SHAHID JAMIL KHAN, J. Petitioner, in person, is aggrieved of not refunding an amount, which was deposited in compliance of Court's order as remaining consideration.
The petitioner filed a suit for specific performance, which was decreed initially but he failed before Lahore High Court and Supreme Court of Pakistan. On dismissal of petitioner's claim in the suit, the Apex Court upheld the direction for returning the earnest amount to the petitioner with profit at Bank rate. In compliance of the direction a cheque of Rs.10,50,000/- was issued, but was fraudulently encashed/withdrawn by the then Civil Nazar, Rana Ishtiaq Ahmad, who was dismissed from service on 15.09.2010 and died in the year 2011. The petitioner kept pursuing for return of the amount and eventually got order dated 27.07.2021 from the Civil Court, operative part of which is reproduced hereunder:- "2. As per office report the Treasury Officer, Lahore submitted a list of amounts withdrawn by Rana Ishtiaq Ahmad/Ex-Civil Nazar, Civil Courts, Lahore in which the amount of petitioner/Sheikh Akhtar Aziz is mentioned at serial No.25 (copy of list enclosed). The amount deposited by petitioner i.e. Rs.10,50,000/7 through challan form No.32-A dated 10.05.2007 was withdrawn by Rana Ishtiaq Ahmad/Ex Civil Nazar, Civil Courts, Lahore on 28.07.2007. A letter of request bearing No.1340 dated 30.10.2019 has already been issued to Hon'ble Lahore High Court, Lahore by my learned Predecessor Mr. Waqar Mansoor Baryar, Senior Civil Judge (Civil Division), Lahore with the request that the embezzlement committed by the aforesaid official i.e. Ex-Civil Nazar is loss to public exchequer, which is liable to be remedied by the Provincial Govt. through allocation of special funds for its onward disbursement to the aggrieved person.
3. Hence, petition stands disposed of. The petitioner be intimated accordingly. Office is directed to place the file on record."
[Emphasis supplied]
2. The petitioner argued that deposit of amount in the treasury, on Court's direction, is undisputed as is reflecting from the order, ibid, and was fraudulently withdrawn by the Ex Civil Nazar. He contended that petitioner had no role or concern with the fraud in question, therefore, amount is required to be returned to the petitioner after dismissal of suit for specific performance without any delay, hence this petition.
3. Learned AAG submitted that the matter has to be referred to Administrative Committee of Lahore High Court, Lahore. He produced report dated 29.03.2023 and submits that similar matter was referred by Human Rights Commission of August Supreme Court of Pakistan to Administrative Committee of Lahore High Court. Government of Punjab was directed for payment through the District and Sessions Judge, Lahore. Relevant paragraphs from the report are reproduced:- "Thereafter, matter was placed before Administration Committee of Hon'ble Lahore High Court, Lahore and following order was received vide letter No. 8207/DDJ/MNT/Ref 14/18 dated 27.04.2019, of Hon'ble Lahore High Court, Lahore "In adherence to the orders of the Hon'ble Chief Justice of Pakistan dated 03.05.2018 and 28.12.2018 passed in HRC Nos. 15468 P/2018 and 69570-P/2018 respectively, it was unanimously resolved that the Government of the Punjab be directed to pay an amount of Rs. 13.1 million to the legal heirs of the case through the concerned District and Sessions Judge after thorough verification. The said amount was deposited in Treasury in a Suit for Specific Performance and was withdrawn fraudulently. The Government may be informed that this may not be treated as precedent in future in any case."
Thereafter, budget of Rs. 13.1 million (13100000/-) was allocated for payment to applicant by Hon'ble Lahore High Court, Lahore vide letter No. 7294 dated 19.06.2021 (copy attached) and same was released in favour of Mst. Nabeela Saleem widow of Saleem Shahid, vide this office order bearing Endst No. 01/Others (Grant in Aid) dated 09.06.2021 Copies of relevant documents are attached."
[Emphasis supplied]
4. To verify facts of this case, a report was sought from Directorate of District Judiciary ("DDJ"), The D.G of DDJ appeared and explained the procedure adopted, earlier, for disbursement of amount to similarly placed person. He endorsed the facts of petitioner's case as recorded in order dated 27.07.2021, however, opposed the petition to the extent of any direction to the Administrative Committee, placing reliance on judgment Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others (PLD 2021 Supreme Court 391).
On Court's query, he did not deny that as per report by concerned Civil Judge, recorded in order dated 27.07.2021, petitioner is also entitled to similar treatment and relief as was given to Mst.
Nabeela Saleem in previous case on direction by the Administrative Committee. He, nevertheless, submits that the earlier direction or decision by Administrative Committee is not applicable to petitioner's case.
On another query, regarding responsibility to return the amount, he apprised that Civil Courts are fully under control of the Lahore High Court, but regarding financial matters it is dependent on the Provincial Government. He explained that salaries of the staff of Civil Courts are dealt with by Accountant General Punjab. Similarly, stamp duties and court fees collected through Civil Courts are deposited in State Treasury. The amount in question was also deposited in State Treasury on Court's order, which was fraudulently withdrawn by the Ex-Civil Nazir, therefore, the amount is required to be returned by the Government of Punjab.
5. Heard. Record perused.
6. August Supreme Court dealt with Nabeela Saleem's case on administrative side and referred it to the Administrative Committee of Lahore High Court. The direction by the Administrative Committee to the Provincial Government was also on administrative side. However, the procedure adopted for verification through District and Sessions Judge, discloses a fair and transparent procedure. The report, from District and Sessions Judge, confirming embezzlement of the amount and absence of any involvement by the claimant (Mst. Nabeela Saleem) was the basis for direction to Provincial Government for payment of the embezzled amount, which was paid accordingly, without any objection. It fortifies the stance of the DG that Provincial Government is liable to pay the embezzled amount, under the facts and circumstances.
7. In this case, the presiding judicial officers of the Civil Court have confirmed embezzlement of the amount in question and zero involvement of the petitioner. Despite observing that Provincial Government is liable to return the amount, the Civil Court has referred the matter to Lahore High Court.
8. In this Court's opinion, if each case of similarly placed person is referred to Administrative Committee of Lahore High Court, it would cause delay in dispensation of justice, as is evident from facts of the case. There are number of instances of similar embezzlement, and the effectees are remediless. There should be a definite procedure for such claims, to be adopted by the Court, which directed for deposit of an amount, during proceedings of a suit, because the fate of such amount has to be decided finally by that Court, during or on conclusion of the proceedings.
It is, therefore, held; if embezzled amount was deposited in treasury on court's direction, the same court, on an application by the claimant shall determine, whether the amount is embezzled, not paid to the party so entitled, and that the claimant has no role, direct or indirect in the fraud. In presence of these findings, the court shall itself direct the Provincial Government for payment of the amount to the entitled person, within given time. The embezzled amount, if recovered thereafter, shall obviously go to the State Treasury.
Since, the findings in favour of the petitioner are already there, therefore, Provincial Government is bound to pay amount of Rs.10,50,000/- to the petitioner. The Civil Court shall modify the order dated 27.07.2021 and direct, itself, to Provincial Government, in writing, for payment of the amount to the petitioner and shall ensure that its order is implemented.
9. The petition is allowed to the extent and in the manner noted above.