ABDUR RASHID vs THE STATE

' FAKHRUDDIN H. SHAIKH, J.-This is an appeal from the judgment, dated 6-2-1986 of Pirzada Atta Mohayud Din, Additional Sessions Judge II, Bahawalnagar, whereby the appellant was convicted of offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to suffer R. I. For four years, whipping numbering 15 stripes and to pay tine of Rs, 500 or in default of payment of fine to further undergo R.

L. For three months. Section 10(2) of the said Ordinance provided for whipping numbering thirty stripes as mandatory, hence we had issued suo motu notice for enhancement of this sentence.

2. The case of the prosecution was that on 19-2-1984 at about noon time Mst.Mahmooda, aged about 16 years, daughter of complainant Bashir Ahmad Ansari, was alone in her house situated in Tibba Chak No, 120/6-R, Tehsii Haroonabad. The appellant was her neighbour and used to visit her house. On the above date the appellant went to the house of Mst. Mahmooda and finding her alone seduced her to accompany him for a pleasure trip to Karachi. She willingly obliged the appellant and accompanied him. The appel:ant first took her to Canal Bank near Haroonabad in a bus and from there she was taken to village Daharanwala in Chak No, 45 Tibba It is alleged that she was taken to an uninhibited area and subjected to `Zina'. He then took her to the house of one Amanat Ali in Chak No, 63 and lodged her in a room of the house. There also he subjected her to `Zina'. On the third day the appellant took her to Shaheed Chowk in Haroonabad in order to board train for Karachi, but in the meantime police arrived there alongwith complainant Bashir Ahmad Ansari, the father of the prosecutrix. The appellant was arrested and she was rescued,

3. Earlier on 20th February, 1984 1, e. One day after disappearance of M t: Mahmooda front her house. Her father Bashir Ahmad Ansari had lodged report at Police Station Faqirwali. He had come to know through Ghulam Rasul and Bashir Ahmad s/o Barkat Ali that they had seen the appellant and Mst, Mahmooda going together near Railway Crossing of Chak No, 120/6-R. Ch. Nazir Ahmad, Inspector of Police was S. H.

0. Of Faqirwali Police Station. Which was ten kilometres away from the scene of offence. He had recorded the F. I. R. Of Bashir Ahmad Ansari and started investigation. He had arrested the appellant and sent him for medical examination. Mst. Mahmooda was also sent to lady doctor for medical examination. After completing the investigation the case was sent up for trial.

4. The plea of the appellant was that due to a surgical operation he was unable to perform sexual intercourse and that he has been implicated in this false case at the instance of P. W. (Ghulam Rasul. The appellant claimed that his father was an employee of Ghulam Rasul and that the latter wanted to pressurize his father to continue in his employment to which his father did not agree. He examined two witnesses in defence namely D. W. 1 Iftikhar-ul-Haq and D. W. 2 Dilawar.

5. In support of the prosecution case there is evidence of the following witnesses :- ' P. W. 1 Bashir Ahmad Ansari is father of the prosecutrix. He has stated that on the day of the occurrence he had gone out for work. He returned in the evening and found his daughter Mst.

Mahmooda missing. He enquired from his wife Mst. Naziran, who told him that she (Mst. Naziran) had gone to the house of her another daughter leaving Mst. Mahmooda alone in the house and that on return she found her missing. The complainant's further stated that he searched for his daughter when Bashir Ahmad son of Barkat Ali and Ghulam Rasul met him and told him that they had seen the appellant and Mst. Mahmooda near Railway Crossing. The complainant then went to the police station on the next day and lodged report. No question was put to the complainant in cross-examination to suggest that the father of the appellant was employee of Ghulam Rasul and that this case has been fabricated at the instance of Ghulam Rasul. On the contrary it was suggested that there was enmity between Bashir Zamindar and Ghulam Rasul. No connection, whatsoever, has been suggested between Ghulam Rasul and the complainant or between the appellant and Bashir Zamindar.

6. P. W. 2 is Mst. Mahmooda, the prosecutrix, has given the story as narrated above. She has stated that the appellant, who was her neighbour, had induced her to leave the house on the pretext of going to Karachi and that she was taken from place to place and subjected to `Zina'. On the third day she was rescued by the police and her father from the appellant. It was suggested in cross- examination to her that the appellant had undergone a surgical operation, to which she replied in the affirmative, but further stated that he was quite alright at the time of the occurrence. It was further suggested that the father of the appellant was servant of Bashir Ahmad Zamindar, which she admitted but this suggestion was quite contrary to the defence plea as set up during his examination under section 342, Cr. P. C., according to which his father was personal servant of P. W.

Ghulam Rasul and not of P. W. Bashir Ahmad. She had stated that she does not know whether there was any enmity between the said Bashi r and Ghulam Rasul. She has also denied that this case has been instituted at the instance of Ghulam Rasul. It has not been suggested as to how P. W. Ghulam Rasul is connected with the complainant.

7. P. W. 3 is Dr. Zohran Manzoor, who had examined Mst. Mahmooda on 22-2-1984. According to the lady doctor, Mst. Mahmooda was aged 18 years at the time of the examination. She found that her hymen was ruptured with old tears in the lower part thereof. Vagina admitted two fingers easily.

Two vaginal swa bs were taken and sent to the Chemical Examiner, Lahore, for detecting semen.

The report of the Chemical Examiner is positive. According to the lady doctor the prosecutrix was an old habitual case of sexual intercourse.

8. P. W. 4 Dr. Abdul Saboor, Medical Officer, R. H. C. Faqirwali had examined the appellant on 22-2- 1984 and found him potent. He also stated that the appellant had been operated for Hernia 20 days back. In cross-examination he stated that operation of Hernia takes 7 days to 15 days for complete healing and that the person can commit sexual intercourse after he is completely healed.

9. P. W. 5 Ghulam Rasul has stated that he and Bashir Ahmad son of Barkat Ali were coming to their village Faqirwali and that in the way they had seen the appellant and Mst. Mahmooda near the Railway Crossing. Later on he had told the complainant that he and P. W. Bashir had seen the appellant and Mst. Mahmooda going together near Railway Crossing. In cross-examination he admitted that the father of the appellant is personal servant of P. W. Bashir, but at the time of the occurrence he was not in his service. He denied that he (the witness) wanted to employ the father of the appellant, who had refused to serve him. He also denied that he has got this case filed against him through complainant Bashir Ahmad.

10. P. W. 6 is Bashir Ahmad, who has given the same evidence as P. W. Ghulam Rasul. No question was asked from him in cross-examination to suggest that the father of the appellant was personal servant of this witness or that P. W. Ghulam Rasul wanted to employ the father of the appellant.

11. The other witnesses are formal being the Investigating Officer and other police officials.

12. In his statement under section 342, Cr. P. C. The defence plea of the appellant, in his own word was as under :--- "My father was an employee of Ghulam Rasul P. W. Ghulam Rasul P. W. Wanted to compel him to continue in his service and in order to pressurize him Ghulam Rasul P. W. Has manoeuvered to get this false case lodged against me. There is also party faction in the village. I am innocent."

' There is no indication that the appellant's father was employed by P. W. Bashir Ahmad. It is not stated as to how Ghulam Rasul is connected with the complainant so as to prevail upon him to lodge a false case involving the chastity of his daughter. The appellant has also appeared as his cwn witness and given evidence under oath in which he stated that he is in service of Pakistan Army and had come to his village after undergoing an operation. He further stated that there was dispute between one Mst. Bhagan and his mother. It is not stated as to who was Mst. Bhagan. He further stated that P. Ws. Ghulam Rasul and Bashir Ahmad son of Barkat Ali had asked his father to serve them as private servant but his father had refused and due to this fact they had got enmity with him and that they had got him implicated in this case through the complainant.

13. D. W. 1 Iftikhar-ul-Haq stated that he was passing by the house of the appellant on the day of the incident when he found that the complainant and one Nabi Ahmad and Mujeed Ahmad were giving beating to the appellant and that thereafter they took him to the police station. The witness also went to the police station and told the police that the appellant was innocent. He further stated that during those days the appellant was unable to walk properly due to sickness and operation. Same is the statement of D. W. 2 Dilawar.

14. From the above evidence it would appear that there was no direct enmity between the appellant on the one side and complainant Bashir and his daughter Mst. Mahmooda on the other side. It has not been suggested as to whether complainant Bashir Ahmad was under the influence of P. Ws.

Bashir and Ghulam Rasul. Even the two defence witnesses produced by the appellant have not stated that there was enmity between the appellant and P. W.

3. Ghulam Rasul and Bashir nor they have stated that the complainant was under the influence of the-above P. Ws, due to which be would go to the extent of filing a false case involving the chastity of his unmarried daughter. We, therefore, do not find any substance in the defence plea, which is disproved even by the witnesses of the defence.

15. The learned counsel of the appellant has laid much stress on the point that the appellant was unable to perform sexual intercourse due to his operation of Hernia. Dr. Abdul Saboor has stated that this operation was effected 20 days back and that at the time of the examination the appellant was quite healthy. He further stated that a patient of such surgical operation is completely healed within a week or in any case within two weeks. This incident had taken place after about 20 days of the surgical operation. Hence we do not find that there was any difficulty for the appellant in committing sexual intercourse with Mst. Mahmooda.

16. The prosecution case is fully proved from the evidence of the prosecutrix which is corroborated by complainant Bashir Ahmad and Lady Dr. Zohran Manzoor. The vaginal swabs, which were sent by the Lady Doctor to the Chemical Examiner, also proved that the lady was subjected to sexual intercourse. We have, therefore, no reason to disbelieve M.St. Mahmooda, the prosecutrix that she was subjected to Zina by the appellant.

17. It was also alleged by the learned counsel for the appellant that the appellant was serving in Pakistan Army, therefore, he could not have been tried by an ordinary criminal Court by virtue of section 94 of Pakistan Army Act. In support of this plea he has relied upon the case of Iftikhar Ahmad Jamal v The State (1). This case does not help the appellant because while discussing the implications of section 94 of Pakistan Army Act, it was held as under in the above case :- "What I gather from the reading of Chapter V of the Army Act which deals with offences is that it speaks of two type of offences which are committed by army personnel. One is offences against the army discipline and the other is civil offences. In case a person subject to the Army Act, is accused of an offence against army discipline he is tried by a Court-martial. But where any army man is. Guilty of a civil offence it is not necessary that he should be tried by the Court-martial. To meet such an eventuality the Army Act under section 94 has conferred concurrent jurisdiction on both the Court-martial and ordinary criminal Court to try an army person guilty of a civil offence.

Section 94 has, however, only given a discretion to the Prescribed Officer to choose a forum for the trial of an accused belonging to the armed forces. This choice has perhaps been given to him to maintain army discipline. Therefore, the question of conferment of any jurisdiction by the Prescribed Officer on a Magistrate does not arise because the competent Magistrate has been so invested by the law itself. I am, therefore, not inclined to agree with the proposition propouned by the learned counsel for the accused that a Magistrate assumes jurisdiction only when the Prescribed Officer so decides since both the Magistrate and the Court-martial have concurrent jurisdiction to try an army personnel guilty of a civil offence. The authority reported in AIR 1945 Mad. 289 relied

(1) PLD 1983 F s C 221 upon by the learned counsel for the accused is not applicable inasmuch as in the reported case, no reference was made by the Magistrate under section 549, Cr. P. C. Whereas in the instance was such a reference was made."

In has not been pleaded that in the present case no reference under section 549, Cr. P. C. Was made by the trial Court to the prescribed officer. In the absence of any such plea, it shall be presumed that official acts have been performed in the normal course. We, therefore, hold that the trial does not suffer from any infirmity for non-compliance of section 94 of Army Act, 1952 and section 549, Cr. P. C.

18. Section 549, Cr. P. C. Is even otherwise not applicable to offence under the said Ordinance.

Section 3 of the said Ordinance provides that its provisions "shall have effect notwithstanding anything contained in any other law for the time being in force." So far as forum for trial of offences under the said Ordinance is concerned. Section 20 thereof lays down :- "Section 20.-(1) The provisions of the Code of Criminal Procedure, 1898, hereafter in this section referred to as the Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may,. If the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence.

' Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrat authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court."

' The said provisos shall override all other laws including the Army Act. Even application of Cr. P. C.

To cases under the said Ordinance, has been made subject to the provisos to section 20. A case under the said Ordinance has been made triable exclusively by a Court of Session. Hence the question of a reference to prescribed officer under section 549, Cr. P. C. In our view, does not arise, because the said proviso does not contemplate trial of an offence under the said Ordinance by Court-martial.

19. So far as the sentences of imprisonment and fine are concerned, there is no reason to interfere with the same. However, so far as the sentence of whipping is concerned, section 10(2) of the said Ordinance contemplates that the number of stripes shall be thirty. It does not say that the sentence of whipping may extend to thirty stripes. In the later case there would have been discretion on the part of the trial Court to award whipping numbering less than thirty. But the law provides that the number of stripes shall be thirty, which means that there is no discretion left for the trial Court to award less than thirty stripes, once conviction is recorded under section 10(2) of the said Ordinance. This being the legal position the sentence of whipping numbering fifteen stripes is less than the mandatory sentence of thirty stripes. We, therefore, enhance the sentence of whipping from fifteen stripes to thirty stripes. The appeal and the suo motu revision stand disposed of accordingly.

THE END ALL PAKISTAN LEGAL DECISIONS JOURNAL SECTION DIVORCED MUSLIM WOMEN AND MAINTENANCE DR. LUCY CARROLL Centre for South Asian Studies, University of Cambridge, England For divorced women Maintenance (should be provided)

On a reasonable (scale).

This is a duty. On the righteous. The Holy Qur'an' . . . . [A] large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children. Commission on Marriage and Family Laws2 Islam may, with at least some theoretical justification, claims to have been in the forefront several centuries ago in recognising the rights of women. Unfortunately, the rights theoretically granted to women by the Prophet of Allah have been denied in practice by both contrary customary observances and juristic interpretations. The question of maintenance for a divorced woman is a particularly poignant example. As a distinguished scholar and jurist has recently stated:- Qur'an gives special status to women; but in the standard projections of Islam this point is overlooked; and in some cases even explained away. For instance, Qur'an says that provision be made for the maintenance of divorced women apart from that provided for the period of iddat. But the juristic view prevailing is that this provision only. Requires a pair of clothes and food for one to three days!

The import of the clear commandment of Sura II, verse 241 has been cruelly restricted by an interpretation holding that the injunction only

1. Sura II, verse 241 (Yusuf Ali's translation).

2. Report of the Commission, Gazette of Pakistan, Extraordinary, 20th June, 1956, pp. 1197-1232, at p.

1215.

3. Khalid M. Ishaque, "Foreword" to Sabeeha Hafeez, Metropolitan Women in Pakistan. Karachi: Royal Book Co.. 1981, p. Xi, #TBS 2 JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. XX3CVIII #TBE applies to the iddat period. It is generally conceded that the husband is under some responsibility to his ex-wife during iddat, since she is prohibited from contracting another marriage during this period. Once iddat has expired, the ex-wife is free to remarry, and the assumption would appear to be that it is her fault if she fail, to find some other man to support her and to marry him immediately she is free from the constraints of iddat. It is difficult to reconcile this apparent assumption with the practical realities faced by a woman divorced at an age when the bloom of youth has faded; it is equally difficult to find Quranic support for the view that a husband's responsibilities toward his ex-wife terminate simultaneously with the expiration of iddat. Thirty years ago the (Pakistan) Commission on Marriage and Family Laws recommended that the Court be vested with authority to award maintenance to a divorced woman for life or until she remarried.' No action has yet been taken to implement this recommendation. Meanwhile, India has dealt with the problem of maintenance for divorced women by an alteration in the provisions of the Criminal Procedure Code concerning the summary jurisdiction of the Magistrate to order maintenance (albeit at a minimal level, i. e., maximum of Rs, 500 per month in India; Rs, 400 per month in Pakistan) for a neglected wife or child. In the course of re-enacting section 488 of the Cr. P. C. 1898 in section 125 of the Code of Criminal Procedure (Indian) 1974, an important "Explanation" was incorporated: - Explanation.-For the purposes of this Chapter-

(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Of course, a woman divorced under the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936, the (Christian) Divorce Act. 1869, or the Special Marriage Act, 1954 may also obtain ancillary relief from a civil Court. In these cases, the provisions of the Cr.

P. C. May afford immediate interim relief in desperate situations. There are, however, no provisions for ancillary relief in the Dissolution of Muslim Marriages Act, 1939, and, under the prevailing interpretation of Muslim law, a Muslim woman divorced extra-judicially cannot in a civil action claim maintenance from her husband beyond the iddat per od. Therefore, the provisions of the new (Indian) Cr. P. C. Are particularly beneficial to divorced Muslim women in impecunious circumstances. Perhaps predictably, there has been a considerable amount of litigation testing whether the new provisions can and do apply to Muslim divorcees. In 1979 and 1980 the Supreme Court of India upheld the application of the new provisions to Muslim women divorced by talaq.Z In 1981 the Supreme Court rejected an argument to the effect that the provisions of the new Code only applied to a Muslim woman who had obtained an extra-judicial

1. Supra note 2, p.

1215.

2. Bai Tahira v. Ali Husain Fissalli Chothia, AIR 1979 SC 362; Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730. See Lucy Carroll, "Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and ex-Wives," 1 (1981) Islamic and Comparative Law Quarterly 95-113. #TBS 1986 JOURNAL 3 #TBE divorce with her husband's consent (1. e., a wife who had been divorced by talaq or mubara and held that these provisions also entitled a woman who had obtained) judicial divorce under the Dissolution of Muslim Marriages Act to obtain maintenance from her ex- husband.'

Yet another case on the matter has recently come before the Supreme Court of India, this time before a bench of five Judges including the Chief Justice. Muha mad Ahmed Khan v. Shah Bano Begum2 was an appeal by the husband from the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs, 179 per month (enhancing the paltry sum of Rs, 25 per month originally ordered by the Magistrate). The parties had been married for forty-six years before the husband pronounced an irrevocable talaq. The wife had managed her husband's home for more than forty years, had borne and raised his five children, and was totally incapable of taking up a career and independently supporting herself at this late stage in her life. Remarriage was obviously an extremely remote possibility. The husband, on the other hand, was an Advocate with (as alleged by the wife) an income of approximately Rs, 60,000 per year. Yet he balked at providing less than Rs, 200 per month to the woman who had shared his life for nearly half a century, who was the mother of his children, and who was in desperate financial straits. Supported by the Muslim Personal Law Board, the husband argued that the question of how the woman was to maintain herself was irrelevant; he had fully discharged his responsibility toward her by providing maintenance during the three months of iddat and by paying Rs, 3,000 as mahr. One of the questions which the Supreme Court considered was whether there was a conflict between the provisions of section 125 of the new Indian Cr P. C. And those of Muslim law on the subject of the liability of a Muslim husband to provide maintenance to his divorced wife. The Court quoted passages from Mulla's Mahommedan Law, Tyabji's Muslim Law, and Paras Diwan's Muslim Law in Modern India to the effect that the wife's right to maintenance ceased on the expiration of iddat.

The Supreme Court,. However, concluded that the statements in the textbooks are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself."3 #TBS / I #TBE We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife.4 While the general textbook propositions regarding the ex-husband's liability under Muslim law were not concerned with the situation where the ex-wife was destitute, the Supreme Court was not concerned in the instant case ith "the broad and general question whether a husband is liable to

1. Mst. Zohara Khatoon v. Muhammad Ibrahim, AIR 1981 SC 1243.

2. (1985)2 SC C 556.

3. Ibid., p. 565; italics in source.

4. Ibid., p.

566. #TBS 4 JOURNAL ALL PAKISTAN LEGAL DECISIONS Vol.. XXXVIII #TBE maintain his . . . . Divorced wife, in all circumstances and at all events."1 The Court, and section 125 of the Cr. P. C., were concerned with the specific situation where a man having sufficient means failed or refused to maintain his ex-wife who was in desperate straits and unable to maintain herself. On this, the issue before it, the Supreme Court concluded that there "is no conflict between the provisions of section 125, and those of Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself. "2 In the late 19th century, the Privy Council' declined to go behind the classical texts to the words of the Qur'an itself:- Their Lordships on these authorities the [Hedaya and the Imameea] must hold that a Mahomedan widow is not entitled to maintenance out of her husband's estate in addition to what she is entitled to by inheritance or under his will. They do not care to speculate on the mode in which the text quoted from the Qur'an [Sura II, verse 240] . . . Is to be reconciled with the law as laid down in the Hedaya and . . . Imameea. But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the express ruling of commentators of such great antiquity and high authority.'

A full Bench of the Lahore High Court in 19645 expressly dissented from the position reached nearly seven decades previously by the Privy Council:- If a rule in a textbook of whatever antiquity and -high authority is in opposition to a clear injunction of the Qur'an or an n

1. (1985) 2 SC C 556.

2. Ibid. The Supreme Court also held that even were there a conflict between the provisions of the new Cr. P. C. And those of Muslim law, the former took precedence. Ibid., pp. 562-564.

3. Aga Mahomed Jaffer Bindaneem v. Koolsom Beebee, (1897) 24 1. A.

196. This case concerned the property of a deceased Shia Muslim who left a widow and collateral relations. The widow claimed that she was entitled to maintenance for a year following her husband's death as well as to her share of the estate. The Court of the Recorder of Rangoon had awarded her the maintenance in addition to her share as an heir on the basis of Ameer Ali's remarks (Personal Law of the Mahomedans, 1880, p. 369) concerning Sura II, verse 240: "Those of you who die and leave widows should bequeath for the widows a year's maintenance and residence." The Privy Council observed that Ameer All did not cite any authority for his statements, that counsel had been unable to adduce any, and that the Hedaya (Hanafi) and the Imameea

(Shia) both expressly stated that no maintenance was due to a widow from the estate of her deceased husband (except, possibly, if she were pregnant-a contingency which did not arise in the case before them). Thus the conclusion as set out in the text of this note.

4. Ibid., pp. 203-204.

5. Mst. Khurshid Jan v. Fazal Dad PLD 1964 Lah.

558. #TBS 1986 JOURNAL 5 #TBE authentic Hadith of the Holy Prophet . . . Then undoubtedly the latter shall prevail and it is the bounden duty of the Courts to ascertain the correct rule of decision . . .1 The Indian Supreme Court in the present case impliedly dissented from the Privy Council's approach and derived support for its restrictive interpretation of the general propositions found in the modern textbooks which it consulted by reference to the Qur'an, particularly Sura II, verse 241, with which I commenced this essay. Quoting the Qur'an in Arabic and in several English translations, the Supreme Court expressed itself in no doubt "that the Qur'an imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife."2 Indeed, "the contrary argument does less than justice to the teachings of the Qur'an."3 Concluding remarks There are two distinct sets of problems associated with the question of the Muslim wife's right to maintenance under Hanafi law :-

(1) the problems arising from the traditional interpretation which holds that arrears of maintenance are not recoverable; a nd4

(2) the problems arising from the traditional interpretation which holds that maintenance is only payable following a divorce for the duration of the period of iddat. Ironically, while India, through the provisions contained in the new Cr. P. C., has dealt with the latter problem, Pakistan has equally dramatically dealt with the former. Section 9 of the Muslim Family Laws Ordinance 1961 introduced a simple and expeditious procedure by which a neglected wife may obtain maintenance from her husband. If a husband "fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably," the wife may apply to the chairman of the local council.

Upon receipt of such an application, the chairman is to constitute an arbitration council composed of himself and a representative of each of the spouses. The arbitration council has the power to issue a certificate specifying the amount which the husband shall pay as maintenance. If the husband fails to remit the maintenance as ordered, it will be recoverable as arrears of land revenue. Although the Commission on Marriage and Family Laws had recommended that a wife be permitted to claim past maintenance for a period of at least three years preceding the institution of her proceedings for maintenance,3 section 9 of the Ordinance made no mention at all of past

1. Ibid., p. 367; per Muhammad Yaqub Ali, J.

2. Supra note 7, p.

568.

3. Ibid.

4. Note that under Shafi (as also Shia) law arrears of maintenance, whether occasioned by financial embarrassm ent or by neglect, constitute a legal debt on the husband and may be recovered by the wife. See e. g. Kozhikoti Khadir Palliveetil Mohamed Haji v. Moideen Veettil Kalimabi, (1918)

1. L. R. 41 Madras 211-a case concerning a Shafi wife's suit for arrears of maintenance and decided according to Shafi doctrine.

5. Supra note 2, p.

1220. #TBS 6 JOURNAL ALL PAKISTAN LEGAL DECISIONS 'VOL. XXXVIII #TBE maintenance. Significantly, however, the award of arrears of maintenance was not specifically prohibited by the terms of the Ordinance as it is by the express terms of the Cr. P. CI In 1972 the Supreme Court of Pakistan' endorsed earlier decisions of the Lahore High Court' in which arrears of maintenance awarded to a neglected wife by an arbitration council had been upheld. These cases concerned maintenance applications under section 9 of the Muslim Family Laws Ordinance; however, what was involved was the interpretation of the applicable Muslim law and not merely the interpretation of the provisions of section 9 of the Ordinance. There was, therefore, no reason why the principles laid down in these decisions would not be equally applicable to the award of arrears of maintenance in ordinary civil proceedings. This assumption was confirmed by a decision of the Quetta High Court' upholding the decision of a Family Court awarding arrears of maintenance to a neglected wife who had brought a civil action rather than making an application under the Muslim Family Laws Ordinance.

I most sincerely hope that scholars and jurists in India will give their most serious consideration to the question of the Hanafi wife's right to recover arrears of maintenance. I equally sincerely hope that scholars and jurists in Pakistan will give their most serious consideration to the question of the Muslim Wife's right (vouchsafed to her by no less an authority than the Qur'an itself) to receive a fair and equitable maintenance from her ex-husband following a divorce and the expiry of the period of iddat.

1. "Such [maintenance] allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance." (Cr. P. C. 1898), s. 488 (2). No comparable provision is found in the Muslim Family Laws Ordinance, 1961.

2. Muhammad Nawaz v. Mst. Khurshid Begum, PLD 1972 SC 302. See Lucy Carroll, supra note 5.

3. Sardar Muhammad v. Mst. Nasima Bibi, PLD 1966 Lah.

703. ,See also Rashid Ahmad Khan v. Mst. Nasim Ara, PLD 1968 Lah.

93.

4. Mst. Gul Bibi v. Muhammad Saleem PLD 1978 Quetta 117.

WAFAQI MOHTASIB (OMBUDSMAN)-A PANACEA FOR MALADMINISTRATION By Ross MASUD Director, Wafaqi Mohtasib's Secretariat, Regioual Office, Lahore The objective of establishing the office of Wafaqi Mohtasib (Ombudsman) has been spelled out in the Preamble to the President's Order No, I of 1983, which reads as follows :- "Whereas it is expedient to provide for the appointment of the Wafaqi 1986 JOURNAL Mohtasib (Ombudsman) to diagnose, investigate, redress and rectify any injustice done to a person through maladministration."

2. The term "maladministration" is, therefore, of crucial importance in the determination of the jurisprudence of the institution of Wafaqi Mohtasib (Ombudsman).

3. Before we indulge in a legal analysis of the term "maladministration", however, it would be useful to make some general observations about the institution of Ombudsman: its origin, evolution and implantation in the Anglo-Saxon System of Law and in our own country.

4. The institution of Ombudsman is a Scandianavian innovation. Sweden was the first country to establish the institution in 1809 and the other countries of Scandianavia as well as other parts of the world followed suit. In countries where Anglo-Saxon system of law prevails, the institution of Ombudsman is a new-comer. In fact, till a quarter of century back, few people in the U. K. Had heard of the institution as observed by Professor Frank Stacey.' In Pakistan the institution started functioning only last but one year.

5. As our legal system as well as administrative machinery is largely based on the pattern of the U.

K. The experience of Parliamentary Com:- missioner for Administration of that country and similar institutions of all other countries of Commonwealth is probably the most relevant to our situation.

This does not, however, mean that we should not study the experience of countries with Civil Law system having similar institutions.

1 For even the British authorities have started appreciating the contribution of the Continental System of law to the development of principles of Administrative Law. The French Droit Administratif developed under the that the Executive was responsible to ornament which was sovereign. The doctrine of Ministerial Responsibility was conside ed to be the corner stone of the British Constitution. With the growth of State power, however, the Executive gradually gained ascendency and the party system ensured that, bills are prepared by the Government departments themselves and are in anything but the last resort, the Government controls Parliament. The law developed in Anglo-Saxon System as part of their ordinary law developed by ordinary Courts. The Conseil d'Etat has, for example, shown itself more responsive to the demand of justice in respect of financial comcontrol of Judicial Wing of the Conseil d'Etat is probably more suited to take account of the pace of growth of State powers than the administrative pensation than the English Courts that have shown reluctance to do so-as is observed by Lord Wilberforce.2

6. Under classical analysis of British Constitution, it was presumed driven through Parliament by the party whips without due consideration. Many important matters like restriction of legal remedies, mushrooming of statutory tribunals got enacted without detailed comments in either House as to their legal consequences, Traditionally the Executive was accountable to Parliament and this was ensured through Parliamentary questions and debates etc. In the modern times, however, these processes are too I. "The British Ombudsman" by Frank Stacey, p.

3.

2. Hoffman La Roche & Co. v. Secretary of State for Trade and Industry (1975) A C 295. #TBS 1. R. V. Inland Revenue Commissioner exp. National Federation of Self-Ernninved and Small Businesses Ltd. (1982) A C 617, #TBE JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. XXXV III cumbersome to ensure Parliamentary control of the day to day Government and it is only occasionally that cases, with political appeal, comeup for debate in Parliament under these processes. Administrative Justice demanded that there should be a regular, efficient and non- political machinery for investigating individual complaints against governmental acts of all types including the acts of subordinate officials. About accountability to Parliament Lord Diplock observed in a recent case' as follows : "It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of Central Government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of justice for the lawfulness of what they do and of that the court is the only judge."

7. The Judicial control of administrative action, however, was not considered to be adequate to ensure administrative justice, as it was felt that there was a need for a machinery for investigating individual complaints against governmental actions of all kinds on day to day basis without the cumbersome and time consuming procedure of Courts. It was against this background that the Parliamentary Commissioner for Administration was established in the U. K. In 1967. The method of investigating complaints adopted by the Parliamentary Commissioner has some major advantages over the parliamentary process of accountability like its impartiality and its non- political nature as well as its ability to penetrate behind the screen that the doctrine of Ministerial Responsibility otherwise interposed between Parliament and Government departments.

8. In any case, this is a topic which has gained importance in view of the over expanding role of administration. As the administration by officials goes on expanding so do the cases of maladministration. In a country like ours where the Government plays a leading role in the over all economic development of the society and tends to over-play its regulatory role, the dimensions of the problem of maladministration are bound to be more extensive than in most of the developed countries where the institution of ombudsman is functioning today.

9. Some maladministration is bound to crop up from the intrinsic nature of the administrative machinery. For example, the development of extensive and complicated sets of rules in order to ensure fair treatment of all citizens results in filing of large number of forms and extensive file keeping. This also produces an attitude of being meticulous, careful, cautious and correct in the consideration of citizen's claims which in turn results in delays. Similarly, in order to safeguard the public treasury and to ensure that the tax payer's money is rightly spent and not wasted or misused, complicated procedures may be devised to ensure orderlines and regularity in the public accounts and in the authorising of expenditure. This would naturally result in delays. This growth of complex and extensive procedures also results in general ignorance amongst the citizens about the correct procedures. #TBS 1. Whyatt Committee, The Citizen and the Administration The Redress of Gilley-, ances A Report by "Justice" (Stevens, 1961). #TBE 1986 JOURNAL

10. Another factor which can cause maladministration is the level of ability of Government officials; if their abilities are lower than what is required for the task they have to performs, errors in administration are bound to result. In order to judge where an official has indulged in negligence, the test applied is : is it shown quite clearly that there was a departure from the ordinary competence of a reasonable person exercising this particular skill to such an extent that the departure must be regarded, in common sense, as deserving condemnation beyond mere criticism ?

11. In determining what constitutes maladministration, two broad approaches can be adopted depending on how one visualises the rule of administration. In case one considers that the rule making and adjudication by administrators is a part of administration, then the scope of the term maladministration would get widened. On the other hand, if one excludes these functions of administrator from the concept of administration, the scope of the term maladministration would get more confined. From the definition of the term maladministration given in the Presidential Order No, 1 of 1983, it appears that these functions of the administrator are included in the concept of administration and their actions in these areas could fall within the scope of the term maladministration under Article 2 clause (2) sub-clause (ii).

12. It may be added here that there can be two points of view about what amounts to maladministration while examining actions that are in conformity with the rules. According to one view, if an official is carrying out his duties in conformity with the rules, it is no matter how unjust are the results, no question of maladministration arises. This point of view was, in fact, adopted in the Whyatt Report( named after Sir John Wii3att former Chief Justice of Singapore. The other point of view is that there are two possibilities depending on the nature of rules. If the rules are contained in an Act of legislature, the official may have no alternative but to indulge in maladministration. He can, however, interpret law to avoid or diminish the unjust consequences of the law as far as it lies within his powers. The ultimate remedy in such a case, however, lies in going back to the legislature. On the other hand. If the rule is one made by the officials under powers delegated by the legislature or a departmental rule the remedy can lie against the officials or the department.

13. Another angle to look at the scope of the term maladministration is with reference to the legality of an action. It is true that an official's action which violates law falls within the scope of the term 'maladministration'. The failure to carry out the. Duty imposed by law or go beyond powers conferred by law or to use powers conferred by law for a purpose for which it was not intended or not to follow procedures laid down by law to prevent arbitrary or unreasonable decisions would all amount to maladministration without any doubt. Normally actions motivated by bribery, jobbery, favouritism, nepotism etc. May amount to illegal actions.

14. In a large number of cases, however, the officials may be influenced to act or not to act, where they have discretion under the law, and such action or omission would amount to maladministration if motivated by these considerations. In addition delay, unfairness, bias, incompetence, high handedness etc. May amount to maladministration even when the action complained against is not illegal. #TBS 10 JOURNAL ALL PAKISTAN LEGAL DECISIONS VoL. XXXVIII #TBE

15. Having made these general observations, we may now come to the text of the law. The President's Order No, 1 of 1983 defines the term `maladministration in Article 2 clause 2 as follows : " 'maladministration' includes, - (0 a decision, process, recommendations, act of 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, 0.1 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 excesses; and

(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities."

16. This definition is patently not exhaustive and only enumerates certain instances of maladministration without claiming to define the term in a comprehensive manner. The U. K.

Parliamentary Commissioner Act 1967, on which our law is largely based, too does not define the term maladministration.

17. In a recent case' concerning a Local Commissioner, the Court of Appeal of the U. K. Expressed opinions about the term maladministration which are relevant for the Parliamentary Commissioner for Administration of that country as well as for us.

18. Lord Denning in that case, while discussing the Parliamentary Commissioner Act 1)67 and the Local Governmmt Act 1974, said that the governing words of each statute are the same; there must be a written complaint by or on behalf of a member of the public who claims to have suffered injustice in consequence of maladministration. He continues "but Parliament did not define the term 'maladministration'. It deliberately left it to the Ombudsman himself to interpret the word as best he could; and do it by building up a body of case law on the subject. Now the Parliamentary Ombudsman, Sir Edmund Compton, has acknowledged openly that he himself gained assistance by looking at the debates in Parliament on the subject. He looked at Hansard and, in particular, at a list of instances of maladministration given by Mr. Corssman, the Lord President of the Council. It is called the 'Corssm an Catalogue'; and is used by the ombudsman and his advisers as a guide to the interpretation of the word. Now the question at once arises: Are we the judges to look at Hansard when we have the self-same task? When we have ourselves to interpret the word 'maladministration'. The construction of that word is beyond doubt a question of law. According to the recent pronouncement of the House of Lords in, Davis v. Johnson2 we ought to regard Hansard as 111411.1111.1-

1. R. V. Local Commissioner for Administration for the North and East Area of England, Ex-carte Bradford Metropolitan City Council. (1979) QB 287.

2. (1978) 2 W L R 553.

19)36 JOURNAL 11 a closed book to which we as judges must not refer at all, not even as an aid to the construction of statutes.

19. By good fortune, however we have been given a way of overcoming that obstacle. For the ombudsman himself in a public address to the Society of Public Teachers of La , quoted the relevant passages of Hansard' as part of his address: and Professor Wade has quoted the very words in his latest book on Administrative Law.2 And we have not yet been told that we may not look at the writings of the teachers of law. Lord Simonds was as strict upon these matters as any Judge ever has been but he confessed his indebtedness to their writings, even very recent ones: see Jacobs v. London County Council.3 So have other great judges. I hope, therefore, that our teachers will go on quoting Hansard so that a judge may in this way have the same help as others have in interpreting a statute.

20. So, this is the guide suggested to the meaning of the word 'maladministration'. It will cover 'bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.'

It 'would be a long and interesting list,' clearly open-ended, covering the manner in which a decision is reached or discretion is exercised; but excluding the merits of the decision itself or of the discretion itself. It follows that 'discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded': see Hansard.4

21. In other words, if there is no maladministration, the ombudsman may not question any decision taken by the authorities. He must not go into the merits of it or intimate any view as to whether it was right or wrong. This is explicitly declared in section 34 (3) of the Act of 1974. He can inquire whether there was maladministration or not. If he finds none, he must go no further".

22. Lord Justice Eveleigh in the same case expressed his views about the term maladministration.

He says that 'maladministration' "according to the Shorter Oxford English Dictionary means 'faulty administration' or 'inefficient or improper managemeut of affairs, esp. Public affairs". He goes on, "Section 34 (3) of the Act reads : `It is hereby declared that nothing in this part of this Act authorises or requires the Local Commissioner to question the merits of a decision taken without maladministration by an authority in the exercise vested in that authority'."

(Counsel for the Council) says that the matters complained of were the result of decisions arrived at with authority and that the complaint in effect seeks to question the merits of the decision or decisions. . . .

23. Action that is taken may or may not be the result of a particular administrative decision. If it is an act that is complained of I do not think that the Commissioner can be denied the right to investigate merely by contending that the act is the result of a decision. When the party alleges injustice as a result of administrative action which the party claims is faulty the Commissioner may investigate. In the course of that investigation he may come across a number of decisions that have been taken.

1. 734 H. C. Deb., col. 51 (18th October, 1966),

2. 4th ed. (1977), p.

82.

3. (1950) A. C. 361, 374.

4. 734 H. C. Col. 51.

JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. XXXVIII Section 34 does not say that he may not investigate those decisions. It says that he may not question the merits of a decision taken without maladministration. It will often not be possible to say if a decision was taken with or without maladministration until it has been investigated. That is the whole purpose of the role of a Commissioner. It is to investigate what has gone on in administrative quarter so that members of the public can be satisfied that public affairs are properly conducted. I, therefore, do not think that section 34 provides any obstacle. If the Commissioner carries out his investigation and in the course of it comes personally to the conclusion that a decision was wrongly taken, but is unable to point to any maladministration other than the decision itself, he is prevented by section 34 (3) from questioning the decision. Consequently his investigations into the complaint in whatever direction his inquires might lead will have to be conducted upon the basis that the decision in question was validly taken. Administrative action, therefore, which is based upon or dictated by that decision will not amount to maladministration simply because someone in the exercise of his discretion has come to a wrong decision. If the decision itself is affected by maladministration, different consequences will follow".

24. In response to certain further argument of the counsel Eveleigh L. J. Continues, . . . "The taking of a decision is action taken in the exercise of administrative function. A faulty decision may amount to maladministration. Consequently it may be investigated. The only limit imposed upon the Commissioner is that he may not arrive at a conclusion hostile to the local authority based upon a finding that there was a faulty or wrong decision unless the decision was linked to some other act of maladministration."

25. These observations by two of the most eminent judges of the U. K. Clearly show the difficulty in giving a comprehensive definition of the term maladministration and it is in view of this difficulty that Sir Edmund Compton, while answering the question from a member of the Select Committee on the Parliamentary Commissioner for Administration of the U. K. Said "nobody can define maladministration in plain terms."'

26. In this context it would be useful to refer to the doctrine of ultra vires developed by the English Courts to deal with cases which could be categorized as instances of maladministration. Under this doctrine the Courts by implication imposed a number of limitations to the administrative powers conferred by the Acts of Parliament on the administrators, while interpreting the Acts. These limitations pertained not only to the procedure for the exercise of the administrative powers but also to their substance. For instance, whether land can be taken by compulsory purchase under the Act of Parliament which authorizes such purchase "provided that in the opinion of the minister it is not a park" was the question before the Court in a case and it held that it is not sufficient that the minister certified that in his opinion the land was not part of`a park and that it is the Court that has to determine, in case of dispute, whether the land is a part of park or not.2 The Court would hold the order to

1. In answer to a question by a member of the Select Committee on the Parliamentary Commissioner for Administration in 1968, H. C. 350 of 1967-68, Minutes of Evidence, Q U.

151.

2, White and Collins v. Minister of Health (1939)

2. K. B.

838. #TBS 1986 JOURNAL 13 #TBE be ultra vires if the Minister acted in bad faith or unreasonably or on no proper evidence.'

27. Besides, the Courts have imposed a number of limitations on the procedure of exercise of administrative powers through the development of the principles of natural justice, one of which is the right of a citizen to be given a fair hearing before being penalized in any way.

28. The Courts have assumed that Parliament, while conferring administrative power, intends that the powers should be used fairly and with due consideration of rights and interests adversely affected. Even where the legislation tried to ouster the power of the Courts in this respect, the Courts asserted their jurisdiction through giving a wider and wider scope to the doctrine of ultra vires. In the leading case of Anisminic Ltd. .7. Foreign Compensation Commission,2 the House of Lords held that the ouster clause did not protect a determination of the Commission which was out side jurisdiction and (by simple majority) the misconstruction of the Order in Council which the Commission had to apply involved an excess of jurisdiction, since they based their decision on a ground "which they had no right to take into account"3 and sought to impose another condition "not warranted by the order"4. In the context of natural justice a leading case is Ridge v. Baldwin.5 In this case the House of Lords held that the dismissal of the Chief Constable was vitiated by failure to give him a fair hearing and was void from which it follows that it was out side jurisdiction i,e, ultra vires.

29. Another tool developed by the English Courts to quash decisions of administrative agencies involving maladministration was the principle, developed independently of the doctrine of ultra vires, under which the urts could interfere with the administrative decision where there was an ( or on the face of record. The Court of Kings Bench had succeeded in e iblishing this special jurisdiction by means of its powers to issue the v t of certiorari.

30. Having briefly reviewed Court decisions to determine the scope of :he term maladministration, we may turn to the approach adopted by On budsmen of a few selected countries towards the indentification and rec ification of the instances of maladministration in order to throw more lig;1 on the meaning of the term maladministration. As already pointed ow, the experience of Parliamentary Commissioner for Administration of the U. K. Is probably e most relevant to us as our law is largely based on the U. K. Law. '1 Parliamentary Commissioner Act 1967 of the U. K. Declares that th Parliamentary Commissioner is not authorized to question "the merits t a decision taken without maladministration by a Government department or other authority in exercise of a discretion vested in that department".7 To begin with the Commissioner took the

1. Allinson v. General Medical Council (1894) 1 Q. B. 750 at 760; Lee v. Showmen Guilt of Great Britain (1952) 329 at 345.

2. (1969)

2. A. C.

147.

3. Ibid at 175.

4. Ibid at 214 (Lord Wilberforce).

5. (1964) A. C.

40.

6. A.-G. v. Ryan (1980) A. C. 718 at 730

7. Section 12 (3) of the Ac 14 JOURNAL ALL PAKISTAN LEGAL DECISIONS Vot. XXX VIII view that this prevented him from questioning the quality of discretionary decisions even where they contained an element of bias or perversity. A distinction was drawn between the procedure leading to the decision and the quality of the decision itself and he considered that he was not competent to question the latter even if "in an extreme case, it has resulted in manifest hardship to the complainant".' This approach was criticised by the Select Committee on the Parliamentary Commissioner for Administration' resulting in a change in the interpretation of the Act by the Commissioner. He, thereafter became ready to criticise discretionary decisions which were had on merits. For example, in a case where the Customs and Excise had refused discretionary refund of gaming licence duty which according to the Commissioner was based "on grounds which do not stand up to examination" he obtained the refund of 22,500 for the complainant's company.3 Similarly he persuaded the Ministry of Housing and Local Government to reverse a discretionary decision not awarding costs to a company which had successfully appealed against an endorsement notice.4

31. The Commissioner also showed reluctance to criticize departmental rules and regulations in the beginning, so that what could be categorized as maladministration would cease to be so if done repeatedly under a rule., In this respect also the Commissioner had changed his approach after criticism by the Select Committee. The Commissioner has thereafter shown willingness to criticise bad rules.' One species of maladministration identified by the Commissioner is the giving of wrong information or advice by officials involved in public dealing. In a case where custom officials had apparently advised that a car could be imported into the U. K. Temporarily without payment of purchase tax where the owner had paid purcha e tax in Ireland, but on arrival the owner was made to pay 167 as purchase tax that was legally due, the Commissioner's investigation of the complaint led to the department refunding the full amount. Similarly where a director of coal mine did not claim a redundancy payment within time as he was wrongly informed by an official at an employment exchange that he would not qualify for the same, the Commissioner procured a compensationary payment of 1,700 from the department. In another case where a company was wrongly advised by the Customs and Excise Department that its produce would not be liable to purchase taxes and the levying of the tax resulted in the company's liquidation the Department was made to pay 6,000 in compensation.'

32. The Commissioner had indentified in a number of other cases practices by the Government departments which amounted to maladministration. For instance, in a special report he criticized the Department

1. H. C. 6, 1967-68 para. 35.

2. H. C. 350, 1967-68 para. 14.

3. Annual Report for 1970 (H. C. 261), p.

36.

4. Ibid p.

96.

5. H. C. 6, 1967-68 para. 36.

6. H. C. 350, 1967-68 para. 16; H. C. 9, 1968-69 ; H.C. 129, 1968-69.

7. Annual Report for 1970 para. 55.

8. Annual epprt for 1969 (H. C. 138), p.

17.

9. Ibid p.

28.

10. Annual Report for 1973 (H, C. 106), P.

7. #TBS 1986 JOURNAL 15 #TBE of Health and Social Security for not back-dating an officer's disability pension without grounds to justify the refusal. As a result of this 12,000 were paid out in 40 cases and other 30 were reviewed.' Investigation against the same department for not back-dating another allowance, due to disabled war prisoners by the Commissioner resulted in the review of 16,000 other cases besides the two specific cases in which the Commissioner secured awards of 2,500 and 4,000.2 In another case the Commissioner found that war pensioners had been deliberately and deceitfully refused part of their entitlement and procuted compensation after investigation.3

33. In New Zealand the law does not confine the Parliamentary Commissioner (Ombudsman) to cases involving maladministration4 and empowers him to investigate, subject to certain exceptions, any "decision or recommendation made, or any act done or omitted .... Relating to a matter of administration and affecting any person or body of persons in his or its personal capacity." The Ombudsman of New Zealand is competent to criticize an administrative decision which is contrary to law or is unreasonable, unjust or improperly discriminatory in his opinion even if it does not amount to maladministration. On the face of it there is a marked difference between the role of Ombudsman under the U. K. Legislation and under the New Zealand Law. In case the Parliamentary Commissioner of the U. K. Had remained stuck to his original approach of concerning himself largely with the question whether a fair minded procedure had been followed by the Government departments while arriving at a decision without questioning the quality of the administrative decision involved, this would have been true-the role of New Zealand Ombudsman would be glaringly wider in ensuring good administration. As has. However, been pointed out earlier, the, Parliamentary Commissioner of . U. K. Has, subsequently, interpreted the U. K. Law in a more flexible mariner under criticism by the Select Committee. He is now willing to investigate the quality of administrative decision in addition to the procedure adopted in arriving at it, to a certain extent. According to Geoffrey Marshal, the Parliamentary Commissioner of U. K. Still remained fighting shy of the quality and merits of the decisions as was apparent from the Commissioner's Report in the case of Railway Station closure, where the Commissioner had said that the merits of the decision were not for him to questionfor the merits of the decision has to be an open question if the quality of the decision is really to be assessed.' Subsequently, the British Parliamentary Commissioner has taken the approach to categorize as maladministration any decision with seemed to him to be very unreasonable. It would, therefore, appear that the gap between the jurisdiction of British and the New Zealand Ombudsmen is not as wide as it appears to be while reading the texts of the respective laws of the ,two states. There is, however, a tendency on the part of the Parliamentary Commissioner of the U. K. To refrain from determining whether a decision is reasonable or not and substitute his judgment for that of the administrator but only

1. H. C. 587 (1970-71; Special Report.

2. Annual Report for 1974 (H. C. 126) para.

20. 3: H. C. 312 (1977-78).

4. New Zealand's Ombudsman Act 1975, Sections 13 and 22.

5. Geoffrey Marshal, Parliament and the Ombudsman" Chapter 6 in A. H. Hanson and B. Crick (ads.), The Commons in Transition (Fontana, 1970), p,127 #TBS 16 JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. XXXVIII #TBE criticize a decision if it is highly unreasonable or, in other words, amounts to maladministration. Hence it can still be said that the jurisdiction of Ombudsman of New Zealand is wider than that of the U. K.

34. Keening in view these jurisdictional differences, some of the cases handled by the Ombudsman of New Zealand can still provide some guidance as to the scope of the term maladministration, as in most concrete cases where the Ombudsman has taken the view that the administrative decision, act or process etc. Did not come up to the standard of good administration or was unreasonable it could very well be categorized as maladministration.

35. In case No, W. 15048 included in the Case Notes of the Ombudsman,' he pointed out that in respect of discretionary powers, the Commissioner has to enquire as to whether it "has been exercised for an improper purpose or on irrelevant considerations." In the case under investigation a Chinese couple had emigrated from Hongkong to New Zealand and were advised that household goods could be imported free of duty as well as taxes provided they were for family use and had been owned and used by them before departure for New Zealand. On their arrival in New Zealand, however, they were made to pay the duty and taxes as the goods were kept in original boxes and were declared to be new on the relevant form by the husband by mistake. The couple represented against the decision of the customs authorities and the Ombudsman found that the decision not to extent the concession to the goods in question was unreasonable and upon his recommendation the decision was reversed.

36. In another case' a teacher in a private school alleged that the department of education was pressurising the school to dismiss him by refusing to intergrate the school into the state system while he remained on the staff of the school because his registration as a teacher had been cancelled earlier. The Ombudsman after investigating the complaint came to the conclusion that the department had acted according to the law which provided that a person whose registration as a teacher has been cancelled cannot continue in the employment of a private school if the school becomes a state school under the provisions of the Private Schools Conditional Integration Act 1975. He, therefore, rejected the complaint.

37. In still another case the complainant had resigned from the Ministry of Works and Development and applied to the Board of Superannuation Fund for the refund of Superannuation contribution.

The application was, however, not forwarded to the Board by the Ministry's Staff for 10 months. As a result of enquiry initiated by the Ombudsman the Board obtained the notice of withdrawal from the Ministry and made the payment of the refund. The Ombudsman, however, was not satisfied and ne investigated into the delay in passing on the papers by the Ministry to the Board. The investigation revealed that the established procedure had not been followed resulting in this inordinate delay which was attributable to new staff. The complainant was, therefore, paid 5% interest for the period of delay.3 n 111 NNW.

1. Compendium of Case Notes of the Ombudsman (P. D. Hasseiberg, Government Printer Wellington. Nev. Zealand) 1981, p.

10.

2. 'bid Case No W. 16039, p.

12.

3. Report of the Ombudsman (P. D. Hasselberg, Government Frinter, Wellington, New Zealand) 1981, p, 22.

38.

39. #TBS

40. 1986 JOURNAL 17

41. #TBE

42. As a matter of fact, the definition of the term maladministration in Article 2 clause 2 of the President's Order No, 1 of 1983 seems to be broader in scope than the meaning given to the term under the English Law which does not define the term at all. In our law the term is defined in an illustrative manner and indicates what sort of an administrative decision, process, recommendation, act or mission would be covered by the term maladministration. A decision, process, recommendation etc. Would amount to maladministration if it is arbitrary or unreasonable or is based on irrelevant grounds etc. Besides, neglect, inattention, delay, incompetence, inefficiency and ineptitude in administration or discharge of duties have been specially cited as instances of maladministration. Under the English Law the Ombudsman would not go into the merits of a decision unless it is highly unreasonable and thus amounts to maladministration. The definition of the term in our law does not place and such restriction on the scope of the term and it appears that the jurisdiction of Wafaqi Mohtasib would in practice be as wide as that of the Ombudsman of New Zealand.

43. Before we turn to some of the complaints investigated by the Wafaqi Mohtasib, it may be useful to review some of the recent decisions of the Swedish. Parliamentary Ombudsmen as well, in spite of the fact that the jurisdiction of the institution in that country is somewhat different from ours, as the institution of Ombudsman originated in Sweden and the institution in that country has the richest experience in the world.

44. In a recent case 15 drafted aircraft mechanics had been ordered punishment-drill in early, 1981 for having shouted "close" (close to the time of discharge) knowing that the exclamation was forbidden. During the march they were assembled on a muddy field and ordered to repeat the word "close" 40 to 50 times and were also ordered to kneel several times. On the report of the draftees, the Wing Commander, a Colonel, issued an informal reprimand to the Commanding Officer, a Second Lieutenant. On investigation, the Ombudsman felt that the Second Lieutenant could be suspected of misuse of authority and the Wing Commander of breach of duty for not reporting the matter to the Country Prosecutor. On his recommendation, the Prosecutor brought an action before the District Court and both the accused were sentenced to fines.'

45. Similarly, in another case where the home helps employed by the Local Council for the elderly accepted reality of considerable value as gifts from the persons helped, the Ombudsman decided to bring an action against the home helps for bribery. He pointed out that domestic help was a local Government service provided on customary conditions and that the home help is employed for this purpose by the Local Council. A person receiving help must, therefore, not feel that he or she owes any form of personal debt of gratitude for the help received. He, therefore, felt necessary to take action in the cases of all home helps who received gifts from persons receiving help that were not insignificant unless it was manifest that the gift had no relation to the services rendered by the home help.2

1. Report of the Swedish Parliamentary Ombudsmen (Summary in English) (Nors- tedts Tryckeri)

1982, p.

488. ;. Ibid., pp. 488, 489, 42.

43. #TBS

44. 18 JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. XXXVIII

45. #TBE

46. In another case the Ombudsman decided to prosecute a Local Counsil Tax Auditor for misuse of office as he had employed, as an audit assistant, a person who had earlier been in the employment of the company subject to audit and who was engaged in a legal dispute with the company. Besides, the auditor had asked for certain income return particulars for checking under threat of disgrace and delivered to the audit assistant certain accounting documents which lacked interest for the audit but related to the assistant's dispute with the company.'

47. In still another case the Swedish Building Workers Union had lodged a complaint against an Industrial Safety Inspectorate for delay in requiring for prosecution of a German Company for infringement of the working hours legislation resulting in the prosecutor abondoning investigation since statutory limitation had entered into force and no person remained in Sweden who could be held responsible. The Ombudsman came to the conclusion that there was no acceptable excuse for the delay and both the District Superintendent and the Head of Section were considered responsible and on his report both the officials were issued admonition under the Public Employment Act.2

48. Now we may review some of the cases handled by the Wafaqi Mohtasib in his first Annual Report. In a case the State Life Insurance Corporation had rejected the claim of the complainant against the life insurance policy taken by her husband. The Corporation took this decision on the basis of certificates of two doctors to the effect that the deceased was suffering from diseases which ultimately culminated in his death. The Wafaqi Mohtasib, however, found that the certificates issued stated that the deceased was under treatment of the doctors from January to March, 1979 but the certificates were issued in January 1980. The doctors could not produce any record in respect of the deceased dated earlier than 28th May, 1979 when he signed his health statement.

The circumstances under which the certificates were issued by the doctors were not considered satisfactory and the doctors clearly stated before the Inves:igating Officer that the insured was not suffering from cancer when he came to them. The Wafaqi Mohtasib recommended that the entire claim of the complainant be paid and suitable action be taken against the doctors who were on the approved list of the Agency.3

49. Similarly, in another case where the State Life Insurance Corporation had withheld claim in respect of the insurance policy of the complainant's deceased husband for more than two years, the Wafaqi Mohtasib found that it was a clear case of maladministration and he awarded monetary compensation to the complainant to the extent the amount would have grown if invested in Khas Deposit Certificates on the due date of payment.4

50. In another case where the Agency had withheld payment of interest, beyond six months, on payment of complainant's G. P. Fund dues that were paid to him after six years of his retirement, the investigation of Wafaqi Mohtasib revealed that the interpretation of sub-rule (4)

1. Report of the Swedish Parliamentary Ombudsmen (Summary in English) (Norstedts Tryckeri) 1982, pp 491-492.

2. Ibid , pp. 491-495.

3. Wafaqi Mohtasib (Ombudsman's) Annual Report for 1983, (Case No, Reg. I/ 557i83), p.

76.

4. Mid, (Case No, Reg. 1/1168/83), p.

77.

1986 JOURNAL 19 of rule 14 of the G. P. Fund Rules by the Agency was not correct.' Wafaqi Mohtasib found that the restriction on payment of interest beyond six months only applied in case the subscriber himself did not apply for payment of G. P. Fund within six months from the date when the amount became payable. The Agency paid the interest to the complainant accordingly.

47. In a recent case,2 where the sale of National Deposit Certificates to a Cooperative Housing Society was irregular and Khas Deposit Certificates had been sold to it beyond the permissible limit, the Wafaqi Mohtasib held that the society could not be made to suffer for the inefficiency on the part of the officials of National Savings and recommended that the withheld profit on Khas Deposit Certificates may be released and profit on National Deposit Certificates on the basis of fixed deposit rate of interest of the scheduled bank be paid to the society.

43. In another case, where intervention of the Wafaqi Mohtasib prompted the Agency to extend its gas main to the locality, the complainant requested that, in view of the fact that the residents of the locality had applied for gas in 1977 and had already waited for more than 7 years for the gas pipeline to be laid in their locality, the waiting period of 72 weeks from the date of application for individual connections may be relaxed. The Wafaqi Mohtasib held that as the Agency had adopted a uniform policy of prescribing 72 weeks waiting period in view of the vast gap between supply and demand, it would be like opening a Pandora's Box to relax the waiting period in this case as applicants from other localities would also start clamouring for similar relaxation.3

49. Having thus briefly gone through the scope of meaning given to the term "maladministration" by the Courts and other authorities as well as`the Ombudsmen of some selected countries, one would tend to agree with Professor Wade when he says "In fact no legal definition seems to be required. Once duly seized of a complaint, the Commi,sioner (Ombudsman) may investi ate and report. He can be relied upon to criticise any lapse from the high standards expected of the public service".4

1. Wafaqi vlahtasib (Ombudsman's) Annual Report for 1983, (Case No, Reg. Ill 283/83), p.

101.

2. W M (Ombudsman's) Annual Report 1984, (Case No, Reg. 1113255/84), pp. 188-189.

3. Ibid. (Case No, Reg. 114997/P4), pp. 216-217.

4. Administrative Law, by H. W. R. Wade (Fifth Edition), p.

82.

SALES TAX ACT AND ITS ADMINISTRATION BY THE CENTRAL EXCISE DEPARTMENT-SOME REFLECTIONS By MUHAMMAD ALI KHAN, ADVOCATE Senior Partner Ally Law Associates, Lahore Since 1-7-1979, the Sales Tax Act is being administered by the Central Excise Department. Currently the thinking appears to be that the Sales Tax Act is in the limbo and all matters connected with sales tax are to be regulated in accordance with the Central Excise Act and Rules.

We have examined the legal position and do not agree with the pre- #TBS 26 JOURNAL ALL VAKISTAN LEGAL bECTSiONi VOL. XXXVITt #TBE vailing thinking on the subject.

The views formulated are submitted below :- Proposition.

Section 3(4) Sales Tax Act incorporates the, provisions of Central Excise Act for the purpose of levy and collection of sales tax. Q. Are the Sales Tax Act provisions re-assessment, appeals, and reference, in force, or Have they been superceded by the parallel provisions of the Central Excise Act ?

1. The pari materia provisions of the two enactments are :- SALES TAX ACT, 1951 Particulars of proceedings : Provisions of Sales Tax Act/Cen- tral Excise Act.

Assessm ent : Section 10(1) : Return.

Section 10(2) : Acceptance without examination of accounts. Section 10(3) : Requisition for examination of accounts and assessment. Section 10(4) : Ex parte Assessments.

Section 10(5) : Single assessm ent for more than one quarter. Section 10(7) : Limitation of 3 years.

Appeals and remedial provisions : Section 14 : Appeal to A. A. C.

Section 14-A : Appeal against Recovery action. Section 15 : Appeal to I. T. Appellate Tribunal. Section 16 : Revision to C. I. T.

Section 17 : Reference to High Court.

Section 18 : Appeal to the Supreme Court. Sections 28, 30 : Power of Rectification.

2. Central Excise Act and Rules : Rule 7 : Recovery of Duty on a written demand. Rule 10 : Order demanding payment of evaded duty.

Permission and licenses, to do business : Rule 43 : Notice before starting manufacture. Rule 44 : Declaration of factory premises. Certificate of approval necessary before starting manufacture. Rule 49 : Duty chargeable on removal of goods.

Rule 50 : Residual products not to be removed. Rule 52 : Clearance on payment of duty. Rule 52-A : Gate Pass.

Rules 53, 53-A, 53-B and 53-C : Specified accounts to be maintained. tOt6 10URNAL Rule 54 : Monthly return of exciseable goods to be submitted. Rule 55 : Return of materials used to be submitted after every manufacturing period. Rule 57 : Infraction of above rules made liable to penalty. Assessm ent and appeals: Section 4 and rule 10 : Section 4 prescribes determination of value for purpose of levy of duty. But the official who will perform this function is not prescribed. Section 33 : Adjudication of confiscations and penalties is entrusted to specified officers and limitations prescrided. Section 35 : Appeals to Collector, C. B. R. Section 35-A : Suo motu revision by C. B. R. Section 36 : Revision by Federal Government. Section 36-A : Power of rectification. An examination of the history of legislation on the subject would indicate the development. Sales tax is payable by a producer or manufacturer of goods in Pakistan under section 3(1)(a). Section 3(4) fixes the time of its payment which is described as the "event" on the occurrence of which the tax becomes payable. All the amendments have taken place here. The first amendment is Finance Ordinance, 1979. The existing first and second proviso were substituted. Proviso (a) made the tax payable on exciseable goods at the same time and in the same manner as the duty of excise. The provisions of the Central Excise Act relating to payment of duty and all connected matters (spelled out in detail) were made applicable to sale tax, so far as may be and with necessary modifications. Proviso (b) made similar provision regarding non-exciseable goods, where they are so specified by C. B. R.

The 1981 amendment again referred to the pre-1979, two proviso and in their place substituted a fresh proviso. Sales tax was made payable where the Board so directed, at the same time and in the same manner as the duty of excise. The provisions of Central Excise Act and Rules were made applicable (to sales tax) so far as may be and with the necessary modifications. The 1982, amendment replaced the proviso enacted in 1981. Herein it was legislated that where the Board so directed, sales tax was to be levied and collected as if it were duty of excise leviable under section 3 of the Central Excise Act. All the provisions of the Central Excise Act and Rules were to apply so far as may be and with the necessary provisions of this Act (Sales Tax Act).

The intention behind the successive legislation is manifest from the phrases underlined*. The provisions of Central Excise Act and Rules have been made applicable subject to necessary modifications. It is the provisions of the Sales Tax Act which have to play the dominant and modifying role and not vice versa. The provisions of the Central Excise Act and Rules on the subject of levy and collection have been grafted "[Here in italics] JOURNAL ALL PAKISTAN LEGAL DECISIONS VOL. Xx)t vitt on the Sales Tax Act without destroying the body of the parent Act. That is why wherever there is, or may be any incongruity between similar provisions of the two statutes it has to be resolved by making the provisions of the Central Excise conform with the Sales Tax Act and n,)t otherwise. The Central Excise Act and Rules have to fall in step to the tune and tone of the Sales Tax Act.

If that be the correct interpretation, then it stands to reason that all the provisions of the Sales Tax Act regarding assessm ent, limitation and appeals remain intact and in force. The assessments have to be framed as provided in the Sales Tax Act, of course by the officers of the Central Excise as designated by the Board. The demand cannot be raised after a lapse of 3 years from the year when it became originally payable (Section 10(7) Sales Tax Act). The appeal forums are those prescribed in the Sales Tax Act. Reference to High Court and appeal to Supreme Court in appropriate cases, remains alive, as against remedial proceedings before the Board and the Federal Government under the Central Excise Act.