The petitioner has brought this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking a direction to the respondents to delete the name of his brother, Zahid Sarwar, from the Exist Control List and other related files/standing orders.
2. The prayer made in this constitutional petition cannot be granted for two reasons: Firstly, the instant petition has been filed under clause (1)(a)(i) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking order in the nature of writ of mandamus. In the case of Masudul Hassan v Khadim Hussain and another (PLD 1963 SC 203) the principles applicable to issue of a writ of mandamus have been stated as follows:
(i) "an applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought;
(ii) in order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty;
(iii) it is only in respect of a legal right that mandamus will issue;
(iv) the legal right to enforce the perform ance of a duty must be in the applicant himself The Court, will therefore only enforce the performance of statutory duty by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance".
In the light of above stated principle it is to be seen as to whether a legal right in respect of the prayer made in this petition exists in the present petitioner seeking a direction to the respondents to perform duty qua that right. I am afraid this foundation does not exist here. The documents appended with this petition suggest that the respondents have placed the name of Zahid Sarwar , on the ECL and other related files/orders. It means that a legal right, if any, exists in Zahid Sarwar and the petitioner or his authorization could file this petition. Since the petitioner has not placed on record any document conferrin g/ constituting the petitioner as attorney of Zahid Sarwar , the petitioner cannot be treated as aggrieved person to maintain this petition.
3. The other ground upon which this petition must fail is that the Hon'ble Suprem e Court in the case of District Magistrate, Lahore etc and Syed Raza Kazim (PLD 1961 SC 178) has held that the accepted conditions for grant of a writ of mandamus are that it must be preceded by a demand of justice and the refusal thereof and that there should be no other equally expeditious, in expensive and efficacious remedy available to the person seeking this extraordinary remedy . Being aware of this principle, I asked petitioner's counsel as to whether prior to filing of this petition any request was made before the respondents for redress of grievance voiced in this petition. He replied in the negative. In these circumstances prayer made in this petition cannot be allowed.
4. Dismissed.