QAZI FAEZ ISA C.J.---Through this common judgment Constitutional Petitions Nos.321, 358 and 406 of 2009 are being decided as all three petitions are based on the same facts and assail the same act. Brief facts as narrated in C.P. No,321 of 2009 are that the petitioner (wherever the term 'petitioneris used it refers to the petitioner in C.P. No,321 of 2009) is a Muslim law-abiding citizen of District Zhob and concerned. about the "deteriorated and deplorable" conditions of "mosques and maddaris in the area". The petitioner states that a summary to the Chief Minister was submitted by the Additional Chief Secretary (Development) through Minister for Planning and Development, which is reproduced hereunder:-- "Approval of funds out of Chief Minister's Special Fund for Damaged and Deplorable Mosques of District Zhob.
The Hon'ble Chief Minister Balochistan has desired that a Summary may be sent to him regarding repair of 43 Mosques of Zhob District badly damaged by recent floods.
In this regarda summary was submitted to Senior Minister vide U.O. No,138/PS-to-ACS(D)/05 dated 23-3-2005, no sanction from Hon'ble Chief Minister has been received.
Now the Section Officer-I, Chief Minster Secretariat has desired to submit summary, which is placed below for approval of the Hon'ble Chief Minster Balochistan.
Submitted please.
Copy of the summary attached with the petition has the recommendation of the Minister for Planning and Development recommending that an amount of Rs,50million be allocated from the Chief Ministers Special Fund for the repair of masjid and maddaris. It is contended that instead of the said amount being spent on damaged mosques and maddaris an amount of Rs,154,801,000 (Rupees one hundred fifty four million, eighty hundred and one thousand) was allocated for the construction of Jamia Dar-ul-Aloom Balochistan at Muslim Bagh ("the said project). The petitioner states that the reallocation and or allocation of funds for the said project came to the knowledge of the petitioner when he read an advertisement placed in the Urdu language daily newspaper 'Jangof 18th May 2009 by the Chairman Balochistan Development Authority (respondent No,3) entitled `Tender Noticeinviting bids for the construction of the said project. The petitioner has assailed the allocation of Rs,154.801 million for the said project and has arrayed the Government of Balochistan through Additional Chief Secretary, Secretary Planning and Development, Chairman Balochistan Development Authority and Jamia Dar-ul-Aloom Balochistan, respectively as respondents Nos.l, 2, 3 and 4. The petitioner states that he has no personal interest and does not require that the amount earmarked for mosques and maddaris should be paid to any particular mosque or madrassa but instead should be equitably distributed and that a huge amount of Rs,154.801 million should not have been transferred/ allocated for the said project. The petitioner has filed the instant petition in the public interest.
2. Two other petitions in respect of the same subject matter have been filed respectively by Moulvi Muhammad Akram through his counsel Mr. Tahir Hussain Khan, Advocate bearing C.P. No,358 of 2009 and C.P. No,406 of 2009 by the said advocate in his personal capacity. Subsequently Mr. Tahir Hussain Khan, Advocate, sought permission to withdraw his own petition (C.P. No,406 of 2009). He also did not appear to conduct C.P. No,358 of 2009, wherein he was engaged as counsel, resultantly Moulvi Muhammad Akram conducted his own petition. In order dated 14-6-2010 Mr. Tahir Hussain Khan's request for withdrawal of his petition (C.P. No,406 of 2009) was noted and it was observed that the request would be considered at the time of final determination. Accordingly, the first question for consideration is whether a petitioner in respect of public interest litigation has the same control over the conduct of his/her petition like any other private litigant and in particular whether he/she can withdraw such type of petition. Mr.Kamran Murtaza, learned counsel for respondent No,4 submitted that the petitioner (Mr. Tahir Hussain Khan) had every right to withdraw his petition and relied upon Order XXXIII Rule 1 of the Code of Civil Procedure ('C.P.C.'), However, Mr. Tahir Hussain Khan, elected not to appear after making a verbal request for withdrawal of his petition and as such we did not have the benefit of his views.
3. In the case of Sheela Barse v. Union of India, AIR 1988 SC 2218, the petitioner sought to withdraw the public interest case filed by her and further claimed that the proceedings should not be continued after such withdrawal. Public interest litigation is different from other litigation as there is no determination and adjudication of individual rights. The Indian Supreme Court described the same as under:- "The proceedings do not partake of pre-determined private law litigation models but are exogenously determined by variations of the theme."
It was further held that, "Therefore, what corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings. There is no formal, declared termination of the proceedings. The lowering of locus standi threshold does not involve the recognition or creation of any vested rights on the part of those who initiate the proceedings, analogus to Dominus Litis."
"Any recognition of any such vested right in the persons who initiate such proceedings is to introduce a new and potentially harmful element in the judicial administration of this form of public law remedy. That apart, what is implicit in the assertion of the applicant is the appropriation to herself of the right and wisdom to determine the course the proceedings are to or should take and its pattern. This cannot be recognized. In the present proceedings the Court has already gone through and has initiated an elaborate exercise as indicated in the orders excerpted earlier. The petition cannot be permitted to be abandoned at this stage. Only a private litigant can abandon his claims. "
Resultantly the court refused permission for the withdrawal of the petition. However, the applicant was ordered to be deleted from the array of parties, and held, that, "the proceedings shall now be proceeded with a direction to the Supreme Court Legal Aid Committee to prosecute the petition."
4. In the instant case even if Mr. Tahir Hussain Khan is permitted to withdraw his petition (C.P.
No,406 of 2009) it would have no impact as the other two petitions are in respect of the same matter. Mr. Tahir Hussain Khan preferred his petition claiming the same to be for "the rights of public at large". Moreover, as many as 14 dates of hearing had taken place before the request for withdrawal was made. In Sheela Barse's case (supra) the court cautioned against withdrawal of .public interest litigation because if this was allowed to happen, "we will render the proceedings in public interest litigations vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by persons for personal ends resulting in prejudice to the public-weal,"
Therefore, if such a 'rightis recognized it may create a dangerous precedent and with it the attendant mischief. Accordingly, the request of Mr, Tahir Hussain Khan for withdrawal of Petition No,406 of 2009 is declined.
5. The admitted facts as emerge from the various documents on record, which are not denied by any of the parties, include the following: Minutes of meeting held on 9th May 2009 of the Planning and Development Department. In such Minutes the title "Schemes under Chief Minister's Special Priority Programme (New Initiatives) for the year 2008-2009 is followed by a sub-title which reads, "Scheme identified by Moulana Muhammad Wasay Senior Minister for Planning and Development Department Construction of Jamia Dar-ul-Aloom Balochistan at Muslim Bagh costing Rs,154, 801- million."
The relevant portion of the said Minutes reads as under; - "The Chief Minister of Balochistan has sanctioned funds of Rs,10, 000 million out of Chief Minister Special Priority Programme (New Initiatives) for the year 2008-2009.
PC-I/Estimate Costing Rs,154.801 million prepared by BDA was discussed and approved subject to the condition that BDA shall start work only at 01 component of the scheme within the approved cost of Rs,10.000 million and the remaining components shall be completed from various source of funding."
In the same Minutes the following table of components finds mention: S.No. Description Estimate Cost in Million
1. Masjid 20.027
2. Admin 11.394
3. Class Rooms 41.360
4. Hostel 41.360
5. Library 10.000 STAFF RESIDENCE
6. Grade 15-17 2.913
7. Boundary Wall 5.454
8. Water Supply 0.285
9. Sewerage System 1.193 10.Oh. Tank Under Ground Tank1.247 11.External Electric Work 1.287 12.Lawn 0.772 13.Road 10.000 14.Ex: WSS 3.000 Consultancy/Contingency 3%4.508 154.800
6. The respondents have been very economical with information about the source of funds for the construction of the said project and certain documents came to light only after specific directions were made. One such document is entitled, "Release Position Against Madrasa Dar--ul-Uloom, Bolochistan At Muslim Bagh During. The Year 2009-2010 Out Of Public Representative Programm'e (Federal Government Grant) ". This documents discloses that Members of the Provincial Legislature have allocated for the said project the following amounts from the funds of the Public Representative Programme: S. No. Name of Minister Authorized by Panel DatedFund Released 1 Chief Minister Balochistan 15-5-2009 10.000 2 MRs, Raheela Hameed Khan Durrani Minister for Prosecution Department2-6-2009 2.000 3 Moulana Abdul Wasay Senior Minister 17-12-2009 10.000 4 Sardar Muhammad Aslam Bezinjo Minister for I&P Department17-12-2009 2.000 5 Mrs, Bibi Zarina Zehri Advisor to Chief Minister 17-12-2009 5.200 6 MRs, Raheela Hameed Khan Durrani Minister for Prosecution Department17-12-2009 2.000 7 Mir Hamal Kalmati Minister for Fisheries Department 17-12-2009 2.000 8 Haji Muhammad Nawaz Minister for BDA 17-12-2009 5.000 9 MRs, Hussan Bano Rakshani MPA 22-12-2009 7.234 10 Haji Aminullah Shams Minister for Health Department 29-12-2009 5.000 11 Mir Muhammad Asim Kurd Minister for Finance Department7-1-2010 2.000 12 Mir Zafar Ullah Zehri Minister for Home Department. 27-1-2010 1.000 13 Zamrak Khan Minister Board of Revenue Department. 27-1-2010 1.000 14 Mr. Jaffar George Minister for Minority Affairs Department27-1-2010 2.000 15 Engr. Basant Lai Gulshan Human Rights and Minority Affairs Department6-2-2010 2.000 16 Mir Amanullah Notezai Minister for Transport Department12-2-2010 2.000 17 Moulvi Abdul Samad Akhunzada Minister Forest and Wildlife Deptt;12-2-2010 3.000 18 Asfand Yar Kakar Minister for Food Department 1-3-2010 2.000 19 Mir Muhammad Amin Umrani Minister Excise Department1-3-2010 2.000 20 Moulana Ghulam Sarwar Musakhail Minister for Labour Deptt:1-3-2010 5.000 21 Mir Muhammad Sadiq Umrani Minister for C & W Deptt: 15-3-2010 1.000 22 Agha Irfan Karim MPA 15-3-2010 2.000 23 Haji Ali Madad Jattak MPA 15-3-2010 2.000 24 Dr. Fouzia Nazeer Marri Advisor to Chief Minister 15-3-2010 2.000 25 Mir Tariq Masoori Bugti MPA 15-3-2010 3.000 26 Syed Mutiullah Agha Deputy Speaker 15-3-2010 3.000 27 Sardar Masood Khan Luni Minister for Non-Formal Education Department15-3-2010 2.000 28 Saleem Ahmed Khoso Minister for Libraries Department 15-3-2010 1.000 29 Mir Asghar Rind Minister for Social Welfare Department 30-3-2010 1.000 30 Jan Ali Changezi Minister for Quality Education Department30-3-2010 3.000 Total 92.434 Another relevant document is the copy of the Certificate of Registration issued by the Registrar of Societies under Societies Registration Act, 1860, showing that the 'Maddaris Jamia Darul Uloom Balochistan District Killa Saifullahwas registered vide Registration No,772 on 23rd November 2009.
This document was filed by respondent No,1 and upon receipt of the said Certificate the petitioner filed the Registration Form of the said Jamia Darul Uloom,,which disclosed the names of the Majlis- e-Intizamia(Governing Body) and their respective designations, as under: S.No. NAME
1. Moulana Mohibullah (Mohtamim)
2. Israrullah (Naib Mohtamim)
3. Roohullah (General Secretary)
4. Irfanullah (Secretary Information)
5. Naqeebullah (Financial Head)
6. Haji Abdul Nafay (Member)
7. Imdadullah (Member)
The petitioner alleged that the said madrassa is "owned by provincial minister", namely Moulana Abdul Wasay, Minister for Planning and Development and that the members of the Governing Body are, all of them, closely related to the said Minister, being respectively his brothers, sons and a nephew. This allegation was not denied by the respondents, including respondent No,4, despite the fact that specific opportunity in this regard was provided (vide Order dated 31-5-2010).
7. The petitioners Mr. Muhammad Alam and Moulvi Muhammad Akram submitted that utmost probity and transparency should be exercised in the disbursement of funds out of the public exchequer and allocation of a huge amount of Rs,154.801 million for the construction of the said project lacks transparency, constitutes nepotism, is tantamount to self-aggrandizement and suffers from the following illegalities and defects:
(1) Madrassa Jamia Dar-ul-Aloom (respondent No,4) was registered on 23-11-2009, that is after filing of the petition, which was filed on 21.5.2009;
(2) Funds were allocated to the said madrassa long before its registration and tenders by official respondent were invited on 18-5-2009, that is over six months prior to it coming into existence;
(3) Respondent No,4 admittedly is owned by the immediate family members of Moulana Muhammad Wasay being his sons, brothers and a nephew;
(4) Moulana Muhammad Wasay is a senior leader of a political party, namely Jamaat-e-Ulema Islam ("JUI") and Minister for Planning and Development Department and is designated in the coalition government as 'Senior Ministerand as such propriety demanded that he should not have sought, approved, given and or received money for respondent Na.4;
(5) The madrassa Jamia Darul Aloom simply exists on paper and has no credentials either on the date of filing of the petition or even till date as it has as yet not imparted education to a single person;
(6) No reason or explanation has been offered why an organization which has as yet not established itself and attained credibility through its work was chosen over established and credible organizations already working in the field;
(7) Huge amount of public funds have been allocated, but without any conditionality or restriction, including the fact that after construction of the said project it cannot be transferred or sold or otherwise alienated or used or be converted to any other use;
(8) No particulars as to who may teach at or attend the said madrassa nor as to what will be taught therein have been provided and
(9) Institutions receiving public funds cannot discriminate but in the case of the said project no restrictions have been put in place to ensure that the recipient does not indulge in discrimination and exclude any citizen from attending.
8. The thrust of the above mentioned petitionerssubmission is that allocation, receipt, utilization and or disbursement from public funds must be done transparently, and for, public purposes and they have relied upon the following verses of Holy Qur'an: "And dont eat (usurp) one another's property by unjust means nor give it to the authorities (rulers) so that you usurp a portion of it from the property of the people ". (Surah 2 Al-Baqarah: 188).
"Verily, Allah commands that you should render the trusts to those, to whom they are due..." (Surah 4 An-Nisa: 58)
"It is not for any prophet to take illegally a part of the booty and whosoever deceives his companions as regards the booty, he should bring forth on the Day of Resurrection that which he took (illegally) ". (Surah 3 Al-Imran: 161)
A number of Ahadis of Prophet Muhammad, peace be upon him, stated were also cited, including the following: "The signs of a hypocrite are three.-
(1) Whenever he speaks, he tells a lie.
(2) Whenever he promises, he always breaks it.
(3) If you trust him, he proves to be dishonest. (If you keep something as a trust with him, he will not return it.) "
Narrated by Abu Huraira, Allah be pleased with him. (Reported in Bukhari Book 2, Chapter 25, No,32).
Reliance has also been placed upon on the decisions of Hazrat Umar, may Allah pleased with him, contained in the book "Hazrat Umar kay Faislay" by Muhammad Abdullah Madni, published by Mushtaq Book Corner, At page 162 of the said book it is reported that the Rightly Guided Caliph was always concerned that those in authority may start to consider the people's money and property as their own and start to give preference to their relatives over the common people.
9. Mr. Nasrullah Achakzai, learned Additional Advocate General ("AAG") has opposed the instant petition on the following grounds:--
(1) Petitioners have no locus standi as they do not represent any registered madrassa, which has been deprived of the funds given to respondent No,4
(2) The funds allocated to respondent No,4 for the said project have been duly approved;
(3) The Government has complete discretion in the matter of allocation and disbursement of funds and none, including the petitioners, can question the same;
(4) The Government is confident that no misuse of funds will be made as the beneficiaries have won several elections;
(5) Mr. Muhammad Alam the petitioner in C.P. No,321 of 2009 has a personal grudge against Senior Minister Moulana Abdul Wasay, however, no particulars in this regard were provided;
(6) Section 5 of the Societies Registration Act, 1860 stipulates that the property of respondent No,4 vests in its governing body and not in any individual, therefore, there is no possibility of any misuse;
(7) Reliance was also placed upon Articles 22(3)(b) and Article 31 of the Constitution, which are respectively reproduced hereunder:- Article 22(3) (b):- "No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth,"
Article 31:- "Islamic way of life. - (1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah.
(2) The State shall endeavour, as respects the Muslims of Pakistan--
(a) To make the teaching of the Holy Qur'an and Islamiat compulsory, to encourage and facilitate the learning of arabic language and to secure correct and exact printing and publishing of the Holy Qur'an;
(b) To promote unity and the observance of the Islamic moral standard; and
(c) To secure the proper organization of zakat, ushr, auqaf and mosques.
9A. Mr. Kamran Murtaza, learned counsel for respondent No,4, submitted as under:
(1) The petitioners case neither falls under Article 199 (a) or (c) of the Constitution, which respectively stipulate that a petitioner must either be an 'aggrieved partyor 'aggrieved personand that the petitioners in these petitions are neither 'aggrieved partynor 'aggrieved personand therefore have no locus standi. In this regard reliance was also placed upon the following cases;-
(i) Associated Cement Cos. Ltd, v. Pakistan, PLD 1978 SC 151
(ii) Asadullah Mangi v. Pakistan International Airlines, 2005 SCMR 445
(iii) Shah Muqeem Press Club v. Chief Minister, PLD 2004 Lahore 38
(2) The petitioners have neither arrayed either the Chief Minister nor the Members of the Provincial Assembly who had respectively allocated funds from the Chief Minister's Special Initiative Programme and Peoples Representative Programme as parties and not impleading them is fatal to the petitions. In this regard reliance was placed upon Water and Power Development Authority/Lahore Electricity Supply Co. Ltd. v. Bhatti Ice and Rice Mills, 2004 YLR 1263, and M. Ramizul Haq v. Secy. to the Govt. of Pakistan, PLD 1992 SC 221.
(3) The references to the Holy Qur'an and Ahadis by the petitioners are uncalled for since the law of the land permits the Chief Mistier and the Members of the Provincial Assembly to allocate amounts from their respective funds and such law has not been struck down either pursuant to Article 277 or 203-D of the Constitution. However, learned counsel did not refute the relevance of the cited verses nor referred to any in rebuttal,
10. The primary objection to the maintainability of the petition, taken both by learned AAG and counsel for the private respondent, is with regard to the standing or locus standi of the petitioners and that they cannot resort to Article 199 of the Constitution as they are not personally aggrieved by the act of allocation of public funds for respondent No,4. The matter of standing and right to invoke the jurisdiction of the superior courts has been deliberated upon by the courts of both India and Pakistan and considerable case-law has now developed in both countries. In Pakistan petitions before the High Court are filed under Article 199 of the Constitution of Pakistan, whereas in India the same are filed under Article 226 of the Constitution of India. It would therefore be useful to reproduce the applicable provisions, from the Constitutions of both the countries. The relevant provisions of Article 199 of the Constitution of Islamic Republic of Pakistan stipulate as under:-- "199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.
(a) On the application of any aggrieved party, make an order
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any junction in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11.(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
The relevant provisions of Article 226 of the Constitution of India provides as under:- "226. Power of High Courts to issue certain writs. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose,
(2) The power conferred by clause (1) to issue directions, orders or writs to any government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such persons is not within those territories.
(4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32."
It will be observed that in material respects the provisions of the Constitutions of both countries are similar, however, there isn't any mention of the petition being preferred either by an 'aggrieved partyor 'aggrieved personin the Indian Constitution, Nevertheless, the Indian Courts have proceeded on the assumption that approach to courts is limited to those having locus standi, but then proceeded to hold that in respect of public interest litigation by 'public-mindedindividuals acting bona fide the rules of locus standi are liberalized and broadened. Accordingly, the interpretation of Article 226 of the Constitution of India by Indian Courts may be useful to consider.
11. In the case of S.P, Gupta v. Union of India, 1981 (Supp) SCC 87, amongst the other issues that were decided the matter of locus standi in respect of public interest litigation was also discussed. The petitions had been filed by advocates in the High Court assailing the manner in which judges were appointed to the higher judiciary under Article 266 of the Indian Constitution. The Supreme of India held that, "The court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public-minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theater of the law is fast changing and the problems of the poor are coming to the forefront. The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public-spirited individuals seeking judicial redress for ,the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief. It is in this spirit that the court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice."
"This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalizing the rule of locus standi that it is possible to effectively police the corridors of power and prevent violations of law."
"It is also necessary to point out that if no one can have 'standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the case of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law."
In Fertilizer Corpn. Kamagar Union v. Union of India, AIR 1981 SC page 354, it was held that that, "41. Law, as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation- happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.
In a separate note Krishna Iyer J. whilst concurring with the judgment delivered by Justice Bahagwati, that the petition was maintainable under Article 226, considered the question of public resources in the following words: "The handling of public resources a jurisprudential area of critical importance but of presidential barrenness and; therefore, all the more demanding in the developmental setting and social justice imperatives"
His separate note concluded in the following terms: "The democratization of judicial remedies which is the thrust of our separate opinion, induces us to conclude with a quote"
"'It was 'the boast of Augustus that he found Rome of brick and left it of marble, But how much nobler will be the sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter,found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence." [Henry Peter Brougham: Nieman Reports April 1956.]'"
In K. Ramakrishnan v. State of Kerala, AIR 1999 Kerala 385, a petition was filed before the High Court seeking to declare smoking of tobacco in public places as illegal and unconstitutional. The High Court accepted and allowed the 1wtition and directed various steps to be taken to ensure that smoking in public places does not take place. The court further held that the petitioners were free to move the court for further directions as and when deemed necessary. In the case of M.I. Builders (Pvt.) Ltd. v. Radhey Shyam Sahu, 1999 AIR SC 2468, petitioners assailed construction of an underground shopping complex that was to be built upon a public park. Three petitions were filed in the High Court and writ of mandamus was issued to restore the park back to its original position.
Aggrieved by the judgment of the High Court appeals were preferred before the Supreme Court, however, the judgments of High Court were upheld. It was further held by the Indian Supreme Court that every decision of the authority except judicial decisions are amenable to judicial review; as under:-- "Judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. As said earlier High Court rightly exercised its power of judicial review in the present case.
"The agreement smacks of arbitrariness, unfairness and favouritism. The agreement [between the builder and the local authority] was opposed to public policy. It was not in public interest. Whole process of law was subverted to benefit the builder."
12. In the case of Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507, an appeal was preferred before the Hon'ble Supreme Court of Pakistan assailing the judgment of the High Court of Sindh, which had dismissed constitutional petitions filed under Article 199 of the Constitution that had called into question the detention of a large number of people. The Supreme Court considered the question of standing and the ambit of powers of the High Court under Article 199 of the Constitution and held that the High Court was not justified in dismissing the petitions under Article 199 of the Constitution, holding that:-- "It needs to be kept in view that apart from the jurisdiction vested in the High Courts by virtue of clauses (a) and (b) of Article 199(1) a special jurisdiction is conferred by clause (c) which a High Court shares with the original jurisdiction of this Court under Article 184(3) in the following words:- 'On the application of any aggrieved person, make an order giving such directions to any person or authority, including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of trial Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part-II.'
"The power to enforce fundamental rights has been conferred upon the superior Courts through Articles 199(1) (c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void. Therefore, even in the absence of clause (c) any action by a person performing functions in connection with the affairs of the Federation, a province or local authority, inconsistent with fundamental rights is to be declared without lawful authority under the clause (a) of Article
199. "
"The reach of clause (c) however is wider. It not merely enables a Court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the courts to practically enforce such rights by issuing appropriate. directives as is evident from its language.
Accordingly, this Court after having earlier held that the fundamental rights guaranteed by Article 17 included the right of a political party to contest elections as a collective entity was able to issue mandatory directives in the case of Benazir Bhutto v. Federation of Pakistan reported in PLD 1989 SC 66 to the election authorities to amend the election rules to provide for the same under its powers to enforce fundamental rights under Article 184(3) of the Constitution. Moreover, such directives could be issued to any person including the Government. In the case of Peoples Union for Democratic Rights. v. Union of India reported in AIR 1982 SC 1473 it was held that though some of the fundamental rights imposed negative obligation on the part of the State not to encroach upon individual's liberty etc., there were others, which were positively enforceable against the wholeworld. We are therefore clearly of the view that the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties. Accordingly direction for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 1, 22 etc. 'which might in most cases require enforcement against such parties. "
In the case of Mobashir Hassan v. Federation of Pakistan, PLD 2010 Supreme Court 265, the Hon'ble Supreme Court struck down the National: Reconciliation Ordinance, 2007, as it was promulgated, inter alia, "not in consonance of Injunctions of Islamic and in terms of Article 227 of the Constitution" holding (at page 436 DDDD) that, "Thus for the foregoing reasons, we are of the opinion that the NRO, 2007 has been promulgated not in consonance with Injunctions of Islam in terms of Article 227(1) of the Constitution. We may add a word of caution since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even amongst the jurists and schools of Islamic sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions. These cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law. The Constitution remains supreme and the primary reason for striking down the NRO, 2007 has been its being ultra vires the express and stated provisions of the Constitution. The observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential, and inherent invalidity in the light of the other express provisions contained in the Constitution. The Primary touchstones remain the other provisions of the Constitution specified in the judgment."
The petitioner, Mr. Mubashir Hassan, was neither a beneficiary of the NRO nor had been denied its benefit and therefore in the narrow sense not 'aggrieved', but such purported lack of ('aggrieved) status did not impede his right to approach the court.
13. Through the petitions the petitioners have assailed the grant of millions of Rupees for the construction of a building complex that would house a private respondent (respondent No,4).
Admittedly, all the money comes from , public funds. Whilst the government has the discretion to spend money on what it deems as its priority, such discretion can only be exercised for the public welfare and it must be ensured that public funds are not diverted to private use and to serve private interests or utilized for extraneous considerations. The funds that are being utilized or are to be utilized come out of monies earmarked for the Chief Ministers Special Priority Programme or constitute a part of the Public Representative Programme Funds. Therefore, if a person, who has no personal interest and in the larger public interest comes forward and questions such spending the doors of the court should not be shut but rather kept open for him. Such a public spirited person, who has taken on himself the burden of expressing public outrage or grievance can be categorized as an 'aggrieved personin terms of Article 199 of the Constitution. He takes time out from his private life and puts in considerable effort guided by public zeal to take the matter to court. He is part of the public whose interest he represents, thus he too can be categorized as 'aggrievedeven in the narrow sense of the word. A person may not use the water of or fish from a river that is being polluted, but if a river which is in common use and for the benefit of the people, birds and or fish, is threatened by pollution he may be troubled and distressed and may want to preserve its integrity and ensure its use for the public at large, or even for the use of birds and fish. Such a person acting bona fide and in respect of public interest may rightly be categorized as 'aggrievedin terms of Article 199. A narrower application of the word 'aggrievedwould render nature and environment vulnerable and exposed to the ravages of unscrupulous elements. Moreover, scientists have now established the inter connectedness of things and how pollution of air, soil and water adversely affects human life too. The matter of utilization of public resources however is a matter which is even closer to public interest. Funds for the public exchequer are generated by different types of taxes paid by the people. The people are taxed and these taxes go towards providing the people with schools, colleges, hospital, dams, road, air p ports, etc. and provide them with various services.
There are great demands on the public exchequer and as such it must be ensured at all times that the monies from it are spent for public purposes. It is the right of people to know where, how and for what purpose public money is being spent and if anyone considers that the money spent is not being spent for a public purpose he can involve Article 199 of the Constitution.
14. The cases cited by Mr. Kamran Murtaza, learned counsel for respondent No,4 are of no relevance. The Associated-Cement case (supra) held that an 'enemy aliencannot claim to be an aggrieved party in terms of Article 98 of the Constitution of 19b2. It is however not the case of respondents that any of the petitioners herein are enemy aliens. In the Asadullah Mangi case (supra) the Hon'ble Supreme Court held that the appellants who were appointed conditionally as flight stewards and whose training had not been completed before placing of embargo for appointments placed by Pakistan International Airlines Corporation would not be considered aggrieved in terms of Article 199 of the Constitution. In the Shah Muqeem Press Club case the Lahore High Court inter alia decided not to exercise jurisdiction under Article 199 because there was a suit pending between the contesting parties in respect of the same subject matter and also because a factual enquiry in respect of disputed facts could not be undertaken whilst exercising constitutional jurisdiction. Both the said disqualifiers are admittedly not present in the instant petitions. The respondentsobjections that the petitioners are not 'aggrievedand thus cannot prefer petitions under Article 199 of the Constitution being without substance are rejected.
15. The respondent No,4 has also assailed the maintainability of the petitions on the ground that the Chief Minister and Members of the Provincial Assembly who allocated funds from their respective funds have not been arrayed as respondents and reliance has been placed upon the WAPDAand Ramizul Haq cases (supra). In the first case the petition was not entertained because the Electric Inspector, who issued the disputed bill, had not been arrayed as a party and on account of concurrent findings of fact by tribunals, below. The second case pertained to determination of seniority but despite specific direction that all necessary parties "must be impleaded" the petitioner failed to comply with the direction of the Hon'ble Supreme Court. However, in the instant petitions neither the Chief Minister nor the Members of the Provincial Assembly are necessary parties. Their allocation of funds from the public exchequer is also not one that involves their personal interest as, needless to state, such funds are not their personal monies. Moreover, to the extent of a Chief Minister and a Provincial Minister Article 248(1) of the Constitution stipulates that they "shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices," et cetera. The proviso to the said Sub-Article however enables, "Any person to bring appropriate proceedings against the ... province." There is thus no substance in the objection with regard to non-joinder of the Chief Minister, Minister and Members of the Provincial Assembly,
16. It is now left to be examined whether providing Rs,154.081 million or any other amount from the public exchequer to a private society for construction of buildings is legally and constitutionally valid or permissible. We also cannot be unmindful to religious, ethical and political dimensions to the case. Article 118 of the Constitution stipulates that, "118. (1) All revenues received by the Provincial Government, all loans raised by that Government, and all moneys received by it in repayment of any loan, shall form part of a consolidated fund, to be known as the Provincial Consolidated Fund."
(2) And that all other moneys---
(a) received by or on behalf of the Provincial Government;
(b) received by or deposited with the High Court or any other court established under the authority of the Province; shall be credited to the Public Account of the Province, Article 119 of the Constitution in turn provides that, "119, The custody of the Provincial Consolidated Fund, the payment of moneys into that Fund, the withdrawal of moneys therefrom, the custody of other moneys received by or on behalf of the Provincial Government, their payment into, and withdrawal from, the Public Account of the Province, and all matters connected with or ancillary to the matters aforesaid, shall be regulated by Act of the Provincial Assembly or, until provision in that behalf is so made, by rules made by the Governor,"
17. Therefore, the custody, payment, withdrawal and all matters connected with or ancillary to the Provincial Consolidated Fund and the Public Account of the Province are required to be "regulated by Act of the Provincial Assembly, or until provision in that behalf is so made, by rules made by the Governor." However, despite being given several opportunities we were not informed by the official respondents, the learned AAG nor by private respondents about the law and or rules governing the Chief Minister's Special Priority Programme and Public Representative Programme. In response to our queries (contained in Order dated 9-8-2010) we were informed that the Chief Minister's Special Priority Programme and the Public Representative Programme were "part of Provincial Consolidated Fund." If this were correct, which we very much doubt, then monies from the said programmes could only be expended for the purpose stipulated under Article 121 of the Constitution or utilized in the manner provided for in Article 124 of the Constitution. However, the respondents utilized monies (for the said project) contrary to the provisions of the Constitution. In the absence of any law/ rules governing the subject it does not follow that the Chief Minister and Members of the Provincial Assembly have unfettered, unbridled and absolute discretion to do what they so please with the people's money. To canvas such a proposition, as learned AAG and Mr.Kamran Murtaza learned counsel for private respondents have sought to do, would effectively make the Chief Minister and Members of the Assembly owners and not custodians of such monies, which proposition is violative of the language of Article 199 of the Constitution which uses the word "custody".
18. A custodian by definition is not the owner of money, goods and or property. Moreover, the Constitution of the Islamic Republic of Pakistan abhors what has been unabashedly canvassed by counsel for the respondents. The opening words of the Constitution stipulate, that the, "Sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust." Any claim of having absolute dominion over public funds also negates the concept of "sacred trust," that the Constitution unfolds with. A custodian or trustee of public monies charged with the responsibility of the disbursement of such monies must do so for the public welfare and if done otherwise it would be tantamount to depriving the people of their property, a deprivation which the Constitution categorically forbids (sub-Article (1) of Article 24).
19. With regard to the custody and trusteeship of public money the Constitutional Scheme fully accords with God's law. "Verily, Allah commends that you should render the trusts ('al-amanati') to those, to whom they are due" (Surah 4 An-Nisa:58). "O you who believe! Betray not Allah and His Messenger, nor betray your trusts (amanat')" (Surah 8 Al-Anfal: 27). "Let the one who is entrusted discharge his trust to him (amanathin') and let him fear Allah, his Lord" (Surah 2 Al-Baqarah: 283).
Amongst the signs of the believers in the Chapter of the same name (Surah Al-Muminun) is that they are, "faithfully true to their trusts ('amanathin') and to their covenants ('ahadihim')" (Surah 23 al-Mu'minum 8), which is reiterated in the Chapter entitled 'The Ways of Ascent(Surah 70 AlMaarij), 'And those who keep their trusts ('li amanatiim') and covenants ('ahadihim') (Surah 70 Al-Ma'arij: 32). The burden of the trust is so very great that when it was offered to the heavens and the earth and the mountains Almighty Allah informs us that they were afraid and declined to bear it, "but the human being bore it, as he is indeed unjust and ignorant" (Surah 33 Al-Ahzab: 72).
20. That over 154 million Rupees from the public exchequer are to be transferred for the construction of the said project, which comprises of classrooms, hostel, mosque, library, administration buildings, staff residence, boundary wall, water supply, sewerage system and other ancillary work. The ownership of the land on which the said project is to be constructed has not been disclosed, probably because such disclosure would not assist the respondents. What however is known is that the respondent No,4 was registered as a society and came into existence on the day of its registration, which was on 23rd November, 2009. It appears that registration was only secured to overcome one of the objections raised by the petitioner, that respondent No,4 was not registered and registration was the only condition stipulated in the Public Sector Development Programme for availing of funds by mosques and madrassas. However, the Government of Balochistan and Balochistan Development Authority ("BDA") (a statutory authority constituted under the Balochistan Development Authority Act, 1974) had decided to sponsor the said project before its registration. Through the publication on 18th May 2009 the Chairman BDA invited tenders for the construction of 'Jamia Dar-al-Aloom Balochistan,thus when the official respondents had publicly sponsored respondent No,4 it was at best an unregistered association and one which did not have any credentials in the field of education or of running a madrassa. These facts in themselves are sufficiently serious to censure the official respondents for permitting the diversion of public monies. It appears that public servants placed themselves in abject servitude to Ministers and political parties in government and forgot their duty to the State and its citizens. Quaid-e- Azam Muhammad Ali Jinnah addressed civil Officers as under:-- "You [civil officers] should have no hand in supporting this political party or that political party, this political leader or that political leader---this is not your business. Whichever government is formed according to the Constitution, and whoever happens to be the Prime Minister or Ministercoming into power in the ordinary constitutional course, your duty is not only to serve that Government loyally and faithfully, but at the same time, fearlessly maintaining your high reputation.
(Peshawar, 14th April, 1948).
Disregarding the Constitution, law and good governance principles and to appease Ministers and political parties in government for personal gain is a dereliction of their duty and tarnishes the image of public servants. The Nation's founder envisaged a very noble position for public servants: "Government servants, both Central and Provincial . . . . Yours is` a great responsibility. You must ensure that this Province is given, nor merely the ordinary routine services that you are bound to perform, but rather the very last ounce of selfless endeavour that you are capable of producing for your State. In the great task of building up this State, you have a magnificent opportunity."
(Broadcast, Radio Pakistan, Dacca, 28 March 1948).
But unfortunately the public servants involved in the said project merely distinguished themselves in their servile obedience to political forces and betrayed the public trust.
21. What however makes the tale ever more sordid is the fact that the Minister for Planning and Development Department of the Government of Balochistan himself "identified" the said project as per the Minutes of the Planning and Development Department meeting held on 9th May 2009. And admittedly the said Minister's brothers, sons and nephew comprise the governing body of respondent No,4, the beneficiary of the said funds. The said Minister in identifying the said project clearly disregarded the rules of propriety. Moreover, good governance demands that whenever a situation is presented to a person in an official position or one of trust, where he may be conflicted, he should excuse himself from any decision with regard thereto. In the instant case the conflict of interest principle is incorporated in the oath taken amongst others by a Minister before entering office. After reciting, "In the name of Allah, the most Beneficent, the most Merciful" a Minister is required to solemnly swear, "That I will not allow my personal interest to influence my official conduct or my official decisions" and further, "That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will. " It appears that the Minister for Planning and Development lost sight of his oath of office as his personal interest in respondent No,4 influenced his official conduct and decision and he favoured respondent No,4. The oath which a Minister concludes with the words, "May Allah Almighty help and guide me, A'meen"
22. Islamic Shariah also has rules governing charity ('sadqa'), gifts ('hadiya') and endowment ('waqf'). Something given for the sake of God with the intention of earning a reward in the Hereafter, considering the recipient to be poor and indigent, is categorized as charity. Whereas an offering meant to be an expression of love or brotherhood is a gift. However, whether charity or gift it cannot be given from money which is not one's own. A 'waqfis an endowment for a charitable or religious purpose and is a means of propitiation of the Lord, by the 'waqf(the person who makes the grant).
In the instant case there is no stipulation that the buildings et cetera which will be constructed from the donated money cannot be inherited, alienated, transferred or sold, Therefore, the amounts allocated for the said project can also not be categorized as a 'waqf'. Moreover, the donors who gave the money do not come within the definition of 'waqifbecause what they gave was not their own. None of the respondents have defended the allocation of funds to the said project alleging that the same constituted 'sadaqa'hadiyaor 'waqf'. They- simply and mistakenly contend that it was the right of the Chief Minister and the Members of the Provincial Assembly to disburse, spend and or allocate amounts from their respective funds as per their unfettered and absolute discretion, which neither the law, the Constitution of Pakistan nor the Islamic Faith permits.
23. Islamic tradition requires a very high level of conduct from anyone having dominion over another's money or property, Allah's Messenger, peace and blessings be upon said, "O people! God is pure Himself and accepts only what is pure" (narrated by Abu Huraira, may Allah be pleased with him , reported in Muslim, 1726/10), Prophet Muhammad, peace and blessings of Allah be upon him, set the standard when he would not even take land for the construction of a mosque and asked the Bani An-Najjar to "suggest me a price for the gaiden of yours" where the mosque was to be built when he came to Madina, (narrated by Anas bin Malik, Allah be pleased with him, reported in Bukhari, Book 55, Chapter 31, No 33). On another occasion he is reported to have said, "any person who takes a piece of land unjustly will sink dawn the seven earths on the Day of Resurrection" (Bukhari, Book 43, Chapter 14, 634).
24. "The observance of the Islamic moral standard" mentioned in Article 31(2(b) of the Constitution is the responsibility of each organ and authority of the State and of each person performing functions on behalf of an organ or authority of the State (Constitution, Article 29(1)). Learned AAG has also referred to Article 22(3)(b) of the Constitution, which provides that no citizen shall be denied admission to any educational institution receiving aid from public revenues on grounds of race, religion, caste or place of birth. Interestingly however learned A.A.-G. states that a non-Muslim Pakistani would not be entitled to be admitted to the said madrassa whereas the respondent No,4's counsel said he would be. We got similarly opposing responses upon enquiring whether a person professing adherence to a different sect or sub-sect ('maslak') than those on the Governing Body of respondent No,4 would be admitted. Leaving aside what may actually transpire the fact that there is no written stipulation in this regard leaves those running respondent No,4 free to act as they please. The Government functionaries displayed dereliction of their duty in this regard as well.
Allah's Messenger, peace be upon him, taught us that even if one sets out to do a good deed, likebuild a mosque, its important that no transgression takes place. Constructing a madrassa on one's own land from the people's money and retaining its possession oneself or through one's own family violates Shariah. The Almighty admonishes such transgressions. "Do you enjoin right conduct on others and forget to practice if yourselves" (Surah 2 Al-Baqarah: 44). "You who believe!
Save yourselves and your families from the fire" (Surah 66 A1-Tahrim:
61. "Do not keep calling yourself virtuous" (Surah 53 An-Najam: 32) and "They say with their mouths what is not in their hearts" (Surah 3 AI-Imran: 167).
25. Traditionally the establishment of madrassa had been in the form of a deed of endowment ('waqf') as a pious act by individual or individuals. The madrassa provided the physical structure for instruction and income to support teachers ('madarris'). It was the Saljuq wazir Nizam al-Mulk, who popularized the institution and his famous Nizamiyya in Baghdad became the model for madrassas. In the instant case the madrassa is owned by individuals who are close relatives. The proprietorship dimension of the madrassa, its management's affiliation with a religion-political party would also negate a number of Constitutional provisions, including safeguards against being taxed for propagation of a particular religion (Article 21), discrimination in the grant of benefits and access (Article 22), ensuring equality (Article 25(1)) and securing unity (Article 31(2)(b)). Affiliation of the madrassa with a political party makes it a political institution. If such a madrassa is permitted to receive public funds then every other political party too would be entitled to dip into the public exchequer. Disbursement of public funds to a private entity that lacks credentials, which is owned by the immediate family members of the Minister for Planning and Development, who selected the said entity as the recipient of such public funds is arbitrary, unfair, unreasonable and mala fide and constitutes favouritism and nepotism and therefore without lawful authority and of the no legal effect. And the failure of the official respondents to monitor the utilization of such funds, which they were required by law to do constitutes dereliction of duty.
26. Resultantly, we declare that allocation of public funds for the construction of the said project is without lawful authority, contrary to the Constitution of Pakistan, in derogation of Islamic principles and morally indefensible. We accordingly direct respondent No,4 to return all monies received by it from the Chief Minister's Special Priority Programme, Public Representative Programme and from any other public source or that have been spent on the construction of the said project from such public sources within ninety days failing which respondents Nos.l, 2 and 3 are directed to seek recovery of the same in accordance with law, including recovery of the same as arrears of land revenue. Respondents are further directed to report compliance through the Registrar of this Court.
The petitioners and the Registrar may move this Court for further directions in case of non- compliance.
27. The petitioners in Constitutional Petitions Nos.321 and 358 of 2009 are to be commended for invoking the jurisdiction of this court and for investing their time, money and effort in the public cause undertaken to protect public funds from misuse, therefore, the costs incurred by them shall be borne by the respondents. Copy of this judgment to be sent to persons mentioned in paragraph six (6), Chief Secretary and Finance Secretary, Government of Balochistan for information and as guidance in respect of disbursement of public funds. Petitions allowed in the aforesaid terms.