SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant constitutional petition in terms of section 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner, who is aggrieved of lodging of case FIR No,94, dated 14.03.2013, offence under sections 395, 397, P.P.C., registered at Police Station Saddar Muridke, District Sheikhupura, lodged on the complaint of Shehzad Ashraf son of Muhammad Ashraf, complainant, has approached this Court, in which husband of the petitioner has been arrayed as an accused.
2. As per averments of the instant constitutional petition, the complainant of case FIR No,94, dated 14.03.2013, offence under Sections 395, 397, P.P.C., registered at Police Station Saddar Muridke, District Sheikhupura has got some relations in the office of Ombudsman/respondent No,1 and under that pretext respondent No,1 is pressurizing the Investigating Officer in the police hierarchy of the district under the impulses of his office and as such endeavored to influence/interference in the matter of investigation, which otherwise is exclusively within the domain of police. The petitioner has prayed for indulgence of the Court with the following prayer:- "In view of above submissions, it is most respectfully prayed that this petition may kindly be accepted and intetfering of the respondent No,1 in the matter of investigation in the above said case may very kindly be ordered to be declared as without lawful authority and illegal.
' That it is also prayed that till final decision of this writ petition respondent No,1 may very kindly be ordered to be restrained not to interfere in the investigation. "
' In view of prayer made by the petitioner, this Court vide order dated 23.10.2013 issued notice to the State and report was requisitioned from respondents Nos.2, 3 and 4 especially to the effect whether any instructions qua investigation of the aforesaid crime report were ever issued by respondent No,
1. Report and para wise comments submitted by the District Police Officer, Sheikhupura, clearly reflect that the SHO, Police Station Saddar Muridke and Investigating Officer of the case were summoned by respondent No,1 and they attended the office of Ombudsman on 16.09.2013, 10.10.2013., 24.10.2013 and 12.11.2013 respectively. Registrar of the office of Ombudsman also submitted report and parawise comments thereby / agitating the issue while raising certain preliminary objections; wherein it has been stated that as the final order has not been passed by the office of Ombudsman, therefore, this Constitutional petition is not maintainable as it is hit by Section 32 of the Ombudsman Act, 1997 hereinafter to be referred as The Act, 1997". It was further urged that:-- "(i) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act;
(ii) to grant an injunction or stay or to make an interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Ombudsman."
' Finally it was prayed that the petition in hand being not maintainable is liable to be dismissed. ' lieeping in view the importance of the issue and clarity of law on the subject, this Court appointed Messrs Azam Nazeer Tarar, Shehram Sarwar Chaudhry, Muhammad Tariq Bashir Awan, Mian Aman Ullah Khan Chaughta, Azhar Iqbal, Abdul Qayyum Khan and Umar Sharif, Advocates, as amici curiae. Notice was also issued to Advocate General Punjab, who appointed Mr. Shan Gull, Additional Advocate General for his representation and accordingly, learned counsel for the parties, learned Law Officer, as well as, learned amicus curiae advanced their arguments.
3. The main crux of the issue agitated through the instant petition and elaborated by learned counsel for the parties revolves around the following spheres:--
(I) Area, extent and ambit jurisdiction of the Ombudsman.
(ii) The nature of recommendations given by the Ombudsman.
(iii) The question of ouster of jurisdiction contemplated by Section 29 of the Punjab Office of the Ombudsman Act, 1997.
The office of Ombudsman is a concept, which has long historical background according to which some historians might have an idea that it flourished in China during the Qin Dynasty (221 BC)
(Park, S. 2008: Korean Preaching, Han, and Narrative. The Roman Tribune had some similar roles, with power to veto acts that infringed upon the Plebeians. Another precursor to the Ombudsman was the Turkish Diwan-e-Mazalim which appears to go back to the Second Caliph, Umar (R.A)
(634-644) and as per 'concept of Qadi al-Qadat. (Pickl, v, 1987). "Islamic Roots of Ombudsman Systems" The Ombudsman Journal).
' According to Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in the Old Norse word umboosmaor, essentially meaning "representative". Its first preserved use was in Sweden. Moreover, the modern use of the term also began in Sweden, with the Swedish Parliamentary Ombudsman instituted by the Instrument of Government of 1809, to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch. As far as history in Pakistan is concerned, the word Ombudsman and its institution was introduced for the first time in Section 276 of the Interim Constitution of 1972, which relates to the appointment of a Federal Ombudsman (Waqafai Mohtasib). It was made part of the Constitution, 1973, which provides, for a Federal Ombudsman and the institution was eventually created through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President's Order No,1 of 1983), which is now a part of the Constitution of Pakistan by virtue of Section 270-A. It started functioning on 8 August, 1983. In Punjab, the office of the Ombudsman came into existence on the 30th September, 1996 through Punjab Ordinance No,XI of 1996, in order to cover the area of the province of Punjab.
4. As far as the preamble of 'the Act 1997' is concerned, it relates to an act to provide for the establishment of the office of Ombudsman in province of Punjab, which was published in the official Gazette of the Punjab (Extraordinary) dated June 30, 1997 through an Act of the Provincial Assembly of Punjab, the preamble of which reads as under:- "Whereas it is expedient to provide for the appointment of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through maladministration and suppressing corrupt practices. "
' In the Act, the mal-administration has been defined in the following terms:-- "(2) "mal-administration" includes:-
(i) a decision, process, recommendation, act or omission or commission which:-
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons: or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excess; and
(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities; "
5. Learned counsel for the petitioner while advancing her arguments submits that in the Act 1997, the office of Ombudsman has not only been classified rather its domain and functions have been clarified and there remains no ambiguity, at all, on this particular point. While referring to Section 9- A of the Act, !997, learned counsel for the petitioner urges that the clause has been placed by the legislature while drafting the Act that the office of Ombudsman cannot entertain or deal with any matter, which pertains to matter of investigation, inquiry pending sub-judice before any court of competent jurisdiction on the date of receipt of a complaint, reference or motion by him. While elaborating the jurisdiction of the Ombudsman, it has been argued by learned counsel that the domain of interference by the Ombudsman is available as disposal action when any person, who is aggrieved, has already exhausted all the remedies available under the law and the system thereto.
Learned counsel forcefully argues that even the order passed by the Ombudsman is of re commendatory nature and that cannot be termed as a judicial order. In this backdrop, learned counsel for the petitioner, forcefully emphasis that in the instant case the act of the Ombudsman to summon SHO/Investigating Officer of the case and issuing direction for giving a definite verdict is void ab intio, as such the same requires to be nullified by this Court while exercising inherent constitutional jurisdiction.
6. It is noteworthy that during the course of proceedings M/s Azam Nazeer Tarar, Shehram Sarwar Chaudhry, Muhammad Tariq Bashir Awan, Mian Aman Ullah Khan Chaughta, Azhar Iqbal, Abdul Qayyum Khan and Umar Sharif, Advocates were appointed as amici curiae, to assist the Court on the following points:--
(i) Area, extent and ambit of jurisdiction of the Ombudsman;
(ii) The nature of recommendations given by the Ombudsman; and
(iii) The question of ouster of jurisdiction contemplated by Section 29 of 'The Punjab Office of the Ombudsman Act, 1997.
' All the learned Advocates (amicus curiaes) on number of dates of hearing have rendered their valuable assistance to the Court. Mr. Azam Nazeer Tarar, Advocate, while taking the rostrum, has supported the scheme of law advanced by learned counsel for the petitioner. He submits that admittedly the office of Ombudsman is not a judicial office in stricto senso and neither the Ombudsman acts as a court/ tribunal nor his orders can be equated with those recorded by the judicial forums. While referring to Section 2(2) of the Act 1997, learned amicus curiae submits that the scope of the Ombudsman is only confined to evaluate the complaints regarding malpractice/maladministration of the public functionaries. He while referring to Section 9 of the Act 1997 submits that the are of the Ombudsman being very limited, the matters pending before the courts of competent jurisdiction are not entertain able by Mohtasib and in this regard the ouster clause enshrined in Section 29 of the Act, 1997, is of least importance. Learned Advocate further submits that had the order of the Ombudsman been a judicial one, there must have been a power vested with him to initiate contempt proceedings, which is completely ousted. He adds that there is abundant case law on the subject that the action undertaken by the Ombudsman is re commendatory in nature. Moreover, subsection (5) of Section 11 of the Act, 1997 was inserted in the Act 1997 to the effect that if recommendations of the Ombudsman are not complied with it shall be treated 'defiance of recommendations'. It is further argued that as it has come in the para wise comments submitted by the District Police Officer, Sheikhupura, regarding summoning of the SHO/ Investigating Officer by the Ombudsman on four different dates, this act on part of respondent No,1 cannot be given any legal sanctity and this Court is fully competent/empowered to exercise inherent jurisdiction under Section 199 of the Constitution of Islamic Republic of Pakistan, 1973, to cure this illegality. In order to strengthen the contentions dictum of law laid down in the cases of Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142), International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasini Authority through Secretary, Bin Qasim Authority (PLD 1992 Karachi 65) has been referred.
7. Mr. Shan Gull, Additional Advocate General, while taking rostrum on behalf of the Advocate General Punjab apprises the Court that the word 'Ombudsman' being a Swedish Origin, in the modern work firstly came into limelight in the year 1809. He further submits that at present over 100 countries all over the world, have established such a plate form. With reference to the Act 1997, learned Law Officer while referring its preamble urges that the intent of legislature to promulgate the same was primarily confined to safeguard the rights of the people in order to ensure adherence to rule of law; thereby diagnosing, redressing and rectifying any injustice done to a person through mal-administration for suppressing corrupt law. He, however, submits that the area, extent and ambit of jurisdiction of the Ombudsman is restricted according to the provisions of Article 9 of the Act, 1997. Adds that according to interpretation enshrined in the various judgments of the superior courts of the country, the ouster of jurisdiction contemplated by Section 29 of the Act, 1997 is commanded by Section 9. While referring to Sections 11 and 12 of the Act 1997 learned Law Officer emphasis that the action undertaken by the Ombudsman is re commendatory in nature and the public functionary of the authority is empowered to defer the recommendations if there exist exceptional circumstances; thereby giving sound reasoning. It is next argued that unlike judicial forums, the Ombudsma n has no authority to enforce his recommendations and at the most, he can refer the matter to the Government in terms of Section 12 of the Act 1997 and the final power to pass appropriate order rests with the executive. Regarding the matter in hand learned Law Officer submits that the investigation is the only prerogative of the investigation agency and even certain remedies are provided to the aggrieved persons within the police hierarchy, therefore, the complaint before the Ombudsman in this regard was but misconceived and any order passed thereupon can not be given any legal sanctity.
8. I have considered the arguments advanced by learned counsel for the petitioner, learned Law Officer, as well as, learned amici curiae and thrashed the record available on file.
9. In order to resolve the anomaly, the intent of legislature is evident from its preamble, which reads as under:-- "Whereas it is expedient to provide for the appointment of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through maladministration and suppressing corrupt practices. "
From the critical analysis of the preamble it seems that it is an immensely wide worded and all pervasive provision that encompasses possibly all and any instances of public wrong doings and omissions and any injustice in the public domain whenever any governmental agency i.e, government departments, emanations of the State, next step agencies of the government, statutory corporations, autonomous bodies, are accused of malpractice or corrupt practice. It is of much significance to note that the High Court and its subordinate courts and the Provincial Assembly are excluded from the definition of a governmental agency. If the contents of preamble are read in isolation and to the exclusion of the other provisions of the Act 1997 it would emerge that whenever and wherever a public functionary, performing functions in connection with the affairs of the Province is accused of maladministration or corrupt practice, the Ombudsman would have the necessary jurisdiction to rectify the injustice so caused; thereby protecting the rights of the people and uphold the rule of law. However, simple as it seems, this will lead to chaos resulting into a clash of jurisdiction, both in the terms of the Constitution and the law, with more than one forums clamoring for the same jurisdiction. For instance, the term 'maladministration' or 'corrupt practice' or their ingredients pretty much cover all ingredients and facets of Section 5 of the Prevention of Corruption Act, 1947, besides all attracting the scheduled offences of Pakistan Penal Code, 1908. It is, therefore, and this being intent of the legislature, that the widely worded all encompassing preamble has been qualified by other provisions of the Act. Most notable in the present context being the provisions of Sections 2(2), 9, 10, 11, 12, 13, 14, 16, 29 and 32 of the Punjab Office of the Ombudsman Act, 1997.
10. As far as the malpractice is concerned that has been defined in Section 2(2) of the Act 1997, which reads as under:- "(2) "maladministration" includes:--
(i) a decision, process, recommendation, act or omission or commission which:-
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons: or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and. Administrative excess; and
(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities; "
From the above, the term 'maladministration in the context of assumption of jurisdiction under the Act, 1997, means any instance, action, process, omission etc of a government agency rooted either in illegality, irrationality, procedural impropriety or dis proportionality adversely affecting the rights of a citizen, hence the same would be amendable through the jurisdiction of the Ombudsman.
11. In order to resolve this anomaly, it is of much significance to go through the spirit of the provisions of Section 9 of the Act 1997; which reads as under:- "9. Jurisdiction, functions and ,,powers of the Ombudsman.---(1) The Ombudsman may on a complaint by any aggrieved person, on a reference by the Government or the Provincial Assembly, or on a motion of the Supreme Court or the High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees.
' Provided that the Ombudsman shall not have any jurisdiction to investigate or inquire into any matters which:-
(a) are sub-judice before a Court of competent jurisdiction on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or Government; or
(2) Notwithstanding anything contained in subsection (1), the Ombudsman shall not entertain for investigation any complaint by or on behalf of a public servant of functionary concerning any matters relating to the Agency in which he is, or has been, working, in respect of any personal grievance relating to his service therein.
'From the above it is evident that the domain of Ombudsman with regard to matters of investigation is hedged and constrained by a rather broad proviso which denudes the Ombudsman from performing his jurisdiction to deal with an allegation that is sub-judice before a court of competent jurisdiction on the date of receipt of a complaint.
12. What is of immense interest in the present context is the proviso which only provides for the bar to be applicable if a matter is sub-judice on the date of the receipt of a complaint or reference. Now would this mean that, as in the present case, if a matter is taken up on a complaint of Ombudsman and then subsequently a court of competent jurisdiction takes its cognizance then would Section 9(a) of the Act 1997 not be applicable? This literal interpretation would indeed lead to anomalous results and, therefore, tantamount to defeating the intent of law/threshold the jurisdiction of the competent courts of plenary jurisdiction; thereby creating a system of parallel administration of justice outside the superintendence of the superior judiciary in violation of Section 175 read with Section 203 of the Constitution of Pakistan, 1973. It is in that backdrop that the word 'on the date' appearing in the proviso shall either have to be read down or the same shall have to be read as it is, so as to include even those matters that become subjunctive after the receipt of a complaint or reference by the Ombudsman. This is of the essence and imperative because the underlying aim of the proviso is to protect the general framework of the courts under the general law and thereby secure the independence of judiciary in terms of Section 175 of the Constitution of Pakistan, 1973. Even otherwise since the entire emphasis of this clause is on a matter that is sub-judice there is no fun in distinguishing the matter that becomes sub-judice after the filing of a complaint before the Ombudsman for the purpose of this clause since the underlying aim of this proviso is to protect and safeguard the incessant functioning of the regime of courts under the general law. If this course is adopted then the words 'on the date of shall have to be ignored as a case of poor draftsma nship. In either case clause 9(a) of the Act 1997 has to be harmonized with other provisions of the Act 1997. Therefore, will yield to be greater and much more Important concept of the sub-judice rule.
13. On the above point, this Court has gone through various judgments of the superior courts of the country out of which in the case of Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426); it has been held that where there are conflicting provisions on one point then such interpretation should be adopted which is more in consonance and nearer to the provisions of the Constitution.
' Relevant portion of the ratio decidendi reads as under:-- "Interpretation of Constitution ---Two provisions of Constitution conflicting with each other----Principles to resolve such conflict.
' If two provisions conflict with each other the Courts should first resolve the same by reconciling them. But if reconciliation seems difficult, then such interpretation should be adopted which is more in consonance or nearer to the provisions of Constitution guaranteeing fundamental rights, independence of judiciary and democratic principles blended with Islamic provisions. Thus it is the lesser right which must yield in favour of higher rights."
14. At the same time it is manifest to point out that subject to other relevant provisions, if the Ombudsman has got jurisdiction to entertain the matter regarding maladministration, at the most, he can forward recommendations and communicate the same to the dealing Agency along with certain remedial measures listed out in the spirit of Section 11 of the Act 1997. However, at the same time the recommendations of the Ombudsman are not binding, which is further evident from the provisions of Section 12 of the Act, 1997, wherein it has been provided that if any public servant of an agency/ department does not abide by recommendations of Ombudsman, he can only forward the matter to Government, and it is only Government which can finally direct Agency to implement the recommendations or not, and that too after hearing the public servant. Provisions of Section 12 of the Act, 1997 are reproduced herein below for ready reference.
"12. Defiance of recommendation.---(1) If there is a 'Defiance of Recommendations by any public servant in any Agency with regard to the implementation of a recommendation given by the Ombudsman, the Ombudsman may refer the matter to the Government which may, in its discretion, direct the Agency to implement the recommendation and inform the Ombudsman accordingly.
(2) In each instance of 'Defiance of Recommendations' a report by the Ombudsman shall become a part of the personal file or character roll of the public servant primarily responsible for the defiance."
'Provided that the public servant concerned had been granted an opportunity to be heard in the matter.
15. As far as the ouster clause of Section 29 of the Act, 1997, is concerned, the same would apply if order of the Ombudsman is well within four corners of jurisdiction allocated to him by Section 9 of the Act 1997. Reference in this regard can be made to the dictum of law laid down in the cases of Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 Supreme Court 498), Muhammad Aslam Khan v. Acting Wafaqi Mohtasib, etc. 1993 PLC (C.S.) 345 = PLD 1993 Kar. 41 and Amber Ahmed Khan v. Pakistan International Airlines Corporation, Karachi Airport, Karachi (PLD 2003 Karachi 405).
16. As far as the act of respondent No,1 with regard to summoning the SHO/Investigating Officer of the case in hand is concerned, admittedly the Provincial Ombudsman has got no jurisdiction to interfere in investigation, as there is a special mechanism provided under the Police Order, 2002, and rules made thereunder and keeping in view the ratio decided of august Supreme Court of Pakistan in the case of Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426) whenever there is a special law, it will override the general law. Moreover, as mentioned earlier even if there are two parallel laws, even then the law which is latter in time would prevail.
17. As far as the preliminary objections taken on behalf of respondent No,1 regarding maintainability of the instant constitutional petition is concerned, in view of land mark judgment in the case of International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority through Secretary, Bin Qasim Authority (PLD 1992 Karachi 65), this Court is vested with inherent power to rectify such an illegality.
18. Having examined all the facts and circumstances, this Court is persuaded to hold that the main domain of Provincial Ombudsman is confined to look into the matters involving maladministration; thereby making recommendations and proceed further in view of provisions of Sections 11 and 12 of the Act, 1997 but subject to provisions of Section 9 of the Act, 1997, which create a bar qua adjudication of the matters before the court of law, in view of guidelines enshrined in the ratio decidendi of august Supreme Court of Pakistan in the case of Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142).
' However, as it has come on record in the report and para wise comments submitted by the District Police Officer, Sheikhupura, that SHO/Investigating Officer were summoned by the Ombudsman regarding the investigation process of case FIR No,94, dated 14.03.2013, offence under Sections 395, 397, P.P.C., registered at Police Station Saddar Muridke, District Sheikhupura on 16.09.2013, 10.10.2013, 24.10.2013 and 12.11.2013, the same being the only prerogative of the investigation agency, it cannot be given any legal sanctity, therefore, the same hereby is set aside.
The Ombudsman/respondent No,1 is directed to remain within the bounded limits as provided in the law.
19. The instant constitutional petition succeeds in the above terms.
20. Before parting with the order, this Court is felt persuaded to applaud the valuable assistance rendered by the learned amici curiae particularly Mr. Shan Gull, learned Additional Advocate General, which no doubt helped this Court in determining the issue.