' SH. AHMAD FAROOQ, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the Vires of the order dated 12- 5-2010 whereby respondent No,1/Pakistan Golf Federation has disqualified the petitioners from all competitive Golf Tournaments for 2 years with effect from 12-5-2010 to 11-5-2012, in addition to suspending the Handicaps of the petitioners and recommending that the petitioners should not be allowed to hold any office in the Association or Federation in future, and directing the parent Club/Lahore Gym Khana Club/respondent No,2 to initiate action against the petitioners.
2. Brief facts essential for proper adjudication of the lis in hand are that the petitioners, who are Golf players and permanent members of Lahore Gym Khana Club/respondent No,2, participated in the World Amateur Inter-Team Championship, held in Malaysia from 5-8 April, 2010. As a result of a complaint made by Indian players that the petitioners had deceived the organizers of the tournaments by misstating their handicaps, they were disqualified from the tournament as per Rule 14 of the Tournament Rules. The matter, when flashed in the newspapers with wide coverage, respondent No,1 initiated disciplinary action against the petitioners and passed the impugned order. Aggrieved, the petitioners have filed the instant petition.
3. Respondents Nos.1 and 2 in their respective parawise comments, besides attacking the very maintainability of the instant petition, have also raised certain legal objections. In parawise comments submitted on behalf of respondent No,1, it is submitted that Pakistan Golf Federation is not amenable to writ jurisdiction as it does not perform any functions in connection with the affairs of the Federation as contemplated in Article 199 of the Constitution of Islamic Republic of Pakistan, .1973 so much so, it is not a "person" as defined in Article 199(5) of the Constitution. It is also submitted that respondent No,1 is a society, registered under the Registration Act, 1860 and not creation of any statute. The petitioner's locus standi to file the instant petition has also been disputed by stating that they are not aggrieved persons within the meaning of Article 199 of the Constitution. It is also stated in the comments that the petitioners have efficacious and adequate remedy of filing an appeal under Article 9.2 of the Constitution of the Pakistan Golf Federation and the instant petition is not tenable in law.
4.. It is submitted in the comments submitted on behalf of respondent No,2/Lahore Gym Khana Club that Lahore Gym Khana Club is a "private person" and is not performing any functions in connection with the affairs of the Federation or the Province. It is further submitted that the petitioners have already filed civil suit, which is pending at Civil Court at Lahore and the instant petition on the same subject matter is not maintainable and that the petitioners have not sought any relief against respondent No,2.
5. The learned counsel for the petitioners contended that as the petitioners are not members of respondent No, 1/Pakistan Golf Federation, the impugned order dated 12-5-2010 is nullity in the eye of law as having been passed without lawful authority or jurisdiction and according to Article 3.6 of the Constitution of Pakistan Golf Federation, only Golf Organizations and Associations fall within the definition of "Member". Responding to the objection of maintainability of the instant petition, the learned counsel Maintained that the affairs of all the Sports Federations, including respondent No,1 are being regulated by Pakistan Sports Control Board, and Pakistan Sports Control Board Rules, 1981. The learned counsel argued that office bearers of the above said Sports Board are all high government officials, including the President of Islamic Republic of Pakistan. The Board receives financial grants from the Federal Government and distributes the same to its affiliated Sports Organizations. The learned counsel referred to Article 13.4 of , the Constitution of Pakistan Golf Federation, which reads that it shall function under the aegis of the Pakistan Sports Board, He also referred to Annex- A attached with the parawise comments submitted by respondent No,1 to argue that respondent No,1 has admitted that the affairs of the Sports Federations are being regulated through the Pakistan' Sports Board, Government of Pakistan. The learned counsel has also contended that mere fact that a society is registered under the Societies Registration Act would not exclude it from the meaning of the word "person", if it has the attributes which render it amenable to writ jurisdiction. Reliance is placed on the case of Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487). Also relied upon the case of Aitchison College, Lahore v. Muhammad Zubair and another (PLD 2002 SC 326) wherein the august Supreme Court of Pakistan held that the mere fact that an institution is not getting any financial grants from the government does not exclude it from being amenable to writ jurisdiction. The learned counsel in order to rebut the reliance placed by respondent No,1 on Annex-A to the parawise comments, which suggests that all disputes of Sports Societies should be decided through arbitration, argued that the remedy of arbitration cannot be used to non-suit the petitioner as the remedy of writ petition can be invoked even in the presence of an arbitration Clause. In support of his argument, the learned counsel has relied upon the case of Muhammad Aslam v. Senior Member (Colonies), Board of Revenue, Punjab and others (2004 SCMR 1587). He argued that the petitioners are "aggrieved persons" within the meaning of Article 199 of the Constitution as they have been debarred from participating in any Club, Association of PGF competitive golf tournament for two years and their handicaps have been suspended for the said period by the impugned order, which is infringement of their right. The learned counsel further argued that as the impugned order is being operated against the petitioners even by respondent No,2/Lahore Gym Khana Club of which they are regular members, they have a locus standi to file the instant petition. The learned counsel submitted that the petitioners have already been punished by the organizers of the tournament in Malaysia by disqualifying them from the tournament and the impugned action of the respondent No,1 would amount to penalizing the petitioners twice, which is violative of the principle of double jeopardy enshrined in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel claimed that the petitioners have participated in the tournament in their private capacity, they neither represented either of the respondents nor committed any breach of rules of the respondents, entailing penal action against them such as taken in the impugned order. The learned counsel finally, argued that the impugned order is not sustainable in the eye of law and the same may be declared illegal, without lawful authority and of no legal consequence.
6. Conversely, the learned counsel for respondent No,1 has questioned the maintainability of the instant petition on two counts; firstly, that respondent No.1 is not amenable to writ jurisdiction and secondly, that the petitioners are not "aggrieved persons" and have no locus stands to file the instant petition. In support of his first objection, the learned counsel argued that respondent No.1 is not a "person" within the meaning as implied in Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 as it is not performing any function in connection with the affairs of the Federation, which is a, pre-requisite for invoking the writ jurisdiction of this Court. The learned counsel submitted that respondent No,1 is a society, registered under the Registration Act, 1860 and being not creation of any statute, any of its actions cannot be called in question in writ jurisdiction of this Court. The learned counsel in this regard had relied upon the case of Ziaullah Khan Niazi v.
Chairman, Pakistan Red Crescent Society (2004 SCMR 189). The learned counsel next contended that respondent No,1 runs its affairs from its own resources for which funds are generated from subscriptions. The learned counsel argued that neither the affairs of respondent No,1 are controlled by the Federal Government nor it is funded by the government and that in no way, it is exercising any public powers bringing it within the writ jurisdiction of this Court. Reliance has been placed upon the case of Anoosha Shaigan v. Lahore University of Management Sciences (PLD 2007 Lahore 568) and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman (PLD 2010 SC 676). As regards the second objection, the learned counsel contended that as respondent No.1 is not a body politic or corporate and the proceedings taken against the petitioners do not relate to the functions performed by it in connection with the affairs of the Federation, the petitioners cannot be termed as "aggrieved persons" as defined in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and they have no locus standi to file the instant petition. The learned counsel added that the petitioners are not entitled to any equitable relief from this Hon'ble Court, for the reason that they have not come to this Court with clean hands as they indulged in deliberate cheating in an international tournament and thereby caused embarrassment to the country. The learned counsel finally, argued that in presence of an efficacious and adequate remedy of filing an appeal under Article 9.2 of the Constitution of Pakistan Golf Federation, the instant petition is pre- mature and not tenable in law, which merits dismissal.
7. Mr. Ali Sibtain Fazli, Advocate while appearing on behalf of respondent No,2/Lahore Gym Khana Club argued that the present petition is not maintainable, on the ground that respondent No,2 is a private person and not performing any functions in connection with the affairs of the Federation or the Province. The learned counsel has also contended that no action or inaction on the part of respondent. No,2 is subject matter of the instant petition and even no relief has been sought for against respondent No,2. On the strength of these arguments, the learned counsel has contended that respondent No,2 has been impeladed in the instant petition without any reason and the same is liable to be dismissed to the extent of respondent No,2. The learned counsel also pointed out that the petitioners have already filed a civil suit on the same subject matter and in view of availing the said remedy the instant petition is not maintainable.
8. Arguments heard. Record perused.
9. The question of maintainability of the instant petition being the crucial one, I would like to first dilate upon the same. In order to arrive at a just conclusion, besides going through the documents available on the record, I have also perused the case law referred to by both sides during the course of their arguments. Before commenting as to which one of the cases cited by the parties is applicable to the present_ case, I would like to first thrash out the case in hand on the basis of the supporting documents and the pleadings of the parties. The Constitution of the Pakistan Golf Federation (hereinafter called as "PGF Constitution") is the main document, which provides the basic necessary clue to find out the resolution of the issue in question. As per PGF Constitution, the following are the objects of "PGF":
(a) To promote and develop the game of Golf in Pakistan.
(b) To control, coordinate and manage the affairs of all the golfers of Pakistan belonging and registered with the member Organizations/Golf Clubs, which would include male as well as female players of both amateur as well as professional status.
(c) To maintain control of the game of golf in Pakistan.
(d) To promote the formation of affiliated member organizations.
(e) To co-ordinate activities in respect of golf in all ways including the holding of tournaments and organizing National/International Championships/Tournaments.
(f) To collect funds for the purpose of the Pakistan Golf Federation and employ the same in such a manner as may be considered desirable for the attainment of the objects of the PGF.
(g) To select teams and officials to represent Pakistan and to promote, control and finance visits by such teams abroad.
(h) To promote, control and, if necessary, to finance the visits to Pakistan of foreign teams.
(i) To assist in maintaining a uniform system of handicapping.
(j) To assist in the layout and upkeep of golf courses.
(k) To maintain liaison with foreign countries and be affiliated to international golf organizations in the interest of golf
(1) Generally to do all such acts and things as may seem to the Pakistan Golf Federation convenient and/or conducive to the carrying on the objects of the Federation.
' Article 13.4 of PGF Constitution relates to its functioning, wherein it is mentioned that Pakistan Golf Federation shall function under the aegis of Pakistan Sports Board and Pakistan Olympic Association. It means that the affairs of "PGF" are run under direct supervision and patronage of Pakistan Sports Board and Pakistan Olympic. Article 5 of PGF Constitution reveals that PGF regulates affairs of golf in whole of the .Country and Provincial Golf Associations and other Golf Clubs are affiliated with it as members. Now to ascertain the nature of affiliation and association of respondent No, 1/PGF with Pakistan Sports Board, I have gone through the Pakistan Sports Board Rules, 1981. As per Rule 3 of the Pakistan Sports Board Rules, 1981, the following is the composition of the Pakistan Sports Board:
(i) the President of Pakistan who shall be the Patron-in-Chief of the Board;
(ii) the Minister Incharge of the Ministry of Sports, who shall be the President of the Board;
(iii) the Secretary, Ministry of Sports, who shall be the Vice-President of the Board;
(iv) Joint Secretary concerned to Ministry of Sports, who shall also be the Secretary of the Board;
(v) Director General;
(vi) Financial Adviser concerned with the Ministry of Sports;
(vii) Presidents or Secretary General of thirteen National Sports Federations or Associations affiliated with the Board;
(viii) the Chief Commissioner, Islamabad Capital Territory;
(ix) the concerned Secretaries of the four Provinces, Azad Jammu Kashmir and Northern Areas as members of the General Body;
(x) Six members to be nominated by the Federal Government, one from each Province, Azad Jammu and Kashmir and the Federally Administered Tribal Areas;
(xi) two lady members to be nominated by the President;
(xii) the Executive Director, Higher Education Commission, Islamabad; and
(xiii) the Chairman, Inter Board Committee of Chairman.
' To comprehend the nature of association between PGF and Pakistan Sports Board, it would be advantageous to reproduce the functions of the said Board hereunder:
(i) to promote and develop standards of national fitness as well as standards of competition, comparable to the international standards;
(ii) to make the public sports conscious and to encourage their participation in,the national and international sporting events;
(iia) to approve, amend and repeal Constitution of all National. Sports Federations and Associations.
(iii) to affiliate, assist and guide the National Games and Sports Organizations in executing their programmes of sports activities;
(iv) to encourage training and coaching of sportsmen at all levels for National teams; (vi)(sic.) to appoint Sub-Committee as and when it thinks fit and their terms of reference;
(vii) to receive any money or financial grants-in-aid from the federal government, the provincial governments, local bodies any statutory or non-statutory corporations or bodies;
(viii) to collect, accept or otherwise receive from any person, body, association or organization, any subscription, donation, assistance or help either in money, land or by transfer in favour of the Board;
(ix) to encourage, promote and undertake all such measures as would assist in the development of sports in Pakistan;
(x) to manage, improve or otherwise supervise, any property, movable or immovable, with all necessary powers, in the interest of the Board;
(xi) to take, with the approval of the President, such disciplinary action as may be necessary against any National Games and Sports Organizations including the amendment or suspension of its Constitution and removal of any of its office bearers in the interest of the games and in order to maintain discipline;
(xii) to give grants-in-aid and subsidies from time to time to the National Games and Sports Organizations affiliated to the Board and deserving sportsmen;
(xiii) to construct, develop and maintain the National Stadia, Gymnasia, Sports Training and Coaching Centres, Squash Courts, Golf Courses and other play fields;
(xiv) to consider and approve the affiliation of the National Games and Sports Organizations to International Sports Associations and Federations and the like in consultation with the Pakistan Olympic Association;
(xv) to arrange and secure foreign training facilities and scholarships for Pakistan Coaches, Sports Organizations and sportsmen;
(xvi) to sponsor and provide administrative and financial support for exchange of sports teams, coaches, organizers and delegations with various countries at international-level;
(xvii) to approve awards and scholarships in the field of sports; (xviii) to maintain liaison with international agencies and organizations for sports promotion in Pakistan;
(xix) to make rules and regulations to carry out its objectives.
' Admittedly, the Pakistan Sports Board is an official body, created under the Sports (Development and Control) Ordinance, 1962. As per Rule 17 of the Rules ibid, Pakistan Sports Board is under the direct control of the Federal Government. Rule 17 reads that "the Federal Government may, from time to time issue directions to the Board to take such measures as the Federal Government considers necessary for the efficient managements of the affairs of the Board, and the Board shall comply with such directions. " All National Sports Federations, including respondent No,1 are affiliated with the Pakistan Sports Board and they are controlled, supervised and given grants-in- aid by the Board. Furthermore, as per Rule 4(iia) of the Rules ibid, the Board has an authority to even approve, amend and repeal Constitution of all National Sports Federations and Associations.
Board can also remove any office A bearer of the National Sports Organizations. ,
10. From the above discussion, it is amply clear that respondent No,1 /PGF is a "person" performing functions in connection with the affairs of the Federation. In forming this opinion, I am guided by the dictum laid down by the honourable Supreme Court of Pakistan in the case of Aitchison College, Lahore v. Muhammad Zubair and another (supra). In the cited case, Board of Governors of.
Aitchison College, Lahore was regarded as a "person" performing Functions in connection with the affairs of a Province, despite the fact that Aitchison College was not receiving any financial assistance from the Provincial Government. The learned counsel for respondent No,1 has stated that Pakistan Golf ' Federation is a society, registered under the Registration Act. In this connection, I would like to refer to the case of Ajay Hasia v. Khalid Mujib (supra) wherein it has been held that "it is immaterial for determining whether a Corporation is an authority, whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation, created by a statute or it may be a Government company or a company formed under the Companies Act or it may be a society registered under the Societies Act or any other similar statute (underlining is mine) ". In the case of Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman (supra), the Supreme Court of Pakistan observed that "primary test must always be; whether functions entrusted to organization or person concerned are indeed functions of State involving some exercise of sovereign or public power; whether control of organization vested in substantial manner in the hands of government; and whether bulk of funds is provided by the State... If such conditions are fulfilled, then person, including body politic or body corporate, may be regarded as person performing functions in connection with the affairs of Federation of Province, otherwise not."
11. A careful perusal of the functions of PGF would reveal that substantially, it is controlled by the Pakistan Sports Board, which is an official body. The case in hand is distinguishable from the case of Anoosha Shaigan v. Lahore University of Management Sciences (supra), referred to by the learned counsel for respondent No,l. In the referred case, the respondent/University was not under "administrative" and "financial" control of the Federation. On the contrary, the case in hand fulfills all the necessary conditions which are discussed in the above said judgment for declaring any organization as a "person" performing functions in connection with the affairs of the Federation. The crux of the above discussion is that the present petition is maintainable as respondent No,1 is amenable to writ jurisdiction and the petitioners are aggrieved persons as respondent No,1 has passed an adverse order against the petitioners, giving them a locus standi to file the instant petition. There is also no weight in the argument of the learned counsel for respondent No,1 that the petitioners has a remedy of appeal as provided under Article 9.2(e) of the PGF Constitution. The remedy of appeal is available only to the Members of the Pakistan Golf Federation and the petitioners are not its members as defined in Article 3.6 of the PGF Constitution. The petitioners has thus, rightly invoked the constitutional jurisdiction of this Court.
12. Now coming to the question of respondent No,l's authority to pass the impugned order against the petitioners, it is observed that it is nowhere mentioned in the Constitution of PGF or Pakistan Sports Board Rules, 1981 that PGF or Pakistan Sports Board has any authority to initiate any disciplinary proceedings or take any penal action against any player/member of any club. Article 3.6 of the PGF Constitution provides the definition of "Member", according to which, Member means the member Organization/Association of the Federation. Admittedly, the present petitioners are members of Lahore Gym Khana Club and not of Pakistan Golf Federation. Similarly, Lahore Gym Khana Club is the Member of Pakistan Golf Federation and not the present petitioners. It is also significant to note that Pakistan Sports Board and for that matter, Pakistan Golf Federation regulates the affairs of Golf Organizations and Associations and not the individual players of golf.
Every citizen of this country is supposed to be treated in accordance with law and any action by any public functionary against any citizen must be backed by any law or rule. In the present case, the petitioners visited Malaysia and they participated in the tournament in their private capacity.
Their participation in the said tournament was governed by the Rules framed by the organizer of the said tournament. On account of misstatement by the petitioners, they were disqualified from the said tournament. In these circumstances, respondent No.1 was not vested with any lawful authority to pass the impugned order against the petitioners. However, if the act of the petitioners has brought any bad name to the country, the parent club, of which the petitioners are members, may take necessary action against them in accordance with their rules.
13. As a necessary and inevitable corollary of the foregoing reasons, the instant petition is accepted and the impugned order dated 12-5-2010, passed by respondent No,1/Pakistan Golf Federation is set aside.