Civil Miscellaneous No. 1 of 2015.
The main writ petition is pending since the year, 2009, which was filed by the petitioner-Institute of Islamic Culture, feeling deprived of not only a land measuring 2-kanals, 10-marlas, but also non- payment of any compensation against forcible takeover of the said land and further the discriminatory attitude, which was being adopted with the petitioner, when similarly placed bodies were compensated, although on the rates as were determined by the Government, itself, but the petitioner was even deprived from such compensation.
2. During the proceedings, when facts were being revealed, it transpires that, originally, when it was felt that to accommodate respondent No.3-Nazria-e-Pakistan Trust, a piece of land, in compact manner is required, the process of acquisition of land under the provisions of the Land Acquisition Act, 1894, was started in order to acquire the land of the Board for Advancement of Literature, Bazme-Iqbal and the petitioner-Institute of Islamic Culture; however, the acquisition process was decided to be dropped and reportedly as a result of the briefing of the then Senior Member, Board of Revenue, the Chief executive of the Province (Chief Minister) directed to take over the properties of the said bodies, including the petitioner.
3. The petitioner feeling deprived of not only its proprietary rights in the property, but also non- payment of any compensation against forcible takeover of its property, preferred this Constitutional petition before this Court.
4. By virtue of Annexure-5 to the writ petition, the position has been placed before the Court showing that the Government of the Punjab in Information Culture & Youth Affairs Department, on 28.05.2009, conveying the approval of the Chief Minister of the Punjab addressed to the Secretary, Nazaria-e-Pakistan to the following effect:- "An amount of Rs.14,25,00,000/- approximately may be paid equally to Board for Advancement of Literature and Bazm-e-Iqbal for their 02 kanals, 17 Marlas,187 Square Feet as per current market rate of Rs.25,00,000/- per marls."
5. The learned counsel for the writ petitioner while arguing this petition in 2015, has even shown the contentment of the petitioner to accept the rate of the property, which was determined by the Government in a unilateral manner in the year, 2009 viz. Rs.25,00,000/- per-marla, and when this proposal was put to the Provincial Authorities, an Additional Secretary from the Department of Information Culture & Youth Affairs, on appearance, has failed to commit on behalf of the respondents to arrange such payment for the petitioner against the taken over land of the petitioner and again submitted that, since it was on the Directive of the Chief Minister of the Province, who was briefed by the Senior Member of the Board of Revenue; therefore, no commitment was possible at the level lower than the sanctioning authority. It was then on 08.05.2015, this Court directed the Chief Minister Punjab and the then Senior Member Board of Revenue Punjab (Akhlaq Ahmad Tarar) to appear in person to show the justification of usurping the land of the petitioner in the name of Nazria-e-Pakistan Trust without payment of any compensation or market value thereof to the petitioner.
6. Such direction resulted in filing of the present Civil Miscellaneous claiming complete immunity for the Chief Minister in appearance before the Court of law.
7. The reply to such Civil Miscellaneous has been filed by the writ petitioner.
8. The learned Advocate-General Punjab with reference to Article 248 of The Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "the Constitution") to be read with Article 174 ibid, has argued that, a Province may be sued by the name of the "Province" and that the Chief Minister alongwith other Constitutional office-holders are completely immuned and protected from their personal appearance in the Courts.
9. The learned counsel for the writ petitioner has contested this Civil Miscellaneous on the ground that, the immunity to the Chief Minister is only available with regard to the exercise of powers and performance of functions of his respective office and no absolute immunity can be claimed.
10. Pakistan is a Republic as defined in Article 1 of the Constitution and as a will of the people of Pakistan to establish an order, the people of Pakistan being conscious of their responsibility before Almighty Allah; through their representatives in the National Assembly adopted, enacted and gave to them the Constitution, which by virtue of Article 2 provides that, Islam shall be the State religion of Pakistan. By virtue of Article 2-A of the Constitution, the principles and provisions set out in the Objectives Resolution have already been made substantive part of the Constitution. The Objectives Resolution provides that, sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised with the limits prescribed by Him is a sacred trust.
The Objectives Resolution further provides that, the principles of equality and social justice shall be fully observed, further that, the Muslims shall be enabled to order their lives in individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah, further that equality of status shall be guaranteed, the independence of the Judiciary shall be fully secured and a hope was expressed that, if such principles would be applied in the lives of the people of Pakistan, they will prosper and attain their rightful and honoured place amongst the nations of the World. By virtue of Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law, whereas, Article 25 provides equality of citizens and equal protection of law without their being any discrimination.
11. In view of such salient features of the Constitution, the people of Pakistan then handed over their fates in the hands of their elected representatives and some amongst those were protected from being answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.
12. The Chief Minister of the Province is amongst those Constitutional offices, who were protected by means of Article 248 of the Constitution, in the above manner and such protection is being claimed while order dated 08.05.2015 is prayed to be recalled.
13. The Hon'ble Supreme Court of Pakistan in case of Syed Yousaf Raza Gillani, Prime Minister of Pakistan vs. Assistant Registrar, Supreme Court of Pakistan and another (PLD 2012 Supreme Court 466) has authoritatively held as under:- "20. It is worth repeating here a hadith of the Holy Prophet (peace be upon him), which has become a part of the collective consciousness of the people of Pakistan. It expresses the spirit of equality enunciated by Islam which the Constitution refers to. A woman from a powerful Arabian tribe was found to have committed theft. The Holy Prophet (peace be upon him) was urged through some intermediaries to exercise restraint in her case because of her position in society.
The hadith gives a description of the Prophet's reaction to this suggestion. It was, to say the least, stern. He rejected this plea and, instead, issued a warning which all functionaries of the State would do well to pay heed to. He said: {{URDU TEXT}} Translation: O people, those before you were ruined because when someone of high rank among them (sharif) committed theft, they would spare him, but when a weak person from amongst them (zaeef) committed theft, they would inflict the prescribed punishment upon him." (Sahih Bukhari).
Similarly difference shown by a Qazi by rising from his seat when Hazrat Umar (R.A) appeared before him as a defendant was strongly disapproved by Hazrat Umar (R.A) on the ground it militated against the principle of equality under the law.
21. We need only give effect to this simple principle to repel the appellant's claim to a special privilege. In fact, the position which needs to be adopted, and which emerges from a close examination of the Constitution, is quite the opposite: the higher the constitutional office, the greater the onus of responsibility on the holder of such office. One reason for this is that a holder of Constitutional office is under this higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties "in accordance with the Constitution... and the law." The Prime Minister's oath also requires that he "will preserve, protect and defend the Constitution." Therefore, more stringent legal standards apply to him as compared to others who have not taken a similar oath. In other words, the Court has greater reason to be particularly concerned about the possibility of contempt having been committed by the appellant."
For ready reference, the Oath of the Chief Minister of the Province is reproduced herein-below:- "CHIEF MINISTER OR PROVINCIAL MINISTER [Article [130(5)] and (132(2)] I, ____ do solemnly swear that I will bear true faith and allegiance to Pakistan: That, as a Chief Minister (or Minister) of the Government of the Province of ..........| will discharge my duties and perform my functions honestly, to the best of my ability, faithfully, in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan: That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of Islamic Republic of Pakistan: That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will.
And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as Chief Minister (or Minister) except as may be required for the due discharge of my duties as Chief Minister (or Minister or as may be specially permitted by the Chief Minister).
May Allah Almighty help me and guide me (Ameen)." which clearly shows that a Chief Minister, after taking the Oath of the said office is bound to act in accordance with Constitution and law and will strive to observe the Islamic Ideology and will do right to all manner of people, according to law and without any favour, affection or ill-will.
The Hon'ble Judge of Supreme Court of Pakistan (Mr. Justice Ch. Ijaz Ahmed) has expressed his views in a right up on "Independence of Judiciary", after quoting a number of Verses from the Holy Qur'an about the impartiality of Judges, as noted hereunder:-.
"Hazrat Umar BinKhittab (R.A), the Second Caliph explained the principle that law was supreme and the judges must not be subordinate to the ruler. It is recorded that once a personal law suit was filed by a Jew against Caliph and when he as defendant appeared before the Qazi, the latter rose in his seat out of respect for the Caliph. Hazrat Umar (R.A) considered this action to be unforgivable on the part of the Qazi and severely censured him. Another incident in this context took place when Jablah bin Al-Aiham was the ruler of a State in Syria. He embraced Islam. Once he was performing Haj, a part of his gown was trampled over by a poor Arab (Beduin), Jablah gave him a slap. The Beduin retorted with a slap. The infuriated Jablah went to Caliph Umar (RA) to complain about it, but was told that he had already received justice. Thereupon, Jablah said the Beduin would have been hanged if he would have been in his country. The Caliph's reply was that a pauper and a prince were equal in Islam and that the Beduin did not do anything wrong. (18)."
The following quotation is an extract from International Journal of Business and Social Science, Vol.4 No.2: February 2013, published by the Centre for Promoting Ideas, USA, from the collection under the head of "The Concept of Independence of Judiciary in Islam" by Ata ur Rehman, Dr. Mazlan Ibrahim and Dr. Ibrahim Bakar:- "5.4 Head of the State Having no Immunity Islam does not allow any discrimination because of race, colour, language, and religious affiliation or social economic status. All the human beings, for the purpose of enforcement of law, are equal in the sight of Allah. In the same way, they must also be equal before a judge who decides their disputes even if one of the parties to litigation is head of the state and his opponent is his subject.
The companions of the Prophet (PBUH) used to observe strictly the equality among the litigants.
Once there was a dispute between Ubai Ibn Ka'ab and Umar the Caliph. Zayd bin Harithah was the judge. Zayd spread carpet for Umar and during proceeding requested Ubay Ibn Ka'ab to excuse the Caliph from oath. Umar noticed this injustice and sworn and said:- "He would never let Zayd to be a judge until Umar and an ordinary Muslims are treated equal by him". (Al-Waki, 108, 109).
This even indicates that Muslim rulers used to realize and respect the independence of their judges.
And they were so conscious about the integrity of their judges that if they showed some undue respect or favour to their rulers, they used to resist such distinctive treatment. Another famous case is that of Ali versus a Jew where the judge decided the case against the caliph. And the Jew got so impressed by the impartiality of the Islamic judiciary that he embraced Islam saying "Amir al- Mu'minin brought me to his judge and his judge decided against him, I stand witness that this faith is the true one and I bear witness that there is no God except Allah and Muhammad is his Apostle."
(Waki, 200).
14. We should feel pride that our Golden Principles of Islam are being quoted by the Centre working in non-Muslim societies. Instead of being proud, we on several occasions, feel ashamed of application of such principles upon ourselves, if we are given some status of high profile in the society.
15. Article 248 of the Constitution, itself, has not provided a complete and absolute protection or immunity to the Chief Minister from being answerable to any Court. Such protection is only available, if the President, Governor, Prime Minister, Federal Minister, Minister of State, Chief Minister or a Provincial Minister is required to answer for the exercise of powers and performance of functions or for any act done or purported to be done in the exercise of those powers and performance of those functions.
16. It clearly indicates that, where any such Constitutional officeholder exceeds to what has been assigned as a function relatable to such office, he would cease to enjoy such immunity or protection and the Courts working in Islamic Republic of Pakistan would be competent to direct such pubic office-holder to answer as to such excess of jurisdiction.
17. The learned Advocate-General Punjab, during his submissions, has indicated that, the mater may be resolved on administrative side without their being any direction to the Chief Minister Punjab for his personal appearance.
18. On such assurance, the personal appearance of the Chief Minister Punjab for 14.05.2015 is exempted, for the time being, and instead it is directed that the Chief Secretary Punjab will appear to answer the query as has already been raised in this petition, and it is made clear that, if the Chief Secretary Punjab would fail to satisfy the Court on the point involved in the petition, the Chief Minister Punjab will be required to appear in person on any future date.
19. This Civil Miscellaneous stands disposed of.