' MUHAMMAD ASLAM ARAIN, J.---In this Constitution Petition, order dated 10-1-1990 of respondent No,1 has been impugned whereby the lifer convicts/respondents 2 to 7 have been granted 'B' Class in Jail.
2. The facts of the case in brief are that respondents 2 to 7, alongwith Zia Abbas and Tariq Saeed were accused in Crime No,91/74 under sections 302, 307, 148, 149, P.P.C. Registered at P.S. Jeckson, Karachi. They were arrested and sent up for trial to the Court of Session, Karachi. The case was assigned to the Additional Sessions Judge who, on 2-7-1976, framed charge against all the eight accused. On the same day i.e, on 2-7-1976, an application under section 494, Cr.P.C. Was filed on behalf of the State praying that the case against the accused Zia Abbas and Tariq Saeed be allowed to be withdrawn. This application was rejected by the learned Judge and against that order, Zia Abbas and Tariq Saeed filed revision application before this Court, which was allowed by order, dated 25-10-1976. The judgment is reported in PLD 1977 Karachi 235.
3. The present petitioner Mir Hassan challenged the order, dated 25-10-1976 of this Court by way of an appeal to the Supreme Court and his appeal was allowed. The judgment is reported in PLD 1977 SC 451.
4. Thereafter respondents 2 to 7 alongwith Zia Abbas and Tariq Saeed were tried by the Sessions Judge, Karachi, and all of them were acquitted by judgment dated 24-4-1978. An acquittal appeal filed by the State was dismissed by this Court vide judgment dated 4-6-1981.
5. The State as well as the Complainant Bakhtiar Khan filed appeals (except against the acquittal of accused Tariq Saeed) before the Supreme Court being Appeals No, K-3 and K-4 of 1982, which were allowed by judgment reported in PLD 1983 SC 286 and the retrial of respondents 2 to 7 and Zia Abbas was directed.
6. The Sessions Judge, Karachi (West) held the retrial and by judgment dated 10-11-1990, while acquitting accused Zia Abbas convicted the respondents 2 to 7 as under:---
(i) Under section 148, P.P.C. To suffer R.I. For 3 months each.
(ii) Under section 302, P.P.C. Read with section 149, P.P.C., imprisonment for life each and fine of Rs,50,000 each or in default to suffer R.I. For one year more. Out of fine, if realised, half of the amount shall be paid to the heirs of the two deceased under section 544-A of Criminal Procedure Code as compensation.
(iii) Under section 307, P.P.C. Read with section 149, P.P.C. To suffer R.I. For 3 years and to pay a fine of Rs,10,000 each or in default to suffer R.I. For 3 months more; out of fine, if realised, a sum of Rs,5,000 to be paid to the injured Fazal Qayyum as compensation under section 544-A, Cr.P.C.
7. On the same day i.e, on 10-11-1990, when the judgment of conviction was announced, an application was moved by one Azizur Rahman addressed to respondent No,1 praying for grant of 'B'
Class to respondents 2, 4, 5, 6 and 7, while the name of the convict Rustam was not included in the said application. Respondent No,1 (Secretary, Home Department, Government of Sindh, Karachi) disposed of the application in the words, "B Class allowed". This order was communicated to the Superintendent, Central Prison, Karachi, on the same day and with effect from 11-11-1990 the respondents No,2 to 7 have been placed in 'B' Class in Jail.
8. Mst. Hajiyani Fatima, the mother of the two deceased, filed C.P. No,D.-392/91 against the Superintendent, Central Prison, Karachi and others, challenging the grant of 'B' Class to the convicts/respondents. At that time, it was assumed that the concession of 'B' Class was granted to the convicts by the Superintendent, Central Prison, Karachi. However, on 10-4-1991 when C.P. No,D- 392/91 came up for Katcha Peshi, the learned A.A.-G. Informed this Court that the convicts were granted 'B' Class by the Government of Sindh, vide Order No,PRS/9-90/90, dated 10-11-1990. The learned Advocate for Mst. Hajiyani Fatima, in view of the statement by the learned AA-G. Did not press the petition, but reserved his right to approach the competent authority for his remedy and accordingly the petition was dismissed as not pressed.
9. The present petitioner, who is the real brother of the two deceased, then moved an application before respondent No,1 on 20-4-1991 seeking cancellation of 'B' Class to the respondents/convicts.
His application was not decided for nearly 25 days, whereafter he filed the present petition and has prayed for a declaration that the impugned order, dated 10-11-1991 of respondent No,1 granting 'B'
Class to respondents 2 to 7/lifer convicts has been passed without lawful authority and in violation of the rules applicable to the grant of better class to the convicts.
10. The learned Advocate for the petitioner has argued that respondent No,1 was not competent to entertain application moved by Azizur Rahman, a person not aggrieved by conviction, or to dispose it of by a short order, "B Class allowed". He has referred to the "Rules for the Superintendence and Management of the Prisons in Pakistan", Chapter VIII. Rule 242 provides the classification of prisoners into A, B and C classes. Sub-rule (ii) of rule 242 provides that B class will consist of prisoners, who, by social status, education and habit of life have been accustomed to a superior mode of living. Rule 243 of the rules provides as follows:--- "For A & B classes the classifying authority will be the Government. Courts may classify prisoners into A & B classes pending final orders of the Government. Class 'B' will be classified by the trying Courts, but such prisoners have a right to apply for revision to the Government. Petitions for revision will be forwarded by the Superintendent to the Inspector-General for transmission to the Government.
Rule 244 of the rules provides as under:-- ' In case convicting Courts omit to classify convicted prisoners for better Class treatment Superintendent of Prisons, subject to the approval of the Government, may classify them as 'B'
Class prisoners provided that such prisoners appear to fulfil the conditions prescribed for better class treatment.
11. The factors, which are to be kept into consideration by the recommending authority for grant of A or B class to the prisoners are provided in rule 245 of the rules.
12. The learned Advocate for the petitioner has contended that on 10-11-1990, respondent No,1 did not have before him any recommendation by the Superintendent of Jail for grant of 'B' Class to the convicts as is required under rule 245 of the Rules and the order passed by him on Miscellaneous Application moved by Azizur Rahman, straightaway granting 'B' Class to the respondents is an illegal order, being against the rules. He has also contended that besides convicting the respondents to undergo life imprisonment for offences under sections 302 and 149, P.P.C., they are convicted for an offence under section 148, P.P.C. To R.I. For 3 months and for offences under section 307 read with section 149, P.P.C. To R.I. For 3 years and fine. Thus according to him, the trial Court, in fact, classified the respondents for undergoing conviction in 'C' Class in Jail, as R.I. Would imply 'C'
Class. Rule 243 provides that for A & B classes the classifying authority will be the Government and the Court may classify prisoners into A or B classes pending final order of the Government. The trying Courts will classify a prisoner to 'C' class, but such prisoner will have a right to apply for revision to the Government. According to the learned Advocate, since the convicts/respondents were sentenced to undergo R.I. For different terms, besides being sentenced to life imprisonment, they would be deemed to have been classified as 'C' Class prisoners and it would only be through revision to the Government that the convicts could be granted bettei class. According to him, in this case it would only be on application by the respondents to the Superintendent of Jail, who could classify them as 'B' Class prisoners subject to the approval of the Government as provided in rule 244 of the Rules. Such an application, if moved by the convicts for better class must have been supported by evidence as required under rule 245 and the application, if recommended, could have been granted by the respondent No,1. Any procedure other than this would tantamount to passing the order without lawful authority.
13. Mr. AA. Muhammad Ally, learned Additional A.-G. Has contended that the order granting 'B' class to the respondents was .Passed by respondent No,1 in a lawful manner as he was competent to pass such an order under rule 244. When asked to point out if there was any material before respondent No,1 on 10-11-1990 for grant of better class to the respondents or whether the case of the convicts was recommended by the Superintendent of Jail, the learned Additional A.-G. Very frankly conceded that except the application of Azizur Rehman there was no such material available.
14. Mr. Ch. Iftikhar Ahmed, learned Advocate for respondents 2 to 6 at the very outset contended that the petitioner, who is the brother of the two deceased is not an aggrieved person and, therefore, the petition itself is not maintainable. In this respect, he referred to (i) 1980 PCr.LJ 999 (Muhammad Azam v. The Sessions Judge, Jhelum and 7 others); (ii) PLD 1958 SC 437-441 (Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service and others); (iii) PLD 1965 Dacca 231, (Muhammad Abdus Salam v. Chairman, East Pakistan Election Authority and others); (iv) PLD 1972 Lahore 244 (Managing Committee Masjid Mohajrin v. S. Ayaz Hussain Shah, Settlement and Rehabilitation Commissioner and 2 others and (v) PLD 1972 Lahore 489 Punjab Miners' Labour Union v. The West Pakistan Industrial Development Corporation Jhelum).
' The learned counsel further contended that the application moved by the petitioner before respondent No,1 for cancellation of '13' class to the respondents has been rejected on 3-6-1990, duly communicated to the petitioner, but the rejection of his application has not been challenged by the petitioner. It is also contended that the Government could grant '13' Class to the convicts even without an application. In any case, according to the learned Advocate, the Superintendent of Jail or the Court convicting the accused could recommend better class for convicts under rules 243 and 244. He has contended that all official acts would be deemed to have been done in a lawful manner as no mala fides has been shown against respondent No,1 and as such no exception could be taken to the impugned order.
' It is next contended that the Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly and mere fact of the decision being incorrect or such to which High Court would not have arrived, does not render decision without jurisdiction. Reliance is placed on PLD 1981 SC 552 Abdul Rehman Bajwa v. Sultan and 9 others. It is also argued that the High Court while exercising powers of judicial review over the administrative body taking decision on facts within its competence, would exceptionally interfere with its findings thereon. Reliance is placed on 1986 CLC 1848 Amar Lal v. Board of Intermediate and Secondary Education. The learned Advocate has also referred to D.B. Judgment of this Court reported in 1986 CLC 2635 Abdul Rehman v. Province of Sindh and others and has contended that where an authority has jurisdiction to decide a matter, the same could be decided rightly or wrongly by such authority and the Constitutional jurisdiction of the High Court cannot be exercised to interfere in such matters irrespective of the fact where the same has been decided correctly or incorrectly.
' The learned Advocate then referred us to the counter-affidavit filed on behalf of the respondents and the documents annexed therewith to show that the respondents, even during their trial at an early stage were granted Class in Jail. Other documents filed alongwith counter-affidavit suggest that the respondents are Income-tax payees and are running business as well as owning properties in their names, which would all go to suggest that the respondents were entitled to grant of better class in Jail as a matter of right.
15. Mr. Khawaja Naveed Ahmad, learned counsel for respondent No,7 has also been heard and he has adopted the arguments advanced by the learned counsel for respondents 2 to 6. He has also filed a statement in the form of submissions on behalf of respondent No,7 and has annexed a number of documents showing that respondent No,7 is a man of means, an income-tax payee and used to a superior mode of living and such social status entitled him to grant of 'B' Class in Jail.
16. We have heard the arguments of the learned Advocates at length and perused the impugned order as well as the documents on record. We had also had the advantage of going through the file of respondent No,1 on the subject, produced by the concerned Section Officer. We find that on 10-11-1990' respondents 2 to 7 were convicted by the trial Court to various terms of sentence as mentioned above. On the same day, a typed application was moved by Azizur Rahman, brother of respondent Habibur Rahman and the subject of the said application is reproduced as under:--- "Sub: An applicant for grant of 'B' Class to Habibur Rehman, Zabit Khan, Hussain Khan, Mir Akbar, Mir Ajab. Lifers/convicts confined in Central Prison. Karachi, at FIR No,90/74 of P.S. Jackson under sections 302, 148, P.P.C. In Sessions Case No,613/88, dated 10-111990."
' The words underlined are written in hand, while the whole application is typed one. Nowhere in the body of the application it is mentioned that respondents 2 to 7 are convicted. It is thus clear that at the time the application was drafted and typed, applicant Azizur Rahman never knew that the respondents were convicted by the trial Court. Such application is disposed of by respondent No,1 by a short order, "B Class allowed". No enquiry was made by respondent No,1 to satisfy himself as to whether the convicts/respondents were .Qualified for grant of 'B' Class. Nor the case of the convicts was recommended by the Superintendent of Jail. The documents annexed by the respondents, with their counter-affidavits before this Court, were also not available with respondent No,1 when he considered the application of Azizur Rahman. There has thus been flagrant violation of the rules as respondent No,1 could not decide the' application for grant of 'B' Class to convicts/respondents in a summary manner. The order impugned, therefore, cannot be sustained.
17. The contention of the learned counsel for respondents 2 to 6 is that the petition is not maintainable as it is filed by Mir Hassan, the brother of the two deceased, a person not aggrieved.
1980 PCr.LJ 999 referred by him in support of this contention is not applicable to the facts of the case in hand. In this judgment, the complainant had challenged the delivery of the accused to the military authorities for trial by a Court Martial and it was held that a complainant cannot claim to be vested with any legal right to have the complaint tried by a particular person or under a particular procedure. It was also held that it was extremely doubtful if the petitioner could be termed as "an aggrieved person" within the meaning of Article 199 of the Constitution. In PLD 1958 SC 437, it was observed that the applicant for grant of a route permit, an objector, need not be heard at the same hearing. This judgment of the Supreme Court is in a case where the question of the grant of route permits by the Regional Transport Authority, Lahore was under consideration before the High Court and against the judgment whereof, one of the transporters had agitated before the Supreme Court. The facts of this judgment are also totally different and distinguishable from the facts of the present case.
18. In PLD 1965 Dacca 231, the words "aggrieved party" or "person, aggrieved" have been defined and it is observed that they do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something. In PLD 1972 Lahore 245 it is held as to who is "an aggrieved person." It is observed that the High Court could interfere only on an application of "an aggrieved person". This judgment is in a case under Displaced Persons (Compensation and Rehabilitation) Act, 1958, where the question of filing a revision application by "a person aggrieved" was under consideration. In PLD 1972 Lahore 489, the locus standi of a petitioner to invoke the jurisdiction of the High Court under Article 98 of the then Constitution was under consideration and it was held that such jurisdiction could be invoked only by "a person aggrieved", and that too against a specific and definable omission or commission on the part of the relevant authority. It was held that the Trade Union agitating individual case of a workman cannot claim locus standi to invoke jurisdiction under Article 98.
19. The next contention of the learned Advocate also needs to be considered in detail. It was contended that a Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter, has jurisdiction to decide it rightly or wrongly and the mere fact of the decision being incorrect or such as to which the High Court would not have arrived, did not render decision as without jurisdiction. This contention was supported by the learned Advocate by placing reliance on PLD 1981 SC 522, 1986 CLC 1848 and 1986 CLC 2635 already referred to above.
20. However, in PLD 1987 SC 447 (Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others), a different view has been taken. It has been held that a tribunal invested with jurisdiction to decide a particular matter has no jurisdiction to decide it "rightly or wrongly". It is held that the condition of grant of jurisdiction is that it should decide the matter in accordance with law and the Tribunal when goes wrong in law, it goes outside jurisdiction conferred on it because Tribunal has jurisdiction to decide "rightly" but not the jurisdiction to decide "wrongly". It is further held that when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and decision of Tribunal which is eroneous on a point of law can be quashed under writ jurisdiction as being in excess of law.
21. Having perused the case law referred, we have no hesitation in our mind to hold that the petitioner, who is a real brother of the two deceased is an aggrieved person and the petition is maintainable in law. It may be noted that in the same case between the parties, the petitioner had agitated for his cause upto the Supreme Court and his locus standi was never challenged on the ground that he is not an "aggrieved person". We also do not agree with the contentions of the learned Advocates, appearing for the respondents 2 to 7 that respondent No,!, who have the power under rules to decide the question of grant of better class to convicts in Jail could decide the matter rightly or wrongly. As held in PLD 1987 SC 447, respondent No,1 exercising administrative power under the rules, had to decide the application of Azizur Rahman in accordance with rules and not in violation of the rules.
22. As observed above, the impugned order dated 10-11-1990 is in violation of the rules and the same cannot be sustained. We, therefore, declare the said order as illegal and set aside the same.
' These are the reasons of our short order dated 11-6-1991.