' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Facts giving rise to instant proceedings are re-capitulated as under:--
2. Applicant(s) instituted two writ petitions being Nos.7041 and 15788 of 1997 in the Lahore High Court Lahore, inter alia, contending therein that it had acquired legal and vested right as regards the import of Tractors. As per authorization, granted to it under S.R.O. No,921(I)/1994 therefore, directions be issued not to impose customs duty, and charges such as sales tax, etc, and the benefit of exemption already granted under the S.R.O. Be ordered to be kept intact.
3. The writ petitions came up for hearing before learned Single Judge of the Lahore High Court, who vide order dated 17th June, 1998 concluded that the petitions were not competent before the Lahore High Court because the Tractors in question were received at Karachi, as such it was Collector Customs (Karachi) whose order/action had been brought under challenge, thus relying upon Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue (PLD 1997 SC 334) Court held that its jurisdiction was ousted and if so advised, the applicant(s) may seek remedy before the High Court of Sindh at Karachi. The applicant(s) filed, Intra-Court Appeals bearing Nos.790 and 812 of 1998 against the above said orders. Before a Division Bench of the some High Court.
4. It may be noted that prior to institution of aforesaid Writ Petitions, "Facto Belarus Tractors Limited"
(hereinafter referred to as "JBTL") another exporter, had instituted a Writ Petition being No,21972 of 1996, against the Ministry of Finance and Agriculture, Livestock, Government of Pakistan and others before the learned High Court wherein following relief was claimed:--
(1) That the respondents Nos.1 & 2 may be restrained attempting to withdraw or amend the concessions granted under the Second phase of the Awami Tractor Scheme in so for as they relate to the import of 10,000 tractors by the petitioner as per authorization granted to. The petitioner under S.R.O. No,921(1)/94; and
(2) that the respondents Nos.1 and 2 may be directed not to impose any further customs duty, sales tax, regulatory duty, service charges and any other tax or duty on the 10,000 tractors being imported by the petitioner in the public interest.
5. The petition noted above was disposed of as infructuous on 24th February, 1997, I.C.A. No,84 of 1997 filed against this order was allowed by a learned Division Bench of the High Court on 4th August, 1997. This Court granted leave to appeal against the judgment of I.C.A. Bench and finally accepted the appeal vide judgment dated 1st September, 1999 Government of Pakistan v. Fecto Belarus Tractors Ltd. (2000 SCMR 112).
6. In the meantime, I.C.As. Nos.790 and 812 of 1998 filed by the applicants came up for hearing and the same were dismissed on 2nd December, 1999, in view of above reported judgment announced in the case of Government of Pakistan (ibid).
7. The applicant(s) questioned the judgment of I.C.A. Bench dated 2nd December, 1999 before this Court by instituting C.P.S.L.As. Nos.129 and 130 of 2000, under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
8. It is important to note that the respondent in the case of Government of Pakistan (ibid), in the meantime, filed Review Petition No,80 of 1999, therefore, C.P.S.L.As. Nos.129 and 130 of 2000 vide order dated 22nd May 2000, were directed to be listed along with the Review Petition.
9. Review Petition No,80 of 1999, was accepted vide judgment dated 19th February, 2001 Fecto Belarus Tractors Ltd. v. Pakistan (2001 PTD 1829) as a result whereof, the judgment dated 1st September, 1999 (2000 SCMR 112) was recalled. However, C.P.S.L.As. Nos.129 and 130 of 2000 filed by applicants were left undecided.
10. Accordingly, C.P.S.L.As. Nos.129 and 130 of 2000 were listed for hearing later on, in pursuance of Applications Nos.449 and 450 of 2001 dated 1st November, 2001, filed by the applicant(s), wherein their emphasis was that as F.B.T.L.'s case was identical to that of their case, as such the Court ought to have granted same relief to them in view of the order passed on 22nd May, 2000, directing that both the matters be listed together. Notices for the first time were issued to the respondents at the leave granting stage. The petitions came up for hearing on different dates during which the respondents sought time to examine "as to whether case of applicant(s) is identical to the case of F.B.T.L.". Hearing took place on 10th January, 2002 in presence of the advocates for both the parties when Mr. Asghar Hameed Sheikh, learned Advocate Supreme Court for applicant(s) prayed for permission to withdraw the petitions. Thus request made by him on behalf of the applicant(s) was allowed and the order passed reads as under:- "Learned counsel for the petitioner, after arguing the case at a considerable length stated that permission be accorded to him to withdraw these, petitions as he contemplates to approach the department for the redressal of his grievance. Other side has no objection.
' Petitions are dismissed as withdrawn."
11. The applicant(s), following the command of above order, submitted a representation on 4th February, 2002, to the Secretary Finance, Government of Pakistan, but without getting it decided, instituted Civil Misc. Applications Nos. 762 and 763 through Mr. S.M. Zafar, learned Sr. Advocate Supreme Court, claiming following relief:-- "In view of the aforesaid it is most respectfully prayed that this Hon'ble Court may pass the order that the department is entitled to decide the case of petitioner on merits without being affected by the judgment dated 2-12-1999 of Lahore High Court, Lahore in I.C.As Nos.812 of 1998 and 790 of 1998.
' The petitioner respectfully prays for the grant of any other relief and order as this august Court may deem fit and appropriate in law, justice and equity and to prevent the respondents from abusing the process of this august Court under the law laid down vide judgment announced on 19- 2-2001."
12. The above applications came up for hearing before the Court, when on 24th July, 2003, taking into consideration the earlier record of the case, directions were made to the respondents to pass express order on the prayer of the petitioners. Which shall be conveyed to them. The applications was ordered to be kept pending till passing of the order by the respondents within four weeks.
13. In compliance of above order, the representation submitted by the applicant(s) was dismissed by the Central Board of Revenue, vide letter dated 29th August, 2002, contents whereof are reproduced herein below:-- "Please refer to your petition dated 30th July, 2002 on the captioned subject.
' Brief history of litigation in this case is that a Division Bench of the Lahore High Court dismissed the applicant's petitions, I.C.As. Nos. 790 and 812 of 1998 by the judgment dated 2-12-1999. The applicant's filed C.P.L.As. Nos.129 and 130 of 2000 in the Supreme Court petitions were heard by the Supreme Court and were dismissed as withdrawn by an order dated 10-1-2002, which reads as follows:-- "IFTIKHAR MUHAMMAD CHAUDHRY, J.---Learned counsel for the petitioner; after arguing the case at a considerable length stated the permission be accorded to him to withdraw these petitions as he contemplates to approach the department for the redressal of his grievance. Other side has no objection.
' Petitions are dismissed as withdrawn.
(Sd.) Mr. Justice Iftikhar Muhammad Chaudhry (Sd.) Mr. Justice Hamid Ali Mirza (Sd.) Mr. Justice Tanvier Ahmed Khan."
3. The Department's counsel, Raja Muhammad Irshad Advocate Supreme Court has informed that after pleading the case at a considerable length, the applicant's counsel had prayed for a direction to the Central Board of Revenue to decide the case in question on the basis of the judgment given by the Supreme Court in Fecto Belarus case. The prayer was turned down and the Supreme Court dismissed the petition as withdrawn and no direction was given to the Central Board of Revenue.
Subsequently, C.M.Ps. Nos.762 and 763, of 2002 were moved by the petitioners for the restoration of C.P.S.L.As Nos.129/130 of 2002. The Supreme Court, however, did not restore the original C.P.S.L.As. But instead directed the department to pass express order on the petitioner's application within 4 weeks.
4. I have carefully examined the facts of the case and the legal issues relating to the applicant's case, it is observed that:--
(a) the two C.P.L.As were dismissed as withdrawn by the Honouable Supreme Court vide its judgment dated 10-1-2002 in un-ambiguous and clear order; and
(b) prior to 30th July, 2002 when the applicants moved the subject petition, two self-explanatory Ordinances Nos.XXIV & XXV of 2002 dated 7th June, 2002 have been promulgated (copies enclosed).
' Keeping the afore-stated, facts, the subject petition for the grant of exemptions on the importation of tractors. Is regretted.
(Sd.)
(Dr. Manzoor Ahmed) Member (Customs)".
14. In the meantime, "FBTL" filed Criminal Original Petition No,15 of 2002 for initiating action for contempt of Court against the respondents. Arrayed therein, as such when C. Misc. Applications Nos.762 and 763 of 2002 came up for hearing on 12th May, 2003, the learned Bench, seized with the matter, passed order which reads thus:-- "In course of hearing of these petitions, learned counsel had withdrawn the same for approaching the department to seek redress of their grievance, and thus, these petitions were dismissed as withdrawn. It is stated that department had accordingly started to proceed in the matter, but did not accept petitioners' plea and thus, Miscellaneous Application was filed seeking restoration of the petitions which were dismissed as withdrawn, and an order was passed that said petitions would be heard along with connected matters.
' After hearing Mr. S.M. Zafar, Senior Advocate Supreme Court of this Court we are of the view that this matter should be clubbed with the case of. Belarus Tractors. Involving the same question of law and facts. However, in the meanwhile, if so advised, petitioners may file a fresh petition assailing the orders passed, by the department after dismissal of the petitions as withdrawn referred to above. Needful shall be done within a week's time."
15. Thus, applicant(s) instead of challenging the order of dismissal of their representation dated 29th August, 2002 before the High Court, instituted two applications being Nos.2542 and 2543 of 2003 under Article 187 of the Constitution of Islamic Republic of Pakistan. The proceedings in the matter of F.B.T.L. And Khyber Tractors Ltd. Were taken up together for some time but later on they were de-linked from each other vide order 16th December, 2003 passed in Criminal Original Petition No,15 of 2003, (Fecto Belarus Tractors Ltd. v. Pakistan (2001 PTD 1829)) and were ordered to be heard separately.
16. Learned counsel for applicant(s) contended:--
(a) That vide order dated 22nd March, 2000, applicant(s)'s case was ordered to be heard along with case of Fecto Belarus Tractors Ltd. Because both the cases involved identical questions of law.
To highlight this aspect of the case he impressed upon the significance of the words "same case as in Fecto Belarus Tractors Ltd.", which according to him indicates that the Court on having considered the facts of both the cases, passed this order, which was complied with in letter and spirit, as such in the cause list dated 28th September, 2000 both the petitions for leave to appeal were fixed along with the Review Petition No,80 of 2000 filed by the F.B.T.L.
(b) That learned counsel appearing for applicant(s) namely Mr. Asghar Hameed Sheikh, Sr.
Advocate Supreme Court had also argued the case of applicants on merits but the judgment passed in F.B.T.L.'s case dated 19th January 2001 (2001 PTD 1829) was not applied to their cases, therefore, they submitted C.M.Ps. 449 and 450 of 2001, under Article 187 of the Constitution of Islamic Republic of Pakistan read with rules 5 and 6 of the Order XXXIII of the Supreme Court Rules, 1980 on 13th March, 2001, for the redressal of their grievance.
(c) That lack of order in applicant(s)' C.P.S.L.As along with the case of Fecto Belarus Tractors Ltd.
(ibid) has caused prejudice to them due to the act of the Court, whereas "the act of the' Court shall prejudice no man (actus curiae neminem gravabit)" therefore, in the interest of justice same relief, which has been given in F.B.T.L.'s case may be given to applicant(s)
' To substantiate his plea he relied upon the following judgments:--
(1) Jagannath Singh v. Dr. Ram Naresh Singh (1970 SCC 573).
(2) Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678).
(3) Ghulam Haider v. Raj Bharri (PLD 1988 SC 20).
(4) Muhammad Taj v. Muhammad Rashid (1988 CLC 55).
(5) Rashid Ehsan v. Bashir Ahmed (PLD 1989 SC 146).
(6) Sherin v. Fazal Muhammad (1995 SCMR 584).
(7) Iftikhar Baig v. Muhammad Azam (1996 SCMR 762).
(8) Nasir Ali Shah v. Bashiran Bibi (1998 CLC 298).
(9) Muhammad Mansha v. Sabir Ali (1999 SCMR 1782).
(10) Namdar Khan v. Muhammad Akram Khan and others (1993 SCMR 434).
(11) Shafqat Iqbal v. Ghulam Rasool (PLD 2001 Lah. 139).
(12) Muhammad Shafi v. Muhammad Boota (2004 SCMR 1611).
17. Learned Attorney General for Pakistan contended:--
(i) That applicant(s) initially approached learned Lahore High Court, Lahore by invoking its Constitutional jurisdiction to claim exemption of Customs duty as well as Sales Tax on the tractors.
Which were imported and received by them at Karachi Port but the Lahore High Court dismissed the same on 17th June, 1998 on the ground of lack of territorial jurisdiction.
(ii) That I.C.As. Filed by the applicant(s) against the order dated 17th June, 1998 also failed, may be on some other ground, but without disturbing the findings on the question of territorial jurisdiction of the Court, meaning thereby that the decision of learned Single Judge of the High Court was attained finality.
(iii) That in the petitions filed by F.B.T.L., and by Khyber Tractors Ltd. Parties were different like Karachi Port Trust, against which altogether different relief was claimed. Surprisingly, in Writ Petition No,7041 of 1997 filed by applicant(s) Central Board of Revenue was not arrayed as party against whom actually relief of exemption is being claimed, therefore, both the cases were not identical in substance.
(iv) That no notice of C.P.S.L.As. Nos.129 and 130 of 2000 were issued to the respondents, therefore, without giving them right of hearing, the judgment in F.B.T.L.'s case could have not been passed in their case.
(v) That C.P.S.L.As. Nos.129 and 130 of 2000 were dismised as withdrawn on 10th January, 2001 at the request of the applicant's counsel namely Mr. Asghar Hameed Sheikh, Advocate Supreme Court, who had no cavil with this order, otherwise he could have filed petitions for review of the same under Article 188 of the Constitution of Islamic Republic of Pakistan and the applicant(s) also seemed to be satisfied with the order, as they approached this Court by filing Misc. Applications, expressing grievance that representation filed by them in pursuance of withdrawal order, was not being disposed of by the C.B.R. Thus, for such reason as well, the matter could not be re-opened without recalling the order dated 10th January, 2001.
(vi) That no sooner, the representation filed by applicant(s) before the Department was disposed of on 29th August, 2002, they should have availed appropriate remedy against it, but instead of doing so, they filed Misc. Applications Nos.2542 and 2543 of 2003 under Article 187 of the Constitution of Islamic Republic of Pakistan read with Order XXXIII rules 5 and 6 of the Supreme Court Rules, 1980, which being not maintainable in law, are liable to be dismissed.
(vii) That in view of facts and circumstances of the case, question for consideration would be whether by the act of the Court by not deciding C.P.S.L.As. Nos.129 and 130 of 2000, filed by the applicant(s) along with F.B.T.L.'s case, injustice has been caused to them and whether the Court should ignore procedural provisions to do complete justice with the applicant(s), particularly when apparently no injustice has been caused to them. Reliance has been placed by him on Emperor v.
Iqbal Krishna (AIR 1942 Allahabad 253), Muhammad Aslam v. Chairman Provincial Transport Authority (1996 CLC 1630) and Zulfiqar Ali Babu v. Government of Punjab (PLD 1997 SC 11).
18. Learned counsel who appeared for "Karachi Port Trust" adopted the arguments advanced by learned Attorney-General.
19. A perusal of memo. Of Writ Petition No,7041 of 1997 and, its reply by the respondents as well as order dated 17th June, 1998 demonstrates that Lahore High Court had no jurisdiction to adjudicate upon the matter because the Tractors were imported/received by the applicant(s) at Karachi, where the concerned Collector declined to grant exemption from Customs Duty and Sales Tax to the applicant(s), therefore in view of judgment in the case of Sandalbar Enterprises (Pvt) Ltd. v.
Central Board of Revenue (PLD 1997 SC 337), it was held that Lahore High Court had no jurisdiction and petitions were dismissed accordingly. ICAs being Nos.790 and 812 of 1998 filed by the applicant(s) failed on 2nd December, 1999, as a result whereof the judgment of learned Single Judge dated 17th June, 1998 merged into it, creating a legal hurdle for the applicant(s) not to seek relief, which was given to F.B.T.L., on accepting its review petition being No,80 of 1999 on 19th February 2001, without approaching the High Court of Sindh Karachi, having jurisdiction in the matter, because the question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum, having no jurisdiction, even if is found to be correct on merits, is not sustainable. The jurisdiction of a Court lays down a foundation stone for a judicial or quasi-judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is bound to crumble down as held in the case of Pearey Lal v. Nanak Chand (AIR 1948 PC 108), Pervez Iqbal v. Muhammad Hanif (1979 SCMR 367), Chief Settlement Commissioner v.
Muhammad Fazil (PLD 1975 SC 331).
20. It is also imperative to examine whether due to act of the Court for not granting relief to the applicant(s), any prejudice has been caused to them, in view of the judgments relied upon by the learned counsel, ratio decidendi whereof is as under:-
(1) Jagannath Singh v. Dr. Ram Naresh Singh (1970 SCC 573).
' The case of appellant contemner was listed in the cause-list of 1-5-1967 for judgment and orders but the name of the counsel got, by chance, misprinted. The case, however, did not reach that day and when it was listed the next day, the name of the counsel appeared correctly but none appeared and the case was decided ex parte against the appellant. Thereafter, an application was moved for re-hearing of the case. Request so made was not acceded to and ultimately Supreme Court held that there is no doubt that on the 1st of May there was an error in the cause list and it is a maxim that an act of Court should not harm any person. The omission to mention the case correctly in the cause list was a mistake of the Court itself and some indulgence was, therefore to be shown to the party who had been misled by this erroneous entry. Therefore, ex parte order was set aside and the case was remanded to the High Court for decision.
(2) Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678).
' In this case it was held that "procedural technicalities not be allowed to defeat ends of justice."
(3) Ghulam Haider v. Raj Bharri (PLD 1988 SC 20).
' In this case the review petition was allowed and the period for depositing of the balance of sale consideration of the pre-empted property was deemed to have been extended, taking into consideration that the learned Single Judge did not advert to this aspect of the matter, and refused the petitioner to deposit the decretal amount although at least two days time was available to petitioner as a matter of right and in this context it was held that it is well-settled that no party shall be made to suffer on account of the act of the Court.
(4) Muhammad Taj v. Muhammad Rashid (1988 CLC 55).
' This case being distinguishable on the facts narrated therein need not be discussed.
(5) Rashid Ehsan v. Bashir Ahmed (PLD 1989 SC 146).
' In this case while issuing auction notice, it was not specified that within how much period, balance of the sale price had to be paid in terms of Order 'XXI, rules 85, C.P.C. Therefore, in this context, it was held that "an act of the Court shall prejudice no man."
(6) Sherin v. Fazal Muhammad (1995 SCMR 584).
' In this case, the District Judge did not return the memo. Of appeal for want of pecuniary jurisdiction of the Court. In this context, it was held that "Court was under obligation to have a glance over the record to see whether appeal has been filed competently or not". Since the same was not returned due to this reason, therefore, it is held that due to act of Court, no prejudice has been caused to petitioner.
(7) Iftikhar Baig v. Muhammad Azam (1996 SCMR 762).
' In this case, a period of three months was not extended by the High Court for deposit of the sale consideration at the time of dismissal of the appeal filed by the respondent and subsequent thereto High Court allowed the Misc. Application extending the time for deposit the balance amount. This order was challenged before this Court, wherein it was held that it was the duty of the Court to extend the time while disposing of the time, therefore, on account of act of the Court, no prejudice has been caused to the respondent, as a result whereof petition for leave to appeal was dismissed.
(8) Nasir Ali Shah v. Bashiran Bibi (1998 CLC 298).
' In this case the Trial Court had wrongly dismissed the eviction application, therefore learned High Court held that First Appellate Court had rightly accepted the appeal against the order on the principle that no party should be made to suffer for the act of the Court.
(9). Muhammad Mansha v. Sabir Ali (1999 SCMR 1782).
' In this case, the Court, while granting permission to withdraw the suit under Order XXIII, rule 1, C.P.C.
Had not recorded, its satisfaction as to the existence of the grounds upon which such permission was sought, therefore, it was held that no prejudice was said to have been caused on this ground.
(10) Namdar Khan v. Muhammad Akram Khan and others (1993 SCMR 434).
' In this case the learned High Court, while disposing of R.S.A. Did not mention the time for depositing the balance pre-emption amount but subsequently on filing of C.M.A. This omission was corrected, therefore, it was held that as the omission has been committed by the Court for non- fixing the period of the deposit, therefore, pre-emptor must not suffer on account of act of the Court.
(11) Shafqat Iqbal v. Ghulam Rasool (PLD 2001 Lah. 139).
' In this case it was held that "where a litigant had remained victim of technicalities of procedure or mistakes of the Court, High Court would not refrain from exercising its revisional jurisdiction because it would amount to refusing relief to a litigant at the portal of justice.
(12) Muhammad Shafi v. Muhammad Boota (2004 SCMR 1611).
' In this case trial Court decreed the suit in favour of the preemptor and against defendant but decree was passed against only one defendant. Pre-emptor filed application under section 152, C.P.0 for correction of the decree as the same had been passed against all defendants. Application was allowed by trial Court and the decree was amended but appellate Court set aside the order, passed by trial Court-High Court in exercise of Constitutional jurisdiction restored the order passed by the trial Court. An appeal was filed before this Court, which was dismissed keeping in view the principle that act of the Court should not prejudice any person and technical objections should not come in the way of dispensation of complete and substantial justice.
21. The brief facts noted in the above judgments show that the principle i,e, "act of the Court shall prejudice no one" was followed, keeping in view the facts of each case but at the same time we have to keep in mind that the Courts are required to do justice between the parties in accordance with the provision of law, as the litigant, who approaches the Court for the relief is bound to substantiate that the procedure has been adopted by him in accordance with law because it is elementary principle of law that if a particular thing is required to be done in a manner it must be done as prescribed by the law, otherwise, it should not be done at all, as held in the case of Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971 SC 61) and Mir Dost Muhammad v.
Government of Balochistan (PLD 1980 Quetta 1).
22. Thus looking into facts and circumstances of each case, noted in the judgments, relied upon by the learned counsel for appellant(s), as well as the principle discussed in the case of Atta Muhammad Qureshi (ibid), it is held that the case of appellant(s) was not identical to that of F.B.T.
L. For the reason that relief claimed by the applicant(s) in respect of demurrages against Karachi Port Trust in Writ Petition No,15788/1997 was altogether distinct and different from the case of F.B.T.L., inasmuch as applicant(s) failed to make the Central Board of Revenue or concerned Collector Karachi as party, therefore, on this score as well, there case was distinguishable from the case of F.B.T.L.. Besides, no notices were issued to the respondents, arrayed in C.P.S.L.As. Nos.129 and 130 of 2000, when the same were at leave granting stage and till the time of disposal of Civil Review Petition No,80 of 1999, filed by the FBTL, no caveat had been filed by the respondents, therefore, it was not possible to grant relief to the applicant(s) by allowing their C.P.S.L.As. Nos.129 and 130 of 2000, in violation of the principle enshrined in maxim "audi alteram partem". Grant of relief to the applicant(s) in such situation would have militated against the principle of natural justice as held in the case of Government of Pakistan v. Fecto Belarus Tractors Ltd. (2000 SCMR 112). In addition to it, no convincing material is available on record to hold that Mr. Asghar Hameed Sheikh, Advocate Supreme Court, who appeared for applicant(s) had argued the case on merits.
23. There is yet another important aspect of the case namely that applicant(s) were fully aware that leave to appeal had not been granted in their case, therefore, after acceptance of the Review Petition No,80 of 1999 in F.B.T.L.'s, they submitted two applications being Nos.449 and 450 of 2001, claiming the same relief, but subsequently, they withdrew both the applications and it was pleaded on their behalf that they wanted to approach the C.B.R. For the redressal of their grievance.
Dismissal order thus attained finality because no efforts were made by the counsel who appeared on their behalf, for getting such order set aside. Thus the legitimate presumption would be that after withdrawing the petition, learned counsel who did not agitate the matter subsequent thereto, for revival of the petitions, acted in the best interest of the applicant(s), inasmuch as, in Civil Misc.
Applications Nos.762 and 763 of 2002, filed by Mr. S.M. Zafar, learned Sr. Advocate Supreme Court, no prayer was made for recall of the order dated 10th January, 2002. As indicated in the prayer clause, reproduced herein above, grievance of the applicant(s) seems to be that their representation was not being disposed of. Admittedly, now the representation has been disposed of in pursuance of order of this Court dated 10th January, 2002, on 29th August, 2002, therefore, Civil Misc. Applications Nos.762 and 763 of 2002 have borne fruit, consequently no lis is pending on the file of this Court, as far as the applicant(s) case is concerned.
24. In this context vide order dated 20th May, 2003, it was also observed that "in the meanwhile if so advised, petitioner may file a fresh petition, assailing the orders passed by the department, after dismissal of the petition as withdrawn within a period of one week". Surprisingly, the applicant(s) did not file any petition against the C.B.R's order dated 29th August, 2002 before the High Court and kept on insisting that same relief be given to them, which has been given in F.B.T.L.'s case and without following proper procedure, expected from this Court to grant them relief on the applications, filed by them under Article 187 of the Constitution of Islamic Republic of Pakistan read with Order XXXIII, rules 5 and 6 of the Supreme Court Rules, 1980, which have been seriously contested by the other side. In our considered opinion, as no lis is pending before this Court, these applications are not competent in view of the judgment in the case of Zulfiqar Ali Babu (supra).
Relevant para. Therefrom is reproduced herein below:- "9. Before touching upon the above contentions on merits, we may deal with the above latt submission of Mr. K.M.A. Samdani as to the maintainability of the aforementioned Constitution Petitions. In reply to Mr. Samdani's above submission, Mr. Iftikhar Hussain Gilani has contended that the above Constitution Petitions are maintainable under Article 184(3) read with Article 187 of the Constitution and Order XXXIII, rule 6 of the rules. Whereas Mr. Maqbul Elahi Malik has urged that the right to participate in the local councils elections and to be a member thereof is a political right covered by Article 17 of the Constitution and, in any case, the Repeal Act is violative of Article 2A of the Constitution, which inter alia enjoins that the State would be run by the chosen representatives and the local councils, being part of the State, should also be run by the chosen representatives of the people.
10. Mr. Iftikhar Hussain Gillani on Article 187 of the Constitution has referred the following cases:-
(i) Haji Ibrahim v. S. Rehmatullah (resresented by Legal heirs) 1985 SCMR 241;
(ii) Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359;
(iii) Muhammad Aslam through his L.Rs, v. Wazir Muhammad PLD 1985 SC 46; and
(iv) ..
(v) Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.-P and another PLD 1995 SC 66.
' The above reports do not lay down that an independent proceedings can be initiated under Article 187 of the Constitution but the ratio of the above reports seems to be that once this Court is seized of -a lis competently under the relevant law, its power to grant appropriate relief is not controlled by the, technicalities of the pleadings or otherwise as clause (I) of Article 187 lays down that subject to clause (2) of Article 175 of the Constitution, the Supreme Court shall have power to issue such directions, orders. Or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery of production of any document. We may point out that the key words employed in the above clause are "in any case or matter pending before it." The above words clearly indicate that the relief referred to in the aforesaid clause can be granted in the case or matter pending before the Supreme Court. It may further be observed that the word "pending" means competently brought before this Court. The provision or rule 6 of Order XXXIII of the rules is in line with above clause (I) of Article 187 of the Constitution as it provides that nothing in these rules shall be deemed to limit or otherwise effect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of process of the Court. The above rule can be pressed into service only in a matter which is competently filed before this Court but it does not give an independent right to initiate proceedings of the nature in question." Ch. Abdul Hameed v. Deputy Commissioner and others.
25. Thus the above discussion persuades us to hold that the relief claimed in the applications under Article 187 (2) of the Constitution of Islamic Republic Of Pakistan read with Order XXXIII, rules 5 and 6 of the Supreme Court Rules, 1980 cannot be granted to the applicant(s) as no lis is pending on the file of this Court, nor C.P.S.L.As. Nos. 129 and 130 of 2000 can be restored on the assumption that counsel for applicant(s) acted under the mistake of law. (Ram Lal Sahu v. Dina Nath (AIR 1942 Allahabad 253 (1)).
' As a result of above discussion, Applications Nos.762-763 of 2002 and 2542-2543 of 2003 have no substance, as such the same are dismissed. No order as to costs.
…and 55 more citing cases