable evidence that her paternity was repudiated by Sh. Mehar Din soon after her
birth or within a reasonable time thereof. The only acceptable evidence of repudiation is
Exh. D. B, which document was executed in 1941, clearly under the influence of Sh
Mehar Din's youngest wife Mst. Murad Begum. By that time the appellant was 24/25
years of age and under the rules of Muslim Personal Law there could be no question of
repudiation of any kind at that stage. A legitimate child could not be bastardised in this
manner by an ageing father by means of a secret declaration in a document purporting to
be a will. Many of the documents produced by the defendants appear to be forged, and
would have ordinarily called for penal action, but for the fact that the main actor in the
drama, namely, Mst. Murad Begum who went to such lengths to exclude her step-
daughter from her rightful share in the property of her father, has since died. We do not
think that her daughters could be burdened with any responsibility in this behalf.

On the other hand, the appellant has succeeded in proving by satisfactory documentary as
well as oral evidence that she was acknowledged as a legitimate daughter by Sh Mehar
Din, her husband Sh. Muhammad Rashid was treated as a son-in-law, and her eldest child
Ishfaq, the other children not having been born at this stage), was treated with affection
by Sh. Mehar Din. Even Mst. Murad Begum expressed affection for him and concern for
Page No. 38 of 1
his welfare. We have, accordingly, on a detailed analysis of the entire evidence produced
by the parties, no hesitation in endorsing the finding recorded by the lower appellate
Court to the effect that Mst. Hamida Begum is indeed a legitimate daughter of Sh. Mehar
Din, and thus entitled to succeed to his property.

It now remains for us to examine the second question arising in this case, namely whether
the two impugned wakf deeds were executed by Sh. Mehar Din under the undue
influence of his young wife Mst. Murad Begum.

We have already stated that the lower appellate Court has held that the two wakf deeds
were executed by Sh. Mehar Din under the undue influence of Mst. Murad Begum.
Ordinarily, this has to be regarded as a finding of fact not susceptible to interference by
the High Court in second appeal. (See Venkatrama Aiyar v. Krishnammal (A I R 1927
Mad. 255) and Ladli Parshad v. Karnal Distillery Co. Ltd. (A I R 1963 S C 1279).
However, we have scrutinized the relevant evidence and circumstances for the purpose of
satisfying ourselves as to the correctness of this finding, and have come to the conclusion
that it must be upheld.

The doctrine of undue influence, as contained in section 16 of the Contract Act, is to the
effect that "a contract is said to be induced by undue influence where the relations
subsisting between the parties are such that one of the parties is in a position to dominate
the will of the other, arid uses that position to obtain an unfair advantage over the other."
Subsection (2) of this section elaborates the principle further by saying that "a person is
deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other or where he stands in a
fiduciary relation to the other;

(b) where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness or mental or bodily distress."

Subsection (3) places the burden of proof on tire person having domination over another,
if the transaction appears, on the face of it or on the evidence adduced, to be
unconscionable.

This doctrine is intended to grant protection against transactions procured by the exercise
of insidious forms of influence, spiritual and temporal. It applies to acts of bounty as well
as to other transactions in which one party by exercise of his position of domination
obtains an unfair advantage over another. Undue influence may be inferred when the
benefit is such as the taker had no right to demand, either in law or equity, or even as a
moral claim, and the grantor had no rational motive to give. Wherever one member of the
family exercises weighty influence in the domestic counsel either from age, from
character or from superior position acquired from other circumstances, an inference as to
the existence of undue influence can legitimately be drawn.

In Muhammad Bakhsh Khan v. Hussaini Bibi (I L R 15 P C 684), their Lordships of the


Judicial Committee observed that "where undue influence is alleged it is necessary to
Page No. 39 of 1
examine very closely all the circumstances of the case. The principles are always the
same, though the circumstances differ; and, as a general rule, the same questions arise: (a)
whether the gift in question is one which a right-minded person might be expected to
make; (b) is it or is it not an improvident act on the donor's part; (c) is it such as to have
required advice, if any, obtained by the donor; and (d) whether the intention to make the
gift originated with the donor."

In Inche Noriah v. Shaikh Allie Bin Omer (1929 A C 127) it was stated that "where the
relation between the donor and donee raises a presumption that the donee had influence
over the donor, the Court will set aside tile gift unless the donee establishes that it was the
spontaneous act of the donor acting In circumstances which enabled him to exercise an
independent will, and which justified the Court in holding that it was the result of a free
exercise of the donor's will."

Now, in the present case, we find that at the time of executing the two impugned wakf
deeds, Sh. Mehar Din was described as a man of eighty-six years of age, whereas his wife
Mst. Murad Begum was nearly forty years younger than him. According to Ziaur Rehman
(P. W. 15), Sh. Mehar Din's age at the time of the execution of these documents was
ninety or ninety-two years. It thus stands established on the record that Sh. Mehar Din's
mental capacity had been impaired by age, and he was leaning heavily on Mst. Murad
Begum for the conduct of his affairs, as is clear from the evidence of Sh. Nazir Hussain
(P. W. 3). According to this witness Mst. Murad Begum was conducting all the affairs of
Sh. Mehar Din, namely, his correspondence, the management of his lands and his public
relations. A situation, therefore, had developed in which Mst. Murad Begum was in a
position to dominate the will of her elderly husband.

The question is whether Mst. Murad Begum used this position to obtain an unfair
advantage for herself and her two daughters. We have seen that the two impugned wakf
deeds completely excluded Mst. Hamida Begum from the list of beneficiaries, although
she was a legitimate daughter of Sh. Mehar Din and bad been throughout treated as such
by him until after her marriage and the birth of her eldest child Ishfaq. The two
documents do not contain any reason whatsoever for this exclusion, nor can any true and
legitimate reason be inferred from the great mass of evidence brought on the record by
the defendants. Mst. Murad Begum and her two daughters had no claim whatsoever, in
law, equity or morality, to take the entire property of Sh. Mehar Din, nor had the latter
any rational motive to grant the same, to the exclusion of his daughter from an earlier
marriage. In these circumstances, the transaction embodied in the two wakf deeds was
clearly an unconscionable transaction, and a heavy burden lay on the defendants to show
that it was not procured by the exercise of undue influence. This burden they have clearly
failed to discharge.

This inference is fortified beyond doubt by the fact that only a few days after the
execution of the two wakf deeds, Sh. Mehar Din was persuaded to execute an unusual
document, namely, Exh. D. C., on the 22nd of June 1945, just for the sake of denouncing
and disinheriting Mst. Hamida Begum by narrating a story regarding his experience on
the first night of his marriage with Mst. Hamida. Begum's mother Mst. Ghulam Zainab a
marriage which, it will be recalled, had taken place more than twenty-nine years before
the execution of this document, and the maligned lady had been dead for nearly twenty
years by this time. There was obviously no occasion for Sh. Mehar Din to embark upon
the execution of this document, when Mst. Ghulam Zainab bad continued living with him
as his wife until her death in 1925, even after her husband bad allegedly made the
distressing discovery that she was already pregnant from another man. Neither had he
denounced Mst. Ghulam Zainab at that time, nor had he repudiated her child Mst.
Hamida Begum at the time of her birth or within a reasonable time thereof. It is clear,

Page No. 40 of 1
therefore, that Sh. Mehar Din was subjected to strong undue influence for justifying what
be had already been persuaded to do by the two impugned wakf deeds.

All these circumstances taken together leave no doubt whatsoever in our mind that the
two wakf deeds were clearly the result of the exercise of undue influence on the mind of
Sh. Mehar Din by his young and scheming wife Mst. Murad Begum. Accordingly, they
have been rightly set aside by the lower appellate Court and declared to be null and void.

For the foregoing reasons, we hold that the Letters Patent Bench of the High Court was in
error in thinking that the appeal before it had become infructuous on account of the
provisions contained in paragraph 10 of Martial Law Regulation No. 64 of 19591 that the
learned Single Judge was also in error in thinking that the appellant's suit was barred by
time, for, although the suit was indeed governed by Article 91 of the Schedule to the
limitation Act, yet the limitation did not commence until the death of Sh. Mehar Din in
1948, as during his lifetime the appellant bad no right, title or interest in the property
forming the subject-matter of the impugned wakf deeds and could not have maintained
the present suit; and that the learned lower appellate Court was right in finding that the
appellant vas a legitimate daughter of Sh. Mehar Din; and that the two impugned wakf
deeds were procured from the late Sh. Mehar Din by the exercise of undue influence on
him by his wife Mst. Murad Begum, who had come to acquire a position of domination
over her elderly husband whose mental faculties had been impaired due to extreme old
age.

As a result, we would accept Mst. Hamida Begum's appeal hearing No. 194 of 1970, set
aside the two judgments of the Lahore High Court and restore the appellate judgment and
decree of the learned Senior Subordinate Judge, Rahimyar Khan, dated the 25th of
August 1956, by which the appellant's suit for declaration and a perpetual injunction was
decreed as prayed: The respondents shall pay the appellant's costs throughout.

It follows that the defendants' appeal bearing No. 195 of 1970 has to be dismissed. We
order accordingly. There shall be no separate order as to costs in this appeal.

K. B. A. Appeal accepted.

Page No. 41 of 1
P L D 1958'Supreme Court (Pak.) 437

Present: Muhammad Munir, C. J., M. Shahabuddin and A. R. Cornelius, JJ

THE TARIQ TRANSPORT COMPANY,

LAHORE-Appellant

Versus

(1) THE SARGODHA-BHERA BUS SERVICE,

SARGODHA, (2) THE REGIONAL TRANS PORT

AUTHORITY, LAHORE, and (3) THE PROVINCIAL

TRANSPORT AUTHORITY, LAHORE

-Respondents

Civil Appeals Nos. 46, 47, 48, 49, 50, 51, 52, 59, 60, 61 and 62 of 1958, decided at
Murree on 21st July 1958.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 14th January 1958, in Writ Petitions Nos. 815 and 923 of 1957).

(a) Constitution of Pakistan, Art. 170-Writ-Other remedy, and machinery for enforcing
same, provided by statute-Writ petition without availing of such remedy-Whether should
be entertained-Motor Vehicles Act (IV of 1939), S. 64.

Where a statute creates a right and also provides a machinery for the enforcement of that
right, the party complaining of a breach of the statute must first avail himself of the
remedy provided by the statute for such breach before he applies for a writ or an order in
the nature of a writ.

It is wrong on principle to entertain petitions for writs, except in very exceptional


circumstances, when the law provides a remedy by appeal to another Tribunal fully
competent to award the requisite relief. Any indulgence to the contrary is calculated to
create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved
reflection on their honesty and competency and thus to defeat the legislative intent.

In the case of mandamus, the Court will, as a general rule, and in the exercise of its
discretion, refuse an order of mandamus, where there is an alternative specific remedy at
Page No. 1 of 1
law, which is not less convenient, beneficial and effective, and such remedy includes an
appeal to an appellate tribunal.

Cases of absence of excess of jurisdiction, however, stand on a different footing and are
an exception to the general rule just stated.

But where appeal does lie, in order to quash a proceeding by certiorari, it is necessary that
the lack of jurisdiction should appear on the face of the record.

Where a party applying for a writ had not availed of the remedy provided by S. 64 of the
Motor Vehicles Act (IV of 1939) read with Rule 4-37 of the Punjab Motor Vehicles Rules,
and had not appealed from the order of the Regional Transport Authority to the Board of
Revenue, held that no writ of certiorari or mandamus or any other discretionary order of
that nature should have been issued by the High Court.

Columbia System v. U: S. 316 U S 407 ; Ex-parte Riddle 255 U S 450 ; Matter of


Tiffany 252 U S 32 ; Ex-parte Part; Square Automobile Station 244 U S 412 ; Ex parte
Roe 234 U S 70 ; Muhammad Husain Khan v. The Federation of Pakistan P L D 1956
Kar. 538 ; King v. North (1927) 1 K B 491 ; R. v. North (1927) 1 K C 491 ; White v. Steel
12 C B (M S) 383 ; Martin v Mackonochie 4 Q B D 697, 732 and Ex parte Snivth 3 Ad.
& L 719 ref.

Ferris: "Extraordinary Legal Remedies" tiara. 158 p. 179, para. 163 p. 185.

Halsbury: 3rd Edition, Vol. II p. 107 para 200 and Note (b l p. 108.

(b) Motor Vehicles Act (IV of 1939), S. 57. Procedure prescribed re: publication of
applications and hearing of parties-Omission or error in procedure-Not sufficient ground
for reversing decision of Transport Authority unless omission or error results in failure of
justice or prejudice to party.

It is a sound rule, recognised by almost all general codes of procedural law and absolutely
essential for the preservation of all duly considered verdicts, that an omission or error in
procedure, unless it has occasioned a failure of justice or prejudiced a parry in the
presentation of his case, is not a sufficient ground for reversing the decision.

The Act does not say that the applicant and the objector must be heard in the presence of
each other ; all that it says is that they both must be heard if they wish to be heard. The
hearing of the objector in the absence of the applicant or subsequently to the date on
which the applicant is heard or his application considered does not in all cases amount to
a denial of fair hearing so as to make the proceedings void or illegal.

Page No. 2 of 1
The High Court had acted on the assumption that the provisions of S. 57 being mandatory
any departure from them, however immaterial in the circumstances of a case, was
sufficient to vitiate the entire proceedings.

Held, that this was not the law because the violation of a procedural rule regulating the
hearing, if it results in an error so minor as not to amount to the denial of a fair hearing,
cannot be a ground for quashing the proceedings, if, in fact, by the irregularity no preju-
dice has been-caused to the petitioner for a writ.

Where a party was fully heard by the R. T. A. on the general issue whether that party's
monopoly for the route in question should in the public interest be disturbed and
additional permits granted it was immaterial that the hearing had not taken place in the
presence of the party applying for a permit for the route in question.

(c) Constitution of Pakistan, Art. 170-Parties to proceedings for writs of certiorari and
mandamus-Rule-Provincial Transport ' Authority could not be made party to petition
preferred only against a Regional Transport Authority-High Court not competent to start
E certiorari proceedings suo motu.

In a petition for a writ the first question that the Court has to consider is whether the
petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and it
is a basic principle that a person seeking judicial review of administrative or
quasi-judicial action must show that he has a direct personal interest in the act which he
challenges before his prayer for review is entertained. He does not have standing to sue
unless he is interested in and affected adversely by the decision of which he seeks review.
His interest must be of a personal and not of an official nature. An application for an
order of certiorari can only be made by an aggrieved party and not merely by one of the
public, and in the case of an application for an order of mandamus it is an established rule
that the applicant must show that there resides in himself a legal right to the performance
of a legal duty by the party against whom .the mandamus is sought.

Where the Provincial Transport Authority was admitted by the High Court as a party to a
writ petition preferred a private party against the Regional Transport Authority, while the
former had no interest in the matter which was the subject of the petition, and the
Provincial Transport Authority, after being made a part, itself substantially assumed the
role of a petitioner against the Regional Transport Authority, held that the High Court
could not go into the issues raised by the Provincial Transport Authority.

Held further that a High Court, is not competent merely on information or of its own
knowledge to commence certiorari proceedings or other proceedings of a similar nature
under Art. 170 Constitution of Pakistan.

(d) Judicial, quasi judicial, or administrative tribunals Precise definition not


possible-Considerations for correct determination-Certiorari-Where lies-Judicial or quasi
judicial orders-Lack of jurisdiction -Constitution of Pakistan, Art. 170.

Page No. 3 of 1
The true question in the case of judicial or administrative tribunals always is whether the
act, which is complained of is a judicial act and not whether the procedure adopted by the
tribunal is judicial or quasi-judicial or whether the dominant or general aspect of the
tribunal is that of a judicial, quasi-judicial or administrative body. A tribunal is not always
furnished with the trappings of a Court, nor will such trappings make its action judicial.
The character of the action taken in a given case and the nature of the right on which it
operates must determine whether that action is judicial, ministerial or legislative or
whether it is simply the act of a public agent.

In the case of an administrative tribunal, however, the emphasis is on policy, expediency


and discretion to enable it to achieve the object with which it was set up. 'It the case of
such a tribunal the approach in determining the relevant facts is therefore often subjective
and riot objective, there- being generally no lis before it in which the parties are arrayed
against eqch other for the enforcement of a private right or liability grid who for that
purpose are entitled to produce evidence anti adduce legal ar8umept.

The word `quasi' as prefixed to the word `judicial' may either indicate that the tribunal is
not acting purely administratively or that it is acting in a manner in which a judicial
tribunal is expected to act.

In certiorari the initial question is whether the official whose action is called in question
was acting under a law. If he was not; the act was that of a mere public agent and action
at law and not certiorari is the remedy. If, however, a public functionary has acted in
exercise of a statutory authority, then the question to be determined is whether he was the
sole judge of facts and of the necessity, expediency, advisability or reasonableness of the
action to be taken. If the reply be in the affirmative, he was not acting judicially and his
discretion is not liable to judicial review. But if he was under an obligation to find the
facts in a judicial or a specially prescribed manner, a material departure from the
procedure which has adversely affected the rights of a party would render his action
liable to judicial review, even if, on the facts to be so found, the action to be taken
depended on his discretion. These cases are distinguishable from those where whatever
be the nature of the Tribunal, the order made is illegal in the sense that the Tribunal was
not competent to make it or when on the facts found, whether subjectively or objectively,
the order in question could not have been made or an order should have been but has not
been made or where the Tribunal suffers from lack of jurisdiction. In all such cases, the
order is liable to review by a superior Court in writ proceedings provided it has affected
any right of the petitioner for a writ. What has to be seen in all such cases is the provision
of the statute under which the action was taken and it is on a true construction of that
provision in the context of the statute that the answer to the question under discussion
will primarily depend. This; however, is not laying down a precise definition of judicial
or of administrative action ; all that is meant is that the factors mentioned are important
considerations for a correct determination of the question.

(e) Motor Vehicles Act (IV of 1939), Ss. 47 (1), 57-Regional Transport Authority
deciding to grant or refuse a permit acts in administrative capacity-Decision not open to
review under writ jurisdiction of High Court-Constitution of Pakistan, Art. 170.

Held, that in the absence of any allegation of excess or absence of jurisdiction the High
Court had no power to issue an order of certiorari or mandamus or any order or direction
to the Regional Transport Authority in respect of its decision to grant or refuse to grant
a-route permit under the provisions of Ss. 47 (1) and 57 of the Motor Vehicles Act (IV of
1939).

Page No. 4 of 1
The Authority in such cases acts in an administrative capacity and not judicially. There is
no Us before the Authority. Applicants have no legal right to the grant of a permit, which
depends upon matters of policy in the light of considerations mentioned in S. 47 (1).

The applicant for a permit and the person who makes a representation have to be heard, if
they wish to be heard, at a public meeting, but it has never been held that n hearing alone
is sufficient to convert the tribunal, which is under an obligation to grant a hearing, into a
quasi-judicial tribunal.

Nor can the mere fact that a person whose application for a permit has been refused is
entitled to a copy of the decision, in order to' be able to appeal to the Appellate Authority,
convert the Regional Transport Authority into a quasi-judicial tribunal because the
requirement of stating reasons for the action taken is common to many an administrative
agency. Subsection (7) of Section 57 does not say that the Authority refusing an
application must record reasons for the refusal ; the reasons may be recorded later while
supplying the copy.

The fact that the Chairman of the Authority, who had not taken part in the deliberations,
discussed the question of grant of permits in a subsequent meeting of the Authority, has
no bearing on the case, the question not being one of excess of jurisdiction. There is no
provision in the Punjab Motor -Rules that a member of an Authority who has not taken
part in the earlier stages of a meeting cannot take part in the adjourned meeting held to
consider the same agenda.

Boulter v. Kent Justices (1897) A C 556 and Lord Mayor of Leeds v. Ryder and others
(1907) A C 420 ref.

Nakkuda Ali 1951 A C 66 : P L D 1950 P C 1'.02 and Frenklin v. The Minister of Town
and County Planning 1948 A C 87 ref.

Errington 1935, 1 K B 249 not approved.

Rex v. Post Master-General (ex parte Carmichael) 1928 1: K B 291 and The Manchester,
Legal Aid Case 1952, 2 Q B p. 413 distinguished.

R. v. London County Council (Entertainments Protection Association Limited (1931) 2 K


B 215 dissented from.

(f ) Writs-In England- In U. S. A.

Page No. 5 of 1
(g) Constitution of Pakistan, Art. 170-Scope of power to issue directions-Administrative
orders how far open to review by High Court.

The power of the High Court under Art 170 of the Constitution to issue directions, orders
and writs is not limited to writs in the English form but extends to the making of orders
restraining or directing any authority or Government, which may be discharging
executive functions under a statute. But this cannot be taken to mean that purely
executive action can be controlled by the High Court. The Article is to be read in the
context of the whole Constitution, the basic feature of which is a distribution of powers
between the Legislature, the Executive and the Judiciary. Any encroachment by the High
Court in the field reserved for the executive would therefore amount to judicial invasion
and would be contrary to the spirit of the Constitution. In the exercise of its writ
jurisdiction the High Court can never substitute itself for, or assume the responsibility of.
the executive, for the simple reason that it does not have the requisite information,
experience and training to discharge executive functions. That Court cannot, therefore,
itself make any executive order, its function being confined to the issuing of directions on
matters of law. The conclusion to be deduced from this discussion is that where an
administrative or executive officer acts under a law, tile High Court will control the
action by an appropriate order if he :

(a) goes out of the law i.e., exercises a jurisdiction not vested in him by law ;

(b) wrongly denies or omits to exercise a jurisdiction ; and

(c) where the law under which ,he acts prescribes the manner in which he is to act,
materially departs from that law.

But the over-riding requirement in all the three cases is that the excess or denial of
jurisdiction or the irregularity in the prescribed procedure should have injuriously
affected some justiciable right of a party.

(h) Motor Vehicles Act (IV of 1939), S. 57-Party applying for permit-Appearance at
public hearing-Optional.

(i) Motor Vehicles Act (IV of 1939), Ss. 47 & 57-No separate representation
contemplated by S. 47.

(j) Motor Vehicles Act (IV of 1939), S. 57 (3)-Authority modifying route under R. 4'8 (2),
Motor Vehicles Rules-No fresh publication under S. 57 (3) required.

(k) Constitution of Pakistan, Art. 170-Several persons interested in an administrative


proceeding being maintained as valid-Only one cited as respondent-Setting aside
proceedings against all by issue of writ without hearing others-Against natural justice.

Page No. 6 of 1
(l) Constitution of Pakistan, Art. 170-Certiorari-Conditions precedent for issue of-Error
apparent on face of record.

(m) Motor Vehicles Act (IV of 1939), S. 57 (7)-Reasons to be given only for refusing a
permit, not for turning down an objection against grant thereof.,

(n) Constitution of Pakistan, Art. 12-Licensing system need not be quasi judicial in
nature.

(o) Writ petition-Before Supreme Court-Allowed to be converted into appeal.

(p) Writ-Mandamus-Prohibition-Writ requiring Transport Authority not to issue permit


for operating motor vehicle on a certain route-Writ is one of prohibition and not of
mandamus-Certiorari- Writ for calling up records and quashing proceedings.

(q) Motor Vehicles Act (IV of 1939), S. 57 (5)-Applicant for permit, and objector, need
not be heard at the same hearing.

(r) Constitution of Pakistan, Art. 170-Government Departments carrying their


Departmental disputes for resolution to Nigh Court under writ jurisdiction deprecated.

(Sargodha Bhera Bus Service v, Tqriq Transport Cg. P J958 Lahore 269, reversed.)

Bashir Ahmad, Senior Advocate, Supreme Court (Jamil Husain Rizvi, Advocate Supreme
Court with him), instructed by Zahir Abbas, Attorney for Appellant.

Muhammad Iqbal, Advocate, Supreme Court, instructed by Saeed Akhtar, Attorney for
Respondent No. 1.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent
No. 2.

Sharif Khan, Chairman, Provincial Transport Authority, Lahore for Respondent No. 3.

Civil Appeals Nos. 48, 49, 51, 52 and 62 of 1958.

Page No. 7 of 1
Jamil Husain Rizvi, Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for
Appellants.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent.

Civil Appeals Nos. 47 and 59 of 1958.

A. R. Sheikh, Advocate, Supreme Court, instructed by Virasat Hussain Naqvi, Attorney


for Appellants.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent:

Civil Appeal No. 50 of 1958.

Ata Ullah Sajjad, Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for
Appellant.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent,

Civil Appeal No. 60 of 1958.

Ghulam Abbas Jajfery, Advocate Supreme Court, instructed by Virasat Hussain Naqvi,
Attorney for Appellant.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent.

Civil Appeal No. 61 of 1958.

Bashir Ahmad, Senior Advocate, Supreme Court A. R. Sheikh, Advocate Supreme Court
with him), instructed by Virasat Hussain Naqvi, Attorney for Appellant.

Sadiq Ali Shah, P. C. S. Secretary, Regional Transport Authority, Lahore for Respondent.

Dates of hearing : July 3, 4, 7, 8, 9 and 10, 1958.

Page No. 8 of 1
JUDGMENT

MUHAMMAD MUNIR, C. J.-This is an appeal from the order of a Division Bench of


the High Court of West Pakistan at Lahore made in exercise of the jurisdiction conferred
by Article 170 of the Constitution, which has come to be commonly called as the writ
jurisdiction of High Courts. The appeal raises some fundamental issues as to the limits of
that jurisdiction.

By the order under appeal the proceedings of the Regional Transport Authority, Lahore,
held on the 27th, 28th and 29th of May, 1957, in which four stage carriage permits for
Sargodha-Bhera and one stage carriage permit for Lahore-Rawalpindi granted to the
Tariq Transport Company (hereinafter referred to as the appellant) and the Diamond
Transport Company, Lahore, respectively were quashed and all the applications for
permits decided in the meeting held on those days were ordered to be re-heard in
accordance with law.

As we have been influenced in our judgment chiefly by the precise scope of the
allegations made in the petitions for writs and the issues raised between the Diamond
Transport Company and the Provincial Transport Authority in one case, and the
Sargodha-Bhera Bus Service (hereinafter referred to as the respondent with the pronoun
"he") and the appellant on the other, it is necessary to set out the grounds of those
petitions and the relief asked therein.

Since 1948 the respondent has held a monopoly for .the Sargodha-Bhera route for stage
carriage permits. Oil 5th September, 1956, the appellant applied to the Regional
Transport Authority, Lahore, for 13 route permits for stage carriages including the
Rabwah-Bhera and Sargodha-Bhera routes. This application was duly published except
that the Sargodha-Bhera and another route were omitted from the publication and the date
for the consideration of the application was not announced. Another application by the
Tariq Transport Company with a different address from that of the appellant for the
Sargodha-Bhera route was received in the office of the Regional Transport Authority,
which was published in a transport newspaper "The Driver" in its issue of 22nd May,
1957. This Transport Company appears to be a pseudonymous concern, and it is common
ground that the four stage carriage permits were not issued to this Company "but to the
appellant. A general notice that all pending applications for motor vehicle permits will be
considered by the Regional Transport Authority on 27th May and subsequent days was
published and the applications were considered by that Authority at a public hearing held
on 27th, 28th and 29th May, 1957. The decisions were taken on the third day and were
published in sonic of the newspapers. They were all in accordance with those formally
recorded by the Authority subsequently.

Since a part of the route for which a permits had been granted to the Diamond Transport
Company lay within the jurisdiction of the Regional Transport Authority of Rawalpindi,
the Provincial Transport Controller considered the grant of that permit by the Regional
Transport Authority, Lahore, as ultra vires and wrote accordingly to the Regional
Transport Authorities of Lahore and Rawalpindi. The, result was that the issue of the
permit which had been granted to the Diamond Transport Company, subject to the
condition that the company would not operate on the route lying within the jurisdiction of
the Regional Transport Authority, Rawalpindi, till it obtained the counter-signature of that
Authority, was withheld.

Page No. 9 of 1
On the 18th of July, 1957, the respondent moved the High Court of Lahore under Article
170 of the Constitution praying that "the proceedings of the 27th to the 29th of May,
1957, of the Regional Transport Authority, Lahore, so far as these relate to the item
dealing with the Sargodha-Bhera route" be called and quashed and that the Authority be
directed "not to issue any permits for the Sargodha-Bhera route to the Tariq Transport
Company Lahore and to cancel the permits if already issued". The respondents to that
petition were the present appellant and the Regional Transport Authority Lahore.
Subsequently, with permission of the Court, further particulars of the petition were put in
and the amended read with the original petition alleged:-

(1) that as the appellant's application for the Sargodha-Bhera route was published on
22nd May, 1957, it could not be considered before the 21st June, 1957, and that therefore
the permits issued to the appellant in the meeting of the Regional Transport Authority
held on 27th to 29th May, 1957, were invalid ;

(2) that because at the aforesaid meeting the appellant and the respondent were not
heard in the presence of each other, there was no proper hearing, and the permits to the
appellant having been granted without such hearing were invalid ;

(3) that the grounds on which the appellant's application for permits was granted and the
respondent's objections to the grant turned down were not disclosed to the respondent ;

(4) that the direction issued by the Provincial Transport Authority to the Regional
Transport Authorities under section 44 to conduct a survey of the relevant route before
granting fresh permits for it was disobeyed.

Another petition was presented by the Diamond Transport Company in which the only
point raised was that the Provincial Transport Authority, of which the Provincial
Transport Controller was the Chairman, had no jurisdiction to issue a direction to the
Regional Transport Authority Lahore not to issue a permit to the petitioner for the
Lahore-Rawalpindi route and the relief asked was that appropriate writs be issued against
both those Authorities. When the respondent's petition came up for hearing before the
Bench on 17th September, 1957, the Assistant Advocate-General, Mr. M. Anwar, who
was representing the Provincial Transport Authority one of the respondents to the
Diamond Transport Company's petition, appeared and made a request that both the
petitions be heard on the next day. Agreeing to this course, the learned- Judges recorded
the following order:-

"Mr. Anwar A. A. G. appears and requests that this petition be-heard along with a
connected petition (Writ Petition 923/57) tomorrow. He represents the Provincial
Transport Authority who were a party in the connected petition, but not in this petition.
Mr. Anwar states that according to his instructions there were serious irregularities
committed by the Regional Transport Authority on the relevant dates Ind there is even a
suggestion of the forgery of the records for these dates. It seems desirable that P. T. A. be
also impleaded as a party in this petition and we order accordingly. Let both connected
petitions be heard together".

Page No. 10 of 1
In an otherwise simple case, this order caused considerable confusion by obscuring the
issues inter. partes, introducing many a disputed question of fact and virtually converting
the hearing of a petition for a writ into the trial of an original action. As a newly added
respondent the Provincial Transport Authority put in a reply making different allegations
against the Regional Transport Authority, which were completely irrelevant to the issues
arising between the appellant and the respondent in one case and the Diamond Transport
Company and the Provincial Transport Authority in the other. The reply, which in no
sense was a return, more than supported the petition of the respondent and in its essential
characteristics was itself a petition for the issuance of a writ ending with the prayer "that
this Honourable Court may be pleased to quash the entire proceedings of the 27th to the
29th May 1957 meeting of the Regional Transport Authority and the award of costs as
against the Regional Transport Authority". The learned Judges themselves state that "the
two petitions proceed on different grounds and seek different reliefs", but it does not
appear to have been realized that while the issue in the Diamond Transport Company's
case was a simple issue of law, the facts which gave rise to that issue not being in dispute,
the issues in the other petition were fundamentally different and had 'no bearing on the
question raised in the former. The respondent's petition had asked for no relief against the
Provincial Transport Authority and was expressly limited to the prayer to quash the
proceedings so far as they related to the item dealing with the Sargodha-Bhera route. The
reply of the Provincial Transport Authority, however, asked for the quashing of the entire
proceedings of the 27th to the 29th May 1957. One unfortunate result of this procedure
has been that the High Court has quashed all the proceedings that took place from 27th to
29th May and, in so doing, it has deprived a large number of persons, without hearing
them and without there being-even a petition against them, of the permits which had been
granted to them and to which no one except the Provincial Transport Authority had
objected. Thereafter the hearing of the petitions assumed the form of the trial of a regular
suit in which the respondent examined only one witness, besides its General Manager Mr.
Muhammad lqbal Piracha. The appellant also contented himself with one witness. The
Provincial Transport Authority, however, was permitted to summon seven witnesses and
the learned Judges themselves examined five persons as Court witnesses. The Regional
Transport Authority produced only three witnesses. After hearing all this evidence and the
arguments of counsel the learned Judges came to the following findings:-

(1) that neither the application of 22nd May by the pseudonymous Tariq Transport
Company, nor the appellant's application of 25th September, 1956, for the
Sargodba-Bhera route could be heard by the Regional Transport Authority in its meeting
of 27th, 28th and 29th May, the former because 30 days had not expired after its
publication, and the latter because the Sargodha-Bhera route had not been mentioned in
the publication of 24th October-1956 ;

(2) that the applicants for permits were not heard in the presence of the objectors;

(3) that the Regional, Transport Authority is a quasijudicial body and since for its action
in granting 64 out of 700 applications no reasons were recorded, the decisions taken were
bad in law ;

(4) that because the appellant was not present when his application for Sargodha-Bhera
route was considered, the application should either have been rejected or adjourned ;

(5) that having taken no part in the proceedings of 27th and 28th and part of 29th May,
Major Allah Dad, the Chairman of the Regional Transport Authority, could not take any
part in the decisions to be arrived at by that Authority and the final decisions taken being
the result of his influence are invalid ;
Page No. 11 of 1
(6) that under rule 4.8 (2) of the Punjab Motor Rules permits for the Sargodha-Bhera
route could not be granted to the appellants by modification of the prayer for
Rabwah-Sargodha route, without such modifications having been put to the respondent
under subsection (3) of section 57, and independently of that subsection under section 47
(1).

In the view the learned Judges took the entire proceedings of the meeting of 27th to 29th
May were quashed and the order thus made has given rise not only to an appeal by the
Tariq Transport Company, but also by the Iqbal Transport Service Lyallpur, the
Chaudhury Bus Service, Jhang, the Bandial Bus Service Quaidabad, the Yasin Transport
Company Lahore, the Raja Bus Service Ltd., the Bhatti Bus Service, the Faruq Bus
Service, Lahore, The Husani Transport Service, the Shorkot Transport Service and the
Lyallpur Transport Company whose sole grievance in the appeal is that the proceedings
of the meeting in which permits were granted to them have, in the absence of any petition
for a writ against them, been quashed without their being made parties to the proceedings
and without their being heard against the making of such order.

The first point raised in the appeal is that the respondent not having exhausted the
remedies available to him under the law, his prayer for a writ should not have been
entertained by the High Court. It is admitted by Mr. Muhammad Iqbal, learned counsel
for the respondent, that under section 64 of the Motor Vehicles Act, 1939, read with rule
4.37 of the Punjab Motor Rules an appeal from the order of the Regional Transport
Authority lay to the Board of Revenue, which has replaced the Financial Commissioner,
the original Appellate Authority under the rule. That rule not only constitutes an
Appellate Authority but also details the manner in which an appeal may be made and the
documents that may be relied on and provides that the appellant, either in person or
through an agent or representative, shall be heard in support of the appeal. The
respondent did not avail himself of this statutory right and preferred to invoke the very
extraordinary jurisdiction of the High Court by alleging that no remedy "equally speedy,
effective and efficacious other than through the writ jurisdiction of 'this Honourable
Court is available to the petitioners against the illegal and wrongful action of respondent
No. 1". That this averment was wholly unfounded I have no doubt whatever. The
respondent could have adopted precisely the same procedure as he did before the High
Court, and I am quite sure that if he had alleged that a copy of the order against which he
was preferring the appeal was not being given to him, the Appellate Authority would
have sent for the record exactly as the High Court did and would have given a full
consideration to the points raised in the appeal.. In the reply to the petition, it was alleged
by the appellant that the respondent could not invoke the writ jurisdiction of the High
Court because another remedy, namely, an appeal, was available to him, and this legal.
position was present to the mind of the learned Judges who heard the petitions because
they state that "Orders granting or refusing all kinds of permits by the Authority are
appealable". In their judgment, however, the contention that the respondent should appeal
before asking for a writ from the High Court has received no consideration, and I
consider it to be wrong on principle for the High Court to entertain petitions for writs,
except in very exceptional circumstances, when the law provides a remedy by appeal to
another Tribunal fully competent to award the requisite relief. Any indulgence to the
contrary by the High Court is calculated to create distrust in statutory tribunals of
competent jurisdiction and to cast an undeserved reflection on their honesty and
competency and thus to defeat the legislative intent. And in a case of the present kind
where the right, which the petitioner for a writ claims to vest in him is entirely the
creation of a statute, it is all the more imperative on him to exhaust the remedies provided
by the statute before he comes to the High Court. He cannot be permitted to say that
while he will have one or all the benefits of the statute, he will comply with none of its
remedial processes. In the English cases cited at the Bar none is to be found where the
High Court, without stating the reasons for its interference before the aggrieved party had
availed himself of the right to appeal, ever issued a writ. In the United States of America,
Page No. 12 of 1
prematurity of the action is a well-recognised barrier to judicial review of administrative
orders see Columbia System v. U: S. (316 U S 407). That position is thus stated by Ferris
in para. 158 at page 179, of his "Extraordinary Legal Remedies":-

"The purpose of the common law writ is not to take the place of a writ of error or appeal,
but to cause the entire record of the inferior Court to be brought up by certified copy for
inspection, in order that the reviewing Court may determine from the face of the record
whether the inferior Court has exceeded its jurisdiction, or has not proceeded according
to the essential requirements of the law, in cases where no direct appellate proceedings
are provided by law * * * When used in the nature of a writ of error, it was granted only
in those instances in which the inferior Court had acted without jurisdiction or in
disregard of statutory provisions. The writ ran to those bodies whose orders, though
erroneous, had the force of final and conclusive judgments, and there being no right of
appeal or other method of review, the extraordinary writ of -certiorari was resorted to
from necessity".

And in paragraph 163 at page 185, the learned author has the following on the same
subject:

"The common law rule is that certiorari will not lie when there is another adequate
remedy by appeal, writ of error or otherwise, where the inferior Court has jurisdiction. If
this were not true, then the writ might be used to withdraw any case at any intermediate
stage from the consideration of the trial Court and submit it to the final determination of
the superior Court issuing the writ. This would in effect render the writ a substitute for an
appeal or writ of error".

In the case of mandamus, it has been uniformly held in England that the Court will, as a
general rule, and in the exercise of its discretion, refuse an order of mandamus, where
there is an alternative specific remedy at law which is not less convenient, beneficial and
effective, arid such remedy includes an appeal to an appellate tribunal (Halsbury, 3rd
Edidition, Volume 11, p. 107, paragraph 200 and Note (b) at p. 108). A similar position
obtains in U. S. A. where a statutory remedy by way of appeal or writ of error ordinarily
bars the right to mandamus on the principle that the writ may not be substituted as a
means of review to take the place of express remedial process as created by statute for
such purposes, whatever may be the Court's conviction as to the clear error of the lower
Court, Ex parte Riddle (255 U S 450); Matter of Tiffany (254, U-S 32); Ex parte Park
Square Automobile Station (244 U S 412) and Ex parte Roe (4). Mr. Muhammad 1qbal
relies on the judgment of a Division Bench of the High Court of West Pakistan in
Muhammad Hussain Khan v. The Federation of Pakistan (P L D 1956 Kar. 538) where
Kaikaus, J. relying on King v. North (6) seems to have held that if the proceedings are
illegal or in excess of jurisdiction, the mere fact that the person has a right of appeal'
against the order cannot bar an application for certiorari. Cases of absence or excess of
jurisdiction, however, stand on a different footing and are an exception to the general rule
just stated. An appeal, while adequate to correct mere errors in the exercise of
jurisdiction, is often inadequate to redress or prevent a wrong done in the absence or
excess of jurisdiction. If a tribunal has no jurisdiction either in respect of the
subject-matter of litigation or the parties before it or the territory to which the dispute
relates or because of its own defective constitution or the illegality of the order, the
proceedings are void abinitio, and an appeal in such a case is an unnecessary step and
mere prolongation of the proceedings which eventually the Court must hold to be void for
lack of jurisdiction. In such cases certiorari acts as would a Court of Equity. Thus there
have been several cases in England where certiorari was granted - if the Tribunal had
acted without jurisdiction, though a right of appeal existed, R. v. North ((1927) 1 K B
491) White v. Steel (12 C B (N S) 383), Martin v. Mackonochie (4 Q B D 697, 732), Ex
parte Smyth (3 Ad. & E. 719). But where appeal does lie, in order to quash a proceeding
Page No. 13 of 1
by certiorari, it is necessary that the lack of jurisdiction should appear on the face of the
record. Another case where a petition for certiorari may be entertained without waiting
for the result of the appeal is where an appeal being competent a party is deprived of that
right without any fault or negligence on his part or where the appellate tribunal refuses to
or does not determine the appeal.

Having given careful consideration to this aspect of the matter, I am of the view that the
present case was governed by the general rule that where a statute creates a right and also
provides a machinery for the enforcement of that right, the party complaining of a breach
of the statute must first avail himself of the remedy provided by the statute for such
breach before he applies for a writ or an order in the nature of a writ. Since in the present
case the statute under which the respondent had a grievance provides art appeal in which
that grievance can be set right, no writ of certiorari or mandamus or any other
discretionary order of that nature should have been issued by the High Court.

Though, what I have said above is sufficient for the reversal of the High Court judgment,
there are some other questions in this case, on which a considered opinion is called for.
The main ground stated by the High Court for quashing the proceedings is that the
provisions of section 57 of the Motor Vehicles Act were not complied with because
Sargodha-Bhera route was omitted from the publication of the appellant's application in
October 1956 and the appellant was not heard in the presence of the respondent in respect
of the former's application for that route. With a view 'to determining whether these
irregularities were a valid ground for quashing the entire proceedings, it is necessary to
state a few more facts. The appellant's application was taken up with the other
applications from the Lahore District on 27th May when Mr. Muhammad Iqbal Piracha,
the Manager of the respondent, was also present. He, however, alleges, and this may be
assumed to " be true, that he was not permitted to take part in the proceedings relating to
the applications from Lahore because he himself was an applicant from the Sargodha
District as well as an objector to 18 other applications made by other parties for the
Sargodha-Bhera route. The applicants from all districts were heard on the 27th and 28th
May, and it was after hearing them that the objectors were heard on the 29th of May. Mr.
Iqbal Piracha had not put in any objection either to the appellant's application for
Rabwah-Bhera route or for the Sargodha-Bhera route which had been omitted from the
publication of October 1956, but to the other 18 applications for the Sargodha-Bhera
route he had strongly objected and in the proceedings there is a detailed note about this
objection and its rejection on the ground that fresh permits for Sargodha-Bhera were
necessary. Thus the respondent was fully heard on the general issue whether the
appellant's monopoly for that route should in the public interest be disturbed and
additional permits granted. In the arguments before us it has not even been hinted that the
respondent intended to make any special objection to the grant of permits to the appellant
for the Sargodha-Bhera route in case the respondent's objection to the grant of further
permits was rejected and it was decided to issue more permits for that route. The
omission of this route from the publication of the appellant's application of 25th
September 1956, was therefore, an irregularity which did not at all prejudice the
respondent. In the same manner, the absence of the appellant, assuming he was absent as
alleged by the respondent, from the proceedings when his application for the
Sargodha-Bhera route was considered and the absence of the respondent from those
proceedings has not the slightest bearing on the case because the respondent was heard at
length in support of his general objection that no further permit for the Sargodha-Bhera
route should be issued. The learned Judge seem to have acted on the assumption that the
provisions of S. 57 being mandatory any departure from them, however immaterial in the
circumstances of a case, is sufficient to vitiate the entire proceedings. This, to, my mind,
is not the law because the violation of a procedural rule regulating the hearing, if it results
in an error so minor as not to amount to the denial of a fair hearing, cannot be a ground
for quashing the, proceedings, if, in fact, by the irregularity no prejudice has been caused
to the petitioner for a writ. This is how S. 57 has been construed by the administrative
appellate authority and, in my opinion, it is a sound rule, recognised by almost all general
codes of procedural law and absolutely essential for the preservation of all duly
considered verdicts, that an omission or, error in procedure, unless it has occasioned a
Page No. 14 of 1
failure of justice or prejudiced a party in the presentation of his case, is not a sufficient
ground for reversing the decision. In the present case, the appellant was fully, heard in
support of his objection to the further grant of permits for the Sargodha-Bhera route and
that general objection, if accepted, would have affected the appellant as well as the other
applicants for the same route, and it not being the respondent's case that he had any
particular objection to urge against the appellant personally, the irregularity in procedure
which did not influence the decision, which would have been the same even if the
respondent had objected to the appellant's application, did not vitiate the proceedings.
This aspect of the matter has not at all been referred to by the High Court and it has been
assumed that a violation simpliciter of any provision of S. 57 is a sufficient ground for
quashing the proceedings. The Act does not say that the applicant and the objector must
be heard in the presence of each other all that it says is that they both must be heard if
they wish to be heard. The hearing of the objector in the absence of the applicant or
subsequently to the date on which the applicant is heard or his application considered
does not in all cases amount to a denial of fair hearing so as to make the proceedings void
or illegal, and in the present case it is impossible to contend that the respondent was not
heard against the grant of permits for the Sargodha-Bhera route.

Mr. Muhammad Iqbal relied on the- direction issued by the Provincial Transport
Authority under S. 44 of the Act to the effect that while considering the grant of permits
the Regional Transport Authority should bear in mind the condition of the roads as
disclosed by a survey. The Regional Transport Authority's case in regard to this direction
was that it was issued by the Provincial Transport Controller who had no jurisdiction to
issue it. The High Court has said nothing about the matter and the direction alleged to
have been issued is not to be found on the record. The question of its validity cannot
therefore be examined in this appeal. It is stated by, the Chairman of the Regional
Transport Authority that in granting or refusing the permits the traffic conditions on the
roads were considered, and I do not know what else a survey could disclose.

To sum up, the respondents' whole case before the Regional Transport Authority and in
the High Court was that his monopoly of the Sargodha-Bhera route, which he has been
enjoying since 1948 should have been preserved and no permit for that route should have
been granted to anyone. He had produced before that Authority a note by the Chairman of
the Punjab Road Transport Board stating that he had found by experience that route to be
financially ruinous. The Acting Chairman of the Authority, however, had alleged, an
allegation which is to be found in the minutes, that this note had been purposely and
improperly obtained by the respondent from the Manager of the Board and when the
parties were permitted by the High Court to produce all relevant evidence, the respondent
did not call the Manager either to prove that note or to offer him for cross-examination.
The respondent himself admits that of the several routes held by his concern, Sargodha-
Bhera is the only productive route, and it has not been disputed that when after the grant
of permits the appellant began to operate on the route, the respondent found it possible to
reduce the fare from Rs. 1-8-0 to 0-8-0 per passenger, which after the cancellation of the
appellant's permits he again raised to Rs. 1-8-0. In these circumstances, even if the High
Court were to examine the justness or reasonableness of the Authority's decision it could
not have come to any conclusion other than the one at which the Authority had arrived.
On merits therefore the respondent had no case for the consideration of the High Court
either in law or in equity.

The points dealt with above were the only ones raised by the respondent in his petition
and if that petition had been heard as between the appellant and the respondent and no
third party-had been inducted into the case, the appeal would have concluded here, and it
would not have been necessary to say anything more. But, as mentioned above, at the
request of the counsel for the Provincial Transport Authority for a joint hearing of the two
petitions, the High Court took the unusual step of consolidating the petitions and
impleading the Provincial Transport Authority as a respondent to the petition to which he
was not a party. The, Provincial Transport Authority had no locus standi to be heard in the
Page No. 15 of 1
petition to which it was not a party because it could not have applied for a writ, nor could
it be a co-respondent in that case because the present respondent had asked for no relief
against it. What is more, not only was the Provincial Transport Authority impleaded, it
was also directed to put in a written statement. A perusal of the statement that it put in
would show that it was essentially a fresh petition by the Provincial Transport Authority
for a writ against the appellant and the Regional Transport Authority, ending with a
prayer-clause which can only be found in a petition for a writ and containing allegations
which in the opinion of that Authority were grounds for the issuance of a writ. In a
petition for a writ the first question that the Court has to consider is whether the petitioner
has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it
to be a basic principle that a person seeking judicial review of administrative or quasi
judicial action must show that he has a direct personal interest in the act which he
challenges before his prayer for review is entertained. “.A petitioner", says Mr. Justice
Frankfurt in his concurrent opinion in Giant Anti-Fascist Refugee, Committee v. McGrath
(341, U. S. 123, 151) " does not have standing to sue unless he is interested in and
affected adversely by the decision of which he seeks review. His interest must be of a
personal and not of an official nature". An application for an order of certiorari can only
be made by an aggrieved party and not merely by one of the public, R. v. Nicholson,
((1899) 2 Q B 455) and in the case of an application for an order of mandamus it is an
established rule that the applicant must show that there resides in himself a legal right to
the performance of a legal duty by the party against whom the mandamus is sought, R. v.
Lewisham Union ((1897) I Q B 498 at p. 500). It cannot be contended that the Provincial
Transport Authority had any such interest in the' matter to entitle it substantially to
assume the role of a petitioner. Certiorari cannot issue at the instance of one not named as
a party to the proceeding in which the judgment or order sought to be reviewed was
entered. Where one not a party seeks to use certiorari, he must show that the decision
sought to be reviewed is directed against him or his property in the sense that the
enforcement of the decision would involve special, immediate and in its effect a direct
injury to his interest. Ferris, Para 174, p. 199. Nor could the Provincial Transport
Authority be properly made a co-respondent to the respondents' petition because the
essential party to a petition for a writ of certiorari is the tribunal or Authority whose
action is to be reviewed and who is interested therein and affected thereby and in whose
possession the record of such action remains. But in order that the Court may do ample
and complete justice and render a judgment, which will be binding on all persons
concerned, all persons who are parties to the record should be made parties. It is one of
the paradoxes of this case that a person who was not at all interested in the proceedings
was made a party, perhaps the principal party, but the large number of Transport
Companies and concerns which have actually been affected by the judgment were never
required to be in Court to be heard against the issuance of writ or direction.

If the High Court had the authority to issue a writ suo mote its action in impleading an
unnecessary party, but who could nevertheless assist the Court in the determination of the
issues raised, would have been'-open to no objection. But in law there is no warrant for
the implicit assumption underlying the procedure adopted by the High Court that it has a
sort of general revisional or supervisory jurisdiction over all tribunals performing
quasijudicial functions or exercising statutory administrative powers, which in some
manner affect a citizen. It has been held by the High Court that a decision by a Regional
Transport Authority to refuse or grant a permit affects the fundamental right granted to
every citizen of Pakistan by Article 12 of the Constitution to enter upon any lawful
profession or occupation or to conduct any lawful trade or business, subject to regulation
by a licensing system and that therefore a decision in this matter is of a quasi-judicial
nature. And from this it appears to have been further assumed that the jurisdiction to take
cognizance of all breaches of such rights inheres in the High Court by reason of Article
170 of the Constitution. If the premises be correct, the conclusion about the Regional
Transport Authority being a quasi-judicial body may perhaps be right, but Article 12 is
not at all in point in the present case, and the learned Judges appear in this respect to have
been under an obvious misapprehension because a business unless it amounts to a trade
or profession is not within the Proviso to Article 12. Here it is doubtful whether the
carriage of passengers by power-propelled buses is a trade, and a profession it certainly is
not. The respondent was not the applicant for the grant of a permit; he was objecting to
somebody else carrying on transport business under a licence. It is therefore difficult to
Page No. 16 of 1
agree with the High Court that a fundamental right was involved in this case unless it be
held that to enjoy a monopoly of transport service on a public road is a fundamental right
of every citizen of Pakistan. A more obviously untenable position could not have been
adopted by the respondent. The public roads of this country vest in and are under the
management of the State, which also looks after their maintenance and is responsible for
the traffic on those roads. They do not belong to or vest in an applicant for a route permit
and they are not in his possession. His claim therefore not only to ply buses on such roads
for profit but also to enjoy a monopoly of public traffic on them is not relatable to any
fundamental right, a breach of which would make an administrative body responsible for
public traffic a quasi judicial body. I shall presently deal with the issue raised and fully
argued whether a Regional Transport Authority is a quasi judicial body but assuming that
it is, it 'does not follow that under the Constitution the High Court can exercise a general
revisional or supervisory jurisdiction over such bodies because, as already pointed out, a
petitioner for a writ or a direction or order under Article 170 of the Constitution has first
to show his standing. A High Court, therefore, is not competent merely on information or
of its own knowledge to commence certiorari proceedings or other proceedings of a
similar nature under that constitutional provision. And if that be correct, as I hold it is, the
High Court could neither suo motu nor at the instance of the Provincial Transport
Authority, which was not in the slightest degree concerned with the matter, go into the
various issues raised by that Authority. The matters which were raised by the Provincial
Transport Authority alone and found no place in the respondent's petition were

(1) that since the Regional Transport Authority had given no reasons for selecting 64 out
of 700 persons for the grant of permits, the proceedings were invalid in law ; and

(2) that because the Chairman of the Regional Transport Authority who had not taken any
part in the proceedings of 27th and 28th May took part in the deliberations of the,
Authority on the 29th and actually influenced the decisions of the Authority, the case was
similar to that where a judicial or quasi-judicial officer who has himself not heard the
evidence decides the matter.

For the purpose of determining whether the High Court's decision on these two points
was correct, it is unavoidable to enter into the general issue as to what a quasi-judicial
tribunal is and whether the Regional Transport Authority functioning under the Motor
Vehicles Act, 1939, is such a body.

The question whether an act is judicial, quasi-judicial or administrative is clouded


by a confusion which it is extremely difficult to resolve and no clear-cut distinction
between these three functions can be discovered from the lame number of reported cases
and the divergent opinions expressed therein, In modern States where expertise is the
dominating feature of Government more than one function is combined in administrative
tribunals, and more often than not an administrative agency discharges not only
legislative and administrative but also judicial functions. The true question in the case of
such tribunals always is whether the act which is complained of is a judicial act and not
whether the procedure adopted by the tribunal is judicial or quasi judicial or whether the
dominant or general aspect of the tribunal is that of a judicial, quasi-judicial or
administrative body. A tribunal is not always furnished with the trappings of a Court, nor
will such trappings make its action judicial. The character of the action taken in a given
case and the nature of the right on which it operates must determine whether that action is
judicial, ministerial or legislative or whether it is simply the act of a public agent. A
tribunal acts judicially in the full sense of the term if

(1) it has to determine a dispute ;


Page No. 17 of 1
(2) the dispute relates to a right or liability which, whatever its immediate aspect, is
ultimately referable to some right or liability, recognised by the Constitution or statute or
by custom or equity which by the domestic law is declared to be the rule of decision ;

(3) since every right or liability depends upon facts, the tribunal is under an obligation to
discover the relevant facts ;

(4) the ascertainment of the facts is in the presence of the parties either of whom is
entitled to produce evidence in support of its respective case and to question the truth of
the evidence produced by his opponent ; and

(5) after an investigation of the facts and hearing legal arguments the tribunal renders a
judgment which so far as the tribunal is concerned terminates the dispute.

In the case of an administrative tribunal, however, the emphasis is on policy, expediency


and discretion to enable it to achieve the object with which it was set up. In the case of
such a tribunal the, approach in determining the relevant facts is therefore often
subjective and not objective, there being generally no lis before it in which the parties are
arrayed against each other for the enforcement of a private right or liability and who for
that purpose are entitled to produce evidence and adduce legal argument. The word
`quasi' as prefixed to the word `judicial' may either indicate that the tribunal is not acting
purely administratively or that it is acting in a manner in which a judicial tribunal is
expected to act.

In his recent book "Fundamental Law of Pakistan", Mr. Brohi has a critical comment on
this subject at pp. 475 to 484 and after discussing and analyzing leading cases thus states
his general conclusion at p. 481: "In other words, if the law permits a subjective approach
to the determination of the conditions limiting the exercise of power, and constitutes the
officer exercising the power as a sole judge as to their existence, writ of certiorari will not
lie but if, on the other hand, those conditions have themselves to be determined
objectively then they become `conditions-precedent' to the exercise of the power and their
existence cannot be said to be conclusively demonstrated merely because the officer
exercising the power says that such conditions exist. In the latter case the Court can go
behind the declaration that such conditions have been found to exist". And at p. 482 he
quotes from an article of Mr. Gordon contributed to 49 L Q R in the course of which at p.
107 the writer says:-

"Judicial Tribunals must treat legal rights and liabilities as pre-existing, because such
tribunals declare themselves bound by a fixed objective standard, they profess not to
confer rights or impose liabilities themselves but only to do what is dictated by law. But
administrative tribunals which act upon policy and expediency, themselves dictate what is
policy and expedient; they are not concerned with pre-existing rights and liabilities but
themselves create rights and liabilities that they enforce".

In certiorari the initial question is whether the official whose action is called in question
was acting under a law. If he was not, the act was that of a mere public agent and action
Page No. 18 of 1
at law and not certiorari is the remedy. If, however, public functionary has acted in
exercise of a statutory authority, then the question to be determined is whether he was the
sole judge of facts and of the necessity, expediency, advisability, or reasonableness of the
action to be taken. If the reply be in the affirmative, he was not acting judicially and his
discretion is not liable to judicial review. But if he was under an obligation to find the
facts in a judicial or specially prescribed manner, a material departure from the procedure
which has adversely affected the rights of a party would render his action liable to
judicial review, even if, on the facts to be so found, the action to be taken depended on
his discretion. These cases are distinguishable from those where, whatever be the nature
of the Tribunal, the order made is illegal in the sense that the Tribunal was not competent
to make it or when on the facts found, whether subjectively or objectively, the order in
question could not have been made or an order should have been but has not been made
or where the Tribunal suffers from lack of jurisdiction for the reasons stated earlier in this
judgment. In all such cases, the order is liable to review by a superior Court in writ
proceedings provided it has affected any right of the petitioner for a writ. What has to be
seen in all such cases is the provision of the statute under which the action was taken and
it is on a true construction of that Provision in the context of the statute that the answer to
the question under discussion will primarily depend In making these observations,
however, I must not be understood as laying down a precise definition of judicial or of
administrative action; all that is meant is that the factors mentioned are important
considerations for a correct determination of the, question.

In the light of the principle stated above, we can now approach the question whether a
Regional Transport Authority when granting route permits under the Motor Vehicles Act
1939 acts in a quasi-judicial (it not being contended that it acts judicially) or purely
administrative capacity. The procedure prescribed by the Act for the making and
consideration of applications for permits is that:-

(1) anyone may make an application for a permit ;

(2) a public notice of the particulars of the application and of the date of its consideration
has to be given ;

(3) anyone may make a representation in support of or against the grant of such
application ;

(4) the application has to be disposed of at a public hearing at which the applicant and the
person making the representation shall have an opportunity of being heard either in
person or by a duly authorized representative ; and

(5) when an application for a permit is refused, the Authority is bound to give to the
applicant in writing its reasons for. the refusal.

What considerations the Authority must bear in mind when it has to decide, an
application is the subject matter of section 47 which is as follows:-

Page No. 19 of 1
"47.-(1) A Regional Transport Authority shall, in deciding whether to grant or refuse a
stage carriage .permit, have regard to the following matters, namely :--

(a) the interest of the public generally ; .

(b) the advantages to the public of the service to be provided, including the saving of time
likely to be effected thereby and any convenience arising from journeys not being
broken ;

(c) the adequacy of existing road passenger transport services between the places to be
served, the fares charged by those services and the effect upon those services of the
service proposed ;

(d) the benefit to any particular locality or localities likely to be afforded by the service ;

(e) the operation by the applicant of other transport services and in particular of
unremunerative services in conjunction with remunerative services ; and

(f) the condition of the roads included in the proposed route or routes ;

and shall also take into consideration any representations made by persons already
providing road transport facilities along or near the proposed route or routes or by any
local authority or police authority within whose jurisdiction any part of the proposed
route or routes lies or by any association interested in the provision of road transport
facilities".

The first thing to notice about this provision is that there is nothing therein to prevent a
Regional Transport Authority in deciding upon a policy to grant or refuse permits
provided that policy has been formulated after considering the matters mentioned therein.

The next point to be noticed is that the provision lays stress on the interest of the public,
the advantages to the public, and the benefit to any particular locality and has no
reference whatsoever to any private right. Clause (c), which refers to the adequacy of
existing road passenger transport does not recognize any right in those who are providing
such transport. Thus if a transport company is the only company plying on a particular
road and charging monopoly, fares, the Regional Transport Authority may, in the public
interest, grant fresh permits for that route to destroy the existing monopoly. And if the
fares be reasonable and the transport services adequate, the Authority may refuse to issue
any further permit for that route, but any such decision again will have reference to the
public interest and not to any individual right because the avoidance of cut-throat
competition between two transport agencies is as much in the public interest as the
destruction of a monopoly held by either of them. The only provision in this section,
which refers to private interests, is clause (e) but it does not enjoin the Authority not to
grant any further permit if an unremunerative service for a particular route already exists.
Thus this clause creates no right whatsoever in any person for a claim to a permit; it
Page No. 20 of 1
merely mentions one of the considerations by which the Regional Transport Authority
should be guided in taking a decision to grant or refuse any permit, There is, therefore, no
lis between two or more persons before a Regional Transport Authority or between
anyone of them and that Authority; and there is no private right involved in the decision
of the Authority. As pointed out by Lord Herschell in Boulter v. Kent Justices ((180.7) A
C 556) the grant of a licence is the conferment of a privilege and the consideration that
influences the grant is the public interest. There is therefore no lis before the licensing
authority. "A decision", His Lordship observed, "that license should not be granted is a
decision that it would not be for the public benefit to grant it. It is not a decision that the
objector has a right to have it refused. It is properly speaking a determination in his
favour. It is, I think, a fallacy to treat the refusal as necessarily induced by a particular
objector. Every member of the local community might object. Would they all then
become the other party? There in truth no lis, no controversy inter partes and no decision
in favour of one of them and against the other, unless, indeed, the entire public are
regarded as the other party for if a licence be refused on the ground that it was not needed
to supply the legitimate wants of the public at large, the decision is really in favour of
public at large". And in Lord Mayor of Leeds v. Ryder and others, ((1907) A C 420) Lord
Loreburn said:

"The justices acting under section 1 subsection (2) of the Act of 1904 act administratively
for they are exercising a discretion which may depend upon considerations of policy and
practical good sense-and they must, of course, act honestly. That is the total of their
duty".

Similarly, a Regional Transport Authority is empowered by S. 48 to issue a


direction or an order, but in taking any action under that provision it has again to consider
the factors mentioned in subsection (1) of S. 47 which, as already pointed out, all relate to
the public interest and refer to no private right. The applicant for a permit and the person
who makes a representation have to be heard, if they wish to be heard, at a public
meeting, but it has never been held that a hearing alone is sufficient to convert the
tribunal, which is under an obligation to grant a hearing, into a quasi judicial tribunal. In
fact, notice and' hearing which both find place in S. 57, and as was the case in Franklin v.
Minister of Town and County Planning, ((1948) A C 87), consideration of objections are
in modern times a normal feature of purely administrative tribunals where the order of the
Tribunal may affect any right to property or economic activity. Nor can the mere fact that
a person whose application for a permit has been refused is entitled to a copy, in order to
be able to appeal to the Appellate Authority, convert the Regional Transport Authority
into a quasi judicial tribunal because the requirement of stating reasons for the action
taken is common to many an administrative agency, Subsection (7) does not say that the
Authority refusing an application must record reasons for the refusal; the reasons may be
recorded later while supplying the copy. And in so far as the refusal of a representation is
concerned, the Authority is under no obligation either to record reasons thereof or to give
them in writing. The Authority has no power to record evidence on oath or to issue
process and counsel as such is not entitled to appear before it. The decisions taken by the
Authority are "institutional" decisions, and on the questions before it every member may
inform himself in any way he likes. It is never confronted with an issue of public interest
versus private right, not in the case of a renewal even. The position is lucidly put by Mr.
Gordon whom Mr. Brohi at page 482 of his book cites as saying

"- - - - -Any Tribunal is administrative if its duty is to make decisions according to policy
and practical good sense; but a tribunal is judicial if its duty is to render decision
according to legal rights. If an individual can come before a Tribunal and say: the facts
are so-and-so, which gives me a legal rights to so-and-so, then the Tribunal must be a
judicial tribunal. But if a Tribunal's functions are such that a suppliant must, in effect,
say: `the facts are so-and-so which makes it policy and practical good sense for you ` to
grant me certain privileges', then that tribunal is merely an administrative Tribunal. Into
which class do licencing tribunals fall? Obviously for the most part their functions are
Page No. 21 of 1
administrative, for by statute justices grant licence to such persons, as they, in the
exercise of their discretion, deem fit and proper. There is no question of legal right; an
applicant for a new licence has no right."

"After he gets the licence he has a legal right because the Tribunal has created it. But a
judicial tribunal does not create legal rights, it hears a claim that a legal right exists, it
investigates a claim, and pronounces whether the claim is true or not. It confers nothing,
it merely gives effect to the pre-existing rights of the parties-creation is not a judicial
function".

It appears to me therefore that, despite several cases in the High Courts to the contrary, it
is impossible to hold that a Regional Transport Authority acts judicially when it grants or
refuses a permit or accepts or rejects a representation. This being so, the proceedings of
the Regional Transport Authority could not be revised by certiorari and the fact that the
Chairman of the Authority, who had not taken part in the deliberations of 27th and 28th
May, discussed the question of grant of permits in the meeting of the Authority on 29th
May, has no bearing on the case, the question not being one of excess of jurisdiction.'
There is no provision in the Punjab Motor Rules that a member of an Authority who has
not taken part in the earlier stages of a meeting cannot take part in the adjourned meeting
held to consider the same agenda, and there is no evidence that the four permits in
question were granted under the influence of the Chairman. In the same manner, there is
no obligation on the Regional Transport Authority to record reasons for the grant of
permit or for the rejection of a representation, non-performance of which may raise the
irregularity to the status of excess of jurisdiction. And in the absence of any allegation of
excess or absence of jurisdiction the High Court had no power to issue an order of
certiorari or mandamus or any order or direction to the Authority.

We may now examine the question that the powers of a High Court in Pakistan are wider
than the writ jurisdiction of the High Court in England because Article 170 is not limited
in its application to writs but also empowers a High Court to issue orders and directions
to all authorities including the Government even if they act administratively. In England
prerogative writs were a means by which the King's Bench Division of the High Court,
acting- in the name of the Sovereign, restrained all Courts of inferior jurisdiction from
exceeding their powers. By a series of legal fictions and doctrines which in their
application to particular cases are not easily reconcileable, this prerogative jurisdiction
was gradually extended, first to judicial tribunals which were not named Courts, then to
what were described as quasi-judicial tribunals and eventually to administrative tribunals
provided at any stage of the proceedings they were required to act judicially. At first a lis
between at least two parties before the inferior tribunal was considered to be an essential
condition of the jurisdiction for certiorari, but later it was held not to be necessary in all
cases and at present the rule appears to be that the proceedings before an inferior tribunal,
whatever be its general character, are liable to be controlled by the High Court if the law
by which it is governed makes it an essential condition of its jurisdiction to find the facts
which require or empower it to make an order, and the order actually made adversely
affects the rights of a party. In this last category, fall the licencing cases in R. v.
Woodhouse ((1907) A C 420) (reversed in Lord Mayor of Leeds v. Rydor ((1906) 2 K B
501) on the ground that the licences were not in excess of the powers of the licensing
authority); Rex v. The County Council, Ex parte the Entertainments Protection
Association, Limited ((1931) 2 K B 215) and the cases in Manchester Legal Aid
Committee, Ex parte R. A. Brand and Company Limited ((1928) 2 Q B 413); R. v.
Postmaster-General, Ex parte Carmichael ((1928) 1 K B 291); R. v. Boycott, Ex parte
Keasley ((1939) 2 K B 651) and Board of Education v. Rice (1911 A C 179, 182.): In the
last of these cases Lord Loroburn L. C. said

Page No. 22 of 1
"Comparatively recent statutes have extended, if they have not originated, the practice of
imposing upon Departments or officers of State the duty of deciding or determining
questions of various kinds. In the present instance, as in many, others what comes for
determination is sometimes a matter to be settled by discretion, involving no law. It will, I
suppose usually be of an administrative kind; but sometimes it wilt involve matter 'of law
as well as matter of fact, or even depend upon' matter of law alone. ' In such cases the
Board of Education will have to ascertain the law and also to ascertain the facts".

This tendency of the Judges to extend their jurisdiction, in a country where everyone
considers, himself to be subject to the rule of law and where droit administrative is hardly
known, is easily understandable though not the process by which the result has been
arrived at.

In the United States, orders in the names of English writs are issued, by superior Courts
in exercise of the powers derived from the Sovereign people. Substantially similar and
equally effective orders, but with less imposing names, may be made by other Courts to
control the numerous administrative agencies whose actions are liable to judicial review
by virtue of S. 10 of the Administrative Procedure Act, 1946. The distinction between
judicial and quasi-judicial bodies on the one hand and administrative, agencies or
tribunals on the other, however, is as fully preserved, in, the States as in England because,
absent congressional intention to the contrary; Courts in the United States will not
interfere with, administrative action where a Judge in England will 'decline interference.
In both jurisdictions-the scope of judicial interference where the order impugned is' made
°by a judicial, or quasi-judicial body is comparatively larger than where it is made by an
administrative department whose action can be reviewed only on the ground of absence
or excess of jurisdiction or the omission to exercise a jurisdiction or of some irregularity
in the exercise of jurisdiction, which has prejudicially affected a party.

The position under, our Constitution is substantially the same Article 170 empowers a
"High Court to issue to any person or, authority, including in appropriate cases any
Government, directions, orders or writs, including writs in the nature of, habeas corpus,
mandamus, prohibition, quo warranto and certiorari,, for the enforcement of any of the
rights conferred by Part II and for any other purpose", As the framers of the Constitution
must be deemed to have known the conditions of the jurisdiction of the King's Bench
Division to issue the prerogative writs, the Article must be construed as implicitly
enacting those conditions. From the language of the Article, however, it seems to me to
be perfectly clear that the power of the High Court to issue directions, orders and writs is
not limited to writs in the English form but extends to the making of orders restraining or
directing any authority or Government, which may be discharging executive functions
under a statute. But this cannot be taken to mean that purely executive action can be
controlled by the High Court. The Article is to to be read in the' context of the whole
Constitution, the basic feature of which is a distribution of powers between the
Legislature, tire Executive and the Judiciary. Any encroachment by the High Court in the
field reserved for the executive would therefore amount to judicial invasion and would be
contrary to the spirit of the Constitution. In the exercise of its writ jurisdiction the High
Court can never substitute itself for, or assume the responsibility of the executive, for the
simple reason that it does not have the requisite information, experience and training to
discharge executive functions. That Court cannot, therefore, itself make any executive
order, its function being confined to the issuing of directions on matters of law. The',
conclusion to be deduced from this discussion is that where an' administrative or
executive officer acts under a law, the High Court will control the action by an
appropriate order if he :-

(a) Goes out of the law i.e. exercises a jurisdiction not vested in him by law;

Page No. 23 of 1
(b) Wrongly denies or omits to exercise a jurisdiction ; and

(c) Where the law under which he acts prescribes the manner in which he is to act,
materially departs from that law.

But the over-riding requirement in all the three cases is that the excess or denial of
jurisdiction or the irregularity in the prescribed procedure should have injuriously
affected some justiciable right of a party.

In the present case there is no allegation of any excess or denial .of jurisdiction and as I
have already shown the irregularity, if any, has not caused the respondent any prejudice
or affected any of his legal rights. The High Court had, therefore, no legal grounds to set
aside the licenses granted in the meeting of 29th May including those granted to the
several appellants before us.

As regards the Diamond Transport Company, the issue was only between the petitioner in
that case and the Provincial Transport Authority which was the respondent to that
petition; and in view of the finding of the High Court that as Provincial Transport
Controller' the Chairman of that Authority had no jurisdiction to issue a direction to the
Regional Transport Authority, the petition of that company should have been allowed.
The position in which that company found itself was governed by express provisions of
the Act and not by the direction that the Provincial Transport Controller chose fit to issue.
And with regard to the other transport services and companies who are the appellants
before us, there could be no question of the High Court's issuing any directions adversely
affecting them.

There are certain other points referred to in the judgment of the High Court and decided
against the appellant, which require to be noticed. The High Court holds that if an
applicant for a permit is not present at the public hearing his application must be rejected
or adjourned. There is no provision in the Act to this effect and the Rules make it clear
that it is optional with him to appear unless he is required by the Regional Transport
Authority to be present.

As regards the representation mentioned in section 47 and that in section 57, the High
Court seems to take the view that these are two independent representations to be made at
different stages. This is not correct. Section 47 deals only with what matters the Regional
Transport Authority should bear in mind while considering the question of grant or
refusal of a permit, while section 57 prescribes the procedure for the making of a
representation. A representation under section 47 must, therefore, be made in the manner
detailed in section 57 and no separate representation is contemplated by section 47,
though the condition as to the time within which a representation may be submitted under
section 57 or the prohibition in subsection (4) of that section against the consideration. of
a, representation unless it be in writing and a copy thereof be given to the applicant, do
not apply to a representation under section 4,7, which the authority must in any case
consider.

Page No. 24 of 1
In considering the question whether a permit for Sargodha-Bhera could be validly granted
to the appellant the High Court has expressed the opinion that while rule 4.8 (2) entitles
the Authority to modify a route, it does not override the provisions of section 57 (3) of the
Act. If by this is meant that when an Authority proposes to modify an application under
rule 4.8 (2), the modified application must be published afresh to provided a further
occasion for objections the view is clearly erroneous because the rule itself contemplates
the' modification at a stage subsequent to the publication of the original application and
refers to the time when the decision to grant or refuse a permit is to be taken.

For the reasons stated in detail above, I would accept this appeal, reverse the order of the
High Court and dismiss the respondent's petition for a writ. The appellant will have his
full costs half of which will be recovered from the respondent and half from the
Provincial Transport Authority, while the appellants in the other appeals and the
petitioners for special leave to appeal whose petitions have been converted into appeals
will bear their own costs.

SHAHABUDDIN, J.-I agree with the order 'proposed by my Lord -the Chief Justice and
my brother Cornelius and should like to state how I view the crutial points arising in the
case.

The petition before the High Court was presented by the Sargodha-Bhera Bus Service and
the respondents thereto were only the R. T, A., Lahore, and the Tariq Transport Company.
It is clear from that petition and the submissions made by Mr. Muhammad Iqbal who
appeared before us for the Sargodha-Bhera Bus Service that the grievance of the latter
was only against the 'grant of permits to the Tariq Transport Company for the
Sargodha-Bhera route. The prayer in the `petition that the proceedings of the meeting of
the R. T. A. held on the 27th, 28th and 29th May 1957, should be quashed has therefore to
be taken as relating only to the grant of above-mentioned permits; but the learned Judges
of the High Court quashed the entire proceedings, though at 'the above-mentioned
meeting permits had been granted to several transport operators, some of whom are
appellants before us by special leave in the appeals other than that of the Tariq Transport
Company and notice of the petition had not been given to them. Mr. Muhammad Iqbal
while making it clear that his clients had no grievance against the Other grantees of the
permits, however, argued that under Article 170 High Courts have powers to issue any
suitable directions or orders or writs untrammelled by any conditions or restrictions that
apply to the issuance of the writs specified therein, and that there is nothing in its
language indicating that action could not be taken suo-motu. But the petition before the
High Court was one for the issuance of writs of certiorari and prohibition and that the
learned Judges treated it as such Is indicated by the fact that they dealt with the matter
before them from the point of view of the R. T. A. being a quasi-judicial body dealing
with fundamental rights and there is nothing in the judgment to show that they acted
outside the writ jurisdiction. What was granted by the High Court was, therefore, a writ
of certiorari and we have not been shown any authority that certiorari proceedings could
be started by Courts suo motu.

On the other hand, it is clear from the following passage in Halsbury's Laws of England,
Third Edition, (paragraph 108 of Vol. 11) that the Court should be moved by an
Application

“108: Many statutes contain provisions substituting for the orders of mandamus,
prohibition and certiorari a different procedure for bringing before the Court matters or
questions arising under the statute. A, common form is a provision that, if any person
aggrieved by an order made under the Act desires to question the validity thereof on the
Page No. 25 of 1
ground that it is not within the powers of the Act or that any requirement of the Act hag
not been complied with, he may make an application to the Court, and the Court may, if
satisfied that the order is not within the powers of the Act or that the interests of the
applicant have been substantially prejudiced by any requirement of the Act not having
been complied with, quash the order ; but that save as aforesaid the order shall not be
questioned by prohibition or certiorari or in any legal proceedings whatsoever".

And on this point, I think, it is of advantage to reproduce some pertinent observations


from a valuable monograph on the subject of writs, as in operation in the Superior Courts
of the United States by a writer named Ferris under the title `Extraordinary Legal
Remedies' to which I shall have occasion to refer again in the course of this judgment. In
paragraphs 170 and 171 of his book the learned author, observes as follows :

"The petition is either' entitled in the name of the State, on relation, or in the name of the
party to the original proceeding sought to be reviewed; depending upon the practice
prevailing in the jurisdiction where brought.

* * * * * * * * * * *

The office of the petition is only to procure the issuance of the writ-to enable the Court to
determine whether it would be granted-and after it has served that purpose it is, no longer
of importance, except perhaps, that reference may be had to it to ascertain the errors
assigned;. * * * * *

Even if the contention that" Article 170 confers on the High Court a jurisdiction" 'wider`'
than the writ jurisdiction is `for argument's sake assumed to- be correct, without' deciding
the point, it does hot follow' that power to move suo motu is given under the said Article.
The normal procedure is to' move a Court by a petition, or a complaint or a plaint and in
cases where power to act suo motu is given it -is specifically conferred as in S. 115, Civil
Procedure Code, and S. 435, Criminal Procedure Code. I can see .no ground for thinking
that the Intention of the Constitution was to empower, 'the High Courts to send for the
records of any of the proceedings before any executive or quasi-judicial authority and
satisfy themselves that every department of the Government is functioning satisfactorily.

As regards the, petition, having been heard by the High Court without
even issuing a 'notice to the other grantees of permits, Mr. Muhammad Iqbal had nothing
to say in justification of this procedure. It is true that the proceedings that "were quashed
were those of the R. T. A., but, it cannot be denies that other transport companies to
whom permits had been granted were interested' in maintaining the impugned order. To
issue a writ, `which affects parties interested in, the impugned order being maintained,
without giving them an opportunity of being heard is to act against the principle of
natural, justice that no one should be condemned unheard. Even administrative bodies not
performing judicial acts are "enjoined to observe this principle, and as a matter of fact
one of the main grounds on which the proceedings of the R. T. A: were quashed in this
case was that - though the objectors were heard, they could not effectively reply as they
were not present' when the applications were heard, but it was overlooked that the
proceedings were being quashed without giving the grantees of the other permits who
would be affected thereby even an opportunity of appearing before the Court in the
petition. On this ground `alone, it seem to me, that the other appeals must succeed.

Coming to the merits .of the appeal filed by the Tariq Transport Company, the first thing
that calls for comment is t that Sargodha-Bhera: Bus Service having under S. 64 of the
Motor Vehicles Act a right of appeal against the order of the R. T. A did not avail itself of
Page No. 26 of 1
that remedy and no satisfactory explanation therefor was given. As held by this Court in
Muhammad Hanif and others v. The Provincial Transport Authority Karachi and others
(Civil Appeal No, 16 of 1958) the Motor Vehicles Act is a self-contained Code, and in
respect of the rights and liabilities created by it the manner of enforcement must be
sought within that Statute itself. Article 170 does not provide an additional or alternative
remedy when another equally effective remedy is available. It cannot be doubted that the
jurisdiction conferred under it is an extraordinary jurisdiction and it could not have been
the intention of the Constitution that the High Court should be empowered to ordinarily
interfere with the routine machinery provided for under the law, for obtaining relief. A
person may find it more convenient to apply to the High Court for a writ instead of
availing himself of the remedies afforded by the law on the subject, but that by itself can
hardly be a ground for granting him this extraordinary relief. Ferris in his book
Extraordinary Legal Remedies in Paragraph 163 observes:

"The common law rule is, that certiorari will not lie when there is another adequate
remedy, by appeal, writ or error, or otherwise, where the inferior Court has jurisdiction. If
this were not true, then the writ might; be used to withdraw any case, at an intermediate
stage, from the consideration of the trial Court and submit it to the final determination of
the, superior Court issuing the writ. This would in effect render the writ a substitute for
an appeal or writ of error. But where the law gives an appeal, and the party is deprived of
it without any fault or negligence on his part, certiorari will lie in lieu of or as a substitute
for an appeal, if there is shown to be, in addition to such cause, a meritorious case.

To be a bar, the other remedy must be adequate. It is the inadequacy, the danger of a
failure of justice, and not the mere absence, of another remedy that determines the right
to certiorari. An adequate remedy is one, which is equally beneficial, speedy and
sufficient, not merely one, which at some time in the future, will bring about relief. '
Where the exigencies of the case are such that the ordinary methods of appeal or error
may not prove adequate either in point of promptness or completeness, so that a partial or
total failure of justice may result, then certiorari may issue"

It is thus clear that though the High Court under Article 170 has jurisdiction to give relief
even in a case where the petitioner before it has not availed himself of the right of appeal
provided under the relevant statute under which the impugned order was passed, yet it
has to apply its mind to the circumstances of the case and satisfy itself that there was
sufficient reason for the petitioner not availing himself of the other remedy or that the
other remedy was not equally efficacious or expeditious. But in the present case the
learned Judges have not applied their mind to this aspect of the matter at all, although in
its written statement the appellant, Tariq Transport Company, definitely raised the point
that as there was an apposite remedy available to the petitioner which was not availed of',
this was not a fit case for the issue of a writ. The only explanation that can be inferred
from the petition is that the petitioner applied to the R. T. A. for a copy of the
proceedings, but that it was not supplied, and that is also the explanation given by Mr.
Muhammad Iqbal before us. But it was not explained in the petition or before us as to
why the appeal was not presented to the prescribed authority with the representation that
the appellant had applied for a copy of the proceedings, but it had not been granted. It is
stated in the affidavit accompanying the petition that the deponent, a partner in the
petitioner company had with him an unauthenticated copy of the proceedings, which was
sent to him anonymously. This could have filed before the appellate authority. In
paragraph 12 of the petition it is said that there was no remedy as speedy, effective and
efficacious as that of a writ, but it was not explained how the appeal to the prescribed
authority was not equally effective, speedy and efficacious. Having regard to the nature
of the proceedings an appeal would have been a speedier remedy. As a matter of fact in
this case it took the High Court about six months to issue the writ. However, this was a
matter for the learned Judges of the High Court to consider, but as already indicated,
there is nothing in the judgment to show that this matter received their attention although
the fact that an appeal lay was present to their minds.
Page No. 27 of 1
One of the conditions precedent to the issue of a writ of certiorari when the inferior'
tribunal has acted within its jurisdiction is an error apparent on the face of the record.
Ferris in paragraph 172 at page 197 of his book on' Extraordinary Legal Remedies
observes as follows on this point

"The errors complained of should be plainly and distinctly set forth in the petition and the
reasons relied upon should be specifically pointed out, * * * *I

Assignments of errors not embraced in the petition cannot be considered".

But in the present case the enquiry by the High Court went far beyond the allegations
made in the petition where only three errors in procedure were alleged. They are:-

(1) that the application on which the Tariq Transport Company was granted four permits
for Sargodha-Bhera route was considered before the period of 15 days, allowed for
preferring objections, had expired ;

(2) that the ground on which an application is granted and the objection to it is :turned
down should be communicated to the persons concerned, but the petitioner was not
informed of the merits of the application of the Tariq Transport Company or the grounds
on which permits were granted to them ; and

(3) that the direction of the. R. T. A. under S. 44 of the Motor Vehicles Act to conduct a
survey of the routes concerned before taking a decision regarding the grant of fresh
permits was wholly ignored, because the R. T. A. knew that compliance with it would
force its hands to reject the application of the Tariq Transport Company.

It is significant that the main grounds on which the entire proceedings were set aside,
namely, that the applicants and the objectors were not heard in the presence of each other,
and that the ultimate decision was influenced by the permanent Chairman of the R. T. A.,
although he was not present when the applications and representations were heard were
not alleged in this petition. But Mr. Muhammad Iqbal relied on the further particulars
furnished by the petitioner a week later wherein it was alleged that the applicants were
heard for two days and then objectors were heard and that at the time the applicants
presented their case, the objectors were not allowed to be present and that no one
appeared for the Tariq Transport Company when its application came up for
consideration. He also relied on the allegation in paragraph 3 (c) of the statement, that the
record of proceedings was confirmed not by the Acting Chairman who presided at the
meeting in question but by the permanent Chairman who had no knowledge as to what
had transpired at that meeting, as covering one of the main grounds on which proceedings
were quashed viz., that the ultimate decision was influenced by the permanent Chairman,
although he had not heard the applicants and objectors. But confirmation of proceedings
which must have taken place on a subsequent date does not amount to participation in
taking the decision, and it is clear from the record that the last mentioned allegation was
not alleged by the petitioner but was made curing the enquiry which, as stated above,
went beyond what was alleged in the petition., As regards the additional particulars
Page No. 28 of 1
mentioned by the petitioner ' on the 25th July, 1957, it is true that in the petition itself it
had been submitted .that the 'petitioner had riot perused- the' record of findings as it was
not available' and would, therefore, reserve its right to furnish further particulars and
obviously permission was granted to furnish the additional particulars. But it is
significant that in paragraph 10 of the petition it was stated that the petitioners understood
that as a result of the representations' and press' comments referred to in paragraph 9, an
investigation by some official agency was held into this matter and that it would certainly
be helpful if the Court was pleased to send for and peruse the proceedings of the
investigation and the finding' given as a result thereof. It is seen from the statement of the
P. T. A. which was impleaded in this case, that in connection with these proceedings some
complaints were received by its Chairman and that he had an enquiry made into those
allegations. Obviously the reference in the petition is to that enquiry. It, therefore, appears
to me that the petitioner did not come to Court fully prepared with its allegations, but,
that having noticed certain features which it considered irregular and having a suspicion
that all was not above board, it moved the High Court to start an inquisition into the
affairs of the R. T. A. which the learned Judges had no jurisdiction to do. 'But they
complied with the request and embarked on such an enquiry- after impleading the P. T. A.
although it had not asked for being brought on record but had merely prayed that another
application for a writ against the R. T. A. wherein it was a respondent should be heard
together with the petition for writ which gave rise to the appeal under consideration. That
other application also related to the proceedings in question, but there the point for
determination was entirely different from that arising in the petition of Sargodha-Bhera
Bus Service. The Assistant Advocate-General, while requesting on behalf of the P. T. A.
that the two petitions be heard together stated to the Court that according to his
instructions there were serious irregularities committed by the R. T. A. on the relevant
dates and there was even a suggestion of the forgery of the record of those dates. The
learned Judges thereupon considered it desirable to implead the P. T. A. as 'a respondent.
The result of this was an enquiry covering grounds not urged in the main petition, and it
was during this enquiry that it transpired that the final decision taken by the members of
the R. T. A. who had heard the applications and the objections thereto was influenced by
the permanent Chairman who was not present at the time when those applications were
heard. But even this enquiry did not serve any useful purpose- in respect of the serious
charge of forgery made against the R. T. A. f6r the learned Judges observed in the last
paragraph of their judgment that it could not be said that a full and proper enquiry was
held into that allegation and that they therefore left it to Government to decide what
action it should take in the matter. Had this decision to leave the matter to the
Government been taken at the outset when the Assistant Advocate-General made
suggestions of forgery, the enquiry would have been confined to the allegations in the
petition, which was the proper course to adopt. As it a is it cannot be said that the High
Court quashed the proceedings, in question because of the errors; apparent on the face of
the record.

As for the allegations in the petition to which the enquiry should have been confined, the
learned Judges considered only two of them-and their findings on them were to the effect
(1) that the application of the Tariq Transport Company for permits, on the
Sargodha-Bhera route could not be legally taken up for consideration at the meeting of
27th to 29th May 1957 as it had not been published as required under the Act and (2) that
as reasons were not given, for granting permits to 64 out of nearly 700 applicants the
grant of permits was arbitrary and capricious. No finding was recorded on the 3rd alleged
error viz., the non-compliance with the directions of the P. T. A. that a survey of Ac routes
concerned should be taken up befog taking a decision about the granting of permits. I am
unable to agree with the above findings of the High Court and I find no force in the third
allegation in the petition, which the High Court did not consider.

It cannot be denied that the application on which permits were granted to the Tariq
Transport Company was not published as required under the Motor Vehicles Act. The
contention of Sh. Bashir Ahmad that the permits were granted on the application for the
longer Rabwah-Bhera route has no force and was rightly rejected by the learned Judges,
but it was not considered whether non-compliance with the requirement of publication
Page No. 29 of 1
bay itself rendered the grant invalid even though no prejudice was caused. The fact that
Sargodha-Bhera Bus Service had in respect of as many as eighteen applications for
permits on the Sargodha-Bhera route which had been duly published raised the objection
that no further permits should .be granted for that route, and the permits were granted
after considering that objection and that therefore no prejudice was caused to the Bhera
BUS Service by the non-publication of the applications of Tariq Transport Company, was
not taken into consideration. Mr. Muhammad Iqbal, however, argued that the
non-compliance with subsection (3) of S. 57 of the Motor Vehicles. Act which is
mandatory was fatal; but-non-compliance, with every mandatory provision is not
sufficient to render the proceedings void even which no prejudice is caused. For instance,
under S. 53 (3) the R. T. A. should make applications for permits available for inspection
at the office and if a -person operating on a route for which further permits are applied for
comes on such inspection to know of those applications and objects to them at the
hearing and permits are still; granted after his objections are heard, it would be pendantic
to say that those permits are void merely because the applications were .not published as
required under S. 53 (3) of the Motor Vehicles Act. That section is, in my opinion, on the
same footing as S. 360 of the Criminal Procedure Code which is to the effect that a
deposition of ' each witness shall be read over to him in the presence of the accused or his
pleader. In Abdul Rahman v The King Emperor (54 I A 96) where this provision had not
been compiled with, it was held by their Lordships of the Privy Council that though it
was regrettable' that such an irregularity had crept in, that would not by itself be a ground
sufficient for quashing the conviction. They' observed "if, indeed, it were shown that the
omission did lead 'or even with probability might have led to some material error in the
depositions not being checked, the case would be otherwise". Similarly, if in the present
case the Sargodha-Bhera Bus Service had not been able to make their representation
against the issue of fresh permits for Sargodha-Bhera route the non-publication of the
applications of the Tariq Transport Company would have been fatal. But, as stated above,
Sargodha-Bhera Bus' Service had raised the objection when other applications for the
same route were heard.

The second finding that the reasons should have been given for granting 64 permits was
based on the ground that an appeal had been provided for, and therefore is was necessary
to give the reasons. But under subsection (7) of S. 57 of the Act which was also noticed
by the learned Judges it is only for refusing to grant a permit that reasons should be
given. We hove not been shown any provision in the Act or in the rules requiring the
transport authority to 'give reasons for granting a permit, or turning down an objection
raised against the grant of a permit: As regards the third allegation in the petition, namely,
that the directive of the P. T: A. for taking a proper survey of the route concerned was not
complied with, the communication containing that direction is not on the record and
therefore no finding can be recorded on this point. However, what was stated at the
hearing in this connection was that the letter issued by the Provincial Transport Controller
drew the attention of the R. T. A. to the observations made in an appellate judgment about
making a survey of the routes, Such a communication can hardly be regarded as a
directive which the R. T. A. was bound to comply with under S. 44 of the Motor Vehicles
Act.

The other grounds on which the proceedings have been quashed may be stated as
follows:

(1) That permits were granted to the Tariq Transport Company although at the time the
application was considered the applicant was not present either in person or through a
representative;

(2) that subsection (5) of S. 57, Motor Vehicles Act means that the objectors should be
present when the applicants place their case before the authority in order to give an
Page No. 30 of 1
effective reply, but such an opportunity was not given to those who had representation to
make; and

(3) that though the decision in the matter was of a quasi judicial nature to be arrived at
not on subjective personal or private opinion but in conformity with an objective standard
and criterion laid down in the Apt, the ultimate decision was influenced by the permanent
Chairman who was not present at the time of the hearing.

The first and the second of these findings can no doubt, be related to the allegations
found in 'the statement of further particulars furnished by the petitioner a week; after the
petition was filed, although having regard to the fact that as stated above the petitioner on
the strength of the enquiry made under the direction of the P. T. C. moved the Court for
an, investigation into the affairs of the R. T. A. and not only for an enquiry regarding
errors specified in the petition for the writ, it is, possible to take the view that these
allegations should not have been considered by the High Court. But the third objection
was undoubtedly beyond the scope of the enquiry, which could properly be started on the
petition and the statement of further particulars as: this was not an error "apparent on the
face of the record.

In paragraph 23 of the judgment the contention with regard to the absence of the Tariq
Transport Company or its agent at the time his application was heard was stated thus

"Lastly it was objected on behalf of the Sargodha-Bhera Bus Service, that when the
application of Tariq Transport Company for grant of stage carriage permits on Rabwah
Bhera and Sargodha-Bhera route came up for hearing, neither the applicant nor their
representative was present." The application of Tariq Transport Company should, in that
case, have been adjourned for hearing or rejected:' the" grant of stage carriage permits to
the 'Tariq Transport Company in their absence was, therefore, in contravention of
subsection (5) of section 57 of the Act."

Though it is not stated in so many words; that the learned Judges found this contention to
be correct yet the effect of the discussion in the paragraph which is immediately followed
by the finding that in the light of the facts and the circumstances stated: above they had
no doubt that the grant was unwarranted try law and void, indicates that the said
contention was' accepted. The discussion in the rest of the paragraph 23 related to the
question whether the manager' of the Tariq Transport Company was present. There were
two other applications made by the Company in respect of which the presence of the
Company's representatives was noted in the record, but as regards the application for the
Sargodha-Bhera route no such note was made and the contention of Sh.-Bashir Ahmad
was that as Tariq Transport Company was mentioned when the two earlier applications
were taken up the authority did not consider it necessary to again mention its presence
when the remaining two applications were taken up in the presence of the manager. This,
the learned Judges did pot, accept, observing that if this suggestion was, correct the
presence of the manager would have been rioted only against the first application and not
against the second also. From this, it is plain that the learned Judges proceeded, in this
part of their judgment on the basis that the, presence of 'the applicant was necessary. But
an examination of the provisions .of the Act and the' rules shows that an applicant need
not be present at the `time of the public hearing. We have not been shown any section
under the Act requiring his presence and it was conceded before us that none of the rules
requires that the applicant should be present when the application is heard. Rule 4.7
which deals with the hearing of the applications or objections is to the effect that when an
application for any permit is considered and the applicant desires to be heard in support
of his application or has been summoned to appear under the provisions of sub-rule 6 of r.
Page No. 31 of 1
4.4 the applicant may either appear and conduct his case in person or may be represented
by any person authorised on his behalf. Rule 4.4 which deals with the conduct of business
of transport authorities states in subsection (6) as under

"The Provincial or the Regional Transport Authority, as the case may be, may summon
any applicant for a permit to appear before it and may decline to grant the permit until the
applicant has so appeared either in person or by an agent authorised by him in writing and
until the applicant has furnished such information as may, reasonably be required by the
Authority in connection with the application".

It is clear from these rules that it is not necessary for an applicant to be present unless he
has been summoned, and it was not alleged that the Tariq Transport Company was
summoned to appear before the R. T. A. That being so, the R. T. A. was under no
obligation to adjourn the hearing or reject the application of the Tariq Transport Company
merely because none appeared on its behalf.

There is nothing in S. 57 to support the finding of the learned Judges that disposal at a
public hearing means that all the parties should be heard "at one' and the same time in the
presence of each other". This finding seems to be based on the erroneous impression that
an applicant should be present E when his application is taken up for consideration. But
as seen already there is no rule requiring the applicant to be present and the rules referred
to in this connection are to the effect that his presence is required only when he is
summoned. That being so, what is to happen if the applicant is not present? Can it then be
said that the objector did not have an opportunity of being heard because he did not hear
the applicant state his case. It is quite possible that the applicant may, be present and yet
may not choose to say anything in support of his application. As pointed out in another
connection subsection (3) of S. 57 affords the persons interested in making
representations an opportunity to inspect applications for permits received by the
authority. Persons interested in opposing applications for permits can therefore acquaint
themselves with the contents of such applications and formulate their objections.
However, there being no rule on the subject the R. T. A. was at liberty, to have its own
procedure, and what it has done cannot be said to be opposed to the principles of natural
justice. It has not been shown that any prejudice was caused to the Sargodha-Bhera Bus
Service by the procedure adopted by the R. T. A. Its main objection was that no fresh
permits should be granted for the route in question and the minutes of the proceedings
show that that objection was considered.

As regards the last ground, namely, that the ultimate decision in the grant of permits was
influenced by the permanent Chairman, who was not present when the applicants and
objectors were heard, it was observed by the learned Judges that according to rule 4.4 (8)
neither a Chairman nor a member of the authority who had not attended the hearing could
participate in the deliberations. But this rule does not in terms say so. However, it does
not seem to me necessary to decide this point as we have not been shown that the grant;
of four permits to the Tariq Transport. Company was influenced by the permanent
Chairman and, as stated above, this point was not an error on the face of the record. It
now remains to consider whether the R. T. 14 is quasi-judicial body. The learned Judges
have held it to be so, but I find myself unable to agree with them.

It has been laid down by their Lordships of the Privy Council in Nakkuda Ali v. M. F. De
S. Jayaratne (1951 A C 66 at p. 75: P L D 1950 P C 102 at p. 170) that the only relevant
criterion as to whether an act is a judicial act "is not the general status of the person or
Page No. 32 of 1
body of persons by whom the impugned decision is made but the nature of the process by
which he or they are empowered to arrive at their decision. When it is a; judicial process
or a process analogous to the judicial, certiorari can be granted". In The Labour Relations
Board of Saskatchewan v. John East Iron Works Ltd. (A I R 1949 P C 129 at p. 133) their
Lordships of the Privy Council observed

"It is a truism that the conception of the Judicial function is inseparably bound up with
the idea of a suit between parties, whether between Crown and subject or between subject
and subject, and that it is the duty of the Court to decide the issue between those parties,
with whom alone it rests to initiate or defend or compromise the proceedings".

But Mr. Muhammad Iqbal contended that the process by which the transport authority
decides as to whether it should grant a permit or not is judicial and that there is a short of
lis between the applicants and the objectors. As regards the first contention he relied on
the fact that the decision does not rest on what the R. T. A. personally considers it proper,
but on its acting according to the standard set out in S. 47 which states the points the
authority has to keep in view in granting a permit. As regards his second point he relied
on the fact that representations made to the R. T. A. have to be considered. There is no
force in these contentions. Merely because the authority has to arrive at an objective
decision as to facts before taking action, it does not necessarily and ipso facto become a
quasijudicial authority. Section 47 no doubt states the points to be considered in granting
stage carriage permits but it does not require the authority to form an opinion on those
points judicially. It has to consider any representation made to it in this connection either
by persons already providing road transport facilities along or near the proposed route or
routes or by any local authority or police authority within whose jurisdiction any part of
the proposed route or routes lie, but if there be no such representations there is nothing in
the Act requiring the authority to call for them. That being so, if no representations are
forthcoming the decision on the points mentioned in S. 47 has to rest only on the personal
knowledge and information of the members of the R. T. A. Therefore the mere fact that a
standard has been set up in S. 47 does not make either the process by which a decision is
taken a judicial process or the authority a quasi-judicial body.

In Province' of Bombay v. Khushaldas (A I R 1950 P C 222) the Government of Bombay


bad appealed against a writ of certiorari granted by the High Court quashing an order
requisitioning certain premises. The Ordinance "under which the action was taken had
given the Provincial Government power to requisition for any public purpose if in its
opinion it was necessary or expedient to do so. One of the points for decision before the
Supreme Court of India was whether having regard to the provisions of the Ordinance the
order or requisition was judicial or administrative and the argument of the respondent was
that the Provincial Government had to act judicially in determining the public purpose. In
rejecting this contention the learned Chief Justice observed at page 225 as follows

"The word `quasi judicial' itself necessarily implies the existence of the judicial element
in the process leading to the decision. Indeed, in the judgment of the lower Court, while it
is stated at one place that if the act done by the inferior body is a judicial act, as
distinguished from a ministerial act, certiorari will lie, a little later the idea has got mixed
up where it is broadly stated that when the fact has to be determined by an objective test
and when that decision affects rights of someone,' the decision or act is quasi-judicial.
This last statement overlooks the aspect that every decision of the executive generally is a
decision of fact and in most cases affects the rights of someone or the other. Because an
executive authority has to determine certain objective facts as a preliminary step to the
discharge of an executive function, it does not follow that it must determine those facts
judicially. When the executive authority has to form an opinion about an objective matter
as a preliminary step to the exercise of a certain power conferred on it, the determination

Page No. 33 of 1
of the objective fact and the exercise of the power based thereon are alike matters of an
administrative character and are not amenable to the writ of certiorari."

I with respect, agree with this statement of law.

As regards the fact that under the Act' representations can be made, that by itself does not
amount to creating a Hs because representations can be made not only by those who are
already operating transport, but also by the police or a local authority, and it cannot be
said that if these authorities make the representations there would be a [is between them
and the applicants. On a study of the scheme and the provisions of the Act it is very clear
that the representations were intended only for helping the authority to make up its mind
in the matter. The very fact that there is no obligation cast on the authority to ask for
representations when there are none indicates that it is not called upon to determine any
controversy. It is no doubt true, that in S. 57 (7) reasons should be given for rejecting an
application for a permit but it is significant that no reasons need be given for granting a
permit. It has already been pointed out that the opposite view taken by the learned Judges
was not correct. Similarly, there is nothing in the Act or the rules to show that reasons for
overruling an objection have to be given. This again is another indication that the
representation is only to enable the authority to make up its mind as to whether an
applicant should be granted a permit or not. In the New Prakash Transport Co. Ltd. v. The
New Suwarna Co. Ltd. (A I R 1957 S C 232: P L D 1957 S C (Ind.) 227) which was
relied on by Sh. Bashir Ahmad on behalf of Tariq Transport Company, an application for
a permit was rejected on the ground that the police report was against in and thereupon
the applicant appealed, challenging the correctness of the police report, when a second
report was placed before the appellate authority which had withdrawn some of the
adverse comments against the appellant. The appellate authority read out this police
report to the parties, who did not raise any objection to the use of that document. But
when the appeal was allowed the persons to whom-.permit had been granted by the
transport authority moved the High Court under Article 226 of the Constitution of India
on the ground that the order passed by the appellate authority contravened the principles
of natural justice, as the revised police report had not been shown to him and he had
therefore no real opportunity to deal with it or to meet any relevant allegation made
therein. A writ was granted, but the Supreme Court of India allowed the appeal against
the grant of that writ and in doing so made the following, observations at pages 236 and
241:

"Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to
the Regional Transport Authority and the Appellate Authority do not contemplate
anything like a regular hearing in a Court of justice. No, elaborate procedure has been
prescribed as to how the parties/ interested have to be heard in connection with the
question, who is to be granted a stage carriage permit * * * * *
* * * * *

The police report is more for the information of the authorities concerned with the
granting of, permits than for the use of the several applicants for such permits. In our
opinion, therefore, the fact that the Appellate Authority had read out the contents of the
police report was enough compliance with the rules of natural justice".,

I, with respect, agree with this view and it is clear that a representation by a private party
or by a local authority stands on the same footing as a representation by the police. In this
decision reference was also made to the fact that S. 64 of the Act which provides for a
right of appeal against specified kinds of orders passed by the P. T. A. or the R. T. A.
while requiring that an opportunity of being heard should be given to the appellant does
not in terms speak of a like opportunity being given to the persons who would be affected
if the impugned order is set aside. But the Province from which the appeal before the
Page No. 34 of 1
learned Judges had come had made provision in the rules for a notice being given to any
other person interested in the appeal. It is significant that there is no such provision in the
rules applicable to the present case. This indicates that there is no lis and that did not
require the appellate authority in hearing an appeal to act judicially.

The decisions cited by Mr. Muhammad Iqbal in support of his contention that the R. T. A.
is a quasi-judicial body have no doubt proceeded on that basis, but it does not appear that
the question was dealt with in those cases with reference to the aspects considered above.
In Raman and Raman Ltd. v. State of Madras and another (AIR 1956 S C 463) cited by
Sh. Bashir Ahmad where the question was whether the State of Madras in interfering with
the decision of the appellate authority acted in excess of its powers conferred under S:
64-A introduced into the Act by the Madras Amendment, the following observation occur
at page 467.

"In proceedings under Ss. 47, 64 and 64-A of the Act there is no determination of any
individual's rights and from that point of view, the functions of these authorities may be
regarded as executive or administrative. On the other hand, it may be said that a person
has the fundamental right to carry on his business of plying buses and therefore has the
right to have statutory functions of these authorities properly exercised in which case they
would be quasi-judicial functions.

Assuming this to be so, it has yet to be seen whether the State Government acted in
excess of its legal authority."

Here the learned Judges assumed that the R. T. A. is a. quasijudicial body but their earlier
observation is significant.

In the present case the learned Judges of the High Court also were of the view that the
decisions of the R. T. A. regarding the grant or refusal of permits are of quasi judicial
nature as they affect fundamental rights; but the right under Article 12 of the Constitution
is subject to a licencing system, and there is nothing in the article to indicate that the
licensing system should t be quasi-judicial in its nature. It is for the competent legislature
c to decide whether for a particular trade the licencing system should be quasi-judicial or
administrative. The Motor Vehicles Act is the licencing system in this case and sufficient
has been said above to show that its provisions are not quasi-judicial.

CORNELIUS, J.--The main question for decision arises out of an appeal preferred by the
Tariq Transport Company (C. A. No. 46 of 1958). By the grounds raised in this appeal the
Tariq Transport Company challenges all the findings upon which the High Court founded
its writ (or direction or order) quashing all the proceedings of the Regional Transport
Authority, Lahore, held on the 27th, 28th and 29th May 1957. The remaining matters
before the Court have been presented by about 36 other transport companies, to whom
permits to operate public transport services by means of stage carriages had been granted
by the R. T. A. at its meeting on the aforementioned dates. These latter transport
companies were not parties to the petition before the High Court at any stage, but as a
result of the order of the High Court, the permits which had been granted to them have
been affected and consequently, in the event of the main appeal by the Tariq Transport
Company succeeding, they will derive a resultant benefit. Three of these matters were
still at the petition stage when arguments in the appeal were opened but in the course of
the hearing leave to appeal was granted to these transport companies as well.
Accordingly, besides the main appeal of the Tariq Transport Company, there are for
Page No. 35 of 1
decision, in these proceedings, ten other civil appeals, one having been admitted as a writ
petition on the 12th March 1958, which has since been permitted to be converted into an
appeal.

The proceedings in the High Court were commenced by the Sargodha-Bhera Bus Service,
for a writ in relation to certain permits granted by the Regional Transport Authority to the
Tariq Transport Company who operate buses on the route Sargodha Bhera. It appeared, in
the course of arguments that from 1948 onwards,. the Sargodha-Bhera Bus Service have
been the sole operators on this route. It was stated in the course of the arguments that the
maximum rate per passenger on this route has been fixed by Government, at Rs. 1-8-0,
and it was added that during the short period for which the Tariq Transport Compan3 was
able to utilize its permits, the competition which resulted led to the rate falling to Rs.
0-8-0 per passenger.

The petition quoted at the out-set a letter from the Genera Manager, Punjab Road
Transport Board, reporting to the Provincial Transport Controller on the 25th September
1956, that the Road Transport Board, which is a Government concern had found that the
Sargodha-Bhera route was unremunerative, of account of lack 6f traffic on the section
Bhalwal-Bhera, which was included in it this was stated presumably as a ground for not
issuing further permits for the same route to new operators. Challenge to the issue of
permits to the Tariq Transport Company was preferred on three grounds, on the basis of
which it was averred that the procedure adopted at the relevant meetings was " Wholly
illegal and in utter disregard of the relevant provisions of law ". These grounds were as
follows:-

(1) That the meeting which commenced on the 27th May 1957, was held less than 30
days after the publication of fresh applications for tire Sargodha-Bhera route, which were
stated to have been made on the 22nd May 1957.

(2) That the R. T. A is bound to state the grounds upon which any fresh application is
granted and objections thereto are rejected and that the petitioners had never been
informed of the reasons for the grant of fresh permits to the Tariq Transport Company or
for the rejection of their objections to such grant.

(3) That the Provincial Transport Authority had instructed the R. T. A. to conduct a
proper survey of the route in question before granting and fresh permits; this directive has
been "wholly ignored" by the R. T. A. for a particular purpose, namely in order to be able
to grant permits to the Tariq Transport' Company.

The petition went on to say that the grant of these permits was "wholly illegal, ultra vires
and oppressive" and that it offended "against the rules of natural justice" and therefore
could not be allowed to stand. It was added that permits had not yet been issued to the
Tariq Transport Company, but were about to be issued, and accordingly the reliefs
claimed were:-

" (i) to call for the record of the proceedings of Respondent No.1 held from the 27th to
29th May 1957, and to quash the same ;

Page No. 36 of 1
(ii) to issue a mandamus to the said Respondent not to issue any permit to Respondent
No. 2 for the Sargodha-Bhera route and in the alternative to cancel such permits", if
already issued.

The prayer for a mandamus was clearly misconceived. In a formal sense, the correct
prayer should have been for a writ of prohibition, which may issue in such cases upon an
allegation of absence or excess of jurisdiction, where the order in question still remains to
be implemented. In a proper case, such an order may be made even after implementation,
but it is clear that the matter did not lie within the scope of a mandamus. As for the other
relief, its wording clearly shows that it was, and was intended to be, a prayer for a writ of
certiorari. Calling for the records of the proceedings of an inferior Court or tribunal, and
upon proper grounds, quashing the same are precisely the kind of orders, which are
normally embodied in a writ of certiorari.

In the petition certain allegations of injurious, although general nature were made. It was
alleged that the R. T. A. had been deliberately delaying the supply of a copy of their
proceedings to the petitioners, because they had taken their decisions "in a most arbitrary
and haphazard manner" and they were "gaining time to find some arguments to support
its decision and to incorporate the same in the proceedings". For this reason, the prayer
was made that the record of these proceedings should be immediately taken into
possession by the Court. A further allegation was made that, owing to public criticism, an
investigation into the proceedings in question had been held "by some official agency",
and it was suggested that the Court might with advantage send for the proceedings of this
investigation. It does not seem that any action was taken on the latter request, but the
High Court took immediate steps to send for the records of the proceedings and these
were duly received within a few days.

The petition was instituted on the 18th July 1957, and on the 25th July an application was
made to add further particulars. In this petition some fresh legal grounds were raised
against the validity of the proceedings of the R. T. A. The first ground related to the
hearing of the applicants and the objectors. It was alleged that the R. T. A. heard the
individual applicants first and thereafter they heard all the objectors. Further, the
objectors were not allowed to be present when the applicants presented their case.
Alleging that an objector cannot know the case of the applicant fully unless he hears it
being presented, a contention was raised that the requirement of section 57 that the
applicant and the objector should be heard at a public hearing, had not been satisfied. The
second ground of a legal nature was that the Tariq Transport Company did not appear
before the Regional Transport Authority in support of its application for the route in
question. A third illegality was alleged in relation to the confirmation of the record of
proceedings in question; it was said that this should have been by the acting Chairman
who presided and not by the perri4anent Chairman. An allegation was added that the list
of permits granted at the meeting in question which had been produced before the Court
on the 23rd July 1957, was different from the one which had been prepared and published
in the first instance. The further allegations made in this petition related mainly to the
"fairness" of granting fresh permits on a route which was already fully served by a
company which had no other remunerative route permits whereas the newly introduced
company had other highly remunerative routes. The prayer for writs in the form already
mentioned was supported by the allegation "that, no remedy equally speedy, effective and
efficacious, other than through the writ jurisdiction of this Hon'ble Court is available".

The Tariq Transport Company replied in detail to the allegations contained in the petition.
It is unnecessary to consider the averments relating to the "fairness" of the action of the
R. T. A. or other matters, which are of general nature. As regards the allegation that there
had been violation of section 57, Motor Vehicles Act, in holding the meeting for
Page No. 37 of 1
consideration of applications for permits which had been published less than 30 days
prior to the holding of the meeting, the Tariq Transport Company repudiated the notice
published on the 22nd May 1957 purporting to notify an application made on their behalf,
and relied instead on an earlier publication of the 24th October 1956, Perhaps with
reference to the fact that the notice published on the 24th October 1956, did not specify
the Sargodha-Bhera route, it was added that the grant to them of permits on the
SargodhaBhera route could be related to their application, duly published on the 24th
October 1956, for permits on the Rabwa-Bhera route, which includes the route
Sargodha-Bhera. It was averred that such a grant is "perfectly legal under the Act and the
rules". In the course of the arguments it appeared that the rule referred to is rule 4.8 (2) of
the relevant Motor Vehicles Rules, which enables the R. T. A: in granting permits, "to
modify the permits of the applicant in a reasonable degree" and provides that in such a
case the application shall be deemed to have been modified with retrospective effect.
With reference to the allegation that no reasons were stated to the petitioners for the
rejection of their objections and the grant of permits to the Tariq Transport Company, it
was appointed out that there is no provision in section 57 of the Motor Vehicles Act for
the grant of a copy of such reasons to the objector, but only to an applicant whose
application may have been rejected. On the point of the disobedience of the directive of
the Provincial Transport Authority it was stated firstly that no survey was necessary since
the petitioner-company having held a monopoly for so long was alone in a position to
give a fair estimate of the extent of traffic, and secondly that the Tariq Transport
Company had no knowledge of, the said directive. As regards the additional grounds
preferred by the petitioner-company on the 25th July 1957, the following replies were
made. It was said "that no objection was raised before the Regional Transport Authority
regarding the procedure which they were following at the hearing and in fact, both the
objector as well as the applicant were present throughout". No reply was made to the
allegation regarding the confirmation of the minutes of the meeting by the permanent
Chairman, as this was a matter within the particular knowledge of the R. T. A. but it was
denied that there was any difference between the list produced in the Court and that
which was prepared and published in the first instance. It was also denied that no other
remedy was available to, the petitioner other than recourse to the writ jurisdiction of he
High Court and specific reference was made to section 64 of Motor Vehicles Act which
gives a,-right of appeal to "a person providing transport facilities who, having opposed
the grant of permit, is aggrieved by the grant thereof " and it was added that appeals
under this section are disposed of much more quickly than writ petitions before the High
Court.

The Regional Transport Authority also took the plea that there was an appeal available to
the petitioner-company, which he should have availed himself of. With reference to the
allegation that the meeting of May 1'957, was prematurely held, it was said that, the
application of the Tariq Transport Company was made on the 25th September 1956, and
was published in October 1956. In granting permits for the Sargodha-Bhera route to this
company, the Regional Transport Authority acted upon this application, and not upon any
application received or published in May 1957. It was added that "somehow" the route
Sargodha-Bhera was omitted from the list when the application of September 1956 was
published in October 1956, but the R. T. A. had committed no irregularity in granting-a
permit for the Sargodha-Bhera route since this was included in the Rabwa-Bhera route
for which application had been made and published. It was denied that the law required
the R. T. A. to state 'reasons for the grant of permits, or for the rejection of objections to
such grant, and as regards the allegation of disobedience to a directive for a survey from
the Provincial Transport Authority, it was said that such an instruction had been received
from the Provincial Transport Controller, and not from the Provincial Transport
Authority, and moreover, it did not have the force of law. In granting the fresh permits,
the R. T. A. had taken into account traffic conditions prevailing on the route in question.
It was denied that there had been deliberate delay in the supply of the copies of the
proceedings to the petitioner-company, or that any investigation into the proceedings of
May 1957 had ever been held. With reference to the additional grounds, it was said that
no one was excluded from the hearing which took place in public, that the confirmation
of the minutes by the permanent Chairman had been 'made after consultation with the
acting Chairman, that it was false that there had been any variation in the list of permits
granted at that meeting, and finally that the Regional Transport Authority acted on the
Page No. 38 of 1
basis of the opinion that "it was in the public interest to grant permits to another carrier
on this route and the Tariq Transport Company seemed suitable for it."

A number of the grounds taken by the petitioner-company may be briefly disposed of.
Thus, the second ground taken in the original petition is obviously of no force. It is not
required by the law that a Regional Transport Authority shall give its grounds for granting
any application or rejecting any representation made to it under sections 0 & 57 of the
Act. On the other hand, it is expressly required by subsection (7) of section 57I that when
a Regional Transport Authority "refuses an application for a permit of any kited, it shall
give to the applicant in writing its reasons for the refusal. Under the well known rule of
interpretation of statutes, expressed by the maxim " expressio unius est exclusio alterius "
the special mention of the requirement of express reasons in regard to one of the possible
actions of a Regional Transport Authority under section 67 is to be read as implying that
the R. T. A. is not under any obligation to state reasons in writing for any, other order
which it might make in pursuance of the provisions of section 57. The learned Judges of
the High Court have expressed the view on this point that because orders granting or
refusing permits of all kinds are appealable, "necessity for giving reasons is therefore
obvious but none has been given in this case". I am unable to regard the clear provision in
subsection (7) of section 57, which has been reproduced above, as being made purely for
greater caution, but on the other hand consider that the expressio unius rule is directly
applicable for the interpretation of this and other provisions under section 57, and have
therefore no hesitation in concluding that there is no legal obligation upon the authority to
give its reasons when it grants a permit, or rejects a representation by a person opposing
the grant of a permit. As for the provision that an appeal is competent against orders of
this kind, I do not find it necessary to infer from this provision that every order by a
Regional Transport Authority should be a "speaking order" which should set out at length
the reasons upon which it is based. It is always possible for an appellate authority, dealing
with an appeal by a person who had opposed the grant of a permit, in case the record does
not itself afford sufficient reasons upon which the appeal can be decided, to obtain from
the R. T. A. a statement of . the grounds upon which its action was based.

As regards the alleged directive of the Provincial Transport Authority, it


was made clear at the hearing of these appeals that this was contained in a letter issued by
the Provincial Transport Controller to remind all Regional Transport Authorities of their
duty, as enunciated in a recent appellate judgment passed under section 64 of the Act, in
proper circumstances to conduct surveys of routes on which additional permits were to be
allowed. This letter is in no sense a directive, which the R. T. A. was bound to obey, and
the allegation that by failing to conduct a survey of the route Sargodha-Bhera before
granting fresh permits on this route the R. T. A. had acted illegally is therefore completely
baseless.

Then, as to the public hearing before the R. T. A. the ground that objectors were
not allowed to be present when the applicants presented their case proves to be quite
unfounded. It has not been mentioned in the judgment of the High Court, at all, but on the
other hand some evidence which was recorded during the proceedings and which is
mentioned in the judgment clearly indicates that the plea of exclusion was without basis
in fact. The High Court have, however, found that the method adopted by the R. T. A. in
hearing the applicants and objectors was such that "neither the applicants who had
applied for the same route or routes nor the objectors were heard at the same time" and
have inferred from this that none of them had an opportunity to hear the case of the
opposite party. They construed the provision in subsection (5) of section 57, to the effect
that applications for permits should be disposed of at a public hearing at which the
applicant and the person making the representation shall-have an opportunity of being t
heard, as meaning that "all the parties are to be heard at one and the same time in
presence of each other". Finding that this was not the case at the impugned meeting, they
concluded that there had been violation of subsection (5) of section 57. In my opinion, in
the absence of any prescribed procedure in that behalf, a Regional Transport Authority is
Page No. 39 of 1
perfectly competent to deal with applications and representations or objections in such
order as to it may seem most convenient for the disposal of the business before it. The
right given to persons making representations or objections is a right to be heard at a
public hearing. It is true that to an officer or a body which prefers to work in that way, it
may seem most convenient to hear an objector immediately after hearing the applicant in
respect of whom he has objected, but that method need not appeal to every such person or
body. Where for instance as in the present case, there were at least 18 applications for the
grant of fresh permits on the SargodhaBhera route, the requirement laid down by the
High Court would oblige the R. T. A: to hear each of these applications separately, and
immediately after to hear the objector in relation to such applications. Clearly, this would
not result in more expeditious disposal of the business before the R. T. A. It would
involve a great deal of needless repetition, and the R. T. A. might well consider that it
would be better seized of all the relevant factors bearing upon the question for decision,
by hearing all the applicants for fresh permits in sequence first, and then having got in
their minds fairly clearly, the arguments in favour of granting fresh permits, to hear the
objector or objectors and gather the arguments on the other side. It is unnecessary to
elaborate this matter further in view of the fact that there was nothing in the nature of
exclusion of any applicant or objector throughout the hearing, which lasted more than
two days. It seems tome perfectly clear that in holding that the method adopted in dealing
with the applications, and objections, at the meeting in question, was in violation of any
provision of section 57, the High Court have come to a conclusion which is plainly
erroneous.

It is also clear on the facts that the statement that the Tariq Transport Company was not
represented at any relevant stage of the proceedings in question is without foundation.
Even the record upon which this particular allegation in the petition is found shows that a
representative of this Company was present when two other items were taken up for
consideration. In any case no prejudice could possibly be thought to have been caused to
the petitioner-company by such absence, and in my opinion, if the High Court intended to
say on this point, that on account of such absence, (assuming that there was such
absence) the application of the Tariq Transport Company should have been adjourned for
hearing or rejected, I should find it necessary to hold that this also was an erroneous
conclusion.

No finding was given, and indeed none was necessary, upon the allegation that the
minutes of the meeting in question over which, at the end, the acting Chairman was
presiding, could not be validly confirmed by the permanent Chairman. The point is a
technical one relating to the validity of the minutes and nothing in the case appears to
turn on it. Indeed, so far as the petition of the Sargodha-Bhera Bus Service goes, the main
fact which it was nec6gsary to establish from these proceedings was that the permits in
question were granted to the Tariq Transport Company at the meeting 'in question. 'It
appears clearly on the record that this fact was known to all parties on the 29th May
1957, and that it appeared in print in a public newspaper on the following day. Therefore,
no weight need be given to the allegation that the list of permits granted was changed
after the announcement. In actual fact, no change was shown to have taken place.

There thus remained for consideration only the first ground stated in the original petition
namely that the meeting was invalid because it was held less than 30 days after the
publication of notices as required by section 57 (3), Motor Vehicles Act. On this point,
there was an elaborate reply out of which a number of issues arose for consideration. It
may be, mentioned here that it was stated before us by Sardar Muhammad Iqbal, who
appeared for the Sargodha Bhera Bus Service that his clients had no interest in avoiding
the entire proceedings of the R. T. A. on the 27th to 29th May 1957, but they were
concerned only to secure cancellation of the permits granted to the Tariq Transport
Company upon the Sargodha-Bhera route. A specific plea was taken by the
petitioner-company that the application of that Company for this route was only
published five days before the meeting, and to this a specific reply was made, namely that
Page No. 40 of 1
the publication of the 22nd May 1957 was made without the knowledge of the Tariq
Transport company by some persons using their name without authority, and they have
rested their case upon the fact that their application had been published on the 24th
October 1956. As has been seen, that application as published made no mention of the
route Sargodha-Bhera, but on this point, the R. T. A. supported the Tariq Transport
Company by the assertion that this route was mentioned in their application of the 25th
September 1956, but had been in some inexplicable manner omitted in the notice
published in the newspaper. The original documents were produced in the High Court as
well as at the hearing of the appeal, and the list attached to the application of the 25th
September 1956 clear15 contains the route Sargodha-Bhera. It was suggested, however
that the whole sheet upon which this list was based had been substituted for that
originally attached to the application in which not thirteen but only eleven routes were
mentioned. A point raised before us was that the publication of the 24th October 1956
was not in due compliance with section 57 (3) as the date etc., of the meeting at which it
was to be considered was not published at the same time.

To the argument that without publication of the precise route in question, there could be
no notice to the existing operator, namely the Sargodha-Bhera Bus Service, which would
thereby be deprived of its right to represent against the grant of the permit applied for, the
reply was given that the Sargodha-Bhera Bus Service had an ample opportunity of
representing all possible grounds affecting its position on the route, in relation to some 18
other applications seeking new permit on this Sargodha-Bhera route. For the
petitioner-company, however, it was urged before us that it was not sufficient that they
should have had an opportunity generally to object to the introduction of a new operator
on this route. It was necessary also that they should be made aware of the person or
persons who were seeking new permits, as they might have had special grounds to object
to that person or persons. They also denied the existence of power to grant a permit for a
portion of a route,' on the basis of an application for the whole route, derivable from rule
48 (2) of the relevant Motor Vehicles Rules.

A number of these matters have been dealt with by the High Court in their order. As I am
clearly of the opinion that that order is without jurisdiction, and that the proper remedy
for the Sargodha-Bhera Bus Service was by an appeal under section 64 (1), Motor
Vehicles Act, I do not think that it is appropriate that I should make any observations
upon the questions, whether of fact or of law, arising out of this point on which the
parties were at issue. The only valid order that can be made in revision of the order of the
R. T. A. is in my opinion an appellate order of the prescribed authority under the section
mentioned above.

My reason for thinking that the High Court had no authority to deal with the question
raised in the petition of the Sargodha-Bhera Bus Service is that in my opinion, the
functions of a M Regional Transport Authority under sections 47 and 57 of the Motor
Vehicles Act are not in any sense either judicial or quasijudicial functions. I base this
opinion upon a critical examination of sections 47 and 57, read together, and from a
consideration of the composition of a Regional Transport Authority, and the manner of its
working. A Regional Transport Authority is composed of a number of officials and
non-officials selected by the Government. The Chairman of the Authority in the present
case was the Commissioner -of the Division and one member was a Deputy
Inspector-General of Police who had previously acted as Provincial Transport Controller.
It may be presumed that in selecting Officers to serve on a Regional Transport Authority,
care is taken to choose such officers as have experience of the conditions under which
public transport vehicles operate in the area in question and of all facts relevant to such
operation. No particular qualification is prescribed by the law (section 44) which must be
possessed by a non-official person in order to qualify fore appointment to a Regional
Transport Authority, but there is one disqualification namely that he should not have any
financial interest of any kind in any transport undertaking. Here also, I think it may be
safely presumed that the persons selected for appointment as non-official members are
Page No. 41 of 1
such as have personal knowledge of the operation of public transport and are capable by
themselves of exercising a judgment with regard to the matters which they must bear in
mind in granting or refusing a stage carriage permit. These matters are enumerated in
section 47 of the Act and are briefly as follows:-

(a) the interest of the public generally ;

(b) the advantages to the public of the proposed service, e.g. saving of time and
convenience through not having to change from one service to another ;

(c) the adequacy of the existing services, and the fares which these services charge, as
well as the effect upon these services of any fresh services that are proposed;

(d) the benefit which the local service is likely to receive ;

(e) whether the applicant operates other services, and in particular whether some of these
services are unremunerative ; and

(f ) the condition of the roads i.e. whether they will carry the services proposed.

On some of these matters the members of a Regional Transport Authority, probably


require assistance as to the facts, and it seems that this assistance is derived by them from
their own resources i.e. by means of investigation conducted through their own staff, or
from the written applications and objections, and at a public hearing from the
representations made both by the applicants as well as by other persons, including those
who oppose the applications, and by local or Police authorities. The R. T. A. is not
required to follow any particular procedure in examining any application or objection,
nor do the words of section 47 place any limitation upon their power to inform
themselves, so that it would be difficult to argue that any proceedings of a Regional
Transport Authority can be invalidated on the basis that the Authority, or any of its
members, had received-. Information from any source other than those indicated above.
Indeed, on a great many points, members of such an Authority will probably be found to
rely, and indeed might be expected to rely, upon their own knowledge and information,
and this circumstance cannot be urged as having a prejudicial effect upon their decision,
as it certainly would if the Authority were a judicial or even quasi judicial body.

A further requirement of subsection (1) of section 47 needs to be mentioned. It is that the


Regional Transport Authority " shall also take into consideration any representations
made by persons already providing transport facilities along or near the proposed route or
routes or by any local authority or police authority within whose jurisdiction any part of
the proposed route or routes lies or by any association interested in the provision of road
transport facilities". As has been seen, consideration (c) of the six considerations
enumerated above expressly requires a Regional Transport Authority to take into account
the effect upon existing services of the introduction of a new operator, and this must
necessarily be accepted in the widest sense, to include both profit as well as loss. It may
be that the existing passenger service is operating under great strain, owing to the traffic
being heavy. In such a case the introduction of a fresh service would make things easier
Page No. 42 of 1
for the existing service, by' introducing another operator to carry the burden. On the other
hand, where the traffic is barely sufficient to sustain the existing service, in an economic
sense, to introduce a fresh service might entail loss to the existing operator as well as to
the new, unless it be that the traffic needs to be developed by better business methods or
greater efficiency than has been displayed by the existing service. The question may be
considered from very many different aspects, but this is not necessary for my present
purpose, which is to say that in the enumerated subjects for consideration, one specified
subject is to safeguard the interests of existing operators.

Bearing that in mind, it becomes possible to view the requirement which I have quoted
above in a fuller and wider light, namely as not merely providing an opportunity for
existing operators to ventilate their grievance against the introduction of competitors but
as making available the information and experience of such an operator along with the
information possessed by the local and police authorities and associations interested in
road transport, for the purpose of providing the fullest possible information to the
Regional Transport Authority, to enable it to discharge its functions under section 47. In
other words, the opportunity which the law requires shall be given to the existing
operator's (for which see also subsection (3) of section 57) need not be construed as being
merely an opportunity to present a direct resistance to the application, and thus to create,
as it were, a case to which the applicant and the previous operator are opposing parties. If
that were so, I feel no doubt that the law would also provide that both -the applicant as
well as the objector should have opportunities to present evidence in support of their
respective claims, and requirement might also have been that the R. T. A. should consider
the evidence in the light of the competing claims and thereafter to come to a decision
whether the applicant or the objector should succeed, either partially or wholly. In these
circumstances, it would be undeniable that the function of the R. T. A. in relation to the
case would be judicial in its nature. The matter raised by the objecting operator would
then have to be regarded in the light of a lis to which the applicant for a new permit
would be the opposing party. But the law does not require anything of the kind. It merely
lays down in section 57 that every application for a stage carriage permit shall be duly
published and at the same time a date should be announced before which representations
in connection with it might be submitted to the Authority, and again that such
representations shall be disposed of at a public hearing where the applicant and the
person making the representation shall have an opportunity of being heard. The right
therefore, even of a person who, in the words of section 47, is "already providing road
transport facilities along or near the proposed route or routes" is not to make a case out of
it against the applicant and to produce evidence and require adjudication. Along with
local and police authorities and associations interested in road transport, and perhaps any
person acting pro bona public, who may have made representations, the representation of
such a person is also to be heard. In deciding whether or not to grant the permit applied
for, the R. T. A. shall take all such representations into consideration, along with the six
other matters, which it is to bear in mind in arriving at its decision. With the exception of
one matter already mentioned namely, the effect upon existing road passenger services of
the new service proposed, and the matter mentioned in consideration (c), namely that the
applicant himself operates other road services, all the other matters enumerated as
requiring consideration by the Regional Transport Authority appear to be clearly matters
of interest to the public generally, and bear no relation to private profit or loss, such as
that which is the foundation of the petition before the High Court. Indeed, reading these
points of consideration as set out in section 47 (1) together, it seems to me to be
abundantly clear that the overriding consideration is the interest of the public in a general
sense. Even the effect upon individual operations can be regarded in the light of the
public interest as having a direct bearing upon the efficiency of the service to be
provided. I feel no doubt that the section, being worded as it is, cannot be construed so as
to make the private profit or loss of the applicant or any existing operator the governing
Consideration of the matter, it is perhaps for that reason that the section has been
designedly so worded as to avoid creating by word or implication anything in the nature
of a lis between an existing operator and a new applicant. If it were otherwise, the statute
might be employed as a handle for converting the proceedings of a Regional Transport
Authority into a battle ground for the competing economic interests of rival operators and
aspirants in the field of public transport, and in such a case it would be the interests of the
public which would be the first to suffer. It is therefore in my view of the greatest
Page No. 43 of 1
importance that sections 47 and 57 should not be construed as if they were principally
designed to secure determination of the rival claims of existing operators and new
applicants, from the angle of profit or loss. The proper implementation of these sections
requires that they should be construed as empowering the R. T. A. to regulate the system
of road passenger transport by imposing thereon a licensing system whose primary
objective shall be the public interest generally.

It is not necessary for coming to this conclusion to deny that the Regional Transport
Authority must observe, in the exercise of its selective functions, the principles of justice,
equity- and good conscience, but this is not to say that, through observance of these
salutary principles upon which orderly human life is based, the R. T. A. is converted into
anything resembling a Court of justice. These are principles, which are applicable to the
functioning of every authority, which is required to regulate the actions of persons and
bodies under any law. The mere facts that they must act with due care and attention, and
must exercise a sound discretion, or in other words must act judiciously, are not sufficient
to constitute a licensing body like the R. T. A. into a judicial or quasi-judicial body. As
was said by the Privy Council in the case of Nakkuda Ali (19 51 A C 66: P L D 1950 P C
102) the relevant criterion in determining whether such an authority is subject to the writ
of certiorari by virtue of being a body exercising quasi-judicial functions is the nature of
the process by which it is empowered to arrive at a decision. When the process is a
judicial process, or one analogous thereto, the writ of certiorari can be granted to control
it.

The relevant law imposes but one duty upon the Regional Transport Authority, in a case
where the application is opposed on the basis of self-interest, and that is to receive a
written objection from the opponent, and to hear it along with all representations made
under section 57 (3), most of which have nothing to do with self interest, and are solely
addressed to the public benefit. All these representations are intended to be treated
equally, and there need therefore, not be the slightest hesitation in holding that the
Purpose underlying the invitation, which the statute enjoins, and in compliance with
which all such representations are- received, is to procure fuller information upon which
the R. T. A. can decide what, in a particular case, the public interest requires. It is true
that the views of an existing operator are directly relevant to one matter which the R. T.
A. has to bear in mind, viz., the effect upon existing road services of the grant of a fresh
permit. But it is also clear that this factor can be assessed without making anything in the
nature of a lis between the new applicant and the old operator. The Regional Transport
Authority is not required to arrive at any separate conclusion upon this particular matter.
It is clear that the law does not require anything in the nature of an adjudication upon the
matter. The requirements of the section are fully met if the representation has been heard,
and the R. T. A. is thus in possession of the facts necessary for assessing "the effect upon
existing road services", which in itself is but a minor element in the catalogue of major
consideration, viz., those bound up with the public interest, which it is incumbent upon
the R. T. A. to bear in mind.

Therefore, it seems to me, on careful examination of the detailed provisions of sections


47 and 57 of the Act, that these sections do not provide for a Regional Transport
Authority to perform any act of a judicial or quasi-judicial nature. I cannot find that this
administrative body entrusted with the application of a licensing system in relation to
road passenger transport is under any duty to act judicially in ascertaining the facts upon
which it may base a decision, or as to any part of the process of arriving at such decision.

The mere duty to hear an objector does not per se constitute a sufficient ground for the
conclusion that the function exercised is a judicial one. On that point, I find myself in
agreement with the view expressed by Lord Thankerton in the House of Lords, in the
case of Frenklin v. The Minister of Town and County Planning (1948 A C 87). There, a
Page No. 44 of 1
Minister was empowered to direct that a specified area of land should be developed as a
new town, if he was satisfied after consulting the local authorities concerned that this was
expedient in the public interest. As part of the process by which such satisfaction was to
be achieved, he was required to make a preliminary order announcing his intention, and if
any objections were made to direct a local enquiry and to consider the report of such
enquiry. It was held by the House of Lord that no judicial or quasi-judicial duty was
imposed by the law upon the Minister. His function remained purely administrative. The
purpose of inviting objections and of the provision for enquiry was merely that the mind
of the Minister should be further informed in order to the final consideration of the
soundness of the scheme.

It has been brought to our notice that in certain earlier cases e.g., the case of Errington
((1935) 1 K. B 249), where a Minister was similarly empowered, it was held by the Court
of Appeal in England, that his action in ordering the clearance of buildings from a slum
area was rendered subject to the writ of certiorari because he had not followed the rules
of natural justice in having taken into consideration a good deal of evidence and
information which came to him otherwise than-from the objections raised to the proposed
order, and the report of the public statutory enquiry which he followed. It is doubtful
whether this judgment can stand as an authority after the decision in the Frenklin case
cited above, but that circumstance need not affect the validity of any argument employed
by the Court of Appeal, as guidance for this Court. In the present case, however, there is
no question of the R. T. A. having taken into account any evidence, which it was not
entitled to use for the purpose of reaching its decision. On the point whether a Minister
acting as in the Errington case was performing a quasi-judicial duty, the view which I am
inclined to take is that notwithstanding that the order which he was making was one
which affected the rights of the subject, as house property of value was ordered to be
demolished, the Minister was performing a purely administrative act. Among other cases
cited before us, mention should be made of the following English cases viz.:

Rex v. Post Master-General (ex parte Carmichael (1928, 1 K B 291); R. v. London


County Council (Entertainments Protection Association Limited (1931, 2 K B 21 5) )
and The Manchester Legal Aid case (1952, 2 Q B p. 41).

In the first mentioned case, the question was whether a telegraphist was
entitled to receive compensation under the Workmen's Compensation Act by reason of
having been incapacitated for work through telegraphist's cramp. Under the law a
certificate from a "certifying surgeon" was sufficient authority for such payment. When it
was established to the satisfaction of the Court of Appeal that the certificate on the basis
of which compensation had been refused, was not issued by a person who was a
"certifying surgeon" within the meaning of the Act, the Court held that the grant of such a
certificate was a judicial act subject to the writ of certiorari. It is clear that in this case
there was something in the nature of a lis namely the claim by the disabled worker, which
it was in the interest of the State from whose funds the claim was to be met, to resist, and
this fell to be decided by the certificate of an expert which was necessarily based on the
evidence before him regarding the physical condition of the worker. Therefore, it could
be said that the act of the "certifying surgeon" though clearly not judicial in the strict
sense, was quasi-judicial, and the grant of the writ of certiorari might therefore be
justified. It is, however, possible to consider that a more appropriate form of relief may
have been by way of a mandamus requiring that a certifying surgeon's certificate should
be made available to the worker in question.

In the second case, the question arose in relation to a certain licence


granted by London County Council under the Cinematograph Act, 1909. The law was to
the effect that a County Council might grant licences to such persons as they thought fit
to use specified premises for the exhibition of pictures etc. on conditions specified in the
Page No. 45 of 1
licences. No procedure of any kind appears to have been laid down, enjoining any
enquiry upon the Council in the discharge of this function nor does it appear that there
was any provision for inviting objections or that any other circum stances existed giving
rise to anything in the nature of a lis. The Court of Appeal, however, held that the case
was precisely analogous to that of licensing justices granting or refusing licences for
public houses. Scrutton L. J. said that he was unable to see "any distinction
between the application for a cinema licence, and the application which is made to
Magistrates for a public house licence". The judgment of Greer L. J. proceeded on the
same basis. Slessor L. J. while accepting the principle, also examined the question in the
light of the dictum that to attract the writ of certiorari, it is enough that there should be a
person or body having legal authority to determine questions affecting the rights of the
subjects and having a duty to act judicially. The learned Lord Justice resolved the
question whether any right was involved on the following basis viz. that the question
whether the County Council would or would not grant a licence affects the right of the
subjects and that the granting of a licence, on the ground of public safety and morality
was one "which affects the public and the rights of the subjects". With the great respect, I
should have thought that the condition as to rights relates, and only relates, to the
particular right, which falls to be determined in each case. The point that a person
applying for a licence had no right to get one which the law can recognize, does not
appear to have received any consideration, and moreover, as to the apparent analogy with
the power of licensing justices in relation to beer-houses, it is of importance to note that
licensing justices are Magistrates, subject to the control of the Supreme Court in England.
This is indeed apparent from a sentence in the judgment of Scrutton L. J. in this very
case, where the learned Lord Justice clearly says that "every proceeding of Magistrates in
granting new or renewing old licences is in the nature of a Court, excess of jurisdiction in
which can be dealt with by the writ of certiorari". On this topic I may usefully refer to a
passage in the judgment of the Privy Council in the case of Nakkuda Ali, which has been
mentioned above, where it was observed that it was probably true that the writ of
certiorari was more readily issued to established bodies whose function is primarily
judicial, even in respect of acts which are purely administrative, than to Ministers or
officials whose function is primarily administrative, even in respect of acts having
analogy to the judicial. A similar view appears from the following sentence, which I
extract from paragraph 113 in the Monogragh on Crown Proceedings in volume XI of
Halsbury's Laws of England, 3rd Edition :-

" . . . the writ of certiorari was largely used to control the justices of the peace in the
exercise of their criminal and administrative functions under numerous statutes . . . ."

In the Manchester Legal Aid case, there seems to have been clearly a lis between the
person seeking the legal aid, and the administrators of the fund out of which it was to be
paid, which was to be determined by a decision of the authority concerned, on the basis
of factual evidence. To such a proceeding, the writ of certiorari clearly applies. The case
is very similar to the plea of pauperism, which may be raised by a litigant under the Civil
Procedure Code in Pakistan. Such a plea is subject to contest and a decision given thereon
is a judicial decision subject to appeal.

The learned Judges of the High Court have based their opinion that the proceedings
before the R. T. A. were of a quasijudicial nature, on the following grounds:-

(1) That orders granting or refusing all kinds of permits by the Authority are appealable,
therefore, the R. T. A. was bound to give reasons for its decisions, and because in the
present case no reasons were given for granting stage carriage permits to 64 out of 700
applications, therefore these decisions were arbitrary and capricious;

Page No. 46 of 1
(2) that the grant or refusal of permits by the R. T. A. affects a fundamental right granted
to every citizen of Pakistan under Article 12 of the Constitution to enter upon and
conduct any lawful trade or business, subject to regulation by a licensing system, and
decisions on such matters are therefore of quasijudicial nature and should conform to
objective standard or criterion laid down or recognised by law so as to be "capable of
being tested by the same external standard".

It was further observed that the operation of governmental controls and the licensing of
trades and occupations in modern welfare States "invariably interferes with the
fundamental rights of the citizens" and that the time has come when executive authorities
should "disabuse their minds of the impression that the application of controls and the
grant of permits or licences lies within their personal bounty or gift".

With respect, I find it impossible to accept these reasons as sufficient for coming to the
conclusion that the findings of a Regional Transport Authority in granting or refusing
permits are of quasi-judicial nature. The declaration that all orders by which such an
authority grants or refuses permits should give reasons is, as has already been seen, not
borne out by the relevant statute which, on the contrary, by expression and implication,
relieves the Authority of the duty of stating its reasons when it grants a permit or rejects a
representation under sections 47 and 57. The constitutional objection rests upon the
supposition that a licensing system under Article 12 of the Constitution by which any
trade or business is regulated must be quasi judicial in its nature. The further supposition
is made that unless the operation of the licensing system can be made to "conform to
objective standard or criterion" it will degenerate in the hands of the executive authorities
into mere arbitrary distribution of bounties. I am unable to see anything in the wording of
Article 12, which would justify these conclusions reached by the learned Judges.
Licensing systems may be of many different kinds. Their detailed provisions must
necessarily vary and their nature can only be judged by examination of the precise
provisions, as to whether they are purely administrative, or possess either A holly or in
part some judicial quality. It is for the legislature and for the executive authorities to
decide what should be the underlying principles and the precise provisions of the
licensing system, which they propose to apply to any particular trade or business. I cannot
conceive that there is any power in the Courts to lay down that any particular provision or
mode of application should be included, or be deemed to be included in every licensing
system applicable to any trade or profession. That would be a clear invasion of the
functions, which are exclusively entrusted to the legislature and the executive. It is for the
Courts to interpret legislative instruments including such as may be devised by the
executive under the rule-making power, upon their terms. It is not open to Courts to
proceed upon any preconceived idea as to what provision such systems should contain. I
have already, in the foregoing portion of this judgment included an examination of the
provisions of sections 47 and 57, and I am clearly of the opinion that they do not provide
for anything analogous to the judicial process to be followed in the grant or refusal of
permits or for the disposal of representations. On this subject, I should like to refer once
again to the case of Nakkuda Ali, where a question arose whether the action of a
Controller in withdrawing a licence, which had been issued to Nakkuda Ali to act as a
dealer was amenable to the writ of certiorari. The law was to the effect that when a
Controller "has reasonable grounds to believe" that a certain person is unfit to be allowed
to continue as dealer, he may cancel the licence. The Privy Council held that when in the
case before the Court, the Controller cancelled Nakkuda Ali's licence, he was not
determining a question i.e., he was not adjudicating upon a right, but that his action was
executive action to withdraw a privilege because he had reasonable grounds to believe
that the holder was unfit to enjoy it. The contention that by the mention of "reasonable
grounds" something in the nature of a judicial act was intended, was answered by saying
that the mere fact that a man is enjoined to act on reasonable grounds is not sufficient for
concluding that he could only arrive at the necessary belief by the judicial process. In the
present case too, the grant of a permit is not made in recognition of any right, but must be
considered as a conferment, under the licensing system, of a franchise to a person to
operate public passenger vehicles upon a prescribed route, according to a prescribed time
Page No. 47 of 1
schedule, at controlled rates of fares, by means of vehicles which are subject at all times
to inspection by the authorities for fitness. Even the drivers of such vehicles are required
to be licensed specially. It is surely a difficult process to spell out of an activity
commenced and continued under such 0 circumstances, anything in the nature of the
exercise of a fundamental right. It is clearly an activity commenced under a licensing
system, and continued under restrictions imposed in the public interest.

I may mention at this stage that a number of judgments were cited from the Indian
jurisdiction, in support of the general proposition that Regional Transport Authorities
functioning as in the present case act quasi judicially. Without disrespect to the learned
Judges whose reasoning were commended to us by the learned counsel for the
Sargodha-Bhera Bus Service, I find it difficult to agree with their conclusion. In none of
these cases does it appear that the conclusion has been reached after an examination of
the legal provisions under which the R. T. A. exercises its functions in the manner, which
is in my view essential for the purpose. In a number of the cases cited, the question
appears to have been decided on assumptions. As these decisions are not binding upon
the Courts in Pakistan, I do not consider it necessary to deal with them in detail.

On the view that the proceedings under examination in this case were not of
quasi-judicial nature, and did not have the effect of withdrawing any right from the
petitioner-company, the conclusion cannot be avoided that neither a writ of certiorari nor
a writ of prohibition could be claimed in this case, and it would be seen then that tile
entire proceedings 'before the High Court were incompetent. The petitioner-company
would of course not be left without re-source in that case, and as has been pointed out
already, the law provides for an appeal to a prescribed authority, which was, at one time,
the Financial Commissioner. In the course of the proceedings reference was made to a
published decision of the Financial Commissioner in a case, which bears many points of
resemblance to that of Sargodha-Bhera Bus Service before the High Court. This decision
was given in the case of the Waheed Bus v. Malsi Transport Company and is published as
P L D (Revenue) 1956, West Pakistan, page 57. The petitioner-company need not have
had any doubt in its mind that any of the questions, which it was able to raise against the
grant of permits to the Tariq Transport Company could not have been examined and
adjudicated upon competently and validly by the prescribed appellate authority.

The statement made in the petition that there was no other equally speedy, or efficacious
remedy would therefore appear to be groundless. This was a circumstance, which had
been placed before the High Court from the outset of the proceedings, and it deserved
greater attention than it has received. There is no mention of this matter in the judgment
of the High Court. It was a point, which had, at any rate, considerable relevancy in regard
to the question whether the learned Judges ought to, in the exercise of their discretion,
issue any writ in the case. It is not necessary for me to consider the latter question in view
of the opinion, which I have expressed above that the proceedings were not of a character
to attract the jurisdiction of the High Court in certiorari or prohibition. Nor am I
impressed with the argument that the precise limits laid by the English Courts upon' the
issue of these writs are not applicable to High Courts in! Pakistan exercising their powers
under Article 170 of the' Constitution. The power thereby given to the High Courts to
exercise control over executive actions must be construed within the context of the
Constitution, and within the general conception of the functions allocated to the judiciary
by the Constitution. I can see no ground for thinking that the intention of the Constitution
was to making all or any executive authorities generally answerable to the High Court for
their actions. Where anything in the nature of a judicial process is involved in the
exercise of action which is covered by the law entrusted to the executive, there to the
extent of such involvement the High Court is undoubtedly in a position to exercise a
salutary control, by reason of its acquaintance with all aspects and requirements
applicable to the judicial process. It is in that sense that the Courts of the country from
which originate, not only the writs here in question, but also the whole conception of
separation of the legislative, judicial and executive functions, have confined their
Page No. 48 of 1
interference with executive actions by the writs in question to matters involving processes
which are either expressly, judicial, or analogous to the judicial process. The division of
functions between the three great limbs of State in Pakistan is by no means less clear than
it is in England. To observe and to respect this division is implicit under the duty of
loyalty to the Constitution, which rests upon all citizens but in particular upon those who
are entrusted with the duty of interpreting and implementing the Constitution. Therefore,
I would strongly deprecate and I hope I do so with due respect to all authorities
concerned, any tendency on the part of the Courts to regard all executive acts as being
amenable to their jurisdiction under Article 170 of the Constitution, merely because that
that Article enables the High Court to issue "directions and orders" as well as writs of
specified kinds. So far as concerns the kind of orders which the High Court was requested
in the petition to make in the present case, I am clearly of the opinion that the principles
laid down by the English Courts are directly applicable, and that the power of
interference by certiorari or prohibition with the executive acts is confined to such
portion of those acts as is expressly judicial, in its nature, or can reasonably be held to be
of a quasi-judicial nature.

It remains to consider the effect upon the proceedings of the introduction into the case by
order of the High Court of the Provincial Transport Authority, as a party. It seems that
with respect to one of the permits issued by the R. T. A. at the meeting in question,
namely that issued to the Diamond Transport Company, the Provincial Transport
Controller had issued a direction to the R. T. A to the effect that it was not empowered to
issue an inter-regional route permit. (The learned Judges found no difficulty in holding
that this order of the Provincial Transport Controller was erroneous because the Act itself
provided for the issue of such licences subject to confirmation by the other R. T. A
concerned). However, on the strength of being a party to the writ petition, which had
been instituted by the Diamond Transport Company Against this erroneous order, an
Assistant Advocate-General appearing on behalf of the Provincial Transport Authority
sought leave to have that petition heard along with the petition of the Sargodha-Bhera
Bus Service. He stated that the meeting of the R. T. A, on the dates in question was
attended by serious irregularities and that it had even suggested that the record had been
forged. On these allegations, the High Court felt that it was "desirable" to implead the
Provincial Transport Authority as a party and accordingly a direction was made to this
effect. The Provincial Transport Authority thereupon filed a written statement containing
a large number of serious allegations. These were not introduced only in reply to the
averments in petition, with which the Provincial Transport Authority was in agreement.
Additional and more serious allegations were made e.g., that there had been forgery in the
list attached to the Tariq Transport Company's original application of the 25th September,
1956, that the list of permit holders was "manipulated, added to and subtracted from" in a
high handed manner, that changes had been made in the, original list of permits granted,
and, more generally, that members of the R. T. A had been taking undue advantage of
their official position to oblige certain companies and officials, that there were instances
where even the names of companies not on the agenda had appeared in the list of
grant9es of permits, that the decisions of the Regional Transport Authority had been
reviewed by the Chairman and the Secretary, that no reasons had been given why one
applicant had been preferred to another, nor had any surveys of routes been made and that
for these and other reasons which were set out in a separate annexure, the entire
proceedings of the 27th to 29th May were null and void. By allowing fresh allegations of
this kind to be made by the Provincial Transport Authority, the High Court greatly
extended the scope of the enquiry, in a manner of which I find myself, speaking with
great respect, entirely unable to approve. A specific mischief had been complained of in
the original petition namely the introduction of a new operator for the first time on the
Sargodha-Bhera route, and although the prayer made was for quashing the entire
proceedings on the ground of their being premature for lack of sufficient notice, yet it
was plain at that time, and has been stated before us in clear terms by Sardar Muhammad
Iqbal appearing for the Sargodha-Bhera Bus Service, that his clients would have been
satisfied with an order having the effect of cancelling the permits awarded to the Tariq
Transport Company. In the event, the High Court did not rely to any great extent on the
grounds set out in the original petition. The learned Judges appear to have done so mainly
upon the more general and injurious grounds raised for the first time by the Provincial
Transport Authority.
Page No. 49 of 1
It seems necessary to observe that if within a certain Department, one authority has
reasons to be displeased or dissatisfied with the working of another authority, it is surely
unnecessary, and is completely inconsistent with the maintenance of autonomy within
that Department, to present those disputes for resolution by a Court. It is not an elevating
spectacle to find, as we saw in the present case, the Secretary of the R. T. A. asking the
Court to settle what powers the Provincial Transport Authority could exercise over the R.
T. A. Surely there are sufficient wise heads and sober minds within the branch of the
administration which deals with the control of public transport to be able to devise,
consistently with the statutory instruments, a modus vivendi whereby these two
authorities may be enabled to function together harmoniously, and with the degree of,
efficiency necessary to ensure the public good. If on the one hand it is necessary to advise
the judiciary not to exceed their proper bounds in dealing with matters lying in the
executive sphere, it seems necessary also to advise officials who are required to discharge
executive functions to avoid regarding each other in the light of potential litigants before
a Court, even it be the High Court. It was stated before us that the origin of the whole
disagreement between these two Transport Authorities is something in the nature of a
private quarrel between their respective Chairmen, who are both officials. The matter was
not pursued further in this Court, and one may express the hope that the supposition has
no element of truth in it. For, it would indeed be a sad day when owing to private grudges
public officials are permitted to think of utilising a very special jurisdiction vested in the
High Court, to carry on their private conflicts with the aid of such forms of law as they
find applicable to their respective function. (I should add, in fairness, that the attitude of
the R. T. A. in the face of the attack upon it was scrupulously correct throughout the
proceedings in the case).

I deem it necessary also to make some observations regarding this special jurisdiction,
which is vested in the High Court. The power to issue a writ is indeed a very special
power. It is a peremptory power, intended to be exercised in a short-handed manner, to
correct errors of the relevant kind, which are paten and demand that they should be
righted. They must, of course be errors of a type with which the Courts are specially
competent to deal. It is not necessary to detail or categorise the errors, which may be
dealt with in this way. Enough has been said in this judgment, which will indicate what
the errors are that may be corrected by the writs of certiorari and prohibition. To gain the
speedy, not to say immediate, relief available under these writs, it is necessary that the
person complaining of the error should make his allegations in as specific a manner as
possible, for in dealing with such petitions, the Court will not ordinarily enter into the
examination of complicated questions of fact or law, such as are more suitable for
resolution in a suit or other proceedings of more normal kind, in which an opportunity for
full investigation and presentation of all relevant matters is available to both sides.
Particularly with reference to writs of certiorari and prohibition, the error should
generally appear on the very face of the proceedings, and the relief granted should be
addressed specifically to the correction of such error. If, then, no error of the relevant
kind is made to appear in the petition itself, it is clearly the duty of the Court to reject the
petition. To allow the petitioner to make out fresh grounds is not permissible, otherwise
than in the most exceptional circumstances.

In the present case, with the introduction into the case of the Provincial Transport
Authority a new face was put on the proceedings. By reasons of the allegations of general
misadministration and even dishonesty which were thus brought into the case, a contest
arose between the Provincial Transport Authority on the one side and the R. T. A. on the
other, and it is painful to observe that in the event, with some support from the
voluminous evidence which the High Court allowed to be led in the case, these
allegations determined the fate of the petition of the Sargodha-Bhera Bus Service. It is
probably impossible to find a similar case in' the whole recorded history of the writ
jurisdiction, where a petition has succeeded on a side-wind raised T by a party who or
which was introduced into the case by the Court on (I say so with due respect) no good
Page No. 50 of 1
ground. In this case, the party concerned, namely the Provincial Transport Authority,
immediately took advantage of the opportunity to make a direct attack on the R. T. A.
preferring allegation of a nature which, having regard to the position of the two
Authorities in the same Department of Government were surely, more appropriate for
presentation to the head of that Department for enquiry and necessary action, or even to
the Provincial Government itself. That such an attempt should be made to draw the High
Court into an unseemly dispute between two executive authorities operating is the same
sphere which were either unwilling or unable to perform their plain duty of working
together in the public interest is extraordinary enough. If the High Court had advised the
Provincial Transport Authority-to settle its quarrel with the R. T. A. either directly or with
the aid of the superior officers of the Government under which they both served, it would
have acted with perfect propriety. But the matter did not end in any such way. Moved by
the allegations of the Provincial Transport Authority, the High Court was drawn further
into making what seems to me barely distinguishable from an inquisition into the conduct
of the affairs of the R. T. A. in respect of the particular meeting in question. However
widely the words of Article 170 of the Constitution may be interpreted, I cannot conceive
that that Article can ever be thought to include a general power in the High Court to
conduct searching enquiries into the internal working of such an institution as the R. T. A.

I am clearly of the opinion that the introduction of the Provincial Transport Authority as a
party into the proceedings became obnoxious .to the writ jurisdiction from the moment
when by its written statement, it made plain its intention to attack the proceedings of the
R .T. A. on general ground which were hardly relevant to the petition by the
Sargodha-Bhera Bus Service and clearly appeared to have been put forward in pursuit of
previously existing disagreements on the executive side. All actions taken and all
conclusions reached in consequence of the new grounds put forward by the Provincial
Transport Authority appear to me to be clearly extraneous to the matter before the Court,
and in my opinion, they should be totally disregarded in arriving at a conclusion in the
present case. The irrelevancy of these proceedings would have appeared at once if, upon
receiving the written statement submitted by the Provincial Transport Authority, the
learned Judges had asked themselves whether in case the Provincial Transport Authority
had moved them for a writ against the R. T. A. on the grounds appearing in their written
statement, the Court would have had jurisdiction to deal, with such a petition, and
whether, if there were jurisdiction, they ought to exercise it in these remarkable
circumstances.

For these reasons, I consider that all those grounds, which the High Court has advanced
in granting relief to the petitioner company, which were raised and pursued only by the
Provincial Transport Authority, should be excluded altogether in considering whether or
not the order of the High Court should be maintained. I have already considered m detail
the validity of those of the grounds underlying the order, which are related directly to the
allegations made by the petitioner-company, and have expressed my opinion thereon. I
have come to the conclusion that the matter raised by the petitioner-company was not
within the jurisdiction exercisable by the High Court under Article 170 of the
Constitution, but that all questions which properly arose there out were exclusively
within the appellate jurisdiction created by section 64 of the Motor Vehicles Act. I have
no reason to think that that jurisdiction is not available for the grant of speedy and
effective relief in a case like the present. That is a sufficient ground for allowing the
appeal of the Tariq Transport Company and setting aside the order made by the High
Court, with costs throughout which, in my opinion should be paid as to one-half by the
Sargodha-Bhera Bus Service and as to the other half by the Provincial Transport
Authority. It follows as a consequence that all the other appeals before us, must also
succeed. These have been brought by parties who had no intimation of the proceedings
before the High Court, and therefore had no opportunity to present their views which
would have been in favour of the validity of the proceedings of the R. T. A. at which fresh
permits had been granted to them. In consequence of the High Court order, they have
been gravely prejudiced, and that injury is not wholly repaired by mere reversal of the
High Court order, since these parties have been unable to employ their permits for a

Page No. 51 of 1
period of over a year. However, since the injury to them appears not to have been
intended, I would leave these other parties to bear their own costs.

A. H: Appeals allowed.

Page No. 52 of 1
P L D 1958 Supreme Court (Pak.) 96

Present : Muhammad Munir, C. J, M. Shahabuddin, A. R. Cornelius, Muhammad Sharif


and Amiruddin Ahmad, JJ

Sh. MAQBOOL ELAHI and others---Appellants

Versus

KHAN ABDUL REHMAN and others---Respondents

Civil Appeal No. 3 of 1958, decided on 24th January 1958.

(On appeal from the Order dated 3rd October 1957 of the High Court of West Pakistan,
Lahore, in Writ Petition No. 1074 of 1957).

(a) Constitution of Pakistan, Art. 160-Special leave to appeal-Granted to consider


whether High Court, in dismissing a writ petition, exercised its discretion judicially so as
to constitute a proper disposal of the petition.

(b) Constitution of Pakistan, Art. 170----Limits of jurisdiction of High


Court----Determination of, initially exclusively in hands of High Court.

The determination of the limits of the jurisdiction of the High Court under Article 170 of
the Constitution is a matter which initially lies exclusively in the hands of the High Court.

Where question of the limits of High Court's jurisdiction under Article 170, Constitution
of Pakistan had arisen before the High Court on the respondent's objection but no
decision was given upon it the petition having been dismissed for another reason, the
Supreme Court declined to allow counsel to address any elaborate argument on this point,
observing that it was a matter of importance that the above-mentioned principle should be
preserved.

(c) Constitution of Pakistan, Art. 170----Writ jurisdiction ----To be exercised with judicial
discretion.

Where a writ petition was dismissed solely because one of the parties-the
petitioners-having first entered into an agreement with the opposite parties (which
agreement was recorded in Court) to settle the dispute by a certain procedure, later
Page No. 1 of 1
applied for a clarification of the terms of agreement and upon the application for
clarification being rejected by the High Court without notice to the other party, presented
another application seeking leave to resile from the compromise whereupon the writ
petition itself was dismissed.

Held, that the dismissal of the application seeking clarification of the agreement was not
a proper disposal of the matter before the Court.

Summary denial to petitioners of their relief, on the ground that they had sought a
clarification of a point in the agreement, was not a proper exercise, in the judicial sense,
of the discretion vested in the Court.

There was not sufficient indication for holding that the first application for clarification
was not made in good faith.

The Supreme Court set aside both the orders of the High Court and ordered the case to be
returned for the High Court to deal with the first application according to law.

(d) Writ Petition---Disposal of by compromise-Whether practice approvable (Quarae).

Mahmud Ali, Ataullah Sajjad and Nasim Hasan Shah, Advocates, Supreme Court,
instructed by Amjad Hussain, Attorney for Appellants.

A. K. Brohi, Senior Advocate, Supreme Court and Ved Vayas, Advocate, Supreme Court
of India, (Khurshid Ahmad, Advocate, Supreme Court with them) instructed by M.
Siddiq, Attorney for Respondents.

Dates of hearing : 23rd and 24th January 1958.

ORDER

CORNELIUS, J.-This appeal from an order of a Division Bench of the High Court of
West Pakistan, dismissing a petition for a writ of mandamus or other appropriate writ, is
brought before us by special leave granted to the appellants, Sh. Maqbool Elahi. Mian
Muhammad Fazil and Mr. Abdul Majid Mufti. The relief sought in the writ petition was
in respect of certain proceedings of the 16th September 1957, of a meeting of the Board
of Directors of the West Punjab Steel Corporation Ltd., as a result of which Sh. Maqbool
Elahi and Mian Muhammad Fazil were removed from the office of Directors, and Mr.
Abdul Majid Mufti was suspended from his office of Secretary, of the said Corporation. A
third person named Sh. Muhammad Umar Khan was also deprived of his office of
Director at the same meeting, but he did not join as a petitioner before the High Court,
and was instead added in the list of respondents. The petitioners complained that the
matter of the disqualification which was held against them was not included in the agenda
Page No. 2 of 1
for the meeting. It was brought up without notice, and was bound upon the mere reading
of a complaint by one M. Fazal Muhammad that certain firms in which the three ousted
Directors had an interest had entered into contracts for the purchase of goods from the
Corporation without the consent of the Directors, and it was averred that there had been
contravention of section 86-F of the Companies Act, 1913 and by virtue of section 86-I
(1) (h) of the same Act, the said Directors had vacated their offices. Legal opinion
obtained from a lawyer was read in support and without further proceedings the
Chairman declared that the three Directors in question had ceased to hold that office.
Forthwith, three other persons were co-opted in their place. In the course of the same
meeting, an order was made suspending Mr. Abdul Majid Mufti from his office of
Secretary on the ground that certain allegations had been made against him, and another
person was nominated to take immediate charge of the office and relevant papers and
other materials. Also at the same meeting, it was decided that an earlier resolution of the
6th September 1957, approving the allotment of 1000 shares in the Corporation was
illegal, and it was therefore cancelled. The substance of the order sought from the High
Court was the imposition of restraints upon the exercising of functions connected with
the Corporation by the persons who as a result of the meeting of 16th September 1957,
had become Directors of the Company, and restoration of Mr. Abdul Majid Mufti to the
office of Secretary, together with authorization of Messrs Maqbool Elahi, Muhammad
Fazil and Muhammad Umar Khan to act as Directors and to Mr. Abdul Majid Mufti to act
as Secretary, without restraint.

The petition was resisted on a number of grounds. It was contended that no writ could lie
against a private party, that the proper party to take a matter affecting the internal
management of a company before a Court, was the company itself, that there was an
alternative remedy y way of suit, and that the persons appointed as Directors on 16th
September 1957, enjoyed the support of a large majority of the share-holders. The facts
alleged with reference to the meeting in question were traversed to a considerable extent.
With particular reference to the claim on behalf of Mr. Abdul Majid Mufti, mention was
made in detail of the allegations which had been received against him. Grounds were also
stated in justification of the cancellation of the resolution of the 6th September 1957,
concerning the allotment of 1000 shares.

The proceedings in the case before the High Court exhibit a high degree of expedition.
The matters complained of having occurred on the 16th September 1957, the writ petition
was instituted on the 20th September 1957 and on the same day, an admission order was
made, together with an interim order whereby the Directors appointed on the 16th
September 1957, were directed to refrain from functioning as such Directors, and were
enjoined not to interfere with those Directors who were competent to act as such prior to
the 16th September 1957, or with Mr. Abdul Majid Mufti in his capacity of Secretary. On
the 25th September 1957, the case came up before another Division Bench, and at a
hearing two days later this Bench recorded an order which may be reproduced with
advantage;----

"The parties have arrived at the following agreement :----

A meeting of the shareholders of the Company shall be convened under the directions of
the Court, the Chairman of which shall be a non-share-holder to be appointed by the
Court. A resolution shall be moved at this meeting as to whether Sh. Maqbool Elahi, Mr.
Muhammad Fazil and Sardar Muhammad Umar Khan should continue as Directors of the
Company or not. If the share-holders decide that they should continue no further
resolution will be moved. But if they decide that they shall not continue as Directors, a
further resolution shall be moved as to whether Messrs C. M. Latif, Fazal Muhammad
and Muhammad Safdar Khan shall act as Directors of the Company or not. The parties

Page No. 3 of 1
will accept the decision of the share-holders as to who is to continue in office as a
Director.

The question as to whether the holders of 1000 shares alleged to have been allotted on the
6th September 1957 (whose names are mentioned in the return of allotment attached to
the affidavit of Mr. C. M. Latif filed today), are entitled to vote at the meeting to be
convened under the orders of Court shall be decided by Court. The Court shall be
deciding this question for the purpose of, this petition only.

The respondent No. 7 is not present. The petitioners undertake to produce him on
Tuesday for his signatures on this agreement. The case shall, therefore, come up on
Thursday for the hearing of this question. All the petitioners and respondents present in
Court shall sign this agreement."

In token of consent the order was signed by counsel for all interested parties.

On the 3rd of October 1957, the petitioners made an application whereby they sought
clarification of a very important matter arising out of the agreement recorded on the 27th
September. The question was whether, when the matter was referred back to the
shareholders, the retention of Messrs Maqbul Elahi, Muhammad Fazil and Muhammad
Umar Khan as Directors was to be decided by a simple majority of the shareholders and
whether, in case the resolution went against them, the legal requirement of a three-fourths
majority for removal of a Director was to be observed. It was stated in the application
that when the draft of the compromise was read out by the Court on 27th September the
counsel for the applicants had requested that instead of the words "should continue" the
words "should be removed" be substituted, because that was actually the intention of the
applicants, and the Court had observed at that time that it meant the same thing, while the
counsel for the respondents had also agreed that the words bore the same sense. The
application went on to say that it was feared that complications might arise at the meeting
which had been ordered by the High Court and a reference back to the Court for
clarification might become necessary. The applicants declared that they had "agreed only
for a reference to the shareholders for the removal of the Directors concerned, which
matter can be decided under the law by a three-fourth majority of the shareholders
present at the meeting." Therefore, they asked that the wording of the compromise should
be corrected so as to make it clear that the first resolution before the meeting would raise
"the question whether Sh. Maqbool Elahi. Muhammad Fazil and Sardar Muhammad
Umar Khan should be removed from the Directorship of the Corporation." It was
expressly said that the reference was made "in order to bring the compromise in
conformity with the intention of the parties and to avoid any ambiguity and difficulty."

The application was rejected by means of an order which bears the signature of only one
learned judge of the Division Bench namely Mr. Justice Akhlaque Husain. The order
reads as follows:---

"We have not the slightest doubt that this application is an attempt to go behind the
agreement between the parties and that it is in flagrant contravention of what the
petitioners, their two counsels, and this Court understood, and intended to, at the time of
the agreement. No objection was raised to the language of our order earlier and this
application is merely an after-thought. The petition is dismissed."

Page No. 4 of 1
There upon, and without any delay, the petitioners filed a further application, which they
had ready in their possession seeking leave to resile from the compromise, because the
applicants had that day applied for correction of the compromise recorded on the 27th
September 1957, "on the ground that its present wording does not so very clearly
represent the intention of the parties" and the Court "has refused to grant that
application."

It may be noted that the first application presented on the 3rd October 1957, was
dismissed without notice to the opposite party, or even to the counsel. In view of the
assertion in the application that on the 27th September, the Court as well as the
respondents' counsel had observed that the intention of the agreement of that date, in the
relevant respect, was to obtain from the shareholders an opinion on the point whether the
three ousted Directors should be removed from office, it might have been expected that
an opportunity would have been allowed to the counsel for the opposite party to state
whether he supported or controverted the assertion. It is not quite clear to us what the
learned judges in the High Court meant when they said that the first application of the 3rd
October was to flagrant contravention of what the petitioners, their two counsels, and this
Court understood, and intended to, at the time of the agreement." In their application, the
petitioners had stated in clear terms what they had understood was the meaning of the
agreement, in the relevant respect. In the absence of anything on the record which would
have the effect of constituting an acceptance by the petitioners of one or the other
interpretation, which would of course have to be contemporaneous with the making of the
agreement and its recording by the Court, it was, in our opinion, somewhat difficult for
any person other than the petitioners to declare what they had understood, when indeed
there was an ambiguity. The position might easily have been made quite clear in this
respect, if the learned Judges had declared in their order on the first application what the
Court had "understood or intended to" i.e. whether, if the three ousted Directors were to
remain ousted, their ouster would require to be confirmed by a simple majority or by a
three-fourths majority at the shareholders' meeting.

The relevant law provides that a Director may be removed by an extraordinary resolution
viz., one passed by a three-fourths majority. It has been pressed before us by Mr. Brohi on
behalf of the respondents that, in the event of in ousted Director suing for his
reinstatement, the Court dealing with the matter could in law refuse the relief, if a simple
majority of the shareholders was against his being restored to his office. Mr. Brohi urged
that that was what the learned judges of the High Court had in mind when they said that
the application for clarification in a certain sense, calculated to afford greater protection
to the ousted Directors, was "in flagrant contravention of what this Court understood and
intended to at the time of the agreement."

Now, it seems to us that in asking this Court to ascertain and declare what the learned
Judges of the High Court "understood and intended to", the same risk of error is involved
as in the declaration by the learned judges of "what the petitioners understood and
intended to". It was for the learned Judges themselves to state, when the question was
raised before them, and it was alleged that on the 27th September they had themselves
observed that by the expression should not continue" the same thing was meant as by the
words "should be removed", whether they had in fact made any such observation, and,
irrespective of that, what exactly it was that they had meant, i.e. whether the resolution of
the shareholders, in case it was unfavourable to the ousted Directors, should be passed by
a three-fourths majority, or by a simple majority. They could have made their meaning
clear in a very few words and if they had done so they would have avoided a serious risk
of their order for a shareholders' meeting proving abortive, as was suggested in the first
petition of the 3rd October. In declining to furnish the desired clarification, and leaving
the agreement in the same form of words, without resolving the difficulty which had been
raised, without allowing it even to take the shape of a dispute inter partes and without
contradicting the assertion regarding their own observation made solemnly before them
Page No. 5 of 1
in a formal proceeding signed by the petitioners as well as by their counsel, the learned
judges were in fact, insisting upon the implementation of an executory order based upon
a purported agreement, which was challenged in an important respect, and which, on
account of this challenge was likely to prove abortive.

When however, the second application was placed before the learned Judges, they
proceeded to make an order as below :-----

"Learned counsel has now made another application which was already with him ready to
be filed in case of an adverse order on the first application praying for leave to withdraw
from the compromise.

In view of the attitude taken up by the petitioners we refuse to proceed further with his
main writ petition and we dismiss it accordingly with costs. Let the petitioners seek their
remedy if any in the Civil Court. The interim order of this Court, dated the 20th
September 1957, is hereby vacated and the Minute Book taken by the petitioners in
pursuance of that order shall be returned by them to the police forthwith."

In order of this Court granting leave to appeal against the dismissal of the Writ Petition, it
was stated that inter alia, one question which arose for consideration was "whether the
order passed by the High Court dismissing the petition filed by Sh. Maqbool Elahi, Mian
Muhammad Fazil and Abdul Majid Mufti was a proper and judicial disposal of the matter
before A the learned judges" on the ground that while the order was one which the
learned judges were empowered to make in their discretion, it needed to be considered
"whether that discretion was exercised judicially, so as to constitute a proper disposal of
the case in the eye of the law."

Mr. Brohi for the respondents has attempted to argue that the order of dismissal is a
proper order because the relief sought in the petition was not a proper relief to be granted
within the writ jurisdiction. He also contended, in the alternative, that the orders made by
the learned Judges should be interpreted as containing a declaration that a decision of the
shareholders by a simple majority that the three ousted Directors "should not continue" in
office, would be sufficient confirmation of the ouster, and that in refusing to make this
clarification and directing that the agreement should be implemented in the words in
which it had been recorded, the learned judges had taken the only appropriate action that
was possible in the case. Therefore, the order dismissing the Writ Petition because of the
refusal of the petitioners -to be bound by the view of the agreement taken by the learned
judges was in itself a proper order.

We do not find it necessary, and we do not think it desirable, to say anything on the
question whether the matter raised by the petition of the 20th September 1957, lay within
the writ jurisdiction. The point was raised in the case by the respondents in the High
Court, but no decision was given upon it. The determination of the limits of the
jurisdiction of the High Court under Article 170 of the Constitution is a matter which
initially lies exclusively in the hands of the High Court. We consider it to be a matter of
importance that this principle should be preserved, and we therefore declined to allow
Mr. Brohi to present any elaborate argument on the point.

Page No. 6 of 1
As to the second argument of Mr. Brohi, we think that it is undeniable that the point of
clarification raised in the first petition of the 3rd October was one of substantial
importance, based upon a tangible doubt. As we have observed already, that doubt could
have been easily resolved by making an issue of the matter between the parties in case the
respondents did not accept the allegation of facts contained in the petition, and thereafter
proceeding to resolve the issue on the basis of evidence or otherwise, and the Court's own
recollection and record of what had passed between the parties and what had fallen from
the Court at the time when the agreement was reduced into writing. The dismissal of that
application upon a declaration by the Court of "what the petitioners understood and
intended to" which declaration was directly contrary to what the petitioners themselves
were stating, in a formal signed proceeding, to have been their own appreciation of the
matter, was not, in our opinion (and we say so with all due respect to the learned judges)
a proper disposal of the matter.

We must not be thought to say anything in approval or otherwise of the practice of


disposal of Writ Petitions by the method of executory compromise. That is a matter which
has not been agitated before us and we prefer not to express any opinion upon it. But
once the mode had been adopted and the learned judges were firm in their intention that
the compromise should be implemented, we consider that a clarification of the meaning
of an ambiguous term of the agreement could reasonably be sought by an affected party.
So far from such a move being regarded as an attempt to frustrate the agreement, it
should be interpreted as a step in aid of securing proper and more expeditious
implementation of the compromise. It is hardly necessary to say that no good could
possibly result from enforcing a purported agreement between the parties to a litigation
when there was before the Court a serious allegation by one of the parties which might, if
investigated in due form, have led to the conclusion that on a point which was capable of
more than one interpretation, the parties were not in fact ad idem.

The final order made in the High Court contains the clear suggestion that the writ petition
was dismissed because they petitioners had sought a clarification of such a point in the
compromise to which they had appended their names. In the view which we take, the
summary denial to the petitioners of the relief which they claimed, on this particular
ground, was not a proper exercise, in the judicial sense, of the discretion vested in the
Court. Some emphasis was laid by Mr. Brohi in his argument upon the fact that the
petitioners had ready with them an application to be permitted to withdraw from the
compromise in case their petition for clarification was refused. It was contended that this
showed that the petitioners intended to create a situation by means of their first
application, which would enable them to frustrate the compromise. We have noted
already that the proceedings in the case in Court as well as by the Corporation were
marked by a high degree of expedition, and in that view it is possible to explain the action
of the petitioners as being taken .to avoid further delay in case their application for
clarification, itself intended as a step in aid of the implementation of the compromise,
proved to be unsuccessful. We note that in respect of each of the two applications of the
3rd October, it would have been perfectly appropriate for the Court to proceed by way of
a notice to the opposite party. Therefore, we are unable to find in the action complained
of by Mr. Brohi, a sufficient indication for holding that the first application for
clarification was not made in good faith.

For these reasons we allow this petition, and setting aside both orders of the 3rd October
1957, we direct that the case be returned to the High Court to deal with the first
application of that date made by the petitioners after proper notice to the G respondents
and to proceed further with the matter with all possible expedition as required by law.
The parties will be their own costs.

A. H. Petition allowed.
Page No. 7 of 1
2005 S C M R 590

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

Dr. AZAM SARFRAZ---Appellant

versus

GOVERNMENT OF PAKISTAN through Secretary Establishment Division Islamabad


and others---Respondents

Civil Appeal No.922 of 2004, decided on 11th January, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 8-12-2003
passed in Appeal No.1890 of 2002.)

(a) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of


1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities)


(Amendment) Ordinance (XXXII of 2001)]---Constitution of Pakistan (1973), Art. 212
(3)---Dismissal from service---Service Tribunal, jurisdiction of---Civil servant contended
that rejection of his appeal by Federal Service Tribunal as well as by Provincial Service
Tribunal declining to exercise the power vested in them, had resulted into miscarriage of
justice---Civil servant also contended that he had been knocked out by both the Tribunals
without adjudicating the matter on merits and that the conflicting decisions of the
Tribunals required just, fair and equitable decision purely in accordance with the law laid
down by Supreme Court---Leave to appeal was granted by Supreme Court to consider the
contentions, and to see whether the findings of both the Tribunals on the point of
jurisdiction were tenable.

(b) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of


1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities)


(Amendment) Ordinance (XXXII of 2001)]---Service Tribunals Act (LXX of 1973),
S.4---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Service
Tribunal, jurisdiction of---Determination---Question of limitation---After having been
dismissed from service, civil servant filed appeal before Federal Service Tribunal which
was withdrawn on the objection of the Tribunal on point of jurisdiction---Objection of
Federal Service Tribunal was that due to amendment in Transfer of Population Welfare
Programme (Field Activities) Ordinance, 1983, the civil servant had become provincial
employee---Civil servant approached Provincial Service Tribunal but appeal was
dismissed on the ground of lack of jurisdiction---Validity---Federal Service Tribunal had
misinterpreted and misconstrued the provisions as contained in Transfer of Population
Welfare Programme (Field Activities) (Amendment) Ordinance, 2001---Amendment was
made applicable with effect from 25.7. 2001, whereas the civil servant was dismissed on
17.5.2001, by Federal Government---Civil servant was dismissed much before the
promulgation of Transfer of Population Welfare Programme (Field Activities)
(Amendment) Ordinance, 2001, and the question of its application with retrospective
effect did not arise---For all practical purposes in the case of civil servant, the
provisions as enumerated in Transfer of Population Welfare Programme (Field Activities)
Ordinance, 1983, would be applicable---Civil servant for redressal of his grievance had
rightly approached Federal Service Tribunal by means of appeal and the order passed by
Federal Service Tribunal was set aside---Appeal of the civil servant would be treated as
pending before Federal Service Tribunal for decision---Supreme Court directed the

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Tribunal to decide question of limitation in view of chequered history of the case as no
fault could be attributed to the civil servant---Case was remanded.

M. Bilal, Senior Advocate Supreme Court for Appellant.

Mrs. Naheeda Mahboob Elahi, Dy. A.-G. for Respondent No.3.

Respondents Nos.1, 2, 4 and 5: Ex parte.

Date of hearing: 11th January, 2005.

JUDGMENT

JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the
judgment, dated 8-12-2003 passed by the Punjab Service Tribunal, Lahore, whereby the
appeal referred on behalf of appellant has been dismissed due to want of jurisdiction.

2. Leave to appeal was granted by means of order dated 10-6-2004 which is reproduced
hereinbelow to appreciate the legal and factual aspects of the controversy:--

“Petitioner seeks leave to appeal against judgment, dated 8-12-2003 passed by


the learned Punjab Service Tribunal, Lahore, (hereinafter referred to as the PST) in
Appeal No.1890 of 2002, whereby the appeal filed by him was dismissed.

(2) The detailed facts of the case are already narrated in the impugned judgment, which
are not required to be mentioned here again.

(3) The main grievance of the petitioner is that the authority through order, dated 17-5-
2001, dismissed him from service, which order was challenged by him by filing an appeal
before the Federal Service Tribunal (hereinafter referred to as the FST). Before the FST,
the Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad, took
an objection that although the petitioner was a Federal Government Servant, governed by
the rules and regulations made under the Federal Government, but on account of an
amendment in the Transfer of Population Welfare Programme (Field Activities)
(Amendment) Ordinance, 2001 dated 25-7-2001, he automatically became an employee
of the Provincial Welfare Department, Government of the Punjab and that the FST had no
jurisdiction to hear the appeal. It was stated by the learned counsel for the petitioner that
the same appeal was withdrawn and thereafter, the appeal before PST was filed. The FST,
after hearing the parties, dismissed the appeal with the following observations:--

“The order assailed in the instant appeal is passed by Secretary, Ministry of


Population Welfare, Government of Pakistan and as such is outside the ambit of
jurisdiction of the Punjab Service Tribunal. This Tribunal, therefore, lacks jurisdiction to
hearing the appeal and accordingly the same is dismissed without any order as to costs.”

(4) Mr. Muhammad Bilal, learned counsel for the petitioner submits that the rejection of
the appeal of the petitioner by the FST as well as PST declining to exercise the power
vested in them, has resulted into miscarriage of justice; that the petitioner has been
knocked out by both the learned Tribunals without adjudicating the matter on merits and
that the conflicting decisions of the learned Tribunals require just, fair and equitable
decision purely in accordance with the law laid down by this Court.

(5) We, therefore, grant leave to appeal to consider the above points, and to see whether
the findings of both the learned Tribunals on the point of jurisdiction are tenable. Parties
are further directed to file concise statement in support of their case. Notice to the
respondents shall also be issued well in time.

(6) Since, it is a service matter, the appeal shall be fixed for hearing after filing of the
concise statement and due service upon the respondents within a period of six months,
after obtaining necessary approval from the Honourable Chief Justice.”

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3. Heard Mr. M. Bilal learned Senior Advocate Supreme Court on behalf of appellant
and Mrs. Naheeda Mahboob Elahi, learned Deputy Attorney-General for the respondent
at length. After having gone through the entire record, we are of the view that the learned
Federal Service Tribunal, Lahore Bench, Lahore, has disposed of the appeal preferred on
behalf of appellant (Appeal No.552(L)(CS) of 2001) in a casual and cursory manner by
means of order, dated 20-9-2002 which is reproduced hereinbelow for ready reference:--

“Learned counsel for the appellant states that this Court has no jurisdiction as per
Ordinance No.XXXII of 2001, dated 25th July, 2001 and Establishment Division U.O.
No.1/6/95-R-4, dated 4-2-2002, the relevant portion of the said U.O. is reproduced
hereunder:--

‘All the employees of Provincial Population Welfare Departments have become


Provincial Civil Servants w.e.f. 25-7-2001 (including 123 Officers who were recruited
through Provincial Public Service Commission’.

Since the appellant has become an employee of the Provincial Government, the
learned counsel for the appellant requests for withdrawal of the appeal. Request is
allowed and the appeal is disposed of an withdrawn. Consigned to record.

(Sd.) Member.”

A bare perusal of the above reproduced order would reveal that the provisions as
contained in the Transfer of Population Welfare Programme (Field Activities)
(Amendment) Ordinance, 2001 (XXXII of 2001) have been misinterpreted and
misconstrued. It is worth-mentioning that the Ordinance XXXII, 2001 was made
applicable w.e.f. 25th July, 2001 whereas the appellant was dismissed on 17th May, 2001
by the Secretary, Ministry of Population Welfare, Government of Pakistan, much before
the promulgation of the Ordinance XXXII of 2001 which was made applicable w.e.f. 25th
July, 2001 and the question of its application with retrospective effect does not arise. For
all practical purposes in the case of appellant, the provisions as enumerated in the
Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983 (XIX of
1983) shall be applicable. The appellant for redressal of his grievance has rightly
approached the learned Federal Service Tribunal by means of Appeal bearing No.552(L)
(CS) of 2001. The learned Deputy Attorney-General has candidly conceded to the said
legal position.

4. In sequel to above mentioned discussion, the order, dated 20-9-2003 passed by


the learned Federal Service Tribunal, Lahore Bench, Lahore, is hereby set aside and the
Appeal bearing No.552(L)(CS) of 2001 shall be treated as pending which shall be
disposed of expeditiously. The judgment, dated 8-12-2003 passed by the learned Punjab
Service Tribunal, Lahore, in Appeal No.1890 of 2002 is upheld whereby the legal and
factual aspects of the controversy have been examined with diligent application of mind,
in accordance with law and settled norms of justice. The question of limitation be decided
in view of the chequered history of the case as no fault whatsoever can be attributed to
the appellant. The appeal is accordingly accepted in the above terms.

M.H./ A-131/S Case remanded

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