' AFTAB HUSSAIN, C. J.-This order will dispose of Shariat Petition No, 2/L of 1983, Shariat Petition No, 1/1 of 1984, Shariat Petition No, 3/L of 1983 and Shariat Petition No, 1/L of 1983, and the following provisions of law :-
1. S. S. M. No, 5/WP/84 : Sections 17 & 18 of the Pakistan Water and Power Development Authority Act XXXI of 1958. (West Pakistan Act XXXI of 1958).
2. S. S. M. No, 186/P/83 : Section 42 of The University of the Punjab Act IX of 1973 (Punjab Act IX of 1973).
3. S. S. M. No, 187/P/83 : Section 41 of the University of Agriculture Faisalabad Act XII of 1973 (Punjab Act Xll of 1973).
4. S. S.M. No, 196/P/83 : Section 40-A of the University of Engineering and Technology Lahore Act V of 1974 (Punjab Act V of 1974).
5. S. S. M. No, 204/P/83 : The Punjab Civil Servants Act VIII of 1974 (Punjab Act VIII of 1974).
6. S. S. M. No, 84/S/84 : The Sind Civil Servants Act XIV of 1973 (Sind Act XIV of 1973).
7. S. S, M. No, 71/B/84 : The Baluchistan Civil Servants Act IX of 1974.
8. S. S. M. No, 71/NWFP/84 : North-West Frontier, Province Civil Servants Act XVIII of 1973 (N.-W. F. P. Act XVIII of 1973).
9. S. S. M. No, 205/P/83 : The Punjab Service Tribunals Act IX or 1974 (Punjab Act IX of 1974).
10. S. S. M. No, 72/B/84 : The Baluchistan Service Tribunals Act V of 1974 (Baluchistan Act V of 1974).
11. S. S. M. No, 72/NWFP/84 : The North-West Frontier Province Service Tribunals Act I of 1974. (N.-W. F.
P. Act I of 1974).
12. S. S. M. No, 85/S/84 : The Sind Service Tribunals Act XV of 1973. (Sind Act XV of 1973).
2. The petitioners in the first two petitions have challenged rule 44(3) of the Cantonment Servants Rules, 1954 which was added by S. R. O. No, 909(1)/82, published in the Pakistan Gazette, Extraordinary, dated 20th of September, 1982. It is as follows :- "The Director may, in the public interest compulsorily retire a cantonment servant on any date after he has completed 25 years of service qualifying for pension or other retirement benefits."
3. Shariat Petition No, 1/L of 1983 has been filed to challenge section 12 of the Punjab Civil Servants Act, 1974 which provides as follows :-
4. "S.
12. Retirement from service.--A civil servant shall retire from service- (i)in the case of a person holding a post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post, on such date, as the competent authority may, in the public interest, direct ;
(ii) in any other case, on such date, after he has completed twenty-five years of service, qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct ;or
(iii) where no direction is given under completion of the sixtieth year of his age. Explanation. -In this section "competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned."
' Section 13 of the Baluchistan Civil Servants Act, 1974 is similarly worded as section 12 of the Punjab Act. However, section 13 of Sind Civil Servants Act, 1973 and section 13 of N.-W. F. P. Civil Servants Act, 1973 do not provide for retirement of a person holding a post of an Additional Secretary or equivalent or higher post as provided in the Punjab and Baluchistan Acts.
5. Section 42 of the University of the Punjab Act, 1973. Section 40-A of the University of Engineering and Technology Lahore Act, 1974 and section 41 of the University of Agriculture, Faisalabad Act XII of 1973 provide similarly for the retirement of an Officer, teacher or other employee of the University on such date after he has completed 25 years of service qualifying for pension or other retirement benefits, as the competent authority may in the public interest direct, or when no such direction is given, on the completion of 60th year of his age.
6. Section 17 of the Pakistan Water and Power Development Authority Act, 1958 is, however, couched in much more drastic terms. WAPDA employees are of two types i,e, those who are Government Servants and who have been transferred to WAPDA to serve there and those who have been employed or appointed by the WAPDA itself. On removal or retirement from service by the Authority, a Government Servant stands reverted to the Provincial service. Section 17 (1) authorises the Authority to employ inter alia officers and servants on such terms and conditions as it may deem fit. Subsection (1-As of section 17 however, provides that notwithstanding anything in the terms and conditions referred to above, the Authority may retire or remove from its service any person without assigning any reason, after giving him not less than 30 days' notice or pay for the period by which such notice falls short of 30 days.
7. Subsection (1-B) of the section declares service in the Authority to be service of Pakistan and except for a person on deputation with the Authority from any Province every person holding post in the Authority is deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (Act LXX of 1973).
8. Subsection (1-C) provides that any order of removal or termination passed under section (1-A) shall not be called in question in any proceedings taken under the Industrial Relations Ordinance XXIII of 1969, Essential Services (Maintenance) Act LIII of 1952 or under any law for the time being in force before any Court, Tribunal or Commission after the thirteenth day of September, 1975 and before coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 and any order of a Court or Tribunal setting aside or modifying or declaring any order of the Authority passed between these dates would be void and of no effect.
9. Subsection (1-D) of section 17 provides that nothing in the Industrial Relations Ordinate e, 1969 shall apply to or in relation to any person appointed as a member of the security staff of the Authority for the protection of the installations and establishments of the Authority.
10. Section 18 authorises the Authority to prescribe the procedure for appointment, and terms and conditions of service of its officers and servants and provides that the Authority shall be competent to take disciplinary action against its officers and servants.
11. The four Provincial Service Tribunals Acts provide for setting up of administrative Tribunals to be called Service Tribunals having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters. The jurisdiction of the Tribunal can be invoked by appeals These Tribunals have been set up in each province under the power vested by Article 212 of the Constitution and an appeal against the order of the Tribunal lies only to the Supreme Court if the case involves a substantial question of law of public importance and the Supreme Court grants leave to appeal on that ground.
12. The following points arise in these cases :- No,
1. Whether the power to retire a person holding post of Additional Secretary or equivalent post or higher post is repugnant to the Qur'an and the Sunnah.
' No,
2. Whether the power to retire a person after 25 years of qualifying service for pension is so repugnant.
' No,
3. Whether the power vested in the WAPDA by subsection (d-A) of section 17 which takes away with the other hand whatever benefits are given by one hand by Rules framed under section 18 thereof are repugnant as mentioned above.
13. The first two questions came up for consideration before this Court during the examination of the Civil Servants Act LXXI of 1973 which is applicable to officers or employees of the Federal Government. Subsections (1) and (2) of section 13 in that Act which are similarly worded as subsections (1) and (2) of section 12 of the Punjab Civil Servant Act were held to be repugnant to the Qur'an and Sunnah. In the judgment of that Act, the principle of Masawat (equality before law) and equal protection of law as given in the Qur'an and the Sunnah of the Holy Prophet was considered and was then applied to subsection (1) of section 13 which was directed to be repealed.
The grounds on which subsection (1) of section 13 was held to be invalid are reproduced below :- "Equality before law and equal protection of law is thus the main principle inherent in the Islamic law and polity. It is one of the fundamental principles of Islam which cannot be ignored.
' We do not see any reason why any such distinction between two types of permanent Government servants be made particularly when such protection have been afforded to all Government servants in all the three Constitutions referred to above. This only gives a handle to the President or the Prime Minister to force officers of higher ranks to act according to his will rather than according to law. This gives the power to a competent authority to remove a Government servant merely on the basis of his personal likes or dislikes which is too arbitrary a test to deprive a person of the means of his livelihood and to deprive the nation of his talent and experience.
' In this age, one of the duties of Government is to seek employment for the citizens of the country.
In these circumstances arbitrary removal from service will also be repugnant to Sharia. One of the reasons for affording protection and safeguard against premature retirement, removal or dismissal is that all Government servants may act according to law without any fear or favour. To withdraw this protection amounts to virtually withdrawing from them the duty to act according to law and conscience and to make them bend to the will of the Chief Executive. Section 13(i) is repugnant to the Qur'anic principle of equality before law and equal protection before law. It shall be repealed."
14. Subsection (2) of section 13 was likewise held to be contrary to Sharia and was directed to be struck down on the following grounds :- "The other provision is subsection (ii) of section 13. Though similar provisions have been there in the Service Rules, but if figures are collected of persons where services were terminated on this ground or similar ground before 1958 and after 1958. It will be found that cases of such premature retirement before 1958 are extremely rare. The provisions not only violate the principle of equality before law and equal protection of law but also gives to the competent authority an arbitrary power over the employees as already considered above. If after 25 years of service qualifying for pension or other retirement benefits, the efficiency of a Gove;nment servant is affected, disciplinary action can be taken against him under the Rules framed under section 16 of the Act and he can be removed for inefficiency.
' This is sufficient safeguard for public interest. This provision shall be repealed."
15. The first question does not arise in relation to the Sind Civil Servant Act and the N.-W. F. P. Civil Servant Act but the second question is common to all the Provincial Acts, rule 44(3) of the Cantonment Servants Rules, 1954 and the relevant provisions of the Universities Acts.
16. It may be stated that by Baluchistan Civil Servants (Amendment) Ordinance XIV of 1978, N.-W. F.
P. Civil Servants (Amendment) Ordinance IX of 1978, section 12-A was added to the Civil Servants Act of each province. Similarly, by the Punjab: Civil Servants (Amendment) Ordinance IX of 1978, section 11(A) was added to the Punjab Civil Servant Act. In Sind the relevant provision was made by Martial Law Order, 55 of 1978 issued by Martial Law Administrator Zone 'C'.
17. This amendment empowered the Governor or a person authorised by him in this behalf to remove from service or revert to his lower post or grade, a civil servant appointed or promoted during the period from the first day of January, 1972 to 5th day of July, 1977 in public interest without notice notwithstanding anything contained in his terms and conditions of his service.
18. It is not necessary to consider these provisions since they relate to cases of lateral entry or promotions made without due regard rules which means that the power of removal is given as regard to persons who were arbitrarily or whimsically appointed or promoted by way of patronization, This is a matter which is now past and closed and it is not necessary to consider the vices of these amendments in the abovementioned provincial statutes.
19. The petitioners who filed the Shariat Petitions based their arguments only on the judgment of this Court on the Civil Servants Act of 1973 particularly the portion referred to above. Moulvi Sirajul Haq who appeared on behalf of WAPDA and Advocate-General of Baluchistan, Advocate-General of Sind, Assistant Advocate-General of Punjab and Assistant Advocate-General of N.-W. F. P submitted that a question arises in some Shariat Petition as well as suo motu examination of statutes whether principle regarding protection of tenure to the Government servant can be applied to employees who are not Government servants but are employees of statutory corporations like the Universities, WAPDA, Cantonment Boards or for the matter of that the Municipal Committees or Corporations. This question is of paramount importance and requires to be considered as a preliminary objection.
20. There are a number of cases in which the High Court and the Supreme Court distinguished between employees of the Government and other employees including employees of the statutory corporations. It is necessary to make a review of these authorities.
21. The cases cited by Moulvi Siraj-ul-Haq in support of this proposition are as follows: Muhammad Shafi v. Municipal Committee, Murree (1), Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chaudhry (2), A. George v. Pakistan International Airlines Corporation (3), Gulf Steamship Company Ltd. v. Dilwash Balooch (4), R. T. H. Janjua v.
(1) PLD 1953 Lab. 163 : (2) PLD 1961 SC 531
(3) PLD 1971 Lab. 748 (4) A L D 1962 (W ) Km 899 ' National Shipping Corporation (1), Abdul Salam Mehta v. Chairman, WAPDA and another (2), PLD 1981 SC 224, Abdul Hameed Khan v. WAPDA and another (3) and Agricultural Development Corporation of Pakistan v. Anwar Hussain (4).
22. Some other cases were cited by Mr. S. M. K. Lodhi. They are Shahid Khalil v. Pakistan International Airlines Corporation (5) and Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (6).
23. In Muhammad Shafi v. Munic pal Committee, Murree, it was held that the Municipal servants hold office during the pleasure of the Municipal Committee and a suit for wrongful dismissal of such an employee is not competent in a Court of law. The remedy of the dismissed employee is by way of appeal and revision.
24. In Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chaudnry, the question was whether the relationship between a company and its employees was governed by the ordinary law of master and servant. It was held that in the absence of any statutory provision protecting the servant, it is not possible in law to grant to him a decree against an unwilling master when he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal services, as will appear from section 21(b) of the Specific Relief Act, 1887, cannot be enforced. A breach of contract can give rise only to the relief of damage.
25. This authority was relied upon in Gulf Steamship Company Ltd. v. Dilwash Balooch.
26. There are certain cases in which the discussion revolves round the question whether a writ of mandamus can be issued in respect of an employee, directing the employer to reinstate the employee. In Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah (7), this question was answered in the negative on the ground that mandamu; is a discretionary writ. It is not an order granted as of right and it is not issued as a matter of course so that the Court may refuse the order not only upon the merits, but also by reasons of the special circumstances of the case.
27. Pir Saifullah was an employee of Lahore Central Cooperative Bank and was removed on account of being guilty of misconduct and having been proved unworthy to occupy an important position of trust. It was held that e writ was not a proper remedy in case of dismissal of a Co- operative Bank employee. The relationship was that of master and servant in which the master could terminate services of his servant without notice. Mandamus was refused inter alia on the ground that the law on the subject in Pakistan had followed in all essential respects, the practice of the English Courts. The superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations which are posts of contractual nature falling within the category of employment and having nothing of the true character of a statutory or corporate office. Public offices on the other hand have a (1)PLD 1974 SC 146 (2) 1970 SCMR 40
(3) 1981 SCMR 325 (4) PLD 1982 Kar. 313
(5) 1971 SCMR 569 (6) 1971 SCMR 566
(7) PLD 1959 SC (Pak,) 210 security which is entirely foreign to that belonging to the post of a Commercial Manager in a Co- operative Bank or a private Corporation.
28. It may be stated that the Civil Service Rules were made applicable to the Bank Employees by a resolution of the Managing Committee of the Bank. It was held that these rules were not applicable to them of their own force but were applied merely by reference and though the rule embody safeguard provided for public servants they could not be availed of by the Bank employees as a matter of legal rights.
29. An interesting discussion in the case of Pir Saifullah Shah is of the definition of a Public Officer or a holder of a Public Office as distinguishable from posts in a private corporation. The question arose because of the American precedents. It was stated: "Syed Muhammad Zafar appearing on behalf of the respondent has referred us to a statement in Ferris' book on page .328, in support of his plea that although the office in question was an office in a private corporation, yet a mandamus could issue for the purpose of restoration to such office.
The words on which he relied are as follows :- "Mandamus is the proper remedy to prevent further illegal exclusion from office in a private corporation when the right thereto is clear, although under such circumstances there be an incumbent. The same principles applicable to public officers in such cases are generally applicable here."
"A number of authorities of the State Courts in the United States are cited in support of this dicta.
None of these cases is available here for examination, but we find on reference to the treatment of the writ of quo warrant in the same book, at page 174, material which shows plainly that in this respect, the American Courts have drawn the scope of mandamus in the relevant respect far beyond the limits set by the English jurisdiction to which the writ originally belongs.. The following passages in paragraph 154 will make this perfectly clear : `The English rule is, that to justify quo warranto to try title to an office, it is essential that the office be such as the law deems of a public nature, and quo warranto will not lie, although the charter is derived from the sovereign, if the sovereign neither aids nor reserves any control over it.' `All American Courts, with one exception, Massachusetts, agree and that an action of quo warranto, or in the nature thereof, is the proper remedy to test the right of office in a private corporation, on the theory that any corporation chartered or organised under the laws of a state is public in character and any abuse or usurpation thereof is an abuse or usurpation of the State's privilege.
Offices in private corporations are created so that the design of the grant may be effectuated and the existence of the corporation perpetuated by the due and regular election of officers in accordance with the rules and laws of their governance. And there is no difference in principle between an office created by special act, as director of a bank and one created by general provisions of law, as a director in a manufacturing corporation. The public character of a corporation and of its offices, when the question arises in quo warranto proceedings, and as distinguished from corporations and offices that are public in a political sense, is not to be determined by the nature or purpose of its business but by the character of its origin and the policy of the law. Corporations for private gain differ in no essential that affects the public character of the grant, from corporation created for purely public purposes. Their corporate powers spring alike from the same source, their organization is directed by the same hand, their regulations and restraints are controlled by the same authority, and they are answerable alike to the same sovereign."
' The reference to a 'sovereign' needs some explanation, and this may perhaps be found by reference to paragraph 145 on page 166 of the same book in the following observations: "A public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law.It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties."
' Apparently, by the expression 'sovereign' in relation to private corporations, is meant the sphere within which, under law, such corporations have freedom to act, in the discharge of their functions.
30. Thus distinction was drawn on the basis of the decisions of the American Courts between a public or statutory office and other posts or offices in companies or private corporations.
31. In Pakistan v. Mehraj Deen (1), it was held that in the absence of proof that any statutory duty was involved or that any legal right was required to be enforced or that the performance of a public duty was being claimed, a mandamus or an order of mandamus cannot issue consistent with the relevant practice and precedent.
32. Another similar case is of Zain-ul-Abidin v. Multan Central Cooperative Bank Ltd. (2). Writ of mandamus was denied to Zain-ul-Abdin, an employee of the Multan Central Cooperative Bank on the ground given in the case inter alia of Pir Saifullah Shah. (Also see Pakistan v. Naseem Ahmad (3)). It was stressed that a writ of mandamu will lie to compel the restoration of a person to an office or franchise whether spiritual or temporal of which he has been wrongfully disposses3ed provided such office or franchise is of a public nature and not for restoration to any or every kind of public office. The Civil Service Rule had been adopted by the Multan Co-operative Bank too. It was held that this gives no advantage since the rules were applied by reference only.
33. Another case in the same volume is that of Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustan All and another (4). In this case too the relationship between the appellant statutory corporation and its employees was held to be tht of master and servant. The High Court had takn a different view but the Supreme Court disagreed with it and recalled the writ issued by the High Court.
34. In A. George v. Pakistan International Airlines Corporation, a question arose before a Division Bench of the High Court of Lahore
(1) PLD 1959 SC 147 (2) PLD 1966 SC 445
(3) PLD 1961 SC 445 (4) PLD 1966 SC 848 whether the employees of the PIA which was a statutory body and amenable to various controls by Central Government were entitled to guarantees and safeguards provided for State servants in the Constitution of Pakistan. It was held that the relationship between Corporation and its employees was purely that of master and servant, under the general law.
35. In Syed Ghulam Mohiuddin v. The Board of Trustees of the Karachi Port Trust and others (1), it was held by the Karachi Bench of the West Pakistan High Court that an employee of the Board of the Trustee of the Port of Karachi under law cannot be regarded as holding a civil post under the Crown in Pakistan.
36. In Abdul Ghafoor v. Thal Development Authority, Jauharabad (2), it was held that an employee of the 1 hal Development Authority was not a civil servant.
37. In Abdul Salam Mehta v. Chairman, WAPDA and another, it was observed that it was not disputed that an employee of the WAPDA was not embed to the protection of Article 177 of the Constitution of 1962 meaning thereby that he was not a civil servant. Same was held by the Supreme Court in connection with employees of Oil and Gas Development Corporation, 1971 SCMR 566.
38. The employees of National Shipping Corporation were held not to be, entitled to any protection.
R. T. H. Janjua v. National Shipping Corporation.
39. In a recent case Muhammad Yousuf Shah v. Pakistan International Airlines (3), it was held that the relationship of master and servant governed the relationship of employees of the Pakistan International Airlines Corporation. Also see Hari Aishan Das v. Chairman, WAPDA (4).
40. In the Agricultural Development lank of Pakistan v. Anwar Husain Jatoi (5), it was held that employment of the Statutory Corporation were governed by the law of master and servant. Same was held in Muhammad Afzal v. House Building Finance Corporation (6).
41. In Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore etc. (7), it was held that except a person holding a public office, no other employee of a local body can be said to enjoy any safeguard in respect of his service. He may be deemed to be a public servant for spe:ified purpose only but that does not mean that he is a Government servant in the real sense.
42. Abdul Hafeez petitioner before the High Court was an Assistant Medical Officer of Health and was retired compulsorily by the Lahore Municipal Corporation after 25 years of service qualifying him for pension several years before he was to attain the age of 60 years. Relief was granted against the compulsory retirement by the High Court on the ground that his case was covered by the exception made in the cases of Pir Saifullah, Zain-ul-Abdin, and the case of Khawaja Muhammad Iqbal v. Managing Committee of Co-operative Model Town Society Ltd. (8).
(1) PLD 1957 Kar. 482 (2) PLD 1958 Lah. 169 (3).PLD 1981 SC 224 (4) PLD 1983 Quetta 61
(5) PLD 1982 Kar. 313 (6) PLD 1966 Kar 1171
(7) PLD 1967 Lah. 1251 (8) PLD 1963 SC 17)
' Thus some statutory servants even of a local Authority may be entitled to protection.
43. As stated above in the case of the Managing Committee of Co-operative Model Town Society Ltd. v. Khawaja Muhammad lqbal the Secretary of the Committee was held to hold the statutory office of a Co-operative Society performing public duties by exercising administrative functions in a considerable township.
44. In Muhammad Ahsan Khan v. Government of Pakistan (1), the Traffic Manager of the West Pakistan Road Transport Board was held to be a Government servant on the ground that, both his appointment and his conditions of service required the prior approval of the Government. While commenting upon this judgment in the case of Abdul Hafeez v. Chairman, Municipal Corporation, Lahore their Lordships of the Division Bench observed that it was evident that the attention of the learned Judges deciding that case was not drawn to Muhammad All v. Commissioner, Lahore Division, Lahore and others (2), in which their Lordship of the Supreme Court cited with approval the following passage from Shari/ Hussain V. Deputy Commissioner, Lahore (3): "After considering the relevant provisions of the Act it seems to us that the Executive Officer is an employee of the Committee, although in certain contingencies he may be appointed by the Provincial Government or suspended or removed from his office by them and is subject to their supervisory jurisdiction like the Committee itself. But this does not destroy the 'relationship of employer or employee, that obviously subsists between the Committee and the Executive Officer.
Apparently the position is that even when the Government appoints Executive Officers they do so for the benefit of the Committee who is to be the paymaster."
' Their Lordship also cited from Tomlin v. Hannaford (4), in which the question under consideration was whether the employees of the British Transport Commission which was a Corporation of a public nature and was established under the Transport Act, 1947 and in which the Minister of Transport is invested with great power to exercise supervision and control over the affairs of the Commission were civil servant. The following observations of Denning, L. J. Are relevant : "He (the Minister of Transport) is given powers over this corporation which are as great as those possessed by a man who holds all the shares in a private company, subject, however, as such a man is not, to a duty to account to Parliament for his stewardship. It is the Minister who appoints the directors, the members of the Commission, and fixes their remuneration. They must give him any information he wants; and, lest they should not prove amenable to his suggestions as to the policy they should adopt, he is given power to give them directions of a general nature, in matters which appear to him to affect the national interest, as to which he is the sole Judge, and they are then bound to obey. These are great powers but still we cannot regard the corporation as being his agent, any more than a company is the agent of the shareholders or even a sole shareholder. In the eye of the law, the corporation
(1) PLD 1965 Pesh. 214 (2) 1962 P SCR 173
(3) PLD 1957 Lah. 1060 (4) (1950) 1 KBD 18 is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its Purposes, no doubt, are public purposes, but it is not a Government Department nor do its powers fall within the province of Government."
45. The distinction between a statutory or a public office and other posts of statutory Corporation or Joint Stock Companies was brought into bold relief in a judgment of the Supreme Court in Maqbool Elahi v. Khan Abdul Rehman Khan and others (1). Mandamus was issued in this case to restore a duly qualified Director to his office who was wrongfully excluded from the Board of Directors of a Joint Stock Company. But it was ,refused to Secretary of the Company on the short ground that he merely performed secretarial duties although the Articles of Association of the Company expressly provided for his appointment.
46. A recent case is that of Anwar Hussain. He filed a petition for special leave to appeal to the Supreme Court in his service matter against a statutory corporation but the Supreme Court dismissed the petition. Anwar Hussain V. Agricultural Development Bank of Pakistan (2). It was held that the relationship between the employees and the Agricultural Development Bank of Pakistan was contractual and in the absence of statutory safeguard governing this relationship and placing restriction on the freedom of the parties to act, the general law of master and servant will apply.
Since the principles have been summed up about such a relationship it would be apt to cite paragraphs 3 and 4 of the judgment : "According to Halsbury's Laws of. England, Vol. XXV, p. 466, para. 872 'The relationship of master and servant is expressed by a contract of service, express or implied, between the master and servant.
A contract of service is one in which a person undertakes to serve another and to obey his reasonable orders within the scope of the duty undertaken. Whether or not a particular contract is a contract of service, is a question of fact depending upon the terms of the engagement, the method of remuneration, and the power of controlling and dismissing the worker although none of these factors is by itself conclusive. On the same question it has been commented in American Jurisprudence (Vol. 35 at pages 445 and 446) as follows : In law the term master and servant' indicates the relationship which exists when one person who employs another to do certain work exercises the right of control over the performance of the work to the extent of prescribing the manner in which it is to be executed. While it is said that at common law there are four elements which are considered upon the question whether the relationship of master and servant exists, namely the selection and engagement of the servant, the payment of wages, the power of dismissal and power of the control Of the servant's conduct, the really essential element of the relationship is the right of control-the right of one person, the master to order and control the servant in the performance of work by the latter, and the right to direct the manner in which the work shall
(1) PLD 1960 SC 266 (2) PLD 1984 SC 194 be done. It is moreover, essential that the master shall have control and direction not only of the employment to which the contract relates, but also of all of its details and if these elements of control and direction are lacking no relationship of master and servant exists. The test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work'. It follows that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of master and servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating service of the employee and in the absence of conformity to such procedure the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement.
4. Dealing with the principle, in Akbar Ali Bokhari v. State Bank of Pakistan etc. PLD 1977 Lah. 234 it had been explained: 'For relationship of master and servant as I understand it, there should be a freedom of contract both for master as well as the servant so as to act freely unfettered by any legal disability, but if for instance the servant is not free to leave service due to certain intervening or conversely if master's pleasure to terminate service of his employee is similarly curtailed, then the case is no longer of a contract of service or of simple master and servant concept. Where a corporation is set up by a statute but the Government does not reserve to itseif the power to regulate the condition of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them in accordance with the terms and conditions so prescribed by it. In such situation the employee cannot claim to he a person possessed of any legal character within the meaning of section 42 of the Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle of master and servant will fully apply and he can only claim damages but not reinstatement to his post."
47. It would be manifest from the study of these various authorities of the High Courts and Supreme Court of Pakistan that a distinction is drawn between civil service and contractual service. The reason is that the civil servant has been provided constitutional safeguards in respect of the conditions of his service either by constitutional rules or constitutional provision from the Government of India Act, 1919 to the time till the Interim Constitution of 1972 remained in force.
Under the Constitution of 1973 such safeguards have been provided and regulated by the Civil Servants Act LXXI of 1973 regarding the officers and employees of the Federal Government and different Provincial Statute after the same name regarding employees of Provincial Government but the law has been unexceptionable in respect of employees of the local government, the statutory corporations or companies. It has been held throughout that the relationship between such Local Government, corporation or companies and their employees is contractual as that of master and servant, the only exception being where statutory -safeguards either by law or by statutory rules framed by the Government have been provided. A person who is an employee of a statutory corporation which is under the supervision and control of the Government is also governed by law of master and servant in his relation with the employer even though it be necessary for the latter to seek the approval of the Government regarding the employment of such an employee because ultimately he is an employee of that employer and not of the Government.
48. The Qur'an and the Sunnah as such do not directly provide for such protection for the employees nor the judgment of this Court on section 13(i) and (ii) of the Civil Servants Act, 1973 was based upon such direct protection. The reasoning in support of the directions issued under that Act was entirely different. It shall be considered in details in another context in this judgment. It was for this reason that in the case of M. Daryab Yousuf Qureshi v. Chairman, WAPDA (1), it was held while considering the vires of section 17 of West Pakistan Water and Power Development Authority Act XXXI of 1958 that Sharia has given much flexibility to the relationship of employer' and employee which is a contractual relationship and in that relationship the main guarantees given by Sharia to an employee are :
(1) The immediate payment of his wages.
(ii) Strict adherence to the terms of contract.
(iii) Abstinence from making his work hard and unbearable.
49. Section 17 was not therefore. Held to be repugnant to the Holy Qur'an and the Sunnah of the Holy Prophet.
50. One of the grounds of safeguard of civil servants rights is that the Government is under a duty to provide employment to people. E Consequently it cannot throw out its servants except for cause.
As will) be seen later there is ample justification in Sharia for this.
51. This principle cannot apply to private servants or servants other than civil servants unless any law is made for safeguard of their interesti or service tenure.
52. Applying this principle it would be clear that the service of Cantonment Board as constituted under the authority of Cantonments Act II of 1924 which is a local authority or of the WAPDA and Universities which are Statutory Corporations cannot be held to be entitled in
(1) PL D 1983 F SC 17 Sharia to any other safeguard except safeguards pointed out in the above judgment of Daryab Yousuf Qureshi v. Chairman, WAPDA.
53. We are in agreement with the argument of the learned counsel of the Provincial Governments, Deputy Attorney-General and Moulvi Sirajul Haq, learned counsel for the WAPDA, that in some cases particularly in respect of statutory corporations dealing with commercial business it may not be in public interest to provide such safeguards. Shariat Petition No, 1-I of 1984, Shariat Petition No, 2-L of 1983 and Shariat Petition No, 3-L of 1983 are therefore liable to be dismissed. WAPDA Act and laws relating to Universities will be examined in other respects. The Cantonments Act II of 1924 has been examined by the Council of Islamic Ideology and it is unnecessary for this Court to re- examine it. S. S. M. No, 204/P/83 : The Punjab Civil Servants Act of 1974. S. S. M. No, 84/S/84 : The Sind Civil Servants Act of 1973.
S. S. M. No, 71/B/84 : The Baluchistan Civil Servants Act of 1974.
S. S. M. No, 71 N.-W.F.P./84 : The N.-W.F.P. Civil Servants Act of 1973.
54. The emphasis of the Deputy Attorney-General, Advocates-General Sind and Baluchistan and Assistant Advocates-General of Punjab and N.-W. F. P. Was entirely on the provision about retirement after 25 years' qualifying service for pension. The only argument in regard to the provision in the Punjab and Baluchistan about taking away the statutory protection of tenure of service from Additional Secretaries or persons of higher or equal ranks was that equality does not mean absolute equality and it is within the power of the legislature to make classifications. This power is valid not only under the constitutional fundamental rights of equality but also the Qur'anic human rights of Mussawat (equality). This point shall be considered later but it may be pointed out that the classification referred to by the learned counsel by which Additional Secretaries or persons of equal or higher ranks are treated to be a class by themselves has not been uniformly adopted.
This classification is in the Federal Act and the Punjab and Baluchistan Acts only and is not there in Sind and N.-W. F. P. Acts.
55. Although the question of validity of both the provisions analogous to section 13(1) and (2) of the Civil Servants Act, 1973 has been considered by this Court but since the Provincial Governments had not been provided with an opportunity of being heard at that stage it was made clear to all the learned counsel that they could argue the matter as long as they liked and that if the Court is satisfied about the incorrectness of its earlier judgment it would consider itself governed by the Sharia principle of {{URDU TEXT}} (correction of one's errors) and review its earlier order.
56. Some arguments were addressed by the learned counsel in the four Shariat Petitions in support of the earlier judgment of this Court. Mr. Israrul Haq addressed oral arguments as well as submitted written arguments in support of the above judgment. The main arguments for the opposite view were addressed by Mr. Khalil Ramday, Assistant Advocate-General, Punjab. While others argued certain specific points.
57. Mr. Israrul Haq in his written arguments has dealt with the history of the civil service with a view to highlight the benefits accruing from conferment upon the civil servant, the security of tenure and protection against arbitrary removal or dismissal and the corrupting influences that emerged from depriving him of such security and safeguards. He also canvassed the principle of AdL-o-Ihsan {{ (justice and equity) in the Qur'an and the Sunnah. Besides this he tried to furnish answers to the objections raised by the learned counsel for the Federal Government and the Provinces. His contribution on the whole is valuable.
58. Mr. S. M. K. Lodhi, Advocate, argued that compulsory retirement is a penalty in the Civil Service Rules as well as the Cantonment Service Rules, 1954 vide rule 49 (viii). He further submitted that section 12 of the Punjab Act provides for retirement of a person after 25 years' qualifying service only in the public interest, but the word public interest has been left undefined. He submitted that the expression has been defined in the Pakistan Railways Personnel Manual, Vol, 1, page 261, para.
809. Para. 809 provides that the true interpretation of words "in public interest" will be that a person has outlived his utility to the administration. He may, therefore, either be inefficient or has ceased to be efficient, or is corrupt,or may reasonably be considered corrupt or is engaged or is reasonably suspected in being engaged in subversive activities.
59. Rule 3 of the Rules under the Punjab Civil Servants Act, 1974 provides inter alia for the following grounds for penalty :-
(a) is inefficient or has ceased to be efficient ;
(b) is corrupt or may reasonably be considered corrupt ; and
(c) is engaged or is reasonably suspected in being engaged in subversive activities.
60. Clearly these are the same grounds which are provided in para. 809 for proving that a person has outlived his utility to the administration.
61. In the major penalties too one of the penalty is compulsory retirement. The distinction between section 12(2) and the Efficiency and Discipline Rules is that if an action is taken under the rules, full opportunity of being heard is given to the civil servant on the principle that these grounds inter alia if proved are likely to stigmatize him. It was, therefore, argued that the grounds in section 12 (2) being the same which tend to stigmatize the civil servant there is no reason why a civil servant may be deprived of opportunity of being heard.
62. Mr. Irshad Qureshi in addition to the other arguments relied upon Q. 3:79 and Q. 9:111. He submitted that the provision of subsections (1) and (2) of section 12 of the Punjab Act have the tendency to make the civil servant concerned extremely servile to the person who has the authority to retire a person in these clauses and thus make him adapt himself to the position of a servant of the boss rather than a civil servant or servant of the State. The verse Q. 3:79 enjoins the Prophet (p.b.u.h.) not to say "Be slaves of me instead of Allah (but they should say) "Be ye faithful servants of the Lord by virtue of your constant teaching of the Scripture and of your constant study thereof".
These injunctions according to him ullify inter alia in the case of a civil servant, the concept of personal service or service to the person having authority to remove or retire in instead of his being the servant of the State who may be under a duty act according to the injunctions of Allah in the performance of his lawful unties,
63. The verse Q. 9:111, however, does not appear to be relevant to support any point arising in the petition or during the examination of these Laws.
64, These arguments of Mr. Lodhi have merit. It appears odd that while a civil servant is given full opportunity of being heard if disciplinary action is required to be taken on inter alia the same grounds, he is denied that opportunity completely if action is taken under section 12, subsections
(1) and (2). Both actions separate him from the office and if it is necessary to spare a civil servant the agony of stigmatization, there is no reason why he may be left open to that evil by clothing those grounds with the garb of retirement in the public interest. Pension or other retirement benefits cannot be a compensation. For the stigma he is proved to suffer.
65. There is another disparity also. Section 13 of the Punjab Act provides that a retired civil servant shall not be reemployed in the Government unless such re-employment is necessary in the public interest. The public interest in this section has an altogether different connotation but his re- employment in Government cannot be allowed because he was retired in the public interest on charges of having outlived his utility on grounds of inefficiency, corruption and subversion. His retirement becomes a disqualificaation for him. And if public interest can be served by his re- employment, obviously his retirement in public interest was wrong.
66. The learned counsel for the Government relied upon the instructions of the President in letter No, 1/4/79-C. V., dated the 15th November, 1979 and letter No, C. S. A. Sec. 13(ii)/Rev./82, dated 18th April, 1982, issued by the Establishment Division. These letters laid down the guidelines for review of cases of Government servants for the purpose of retirement who have completed 25 years of qualifying service. The object of letter of 1979 is said to be to "eliminite chances of arbitrary decisions and to avoid any impression of victimisation, which has always persisted in the wake of such exercises in the past." Review Committees were set up for this purpose who were to submit their recommendations to the competent authority. They were directed to keep under consideration A. C. Rs, in which the rating should be 'good' to 'very good' in the case of officers of Grade 21 to 22 and 'good' in the case of officers Grade 20 and below. The other points which required to be taken into consideration were- (i)the reputation of the officers regarding efficiency and integrity should be kept in view ; and
(ii) the confidential record should be rated adversely in proportion to any penalty for misconduct and for repeated observations about lack of efficiency or integrity including 'average' integrity.
' The directive of the President was for reducing the size of the establishment by 10% during the 'current financial years' and another 10% 'in the next financial year' to solve the problem of visible surpluses in certain grades. The object was to retain to best among them ; and to eliminate officers who is politicised to a point that it influences his official conduct or he has used political connections for personal advancement.
67. The letter of 18th April, 1982 changed the criteria for retension beyond 25 years to some extent.
The criteria are as follows :-
(a) The review shall be mainly based on the A. C. Rs,, more weightage being given to the record of the preceding 10 years,
(b) For retention in service beyond 25 years, the aggregate rating should be `Good' to `Very Good' in case of officers of Grade 22 to 20, 'Good' for officers of Grade 19 ; and `Satisfactory' for rest of the Grades.
(c) The reputation of the officers regarding efficiency any integrity should be kept' in view.
(d) The confidential record should be rated adversely in proportion to any penalty for misconduct and for repeated observations about lack of efficiency or integrity, including `average' integrity.
68. It was conceded at the Bar that there are no Review Committees in the Punjab. However, it appears clear that these guidelines for retirement include grounds on which a person can be proceeded against under the Efficiency and Discipline Rules. There is no direction to the Review Committees to find out whether the adverse Reports were communicated to the officer concerned and whether his protest against it was reasonable or not.
69. The learned counsel for the Government also drew our attention to yet another letter No, 6/4/78-A-II/79, dated 18th February, 1979 from the Establishment Division to all the Ministries concerned directing the inclusion of a special entry regarding the fitness of a Government servant for continued retention in service, 3 years before he is due to complete 25 years. But this letter also does not improve matters since in the letter of 1982 different criteria have been provided.
70. Before dealing with the history of civil services and the Islamic Law on the subject, it would be better to deal with the objections raised by different counsel and the arguments submitted by them.
71. Syed Riaz-ul-Hassan Gilani, the learned counsel for the Federal Government referred to verse Q.
12:55 in which Prophet Joseph {{URDU TEXT}}said to the King "Set me over the store houses of the land. Lo I am a skilled custodian' {{URDU TEXT}} ' He submitted that the word {{URDU TEXT}} provides the key to the relationship of master and servant in the sense that the master has the exclusive right to provide terms and conditions. He also referred to Q. 28:26 in which one of the daughters of the Prophet for whom water was drawn by Moses said to her father "hire him, For the best (man) that thou canst hire is the strong, the trustworthy".
72. None of these two verses can be interpreted as giving the master the exclusive right to fix the terms and conditions of service. Generally the service contract regulates the terms and conditions of service and the verse merely pertain to requests for appointment.
73. Mr. Gilani referred to the case of removal of Khalid from the Command of the Army and submitted that this order of removal was passed without giving him a show-cause notice. Maulana Shibli Noamani has, however, to say something different in Al-Farooq, pages 215 to 217. He asserted that Hazrat Umar was opposed to Khalid on account of his unbalanced conduct but after his election as Caliph he did not want to take action against him. It was customary with Khalid not to send accounts to the office of the Caliph. Hazrat Umar directed him to be particular in rendering accounts. Khalid wrote in reply that he never acted in this manner in the Caliphate of Abu Bakar and he could not now do contrary to it. Hazrat Unar obviously could not tolerate this independence on the part of Khalid nor could he allow him to spend the money belonging to the State according to his sweet will. He wrote to Khalid that he could be retained as a Commander of the Army if he regularly sent the accounts of expenses of the Army Khalid refused to abide by this condition and he was removed for this reason. According to Al Asaba {{URDU TEXT}} by Hafiz bin Hajar he was not dismissed but was reduced in rank and was directed to serve under Abu Obaida.
74. There was yet another incident in the 17th Hijra that Khalid gave in reward, a sum of 10,000 Dirhams, to a poet. Hazrat Umar wrote to Abu Obaida that if Khalid had paid this money from his resources, it would amount to squandering his money, but if he bad paid it from the State Treasury, it would amount to commission of the offence of misappropriation. In either case he was fit to be dismissed. The messenger who brought the letter of dismissal asked Khalid in public from where he had paid the amount of reward. He was instructed by Hazrat Umar that if Khalid admitted his error, he may by pardoned. Since he did not consent to this the messenger took off from his head his cap in token of his dismissal.
75. It is clear from this that the first action taken against him of relieving him of his Command was taken after he was given an opportunity to obey the Caliph and to render accounts regularly. The action was taken after his refusal to abide by the directions. In the second case also he was given an opportunity to explain the source from which he had rewarded the poet and the action was taken on his refusal to disclose the source whether he had paid from his own pocket or from the Treasury. It cannot be said that he was reduced in rank or ultimately dismissed without being given an opportunity of being hoard.
76. Mr. Gilani referred to the observation made by Abu Bakr Ibn-al-Arabi in his book entitled "Alawasim Mina Qawasim", p. 87 Cairo 1375H wherein the author says{{URDU TEXT}} (his appointment was discretionary). He also referred to Qurrat-ul-Ainain {{URDU TEXT}} by Shah Waliullah, p.
272.
' He said {{URDU TEXT}} (I say that appointment and dismissal is the right of the Caliph). From this he concluded that any categorization made by the Caliph while laying down rule of preference in matters within his discretion will not be hit by the principle of equality. This question will be considered later.
77, The learned Advocate-General Sind, referred to Article 13 of the Provisional Constitution Order, 1981 and argued that in view of this provision the jurisdiction of this Court as regards the vires of the provision about retirement after 25 years qualifying service is beyond the jurisdiction of this Court.
This argument was repeated by the Deputy Attorney-General and by others.
78. Article 13 is in the following terms :---
(1) Where a person in the service of Pakistan has been or is retired from service under the orders of the competent authority after he has completed 25 years of service qualifying for ,pension or other retirement benefits, no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceeding calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such Court or Tribunal immediately before the commencement of this order shall abate forthwith.
(2) Any person in respect of whom an order such as is referred to in clause (1) has been or is made may, within 30 days from the commencement of this order or the date of the making of the order, whichever is later, apply to the competent authority for a review of the order.
79. The Article does not bar the jurisdiction of this Court to determine the vires about section 12(2) of the Punjab Act or the corresponding sections in the other Provinces. It only bars the jurisdiction of other Courts and that is also limited to questioning the validity of the order of a competent authority as distinguished from questioning the validity of g the provision itself. In the constitutional provision of Article 203.D, this Court is performing an altogether different duty and cannot entertain any matter in which personal relief is required to be granted to any person. Article 13 bars the jurisdiction of Courts in respect of such personal reliefs only.
80. It was argued that in any case sub-Article (2) provides for review of the order and any error committed by the competent authority can be corrected in exercise of the review jurisdiction. This argument has no relevance to the point under consideration before this Court. But even otherwise we do not understand what benefit can materially accrue to a person who does not know the grounds on which the order has been passed and is not aware of the points which were considered by the competent L authority while passing the order under review. If in a given case the competent authority passes an order of retirement arbitrarily, whimsical) or for a reason which is not a reason of public interest, we do not understand how a review before the same authority will at all make any difference.
81. The Deputy Attorney-General submitted that no age of superannuation had been provided in section 12 of the Punjab Act. He raised this point on the basis of the language of the Law which empowers the competent authority to retire after 25 years' qualifying service and if no such order is passed, to retire him compulsorily at the age of 60 years.
82. We do not agree with this submission since clearly the superannuation age has been fixed at 60 years and provisions have been made in section 12(2) of the Punjab Act for retirement on ground of public interest before that age. It is nothing but a case of premature retirement. This is the substance of the law.
83. The learned Deputy Attorney-General submitted that the provisions about Massawat or equality before Law and equal protection of Law are not attracted to this case since there is no such thing as absolute equality. On the other hand it is open to the Government to make classification and equality is to be determined amongst the members of a particulars class. He referred, to many authorities on the right of the Government to classify.
84. This argument was adopted by the Assistant Advocate General of N.-W. F. P. And was elaborated further by Mr. Khalil Ramday, Assistant Advocate-General of Punjab. Mr. Ramday submitted that Qur'an also allows such classification, or rather classification is not barred or forbidden in Sharia. He referred to the distinction between the rich and the poor, the Muslims and the non-Muslims, a man and a woman and people of the right hand and people of the left hand {{URDU TEXT}} He submitted that in matters of law also classification is recognised. He referred to the provisions about inheritance in Qur'an which generally allows a woman of the property heritable by man.
85. This argument has force that Islam also allows classification but such classification made in legislation must stand the test of reasonableness and intelligibility. Only the class legislation is forbidden but not reasonable classification. The classification, however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable' and just relation to the things in respect of which the classification is made. In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation. (Sakhawat Ali v. State of Orissa (1).
86. Two tests were laid down for permissible classification in (Shri Ram Krishna Dalmia etc. v. Shri Justice S. R. Tendolkar and others (2). One is that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely geographical, or according to objects or occupations or the like. There must be a nexus between the basis of classification and the object of the Act under consideration.
87. It is unnecessary to reproduce any large number of authorities. This question was considered by the Supreme Court of Pakistan in detail in the case of Jibendra Kishore Achharyya Chowdhury etc. v. The Province of East Pakistan (3). It says :- "The expression has been, borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the 'enjoyment of life, liberty and property. Though in the United States the guarantee of equal protection of the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible exception of the due process of law guarantee, also contained in the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the `equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently
(1) AIR 1955 SC 166 (2) AIR 1958 SC 538 (3) P L I957 SC 9 stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the. Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration such as differences in race, colour or religion will certainly be rejected by the Courts."
88. The example of such unreasonableness is provided by Kentucky Finance Corporation v.
Paramount Auto Exchange Corporation (1). The facts of the case are as follows
89. The plaintiff in error, a Kentucky Corporation, brought an action of replevin in a state Court at Milwaukee, Wisconsin, against the defendant in error, a Wisconsin corporation, to recover an automobile, the right of recovery asserted in the complaint being put on the ground that the plaintiff was the owner and entitled to the possession of the automobile, that one Allen had unlawfully taken it from the plaintiff's possession at Louisville. Kentucky, had fraudulently removed it to Milwaukee, and had there wrongfully delivered it to the defendant, and that the defendant was unjustly with holding it from the plaintiff under some groundless claim derived from Allen. The defendant appeared and obtained from the Court an order requiring the plaintiff's secretary, who resided at Louisville and was in the plaintiff's service there, to appear in Milwaukee at a fixed time, before a designated Court Commissioner, to bring with him all papers, files, and records of the plaintiff which were under his control and relevant to the controversy, and then and there to submit to an examination by the defendant. The order was sought and granted on the ground that the examination would better enable the defendant to plead to the complaint, which is yet it had not done. The plaintiff was not engaged in any business in Wisconsin, nor had it complied with the law of that state prescribing conditions on which it might do so. It had no property in the state other than the automobile, and it had gone into the state only for the purpose of instituting and prosecuting the action to repossess itself of that vehicle. Its secretary was not within the state, nor did it have any representative there other than the attorneys who were consecuting the action in its behalf. For itself and its secretary it consented that such an examination as was sought might be had at Louisville at any time, and before any Officer, the Court might designate, but it objected to any order requiring that the examination be had in Milwaukee. The objection was overruled and the Court put in the order a direction that the defendant tender to the plaintiff for its secretary the railroad fare from the southern boundary of Wisconsin to Milwaukee and return, being $4.74, and one eye-witness fee being $P50. The tender was made and submitted, and the secretary, with the plaintiff's approval, refused to comply with the order. Because of this the Court, the defendant's motion and over the plaintiff's objection, a further order striking the plaintiff's complaint from files and dismissing its cause of (&) (1923) 262 U S 544 action, with costs, appeal to the Supreme Court of the state both orders were obtained over the plaintiff's contention that they and the statute under which they were made violate the due process and equal protection clauses of the Fourteenth Amendment 171 Wis. 586, 179 n. w.
9. To obtain a review of the judgment of the Supreme Court the case was brought before the United States Supreme Court on writ of error, under section 237 of the Judicial Code.
90. The Court held the statute to be invalid as would be clear from the following para. :- "No doubt a corporation of one state, seeking relief in the Courts of another, must conform to the prevailing modes of proceeding in those Courts, and submit to reasonable rules respecting the payment of costs or giving security therefor and the like (See Canadian Northern R. Co. v. Eggen, 252 U S 553, 561, 64 L ed. 713, 716, 40 Sup. Ct. Rep. 402); but it cannot be subjected, merely because it is such a corporation,, to onerous requirements having no reasonable support in that fact, and not laid on other suitors in like situations. Here the statute authorised the imposition, and there was imposed on the plaintiff a highly burden some requirement because of its corporate origin-a requirement which, under the statute, could not be laid on an individual suitor in the same situation. The discrimination was essentially arbitrary. There could be no reason for requiring a corporate resident of Louisville to send its secretary, papers, files, and books to Milwaukee for the purposes of an adversed examination that would not apply equally to an individual resident of Louisville in a like case. The discrimination is further illustrated by the provision that, as to all residents of Wisconsin, individual and corporate, the examination should be had in the county of their residence, no matter what its distance from the place of suit."
91. Another example is furnished by Louisville Gas & Electric Co. v. Clell Coleman (1). The facts of the case are as follows.
92. The plaintiff in error, a Kentucky Corporation, executed a deed of trust of property in that state to secure ponds amounting in the aggregate to $150'000,000, of which $18,805,000, were issued, bearing date November, 1, 1922, and maturing November, 1, 1952. The deed was presented to the clerk of the Jefferson County Court for record and payment made of the lawful recording fee required by the state statute, but the clerk refused to record the deed unless plaintiff in error paid to him a tax of 20 cents on each $100 of the $18,805,000, was required by $4019a-9 of the Kentucky statutes, Carroll's ed. 1922, the pertinent portions of which follow:- "A tax of twenty cents (20c) is hereby imposed upon each one hundred dollars ($100) or fraction thereof of indebtedness which is, or may be, in any contingency secured by any mortgage of property in this state. Which mortgage shall be lodged for record after this act goes into effect where the indebtedness does not mature within five years ...................
"Provided, however, the provisions of this section shall not apply to mortgages executed to building and loan associations."
93.
93. It is provided by another Kentucky statute that no deed or deed (1) (1927) 277 U S 32 of trust or mortgage shall be valid against a purchaser for a valuable consideration without notice thereof or against creditors until such deed or mortgage shall be lodged for record. Ky. Stat s 494. In view of this statute, plaintiff in error concluded that it was absolutely necessary to place the deed of trust on record, and thereupon, unwillingly and under protest, paid the amount demanded in addition to the lawful recording fee.
94. Subsequently, plaintiff in error brought this action in the proper state Court to recover the amount of the tax to be paid upon the ground that the quoted provisions of $ 4019a-9 were contrary to the Kentucky Constitution requiring uniformity of taxes upon all property of the same class, and upon the further ground that these provisions denied the equal protection of the law and deprived plaintiff in error of its property without due process of law in contravention of the 14th Amendment of the Federal Constitution. A demurrer to the petition was sustained by the Court of first instance and the . Upon appeal to the state Court of appeals, the judgment was affirmed, sub nom., Louisville Gas & Elec. Co. v. Shanks (1), upon the authority of Middendorf v. Goodale (2).
' The Court held as follows :- "Here it seems clear that a circumstance which affects only taxable values has been made the basis of a classification under which one is compelled to pay a tart for the enjoyment of a necessary privilege which, aside from the amount of the recording fee which is paid by each, is furnished to another as a pure gratuity. Such a classification is arbitrary. It bears no reasonable or just relation to the intended result of the legislation."
95. Even a statute which is not ex facie discriminatory, can be lenged under the equality clause if it is capable of being administered in a discriminatory manner. It was held in East & West Steamship Company v. Pakistan (3), and Jibendra Kishore Achharyya Chowdhury v. Province o East Pakistan (4), that where a statute is not ex facie discriminatory, but capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner.
96. In the judgment of this Court in regard to the Civil Servants Act, 1973, this has been pertinently pointed out that though this provision about retirement after 25 years' service has been there since quite long but if a comparison is made between the action taken it will be found that cases of such retirement before 1958 are rare. The White Paper, Vol. II, pages 131 to 137 proves the indiscriminate orders of inter alia premature retirement by the previous Government.
97. We may enter a caveat here that as will be shown later, the powers of the legislature should be exercised in a manner that chances of oppression and discrimination may be reduced as far as possible, because it is difficult to find out persons holding high offices who posers qualities and qualifications required of Ulul Amr{{URDU TEXT}} (those having authority). The principles based on the constitutional provision of equality a interpreted on the basis of English and American law cannot be applied in
(1) 213 R 762, 281 S W 1017 (2) 202 Ky. 118, 259 S W 59
(3) PLD 1958 Leh. 41 (4) PLD 1957 SC 9 all their details in a matter in which the legislature is required to enforce legislation based on Qur'anic Musawat (equality) because the object of legislation should be to reduce as much as possible the chances of its implementation in an unjust and oppressive manner. The idea may appear to be idealistic but an attempt should be made to remove the chances of mischief as far as possible. Where the modern law requires guidelines to be provided for exercise of discretion the object of law enforced on the basis of the Qur'an and the Sunnah is to make it as immune as possible from being misused if the person in authority is not possessed of the required scruples.
98. There are a few cases in which some comments have been made regarding the provision of retirement after 25 years' service.
99. In the ease of Muhammad Yousuf PLD 1970 SC 219 it was argued that the appellants were, liable to be retired from service on the completion of the 60th year of their age. It was held that the plea was wholly devoid of force because the question of his retirement was to be considered at the time when he was of 55 years of age and it was only when no such order was made that be could remain in service up to the age of 60 years. This question has already been considered while dealing with the age of superannuation. The case is not an authority for the preposition that 60 years of age is not the final age of superannuation.
100. In Malik Muhammad Khalil v. Government of Pakistan (1), the same question was discussed by the Lahore Bench of the West Pakistan High Court. It was held that the difference between the clause about retirement at the age of 55 years and retention after that age is this that a person falling in the clause should ordinarily be retained up to the age of 60, if he continues to be efficient, but he may be required to retire at 55. Thus, there is power to retire him at 55, though its exercise is optional, but if that power is exercised, the succeeding provisions-that he should ordinarily be retained up to 60 if he continues to be efficient obviously do not come into play.
101. In a way this is in accordance with our own interpretation o section 12(2) and (3) of the Punjab Act because we also treat the ultimate R age of superannuation to be 60 years.
102. Mr. Khalil Ramday referred to certain rules in certain provinces of India in which review of efficiency etc. Is allowed at 3 stages, 1. e. At the age of 50 years, 55 years and 60 years. He submitted that in the case of Moti Ram v. N.-W. F. P. Railways (2), there is only an obiter that if any rule permits an appropriate authority to retire compulsorily a civil servant without passing a limitation in this behalf that the civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement order under the said Rule would amount to removal of the civil servant within the meaning of Article 11(2). The learned counsel distinguished this observation on the ground that this violates the constitutional guarantee.
103. It is not necessary to elaborate this argument any further' in view of what has been said already regarding inadvisability in Sharia of conferring power upon an Ululamr or competent authority which may be used by him in an unjust and oppressive manner, without guaranteeing that
(1) PLD 1959 (W. P.) Lab. 229 (2) AIR 1964 SC 600 the chances of such misuse may be eliminated or reduced as far as possible.
104. Mr. Khalil Ramday submitted that the Court's jurisdiction is confined to finding out whether a law is repugnant to the Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). There is, however, nothing specific in the Qur'an about service matters; the traditions of the Holy Prophet (p.b.u.h.) are only about the treatment which should be accorded to one's servant. The Court does not have jurisdiction to consider any other matter for directing repeal or amendment of any law. He further submitted that the civil service in the Government is also based on a contract and one is bound by that contract.
105. The argument that the Court has jurisdiction only to find out the repugnancy from specific injunctions in the Qur'an and the Sunnah and that if no such injunction is found the law will be treated to be good is to say the least a very narrow view of the constitutional jurisdiction of this Court. Specific laws in the Qur'an and the Sunnah are not many but the principle laid down therein embrace everything inter alia in the field o legislation. In view of the absence of specific provision pertaining to a particular matter it becomes our duty to discover and find out whether a particular legislation is not repugnant to the principles laid down in or emanating from the Qur'an and the Sunnah. The repugnancy is to be discovered inter alia not only against a specific provision {{URDU TEXT}} Ibarat-ulNas) but also what is described by the jurists and commentators of the Holy Qur'an as {{URDU TEXT}} (Dalalat-un-Nas, Isharat-un-Nas, Iqtada-un-Nas).
0.5 is something which emanates from the verse by necessary intendment Usoolul Fiqh by {{URDU TEXT}} pages 246-248). Zaheer Ahmad v. Federation of Pakistan (1).
106. These four words have been explained in Muhammadan Jurisprudence by Abdul Rahim.
107. Such expression of meaning may be directly by the language of the text (Ibaratun Nas {{URDU TEXT}} or indirectly by way of connotation or suggestion (Isharatun Nas {{URDU TEXT}} Sometimes a word may indicate something which its application in the text necessarily implies as a condition precedent (Iqtada'an Nas {{URUD TEXT}} sometimes from what is expressed in all text, it may appear that it applies to some other matter which comes within its intendment by the implication of language (Delalat-un-Nas Muhammadan Jurisprudence, pages 100, 101.
108. In addition a number of laws have been evolved by the use of Qiyas or analogy from the injunctions in Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). Principles and rules evolved from the Qur'an and the Sunnah are equally binding and no law can be in accord with the Qur'an or the Sunnah which is repugnant to such principles.
109. Thus one of the main principles is the principle of Adl on which the whole superstructure of Islamic Polity is founded. The word Fasad is an antonym of Adl. The principle of legislation should, therefore, be to advance Adl and to frustrate Fasad or mischief. Any legislation which does not advance what should be advanced in Islam and does not frustrate what should be frustrated cannot enjoy the sanctity of being in accord with the Qur'an and the Sunnah. The argument, therefore, is without force.
(1) P D 1982 F SC 244
110. It was urged that even Government service is as if a contractual service. The State service is subject to the rules of security of tenure and T protection against removal and dismissal. While other services are based upon a contractual relationship. The argument is contrary to the precedents of the Superior Courts noted above.
111. It was submitted that the pension rule No, 3:5 of 1955 allowed a person to retire after 25 years' service on pension calculated @25 years' service but in the present set up he is allowed pension on the basis of 30 years' service though he may have been retired after twenty-five years' service only.
But this is little consolation for the apprehended stigma that a person remains subject to, for the loss of full emoluments and other allowances to which a person remains entitled during service and for the disqualification in respect of re-employment in Government to which he remains subject. Moreover this is a matter of instructions and rules. There is no such provision about the calculation of pension on the basis of 30 years' service in the section itself.
112. It would appear from the history of transition from spoil to merit system and from patronage to career system that it was considered important 'to protect and encourage independence of mind'.
Frankness of opinion needs protection because it is the safeguard of the most precious element in the administration, originality, inventiveness, ideas, stimulation of emotion and emulation. (Theory and Practice of Modern Government by Finer, page 864).
113. Political servility breeds corruption and patronage while constitutional rules require a civil servant to be honest, capable and U faithful to the Constitution.
114. In 1849 the permanent Secretary of the Treasury Sir Charles Trevellyan pointed out the defects of the civil service of the day. It was over-staffed, inactive and incompetent 'it attracted to its ranks only the stupid boys'. A Commission was set up with Charles Trevellyan and Sir Stafford North Cote to go into the whole question of efficiency and integrity of the British Civil Servants. At about the same time a Commission was set up with Lord Macaulay to recommend a modern Civil Service System for India. It is significant to note that both these Commissions came to the same conclusion that both the civil services had degenerated and were not in a position to face the new challenge because they were based on patronage. Both the commissions recommended for the abolition of patronage and for the establishment of a Career System based on open competitive examination amongst candidates of prescribed age limits.
115. Sir Warren Fisher while deposing subsequently before the Tomlin Commission on the principle of co-operation between the political leadership and the civil servants made the following historic pronouncement. "Determination of policy is the function of Minister. It is traditional duty of the civil servant that when the decision is being formulated to make available to their political chief all the information and the experiences at their disposal and to do this without fear or favour irrespective of whether the advice tendered may accord or not with the Minister's initial view. The presentation of inferences from the facts equally demands from him all the wisdom ad all the detachment he can command. The preservation of integrity, fearlessness and independence of thought and utterance in their private communion with Ministers, of the experienced officials is an essential principle in an enlightened Government' (ibid., 770).
116. In an essay on the Civil Service in Great Britain Raymond Nottage has pointed out the difference of approach on this question in Great Britain and in the newly emergent countries. It is stated that while the politically neutral civil servant may be suitable for Britain, he is out of place in the newly emergent countries. Ministers in these countries, it is asserted, need officials who share their political beliefs and have the dynamism which comes from active participation in a common cause. One must, of course, respect that view, but it is arguable that better results will, in fact, be secured if a Minister's political enthusiasms, and possibly prejudices, are tempered by more objective attitudes of mind in his closest official advisers".
117. Now if integrity, fearlessness, independence of thought or action or the urge to act without fear or favour is essential in an enlightened Government, how much more essential will it be in an Islamic Government where everyone holding an office, whether high or low, is equally enjoined to be just to others and to act upon the principles of Qur'anic Adl and Ehsan of which concept is much wider than justice and equity of the western world. It is, therefore, necessary that in order that la aw may be called Islamic and in accord with the Qur'an and the Sunnah it must ensure to the maximum possible extent that Fasad (mischief) of which arbitrariness unscrapulousness, oppression and tyranny are some facets is eliminated and every one shares the blessings of Adl.
118. All legislation should create conditions that every civil servant may be in a position to refuse to obey an order which is contrary to Sharia without fear of earning bad reports which may ultimately end in his premature retirement. A person in authority, however, lowly placed has the right to order Maroof and to restrain from Munkar. He has a duty to act with Adl and to remove Fasad (mischief).
In fact it is a maxim that removal of mischief is preferable to and better than the acquisition of benefits. {{URDU TEXT}}
119. A civil servant is required to act as a servant of the State and not virtually as a servant of even the Head of the State, Governor or any other appointing or competent authority.
120. This being so no Constitutional Government can be allowed to act in a manner which may jeopardize the legal exercise of power by pubic servant. A fortiori no opportunity can be provided in an Islarni State to anyone to curb the urge and instinct of others to disobey his arbitrary, dishonest orders and orders which are contrary to Sharia.
121. It is well-established that security of tenure of a civil servan can be an incentive to him for discharging his duties honestly, constitutionally and according to Sharia. On the other hand any apprehension in his mind against this security is liable to breed in him what is known as servility to the boss. This is something which may make him corrupt. Security, therefore, tends towards the advancement of the welfar of the society and elimination from it of the main source of mischief, i,e, corruption, servility is likely to endanger his independence of action and make his actions subservient to the wishes of the boss, however, unlawful sad un-Islamic they may be.
122. It may be appreciated that all process of law making is within the scope of these verses :- Q. 22:41: Those who, if We give them power in the land, establish worship and pay the poor due and enjoin kindness and forbid inquity. And Allah's is the sequel of events. Q. 4:59: 0 ye who believe!
Obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end.
123. The subservience of all laws to the injunctions of the Qur'an and the Sunnah is included in the words and it is absolutely necessary that the Ululamr (person in authority) should establish worship, arrange for the recovery of Zakat and enjoin what I Maroof (which is considered good) and forbid what is Munkar (which is considered evil). The laws of the State are, therefore required to comply directly as well as indirectly with the injunctions to enjoin Maroof and to forbid Munkar. The legislation should therefore, be so moulded than this object be achieved according to the state of the society for which the legislation is made. If the society be such that it may not be difficult to find persons who are qualified in Sharia to hold a post or office the law need not put fetters on the exercise of his discretion since there might be a presumption that the exercise of discretion by him will be in accordance with Sharia injunctions and such an Ululamr (person in authority) shall supervise the activities and actions of his subordinates also so as to make them conform to Sharia orders. But if, as in the present age it be difficult to find out such qualified Ululamr (persons in authority) be he the Head of the State or a Minister or any other officer, the objective of the legislation should be to regulate the exercise of legislation by checks and balances, keeping in view the principle that power corrupts and absolute power corrupts absolutely.
124. The functions delegated and assigned to the Ameer (Ruler) by the divine law will negate the concept of the ruler being a despot. He himself is a slave of Allah and is on a plain of equality with other slave of Allah given under his supervision and control. He cannot claim their unstinted loyalty.
Q. 3:79. It is not possible for any human being unto whom Allah had given the Book, the ruling authority (Dominion) and the Prophethood that he should afterwards have said unto mankind: Be slaves of me instead of Allah : But: Be ye faithful servants of the Lord by virtue of your constant teaching of the Book and of your constant study thereof.
125. He cannot call upon them to obey him instead of Allah. He can claim their obedience in his projects for the establishment of Ibadat (five times Prayer, Zakat, Fasting and Haj), for the enforcement of Hudoodullah (limits of Allah) including the chastisement for transgression of these limits, for enjoining good and prohibiting evil, for uprooting of all corruption, mischief, sedition, rebellion, inequity, wickedness, violence and for spreading in the land justice, equity, virtue and discipline.
' Every individual is ordained to enjoin right conduct and forbid vicious and dishonourable conduct.
(Q. 3:110)
126. It would follow that every Muslim must assist others for enforcement of this injunction. In particular the ruler who has the necessary authority for punishing transgression should be assisted.
This assistance can be secured by obedience only which is ordained in the verse `obey Allah, His Prophet and the rulers amongst you'.
127. Ibne Khaldoon categorises siyasa {{URDU TEXT}} into two kinds, i,e, {{URDU TEXT}} (Siyasat-e- Aqlia) and{{URDU TEXT}} (Siyasat-e-Deeniya). According to him the kingship of a tyrant is not desirable and rules breeding tyranny cost unbearable burden on the subject. In such state of affairs it is essential to frame all the administrative rules and regulations which may be beneficial to the Government and the public alike. If such laws are made by the members of the Shoora and wise people in the community and those who hold responsible office, the administration by resort to them is called Siyasat-i-Deeniya (Islamic Siyasat by Ghauhar Rehman, page 28). But when laws are subservient to Sharia the Government making them is of Khalafit or Siyasat-e-Deeniya.
128. The same is the distinction between{{URDU TEXT}} (Siyasate-Fasila) and{{URDU TEXT}} (Siyasat-e.Jahilya of Abu Nasar Farabi (ibid., pages 30-32).
129. Ibne Qayyium distinctly treated {{URDU TEXT}} (Siyasat-e-Adila) as a part of Sbaria. He says "We do not say that {{URDU TEXT}}(Siyasat-e- Adila) is opposed to Sharia rather it is a part of it and is only for the sake of convenience. It is based on justice and equality and is undoubtedly part of Sharia (ibid pages 35 and 36).
130. It would, therefore, follow that the rules and regulations should be such that they may help in the advancement of Adl and should be so framed as to advance this objective.
131. It has been demonstrated frequently in the judgments of this Court that the old great jurists of Islam had provided enlightening guidance in matters which struck the modern world with significance and importance in the nineteenth and, twentieth century only. Such guidance was provided in relation to civil service also several centuries ago when such concept could not even be thought of.
132. The historical perspective to Fiqh estabilshes that there was a time when according to the jurists the appointment of a civil servant was on pleasure and even if a person was appointed for a fixed period he could be removed by the employer before the expiry of the period according to the exigencies of the situation. If a person was appointed till completion of a job, his services stood automatically terminated on the completion of that business. (See Al-Ahkamus Sultaniyya by Almawardi who died in 450 Hijra, pages 329 to 331.
133. Later Abu Muhammad Izzuddin Bin Abdus Salam who died in the year 660 Hijra, however, laid down certain regulatory principles in his book {{URDU TEXT}}(Qawaid-ul-Ehkam-fi-Maslahil Anam)
He wrote that if the Head of State wants to remove his subordinate, he can do so only if he entertains some doubts about him because it is the rule that the retention of such a person is likely to create mischief and does notadvance welfare or benefit. It is immaterial whether the incumbent is a holder of {{URDU TEXT}} Ny, . (general authority) or {{URDU TEXT}}(special authority). However if there be no such cause, there are 3 alternatives.
134. The first alternative is that he may remove him to substitute him with a person of lower qualification. This is not permissible since therein lies the loss of public interest in view of the superiority of his qualifications and it is not open to the Imam to act against public interest.
135. The second alternative is to remove him for appointing in his place a better person. This certainly advances public interest or interest of the Muslims and is permissible.
136. The third alternative is that the man to be appointed holds similar qualifications as the one who is to be removed. Some of the Jurists permit it on ground of use of discretion among two equal but others consider it to be unlawful. Such a replacement is not permissible according to this opinion {{URDU TEXT}} Vol. 1, page 69).
137. Regarding promotion the view of the author is that if 2 persons are equally qualified and the only difference is that one is senior in C duration of service to other, the senior should be preferred (ibid., Vol. II, C page 200).
138. It also appears from the opinion of this author (Vide Vol. I of the above book. Page 158) that the discretion of the authorities is not to be exercised arbitrarily. He says whatever powers are entrusted to the Imam and other persons charged with (Government) administration must be exercised if they pertain to the right of the people. It is unlawful for the persons in authority to deny their enforcement on demand of a person entitled to their enforcement. But if the power pertains to the rights of Allah the persons in authority are bound to act according to the requirements of public interest. If denial of exercise of authority be in public interest, it must be denied but if it be in public interest to act upon it, it must be acted upon.
139. This is a rule which was made at a time when there were no written laws nor any guiding principles were statutorily set down. Nowadays the power can be exercised by the highest authority only if it is conferred by legislation. It is, therefore, the duty of the legislature to lay down principles which may check the misuse of the power.
140. Some assistance may be obtained from Jalaluddin Suyuti who died in 911 Hijra. A question was put about the legality of removal of a guardian of an orphan by the authorities. He replied that it was not lawful for him to remove the guardian.
141. It appears that the reason as understood by Suyuti is that the officer while removing the guardian may not exercise his power arbitrarily. Sheikhul Islam, therefore held in favour of its unlawfulness (page 276).
142. The rule therefore is that the authority cannot pass an order or removal of the executor except for cause (page 277).
143. It is in Alroza and is also related by Mawardi that it the Waliul Amar {{URDU TEXT}} (person in authority) removes any office holder from the office for cause. It is permissible; but if it is not for cause, it is not permitted (page 277).
144. The later Jurists thus placed restriction upon the rules laid down about removal of Mutawalli or any teacher at pleasure. The rule now is that such removal is not permitted except for cause (page 277).
145. Al Balqini says in (Hashiat ul Rauza) that if a Mutawalli removes a teacher without cause, his order is not executable and such order is not legal (page 278).
146. While discussing the appointment and removal of a person appointed to administer Waqf Allama Abidin (died 1252 Hijra) writes, "An Administrator of a Waqf cannot be removed by a Judge without any cause e.g. Misappropriation {{URDU TEXT}}. It is immaterial whether he was appointed by the Waqif or by the Judge himself".
147. He further writes, "From this dictum another principle has been derived that no employee of a Waqf can be removed unless he incurs disability on account of misconduct {{URDU TEXT}} and disability to discharge his duty". (Raddul Mukhtar, Vol. III, p. 423).
148. Ibn-e-Nujaim writes in connection with appointment and removal of teachers that the appointment of a teacher by a Sultan (competent authority) otherwise than on comparative merit is not valid and legal because the exercise of the authority (of appointment) is subject to public interest and there is no public interest in the appointment of a person who has no merit. Similarly a person having merit cannot be removed. (even by the Sultan). (Al-Ashban wal Nazair by Ibn-e- Nujaim, p. 389).
149. The principle according to Ibn-e-Nujaim is derived from what Qazi Abu Yusuf said{{URDU TEXT}}"The Imam has no authority to take any thing from a person except in exercise of a right which is proved and well known". (ibid).
150. There is a maxim in Sharia {{URDU TEXT}}(the exercise of control over the subjects depends on doing what is right and expedient). This rule was evolved by Imam Shafei who said that the relationship of Imam with his subjects is very like that of guardian With the minor. It is based upon what was said by Hazrat Umar "I treat the property of Allah as the guardian is to treat the property of a minor. 1 can take that much which can fulfil my necessities and whenever I am in a position of prosperity I must return it. If I can bear my expenses from my own source I must not charge anything from the property of Allah. From this several principles are derivable :--
(1) At the time of distribution of Zakat it is unlawful to discriminate between persons whose requirements are similar;
(2) If it is intended to remove Army personnel it can be done only for a cause and not without cause as is stated in Al-farooq by Shibli.
(3) As Maawardi said it is not lawful for Ameer to appoint Imam wh. Is Fasiq for leading prayers although the prayer offered after him is correct, it is however abominable. The person in authority should act in the public interest and no public interest is served by an act which is abominable.
(4) If the person in authority has to decide whether the prisoner should be put to death or be made a slave or be released with or without compensation, he cannot act except in public interest. For so long as he is not able to make up his mind on the course of public interest the prisoner should be kept in prison.
(5) There is no pardon in matters of Qissas since it is against public interest. If he finds any good in Qissas he should execute it but if he considers it better to obtain Diyat he should obtain it.
(6) The authority should not marry a woman except among people belonging to her status even though she be willing to marry anion others. The reason is that this is a right vested in all Muslims and he being their agent cannot act otherwise than on this rule.
(7) The Imam is not permitted to allow operation of a will of a person dying without heir, exceeding 1/3rd of his property. (The reason appears to be that it would be detrimental to the interest of the State which succeeds a person leaving no heir).
(8) It is not permitted to the person in authority while distributing money from the State Treasury to give priority to a person who is not needy to one who is needy. (Al Ashbah Wal Nasair by Suyuti, p.
121).
151. Other maxims which are of assistance in legislation is damage (Zarar) and retaliation by damage is not allowed). (The repelling of mischief (Mufasid) is preferred to the acquisition of benefits) {{URDU TEXT}}(Zarar) damage is repelled as far possible.)
152. It is a well-known principle in Sharia that {{URDU TEXT}} (It cannot be denied that laws change with the change in age). It is not necessary to deal with this principle in any detail on account of the established flexibility of legislation in Islam which is suitable for each age up to the Day of Judgment. The best illustration of this is furnished by the gradual change of view about service. The concept of civil service being on pleasure underwent a change and the tenure of a Mutawalli, teacher, etc. Become terminable for cause only as is evident from the above opinions of AlMawardi, Izzuddin Abdus Salam and Suyuti. According to Suyuti even the Military Personnel whose efficiency depends upon harsh discipline cannot be removed or dismissed except for cause. The removal of civil servant stands on a much stronger footing.
153. Where the dismissal or removal cannot be ordered except for cause it would be necessary to give the person affected an opportunity of being heard, because cause cannot be decided by a competent authority in the secrecy of his office because the object is to minimize rather to eliminate--mischief or possibility of corruption and arbitrariness.
154. This is established from the dismissal of Iblees from his lofty position since he was turned out (Q. 38 : 77) only after inquiry from him about the cause of not prostrating himself before Adam (Q, 38 75), the exact procedure provided by the Qur'an for punishing the offenders on the day of judgment the fact that neither any punishment norwas sent on any people unless they were warned by the Prophets, and Verses 27 20 and 21 in the story of Prophet Suleman: Q. 17 : 20: And he sought among the birds and said: How is it that I see not the hoopoe, or is he among the absent?
Q. 27 : 21: I verily will punish him with hard punishment or I verily will slay him, or he verily shall bring me a plain excuse.
155. The words "shall bring me a plain excuse" prove that the bird was to be given the opportunity to defend itself before being punished. Explain. Ing this verse Maulana Muhammad Rafique Chaudhry wrote in his article . (Injunction and non-Injunction provision in the Qur'an) published in Minhaj quarterly "Ijtehad number" of January, 1984) that no employee in a Islamic State can be proceeded against except by service of a show-cause notice. The incident of the removal of Khalid has already been commented upon. There are, however, a number of such instances in which action was taken against Officers of the State by Hazrat Liman only after giving them an opportunity of show cause (see pages 300 to 308 of Al-Farooq by Maulana Shibli Naumani).
156. Section 12 (1) and (ii) of the Punjab Act and corresponding sections of the Provincial laws are therefore, repugnant to the Qur'an and the Sunnah.
157. These sections are violative of the principle of Masawat (equality before law) also as there appears to be no reasonable classification of Additional Secretaries or persons of equal or higher ranks on the one hand and other employees of lower ranks on the other. The denial of security of service was really a subject to make the holder of this office subordinate to the will of the person in authority irrespective of whether his order is in accord with Sharia or contrary to it.
158. After 1958 such a large number of persons have been retired from service compulsorily and arbitrarily that the interest of legislation cannot be served without making it necessary to issue notice to the employee to show cause against retirement.
159. It was urged that many a persons are likely to become inefficient by the expiry of time and instead of stigmatization them it is better to let them be retired quietly with all the benefits. This argument does not appeal to us since the causes on which a person can be retired must have been there long before, the employee has at his credit 25 years qualifying service. The reason for this can be lack of supervision and want of accountability for which the competent authority should be held responsible. It is always better to make an employee accountable for his inefficiency or for his mischief whenever such things come to the notice of the authorities. To take proper action at the right time against any person who does not discharge his duties efficiently acts as a warning to others also who would reform themselves. To allow these mischiefs to pile up and then to take action after 25 years' qualifying service only would not be necessary if proper action is taken at the earlier stage. However, we do not agree that this is really the objective of making this provision in section 12 of the Punjab Act or corresponding provisions in other Provinces.
This question was considered and commented in its historical context in the White Paper of 1979, Vol. II, pages 131 to 160. The remarks at page 136 about both the provisions of section 12(1) and (ii) reinforce the judgment of this Court on section 130 and (in of the Civil Servants Act, 1973, (S. S. M. No, 263-A/83). After reconsideration of this matter and after hearing the counsel at length, we find no reason to depart from the principle laid down in that judgment. We, therefore, direct the Government of the Punjab to repeal the provisions of section 12(1) and (ii) of the Punjab Civil Servants Act, 1974, by 30th September, 1984. Similarly we direct the Government of N.-W. F. P., Sind and Baluchistan to repeal by the same date the provisions of section 13(i) inL each of the N.-W. F. P.
Civil Servants Act, 1973, and Sind Civil ServantsL Act, 1973, and section 13(i) and (ii) of Baluchistan Civil Servants Act, 1974, respectively. Consequential amendments will be made in other parts of the same sections.
161. Shariat Petition No, 1/L of 1983 is thus allowed and the other three Shariat Petitions bearing No, S. P. 2/L of 1983, S. P. 1/I of 1984 and S. P. No, 3/1 of 1983 are dismissed presence and hearing and that the record contains a full and true account of the statement made by the accused." It is explicit that certificate has to be in the hand of trial judge and the rubber stamp certificate does not fulfil the requirement of law. But as observed earlier the absence of certificate on the statement of the accused recorded under section 342, Cr. P. C. Would be fatal only if it can be shown that by its omission the accused has been injured in his defence on merits and it has in fact occasioned a failure of justice. Near possibility or probability of a failure of justice is not sufficient which is also not the case of the appellants. The learned counsel has not said a word in what way by absence of certificate failure of justice has occasioned. The rubber stamp certificate was affixed on the close of the statement of the accused in the presence of the accused and his counsel which is signed by the Presiding Officer but no objection was raised before the trial Court by the accused or his counsel. The explanation of section 537, Cr. P. C. Lays down that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here no objection to the absence of certificate on the statement of the accused was taken at the trial stage, the same cannot be said to have occasioned a failure of justice so as to vitiate the proceedings.
(ii) It is a fact that the statements of the witnesses were recorded on solemn affirmation and not on oath as required by the amended Oaths Act, 1873. Amended section 6 of the Oaths Act lays down that where the witness is a Muslim, he shall make an oath. It was conceded by the learned counsel that no form of oath has been prescribed by the High Court as required by section 7 and in its absence oaths and affirmations continue to be administered according to the form in use. The learned counsel has conveniently ignored the provision which takes the anchor-sheet of the arguments advanced about the illegality of the statements. Section 13 reads as under :- "No omission to take any oath or make any affirmation, no substitution of, any one for any other of them. And no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
In view of these unambiguous provisions the evidence on solemnly affirmation instead of oath would not invalidate the proceedings.
(iii) The objection of the learned counsel that one line report of the Chemical Examiner cryptic in nature and bald and barren of reason has not to be relied upon by the Court has little force.
Section 510, Cr. P. C. Which makes it admissible in evidence reads as under :- "Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, or of the Chief Chemist of the Pakistan Security Printing Corporation Limited, or any Serologist, fingerprint expert or fire-arm expert appointed by Government, upon any matter or thing duly submitted to him for examination or ,analysis and report in the course of proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry trial or other proceeding under this Code : ' Provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom Such report has been made."
It is the report which is admissible in evidence and the procedure or the process followed in arriving at it has not been mentioned. However, it E is open to the Court in case of doubt or if considered necessary in the interest of justice to Summon the Chemical Examiner and examine him as a witness.
(iv) It was submitted by the learned counsel for the appellants that neither the Excise Officer nor the Chemical Examiner used Form M. 29 with regard to the narcotics as required by paragraph 4.19 of the Excise Manual. As such the flaw has rendered the convictions unsustainable. Paragraph 4.19 is in the following terms :- "Paragraph 4.19.-Samples of liquior, hemp drugs, opium and other dangerous drugs in regard to which doubt arises, should be sent for analysis and opinion to the Chemical Examiner to Government, Punjab, Lahore whose report is admissible in evidence under section 510 of the Criminal Procedure Code. Samples should be sent by Collectors direct and not through the Civil Surgeon. All articles for analysis shall be packed and sealed in the presence of the Excise Inspector himself who shall sign a certificate in the Form M. 29, in triplicate, one copy being despat. Hed with the articles, one with the covering letter and one retained as an office copy. The Chemical Examiner will return one of the copies sent to him and endorse upon it his report. If the Inspector is on casual leave or on tour for several days, the certificate should be signed by the Excise Officer or failing him by the treasury officer."
' Despite our repeated queries, the learned counsel for the appellants has not been able to show under what provisions of law the Excise Manual has been prepared. We sent for the Excise and Taxation Officer, Islamabad who produced the Punjab Excise Manual wherein departmental instructions have been incorporated. If it be conceded that the Excise Manual was not followed even tnen the non-compliance of departmental instructions would not vitiate the trial and render the convictions of the appellants illegal. Under item 4.19 Form M. 29 was prescribed much earlier to the coaling in force of the Prohibition (Enforcement of Hadd) Order, 1979 under which the appellants have been convicted. The Punjab Prohibition (Enforcement of Hadd) Rules, 1979 framed under Articles 21 and 31 of the Prohibition (Enforcement of Hadd) Order, 1979 do not F make it obligatory for the Excise Officer to use Form M. 29 for obtaining the report of the Chemical Examiner.
Article 27 of the Order provides that the provisions of Criminal Procedure Code shall apply mutatis mutandis to the cases under the Order. The cases under the Order are cognizable and no exception can be taken to the procedure followed by the investigating agency in seizing the narcotics as laid down by the Criminal Procedure Code. On this view of the matter, with due respect, we do not approve of the finding of a Division Bench reported as Muhammad Farooq v.
The State (1), to the effect that non-use of Form M. 29 had created doubt in the prosecution case.
(1) 1985 P Cr. L J 778
(v) To bring out the distinction between search of persons and places, the easiest way is to refer to the provisions of section 103, Cr. P. C. Which is as follows :- "103. Search to be made in presence of witnesses.-(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses ; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend.-The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend an witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
A bare reading of the section makes it crystal clear that it refers to search of places and not of persons. The mandatory requirement that search has to be witnessed by two or more respectable inhabitants is relatable to the place to be searched. About search of persons, it is not obligatory that two independent respectable persons be present to witness it. In this view of ours, we are supported by a judgment of the Shariat Appellate Bench of the Supreme Court reported as PLD 1984 SC 278 and a judgment of a Division Bench of this Court reported as PLD 1985 F SC 293. In both the cases, narcotics were recovered from the personal search of the appellants, it was, therefore, held that section 103, Cr. P. C. Was not applicable to their cases.
6. Reverting to the factual position in Criminal Appeal No, 133/I of 1985, Shah Nawaz convict appellant was found in possession of 1050 grams of opium. On 27-8-1984 at 12-30 p.m. The appellant was travelling by a bus from Abbottabad and when it reached Taxila Cantonment the employees of Excise Department headed by Abdur Rashid, Excise Inspector, P. W. 1 checked it at G.
T. Road. The appellant on suspicion was deboarded from the bus and on his personal search 1050 grams of opium wrapped in plastic paper was recovered from the pocket of the Shaluka which the appellant was wearing. 12 grams of opium was separated for chemical analysis. The sample and the rest of the opium and the Shaluka were sealed into separate parcels. The report of the Chemical Examiner Exh. P. E. Is positive to the effect that it was non-excise opium. In all seven witnesses were produced and examined by the prosecution in support of the charge. The accused pleaded innocence and stated :- "I was substituted for Muhammad Ashraf aforesaid. I had a fight with the excise officials when they had let off Muhammad Ashraf.
I had complained to Muhammad Sharif S. I. That the opium was recovered from Muhammad Ashraf and was substituted for him." Two witnesses were examined in defence. Banaras, D. W. 1 deposed about the good moral character of the accused. Usman Ali, D. W. 2 gave similar evidence.
The plea of the accused that he was substituted for Muhammad Ashraf the real culprit and that he had fight with Excise officials was neither put to Abdur Rashid or Aurangzeb, the two witnesses from the Excise Department nor was it suggested to any of the recovery witnesses. The recovery of the opium stands proved by overwhelming prosecution evidence which inspires confidence.
7. However, it was forcefully argued by the learned counsel for the appellant that for keeping intoxicants the maximum sentence of imprisonment under Article 4 is two years' R. I. Under second proviso to the Article, if the quantity exceeds one kilogram in case of raw opium then the maximum sentence provided is imprisonment for life. In case in hand, none of the witnesses has stated that the opium recovered was raw opium so much so that even the Chemical Examiner has not stated that the sample sent to him was that of raw opium. Raw opium has not been defined in any of the statutes dealing with the offences about opium. In the Schedule made under Article 2(g) of the Prohibition (Enforcement of Hadd) Order, 1979 the definition of opium and opium derivatives is the same as given in the Dangerous Drugs \et, 1930. Section 2 of the Dangerous Drugs Act clause (e) refers to opium which lays down :- "Opium" means-
(1) poppy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted ;
(ii) the spontaneously coagulated juice of Capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport ; and
(iii) any mixture, with or without neutral materials, of any of the above forms of opium ; but does not include any preparation containing not more than 0.2 per cent of morphine :"
' Clause (f) refers to opium derivatives and it reads :- "opium derivatives" means-
(i) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether in powder form or granulated or otherwise or mixed with neutral materials ;
(ii) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking, and the dross or other residue remaining after opium is smoked ;
(iii) morphine, that is, the principal alkaloid of opium having the chemical formula C. H. No, and its salts 17 19 3
(iv) diacetylmorphine, that is, the alkaloid, also known as diamorphine or Heroin, having the chemical formula C. H. No, and its salts; 21 23 5
(v) all preparations, officinal and non-officinal containing more than 0.2 per cent of morphine, or containing any diacetylmorphine ;"
' In West Pakistan Opium Rules, 1956. "Pure Opium" and "Excise Opium" has been defined.
(a) "Pure Opium" means the spontaneously coagulated juice of capsules of the poppy plant which has not been submitted to any manipulation other than that necessary for packing and transport ;"
(b) "Excise Opium" means the opium manufactured in an Opium Factory approved by the Provincial Government or the opium imported from outside the Province by or on behalf of the Government, or the opium approved by the Provincial Government to be excise opium ; ' Although the definition of opium for the Prohibition Order is to be taken from the Dangerous Drugs Act but it is also proper to give the definition of opium as mentioned in the Opium Act, 1878 which states that :- "Opium" means.
(i) poppy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted ; and
(ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport ; and
(iii) any mixture, with or without neutral materials, of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930 ;"
' These definitions referred to herebefore are least helpful in finding out what is raw opium, the possession of which has been made an aggravated offence under second proviso to Article 4.
None from the prosecution including the Chemical Examiner has averred that narcotic recovered from the appellant was raw opium. The counsel representing the State after consulting the officer in the Excise Department could not also give any plausible explanation about raw opium but he stated that all the opium other than the Excise opium is to be treated as raw opium which is not supported by any of the definitions of opium given in three different provisions of law dealing with the subject mentioned here before. To have the uncertainty set aside about what is raw opium, the possession of which has been made punishable under Article 4 of the Order ibid, the Government would be well-advised to have it defined and incorporated in the appropriate statute. In case raw opium is relatable to non-excise opium then the word 'raw' is superfluous because after the enforcement of Prohibition (Enforcement of Hadd) Order, 1979, the possession of any type of opium whether excise or non-excise is culpable under the Order ibid. In the present case as well as in many other cases that we have come across, the opinion of the Chemical Examiner is to the effect that the narcotic recovered is non-excise opium. Even the expert appears to be ignorant that after the promulgation of Prohibition (Enforcement of Hadd) Order, 1979, possession of all types of opium is prohibited.
Looking at the matter from another angle if we take the ordinary meaning of "raw" as defined by Chambers Twentieth Century Dictionary being" not altered from its natural state : not cooked or dressed : unwrought : not prepared : or manufactured : not refined : not corrected : not mixed :" in that case raw opium would cover items (i) and (ii) of clause E of section 2 of The Dangerous Drugs Act. 1930 referred to here before and would not include opium prepared for smoking or oral consumption which is not in consonance with the spirits of Hadd Order ibil, that provides for enhanced punishment with imprisonment for life for the possession of opium in the quantity of one kilogram and above. One is not to go deep to find out the anomaly that if the opium in raw state is one kilogram or above then the offender can be punished with imprisonment for life but if he is found in possession of the same quantity of prepared opium, more potent, than he can only be awarded the sentence of two years' imprisonment.
8. Dangerous Drugs Act, 1951 of United Kingdom in section 4 (2) (a) has defined raw opium. The expression "raw opium" includes powdered or granulated opium but does not include medicinal opium.K Words and Phrases Legally Defined by John B. Saunders also describes "raw opium" as powdered or granulated opium and not medicinal opium. All this exercise has been done to show that "raw opium" has been defined in the statute applicable to the United Kingdom.
9. For the reasons aforesaid, we maintain the conviction of the appellant under Article 4 of the Order but as his case is not covered by the second proviso, the sentence is reduced to two years' R.
I. And a fine of Rs, 2,000 or in default thereof to further undergo three months R. I. The sentence of whipping numbering five stripes is however, set aside. The appellant shall be entitled to the benefit of section 382-B of Cr. P. C.
10. Muhammad Alam Shah in Criminal Appeal No, 149/I of 1985 on 21-4-1985 was found in possession of 40 grams of Heroin wrapped in a plastic envelope which he was carrying in the front pocket of his shirt. In his case, Ch. Aftab Ahmad, S. H. 0, Police Station, Taxila was informed by an informer that a person carrying large quantity of narcotic had alighted from a bus at some distance from Taxila bypass. The S. H.
0. Accompanied by Muhammad Zamir, A. S. I. Asghar Ali, H. C. Muhammad Ashraf, H. C. Ghulam Sarwar and Muhammad Ejaz, Constables went after the culprit and intercepted the appellant who was carrying a basket in his hand. On seeing the police party the accused tried to slip away but was apprehended. On his personal search 40 grams of Heroin wrapped in a plastic envelope was recovered from the front packet of the shirt that he was wearing. 10 grams of Heroin was separated for chemical analysis. The rest of the Heroin was sealed into a separate parcel. The report of the Chemical Examiner Exh. P. E. Is in the positive.
11. In all four witnesses were examined by the prosecution in support of the charge. The plea of the accused was that he was innocent and falsely implicated in the case. In his defence the accused also gave evidence on oath. It was stated by him :- "The allegation against me that I had boarded down a bus at some distance from Taxila bypass is incorrect. It is also incorrect that, PLD 1986 Federal Shariat Court 265 {{URDU TEXT}}
(a) PreidMtion (Enforcement of Had) Order (4 of 1979)-Art. 4- {{URDU TEXT}}
(b) Criminal Procedure Cods (V of 1898)- - Ss. 342 & 363- {{URDU TEXT}}
(e) Crimissi Premiere Code (V of 1598)- - S. 510- {{URDU TEXT}} alk.a..1'19A/445,0,..44::4131/ id/rL,'1,44,?.Fr I q AO {{URDU TEXT}}