' On the following day of the recent dissolution of the Legislative Assemblies on 18-7-1993, there was an uproar in the National Press that Mian Manzoor Ahmad Wattoo, the dethroned Chief Minister of the Punjab, like his penultimate predecessor-in-office, Mian Nawaz Sharif, had, on the last day of his rule, distributed a large number of residential plots to his relations, cronies and political associates or their nominees. Since a bad tradition of misappropriating and dissipating valuable public property by the rulers in a regal fashion was taking its roots to the sheer detriment of the public at large, particularly the have-nots for whose shelter various housing schemes had primarily been formulated, this Court, taking notice of the news items, vide its order, dated 19-7-1993, asked the learned Advocate-General, Punjab, to place before it on 28-7-1993, the details of all allotments of residential/commercial plots made by Mian Manzoor Ahmad Wattoo during his tenure as Chief Minister of the Punjab, to different persons in various development schemes in the Province. At the same time, the Press was also invited to participate in this exercise to help this Court. Meanwhile an interim order was issued to the Heads of all official Development Agencies, restraining them from taking any further action on the allotment of plots made by Mr. Wattoo.
2. On 28-7-1993, the next date of hearing, Mr. Sarfraz Syed, Deputy Editor of 'Daily Khabrain" Lahore, of his own accord, put in appearance as a petitioner to pursue the news published in his newspaper and the learned Acting Advocate-General, Punjab, placed before this Court two lists of plots allotted by Mr. Wattoo during his tenure as Chief Minister, Punjab. One of these lists, having been prepared by the Housing and Physical Department, contained the names of 85 allottees of different sizes of residential plots, and the other list comprised the details of 114 allottees in various development schemes of Lahore Development Authority. He, however, informed that Mr. Wattoo had withdrawn some of the allotment orders before implementation, excepting those of two widows and three police officers. Four other journalists, represented by Miss Asma Jehangir, Advocate, also put in appearance, saying that their names had also figured in list of allottees of plots but they never requested the Chief Minister for their allotment, nor they were interested in retaining those plots. They were allowed to place their explanation on the record. Ch. Muhammad Wasi Zafar, an Advocate of Lahore High Court, made an application for becoming a party to the proceedings, on the ground that Mian Nawaz Sharif, during his chief-ministership of the Punjab, especially during the last week of his tenure from 28-7-1990 to 6-8-1990, had, by abusing his official position, allotted more than 5,000 plots to his cronies and political associates to strengthen his political position and he wanted to assist this Court in bringing on the record the details of his malpractices in this regard. His application was, however, dismissed summarily as a writ petitioner was already there.
3. Since sufficient material had come on the record, Mian Manzoor Ahmad Wattoo, the former Chief Minister of the Punjab, was directed to appear in this Court on 1-8-1993, either personally or through counsel, and to submit written statement as also to explain verbally, as under which law or authority did he allot residential plots of different sizes to various persons in different Housing Schemes in the Punjab? He was also asked to explain as for which extraordinary performance did he grant cash award to the three police officers to the tune of lass of rupees besides allotting them valuable residential plots of State land in Lahore? Notice was also directed to be issued to Mr. Habib-ur-Rehman, former S.S.P., Lahore; Major (Retd.) Muhammad Akram, D.I.-G., Lahore; and Mr. Ghulam Asghar Malik, former I.-G.P. Punjab, for their appearance and showing cause as for which extraordinary performance they had received residential plots and cash award from Mian Manzoor Ahmad Wattoo, the Ex-Chief Minister of the Punjab, and whether the Police Rules or any other relevant law permitted them to receive and accept such monetary and material benefits? If not, why appropriate legal action should not be initiated against them, besides the confiscation of plots to the State and directing the refund of cash award to the Provincial exchequer? On their appearance, their case, which had taken somewhat different turn, was separated for the sake of convenience.
4. On 1-8-1993 Mr. Sarfraz Syed, Deputy Editor of "Daily Khabrain" Lahore, again appeared as writ petitioner but now with his counsel Mr. Rashid Murtaza Qureshi, Advocate. Sardar Latif Khan Khosa, Advocate, put in appearance on behalf of Mian Manzoor Ahmad Wattoo, the Ex-Chief Minister. Dr. Khalid Ranjha, Advocate, alongwith the abovementioned three police officers and Syed Tassadaq Hussain Jilani, Acting Advocate-General, Punjab, alongwith A.R. Arshad Malik, Advocate/Legal Advisor, L.DA. Besides an officer of Housing Department, also appeared. On this date of hearing, Al- Jehad Trust Rawalpindi, a registered body represented by Mr. Habib-ul-Wahab Al-Khairi, Advocate and Mr. Muhammad Salim Sheikh, Advocate, made an application for becoming party to these proceedings with a view to assist this Court. The application so made was accepted and Al-Jehad Trust, Rawalpindi, was made writ petitioner in place of Mr. Sarfraz Syed, Deputy Editor, "Daily Khabrain", Lahore, who was transposed to the category of the respondents because he was also found to have been allotted a plot by Mian Manzoor Ahmad Wattoo, Ex-Chief Minister of the Punjab, and his continuance as writ petitioner was not considered proper.
5. On the same date, on the suggestion of various newspapers for conducting probe about the plots allotted by different Prime Ministers in Islamabad Capital Territory, it was decided to commence the probe from 30-12-1985, the day the Third Martial Law was lifted, so as to include the period of late Mr. Muhammad Khan Junejo, Ms. Benazir Bhutto, Ghulam Mustafa Jatoi and Mian Nawaz Sharif, who had been Prime Ministers since the aforesaid date till 18-7-1993, one after the other, and the Chairman, C.D.A. Was directed to make available to this Court the list of allottees who had been allotted plots by different Prime Ministers from their discretionary quota. On the submission of the lists of plots by the C.DA. Indicating the allotment of 129 State-owned plots by Late Mr. Muhammad Khan Junejo, 561 plots by Ms. Benazir Bhutto, 59 plots by Mr. Ghulam Mustafa Jatoi, and 23 plots by Mian Nawaz Sharif, during their respective tenures as Prime Ministers, the last three were issued notices to appear in this Court, either personally or through their counsel, and explain as under which law or authority they had allotted the said plots to different persons of their choice during their respective tenures? On their appearance through their counsel, their case was separated for the sake of convenience though the main question remained common with this writ petition.
6. On this very date of hearing, Sardar Muhammad Latif Khan Khosa, Advocate for Mian Manzoor Ahmad Wattoo, Ex-Chief Minister of the Punjab placed on the file the written statement of his client alongwith two lists of plots and their allottees, one containing the details of 1992 plots and the other 463 plots allotted to different persons from the discretionary quota of the Chief Minister by Mian Nawaz Sharif and his successor Mr. Ghulam Haider Wyne as Chief Ministers of the Punjab. While doing so, he, in the first instance, raised preliminary objections against the maintainability of this writ petition for suo motu exercise of Constitutional jurisdiction by this Court but at the same time he frankly stated that, as per instructions of his client, he was ready to waive all sorts of preliminary objections against its maintainability and his client (Mr. Wattoo) was willing to participate in this probe; provided this Court observed equality of all concerned before law, parity amongst all persons equally poised, and maintained consistency in judicial approach. Elaborating his contention, he submitted that his client was ready to face the enquiry on the question of allotments of plots as Chief Minister of the Punjab if his predecessors-in-office were also called upon to face the probe on the question of discretionary allotment of plots made by them during their respective tenures.
7. Some surprise was expressed by this Court over the above contention of the learned counsel, demanding equality of treatment before this Court between his client with his two predecessors- in-office. However, on the explanation of some background by him, he was assured by this Court the equality of treatment to all concerned in the precess of accountability and its consequences and he, waiving all technical objections against the maintainability of the writ petition, undertook to argue the case of his client only on merits.
8. So far as the contents of the written statement of Mr. Wattoo, embodying his defence on merits, are concerned, he claimed immunity from challenge his discretion as Chief Executive of the Province in allotting residential plots as the same was not regulated by the statutory rules but by many considerations which were not necessary to be recorded in writing. He urged that in the absence of statutory rules laying down the critaria for allotment of plots, he relied on precedents as also on his own clear conscience in making such allotments. He alleged that he had not allotted even a single plot to any M.PA./M.N.A. Or to any other political personality during his tenure which was the most politically turbulent period in the Province, rather, he preferred to allot residential plots of various sizes to the widows of a poet, journalists, employees of different grades and some other deserving persons without deriving any personal benefit for himself. He explained that not a single commercial plot was allotted to anybody, nor any such plot was converted into residential one nor any rule was relaxed. He claimed that residential plots were available in his discretionary quota and their allotments were made strictly under the dictates of his conscience in favour of deserving persons.
9. Blaming his predecessors-in-office, for their arbitrary exercise of power in this respect, he with reference to the list of plots (Annexure R-I) attached to his written statement alleged that 1992 plots of over 10 Marlas, measuring 1837 Kanals, valuing Rs,1,837 millions were allotted by Mian Nawaz Sharif during his tenure as Chief Minister of the Punjab which clearly smacked of his nepotism and favouritism for political consideration in violation of the allotment policy by relaxation of rules.
According to him, Mr. Nawaz Sharif had on 6th August, 1990, the day the Provincial Assembly was dissolved, allotted 600 plots, each of an area of over 10 Marlas, valuing about 600 millions to his favourites, mostly M.NAs./M.PAs., Senators, political leaders and other influential persons in order to gain political dividends. He alleged that his predecessors had been using the plots in L.DA. As an instrument for horse-trading in order to win over the political loyalties of some fair-weather politicians and while doing so they did not sparc even public cites, and open spaces, meant for community centers, schools, power houses, hospitals etc. In different prestigious development schemes of L.DA. By allotting the same at a throw-away price of Rs,90,000 per Kanal as against their market value ranging from Rs,20 lacs to Rs,50 lacs per Kanal. In this category they allotted 66 Kanals worth Rs,136 millions, he added.
10. He asserted that commercial plots total measuring 102 Kanals with the reserved price of Rs,96,000 per Kanal, the market value whereof was Rs,306 millions approximately, were allotted by his predecessors to influential persons, including political figures, for political gains. In this respect he quoted the example of Shan Arcade in Garden Town measuring about 5 Kanals 7 Marlas worth about Rs,40 millions and site No,89-C-II in Gulberg II, valuing Rs,14 million approximately.
11. Giving the details of another category of plots, he alleged that exchange of plots was another lucrative business, entailing large profits to the allottees and causing huge losses to the L.DA. And a large number of plots of inferior quality were allowed to be exchanged by Mian Nawaz Sharif with plots of superior quality, especially by his political favourites, including exchange with commercial plots in Allama Iqbal Town and Garden Town.
12. Referring to another category of plots, he alleged that on the basis of forged and bogus P.T.Ds./P.T.Os./RL-IIs his predecessors-in-office had allowed exemption/allotment in 463 cases covering an area of 325 Kanals amounting to Rs,650 millions. In this respect he asserted that Chaudhris of Gujrat and Sharifs of Model Town had been operating as property dealers and grabbed valuable plots of L.DA. In Garden Town, Allama Iqbal Town, Gulberg, Faisal Town, New Muslim Town and Model Town Extension. According to him, there was yet another form of dubious transactions of plots. Quoting a specific example, he alleged that Brig. (Retd.) Manzoor Malik, a former Director-General of L.DA. During the regime of Mian Nawaz Sharif, had managed to get a valuable plot in the name of his wife Mrs. Naveed Malik for the reserved price of Rs,33,000 only and later he sold it to one Haji Muhammad Ashraf for a sum of Rs,48 lacs.
13. He suggested that various allegations made by him in the preceding paragraphs against his predecessors-in-office need to be probed into eversince 1985 alongwith the allotments made by himself during his short tenure and his own conduct may be judged on the basis of comparative study.
14. In view of the abovementioned written statement of Mr. Wattoo, the learned Acting Advocate- General of the Punjab was directed to cause the production of authentic lists of all kinds of plots -- residential, commercial, industrial -- which had been allotted by Mian Nawaz Sharif and Mr. Ghulam Haider Wyne from their discretionary quotas during their respective tenures to different persons, firms or companies, not only in various development schemes of Lahore Development Authority but also in housing schemes of Housing and Physical Planning Department in the Punjab or of any other official development agency in the Province.
15. Since Mr. Manzoor Ahmad Wattoo alongwith his written statement, had brought on the record sufficient prima fade proof indicating the allotment of most of the plots by Mian Nawaz Sharif and some of them by Mr. Ghulam Haider Wyne during their respective tenures as Chief Minister of the Punjab in various housing schemes of L.DA., notices were directed to be issued to them (Mian Nawaz Sharif and Ghulam Haider Wyne) to appear in this Court on 8-8-1993, either personally or through their counsel, with their respective written statements, end explain as under which law or authority they had been allotting different kinds of plots to various persons in the Province, especially in Lahore. To enable them to prepare their defence, they were directed to be supplied the copies of written statement of Mr. Wattoo alongwith the copy of the lists of plots appended thereto.
16. On 8-8-1993, besides the petitioner represented by Mr. Khairi Advocate, Sardar Latif Khan Khosa, Advocate for Mr. Wattoo, Acting Advocate-General of the Punjab alongwith some officials of Housing Department and L.DA., Mr. Maqbool Elahi Malik, Advocate put in appearance on behalf of Mian Nawaz Sharif and Mr. Ghulam Haider Wyne but he requested for adjournment for the submission of written statement on behalf of his clients. He was allowed adjournment till 19-8-1993.
However, before adjourning the proceedings, an application made by Major Gen. (Retd.) M.H.
Ansari, a former Director-General of L.DA., who had come of his own accord, to become party to these proceedings in order to help this Court in this probe, was accepted and it was directed that his services would be availed of as a local commissioner/representative of this Court, whenever necessary.
17. On 19-8-1993 Mr. Habib-ul-Wahab A1-Khairi, Advocate, representing Al-Jehad Trust, Rawalpindi, the writ petitioner herein, pressed into service his amended writ petition already available on the record, indicating Mian Manzoor Ahmad Wattoo, Mr. Ghulam Haider Wyne and Mian Nawaz Sharif as the respondents, besides certain others, and they were directed to file written statements, if they so liked, till 25-8-1993, the next date of hearing. The learned Acting Advocate-General placed on the record the lists of plots allotted by the Chief Ministers of the Punjab from their discretionary quota during the period from September, 1985 to July, 1993 in various schemes of Housing and Physical Planning Department and its development agencies such as L.DA., F.DA., M.DA. Etc. According to the details so provided, 2,597 plots were allotted in various schemes of Lahore Development Authority, 117 plots in those of Multan Development Authority, 28 plots in those of Rawalpindi Development Authority and 20 plots in those of Murree Improvement Trust. In the development schemes directly executed by Housing and Physical Planning Department in different districts of the Punjab, 1,808 plots were allotted and out of them, 40 commercial plots were converted into residential ones. He subsequently provided details of 20 pieces of State land in the jurisdiction of Murree-Kahuta Development Authority leased out by the Board of Revenue after resuming the same from the Forest Department.
18. Since, as per details of plots provided by the learned Acting Advocate-General of the Punjab, most of the plots had been allotted in various schemes of Lahore Development Authority and Mr. Wattoo had, in his written statement, also requested for the probe into the lists supplied by him therewith, Major Gen. (Retd.) M.H. Ansari was formally appointed as a local commissioner/Court representative, without any fee, to find out-- ' as to how far the lists of plots supplied by the Lahore Development Authority are correct? ' how many such plots have been allotted in Lahore Development Authority in the names of fictitious/banamis and who are the real beneficiaries thereof and how much benefit they have derived? ' how many political personalities, especially the Ministers, M.N.As. And M.PAs., and high-placed Government officers of any department or official agency have obtained such plots in Lahore Development Authority in their own names or in the names of their relations, friends or associates, particularly those officers who have remained associated with this organization as Directors- General, Directors etc.?
(iv) what was the approximate market value of each plot at the time of its allotment and what is its market value nowadays? And
(v) what is the present position of each plot i,e, whether it is lying vacant, constructed or partly constructed and who is occupying it and in what capacity, whether the same has been transferred to someone else, if so, to whom and for what consideration?
' He was directed to submit his report within two weeks..
19. Mr. Maqbool Elahi Malik, Advocate, learned counsel for Mian Nawaz Sharif and Mr. Ghulam Haider Wyne, requested for yet another adjournment for the submission of written statement on behalf of his clients and it was acceded to. He eventually submitted written statement on 25-8-1993 but only on behalf of Mian Nawaz Sharif. In this written statement he raised preliminary objections concerning bar of jurisdiction, including the one on account of the transactions past and closed.
On merits he asserted that the plots allotted by him were available in the discretionary quota of Chief Minister and he rightly allotted the same to the deserving persons in exercise of the discretion vested in him which could not be made subject of enquiry. He alleged that the list (Annexure R-I) provided by Mian Manzoor Ahmad Wattoo alongwith his written statement required rechecking and it might necessitate better written statement.
20. Out of the three main respondents, namely, Mian Manzoor Ahmad Wattoo, Mian Nawaz Sharif and Mr. Ghulam Haider Wyne, now before this Court, no argument has been addressed by Sardar Muhammad Latif Khan Khosa, Advocate, the learned counsel for Mian Manzoor Ahmad Wattoo respondent, probably for the reason that he had, from the very inception, waived all the preliminary objections, including that of the maintainability of this writ petition and jurisdiction of this Court.
However, during the pendency of the writ petition he has occasionally been pointing out on different dates of hearing that his client had the jurisdiction to make allotments of plots to the deserving persons from his discretionary quota under the relevant rules in different Housing Schemes of the Housing and Physical Department of the Government of Punjab and its Development Agencies such as Lahore Development Authority (L.DA.), Multan Development Authority (M.DA.), Faisalabad Development Authority (F.DA.) etc., and while doing so he compared his client with his predecessors-in-office and asserted that he was extremely cautious, did not give any plot to any political personality, and the size of most of the plots allotted by him varied from three Marlas to five Marlas each, which were given to really poor persons to enable them to build shelter for themselves.
21. The learned Acting Advocate-General of the Punjab, who alongwith Mr. A.R. Arshad Malik, Advocate the Legal Advisor of Lahore Development Authority, besides representing the Provincial Government, also represents the L.DA., has pointed out that the orders passed by Mian Manzoor Ahmad Wattoo for the allotment of plots in the Development Schemes directly formulated, executed and supervised by the Housing and Physical Department of the Government of Punjab in different districts of the Province, including 15 plots of one Kanal each allotted in the Housing Scheme of Murree Improvement Trust, were in fact never implemented by the concerned Agencies on account of the stay order issued by this Court. According to him, out of plots allotted by Mr. Wattoo in various Schemes of L.DA., all plots of over 10 Marlas, excepting 6 plots of 1 Kanal each (out of which 2 were allotted to two widows and remaining 4 to four police officers), were cancelled by himself before vacating the office. Since Mr. Khosa, Advocate has not put in appearance today, it is not possible to assertain the reason as to why his client had, before vacating the office of the Chief Minister, cancelled plots of 10 Marlas or more in area and neither the learned Acting Advocate- General nor Mr. A.R. Arshad Malik, Advocate, the legal Advisor of L.DA., is aware of the reason therefor. Anyhow, the present position is that out of many plots of various sizes allotted by Mr. Wattoo from his discretionary quota in various Development Schemes in the Province, 6 plots, each measuring 1 Kanal in MA. Jouhar Town and 86 plots, each measuring 3 to 5 Marlas, in certain other Schemes of L.DA., total being 92 plots, stand allotted to different persons.
22. It may be mentioned here that though the matter regarding the allotment of 4 plots to three Police Officers (namely Mr. Ghulam Asghar Malik, former I.-G.P., Punjab, who was allotted two plots of 1 Kanals each; Major (Retd.) Muhammad Akram, former D.I.-G., Lahore and Haji Habib-urRehman, former S.S.P., Lahore, who were allotted 1 plot of 1 Kanal each) in MA. Jouhar Town Scheme, Lahore, for their alleged meritorious service during the difficult days of Mr. Wattoo's regime, was separated in the form of Writ Petition No,8624 of 1993 and proceedings in that writ petition, as verbally informed by Dr. Khalid Ranjha, their Advocate, were stayed by a Division Bench of High Court in an I.CA. Filed by them, yet the question of competency of Mr. Wattoo to allot plots to them still remains sub judice herein and it has to be determined in this writ petition by this Court. This question shall be decided alongwith the question of similar competency of his predecessors-in office.
23. Now I take up the question of jurisdiction of this Court coupled with the maintainability of this writ petition. Mr. Maqbool Elahi Malik, the learned advocate for Mian Nawaz Sharif and Mr. Ghulam Haider Wyne respondents, who also has the support of Mr. Tassadaq Hussain Jillani, the learned Acting Advocate-General of the Punjab, has vehemently contended that so far there has been no judicial precedent of any superior Court in this country, enabling a Judge of the High Court to assume suo motu jurisdiction in respect of any matter coming to his knowledge or notice through a press report, especially when the present respondents, as in this case, have been the holders of highest Constitutional and political office in the Province as its Chief Executives which office by itself affords protection to their acts done in the performance of their ordinary duties and functions in managing its day-to-day affairs. Elaborating his contentions, he has, with reference to Article 184(3) and Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), submitted that there is a vast difference between the powers and jurisdiction of the Supreme Court under Article 184(3) ibid and those of the High Court under Article 199 supra inasmuch as there is no condition precedent for the exercise of a writ jurisdiction by the Supreme Court that it must have an aggrieved person before it but for the exercise of Constitutional jurisdiction under Article 199 supra, there has to be an aggrieved person before the High Court but in the instant case there was no such person before this Court when it commenced proceedings on the Press report. In support of his contention he has placed reliance on Fazal-e- Haq, Accountant-General, West Pakistan v. The State PLD 1960 SC 295, Shahnaz Begum v. The Honourable High Court of Sindh and Balochistan PLD 1971 SC 677 and Abdul Majeeb Pirzada v.
Federation of Islamic Republic of Pakistan and others PLD 1990 Kar.
9.
24. Supplementing the above arguments of the respondents' counsel, Mr. Jillani, the learned Acting Advocate-General, with reference to Article 175, has argued that the Supreme Court of Pakistan and the High Court of each Province are the creation of the Constitution and they can exercise only such jurisdiction as is conferred on them by the Constitution or by or under any law for the time being in force and since this Court under Article 199 can exercise its Constitutional jurisdiction only on the petition of an aggrieved person, it could not suo motu take up the matter on a press report and that too without referring it to the Honourable Chief Justice of the High Court, who alone could entrust the case to this Court. In this connection he refers to D.D. Basu's Commentary on Indian Constitution, pages 16-17.
25. On the contrary, Mr. Habib-ul-Wahab Al-Khairi, Advocate representing Al-Jehad Trust, Rawalpindi, the writ petitioner herein, who also has the support of Mr. Rashid Murtaza Qureshi, Advocate, the learned counsel for Mr. Sarfraz Syed, Deputy Editor of Daily Khabrain (who was the original writ petitioner but was later transposed to the category of the respondents as he too happened to have the allotment of a plot from Mr. Wattoo, allegedly without his consent), has contended that the respondent's counsel as also the learned Law Officer have wrongly described this writ petition as suo motu to challenge its maintainability and the jurisdiction of this Court, because on 19-7-1993 when the news item indicating the dissipation of valuable public property by the outgoing Chief Minister came to the notice of this Court and it asked the Advocate-General to place before it on 28-7-1993 the relevant record in order to ascertain the accuracy of the news item, Mr. Sarfraz Syed, Deputy Editor of "Daily Khabrain", of his own accord, put in appearance on the said date to pursue his press report and continued to do so until he was replaced by this Court by Al-Jehad Trust, Rawalpindi and transposed to the category of the respondents. According to the learned counsel, Mr. Sarfraz Syed, Deputy Editor of "Daily Khabrain" was an aggrieved person within the meaning of Article 199 ibid and he, like the present writ petitioner, represented the whole society making it a case of public interest litigation and the above contentions of the learned counsel for the contesting respondents and those of the learned Law Officer are entirely misconceived and the case-law cited by them wholly irrelevant.
26. Tackling the question from another angle he says that assuming for the sake of argument but without conceding that neither Mr. Sarfraz Syed, nor Al-Jehad Trust is an aggrieved person within the meaning of Article 199 supra, this Court being the Court of a Qazi in a Muslim State known as Islamic Republic of Pakistan and governed by a Constitution preponderately Islamic in character, especially after the addition of Article 2A thereto and after the enactment of Enforcement of Shariah Act, 1991, section 3 whereof declares "Shariah" as the supreme law of the country and section 5 whereof subjects every Muslim citizen to Shariah, this Court can ask any State functionary, howhighsoever he may be, to account for his acts which do not appear to be lawful or in accordance with Shariah. He has submitted that this Court is, no doubt, the creation of the Constitution but its jurisdiction under Article 199, if read in conjunction with Article 2A thereof, stands much enlarged and in exercising its power it can ask the respondents as to how they have distributed public property worth billions of rupees to certain persons of their choice, especially when in the Constitution there is unfortunately no provision to subject the high-placed State functionaries like the President, Prime Ministers, Governors, Chief Ministers and the Ministers to the processes of accountability, rather, certain provisions thereof afford undue protection to them and they, taking advantage of this glaring omission in the Constitution, continue to plunder and fleece its citizens for their own personal ends, those of their relations, political associates and cronies, thereby militating the very concept of an independent Muslim State created for the welfare of its citizens. According to him, this vacuum in the Constitution, as held by the Honourable Supreme Court in a number of recent authorities, some of them being Mian Aziz A. Sheikh v. The Commissioner of Income-tax, Investigation, Lahore PLD 1989 SC 613, Federation Of Pakistan and others v. N.-W.F.P. Government and others PLD 1990 SC 1172 and Commissioner of Income-tax, Peshawar v. Symen A.G. PLD 1991 SC 368 has to be filled by Muslim Common Law/Injunctions of Islam (Shariah) and under Shariah not only a Qazi of a superior Court but also an ordinary citizen had a right to ask even the Head of the State to account for an act which he does not consider lawful. In this connection he has quoted the famous precedent of Hazrat Umer Bin Khitab, the Great Caliph, in Muslim history when in a public assembly an ordinary citizen had asked him to explain as to how he had got his shirt stitched from the cloth which was insufficient for him (questioner) as they both had taken the same length of cloth from the Bait-ul-Maal and he had explained to his satisfaction as also of the audience.
27. With reference to certain authorities of Indian Jurisdiction, especially S.P. Gupta and others v.
President of India and others AIR 1982 SC (Ind.) 149 and of our own jurisdiction such as Ms. Benazir Bhuttoo v. Federation of Pakistan PLD 1988 SC 416 and IA. Sherwani v. Government of Pakistan 1991 SCMR 1041, the learned counsel has convassed that with the recent introduction of new concept of public interest litigation, which has been further amplified by our own Supreme Court in Benazir Bhutto's case referred to above, in the light of equality before law as enshrined in Article 4 of the Constitution, originally Mr. Sarfraz Syed, the Deputy Editor of Khabrian Daily and after his transposition, the Al-Jehad Trust, the present writ petitioner, both being public spirited persons, have a locus standi to invoke the Constitutional jurisdiction of this Court under Article 191, to act on behalf of the general public in the context of Islamic social justice as embodied in Objectives Resolution which is now susbtantive part of the Constitution in the form of Article 2A.
28. Commenting on the argument of the learned Law Officer that this Bench could not take up the matter on the press report unless the same has been entrusted to it by the Hon'ble Chief Justice, he has contended that a learned Judge of this Court in State v. Muhammad Nazir PLD 1991 Lah. 433 has held that the distribution of cases is a ministerial job entrusted by the Court to a Deputy Registrar and it is not for the Chief Justice to assign case to various Judges or Benches of Judges and as such this Court could take up the matter of public interest suo moto without the same having been referred to, and entrusted to it by, the Chief Justice, particularly when this Bench or any other Bench of the High Court could possibly have no personal interest therein nor the petitioner had any choice thereof.
29. Supplementing the above contentions of the petitioner's counsel, Mr. Rashid Murtaza Qureshi, the learned Advocate for the original writ petitioner who is now the transposed respondent, has submitted that during the initial years of the creation of Pakistan, there was an urge in legal and judicial circles to introduce Quranic concept of justice as it appears from the following passage of speech delivered by late Mr. Justice Muhammad Munir on his appointment as Chief Justice of Lahore High Court in the year 1949 in reply to the address of the President of the High Court Bar Association with reference to the Objectives Resolution passed by the Constitutent Assembly a few weeks earlier, suggesting that Pakistan would be a Islamic State governed by Islamic laws:--- "The western system produced only a Gascoigne who sent the Prince of Wales, who subsequently became Henry V, to the King's Bench Prison when he attempted to interfere in the interests of his favourite servant but the Muslim history of administration of justice teems with instances where the Qazis delivered and the Sovereigns resignedly accepted verdicts against their favourite nobles, their own kinsmen and wives and against themselves on the complaints of the humblest of their subjects. On occasions like the present we have more than once been reminded of the traditions of the Court or another or of a precedent or standard set by this Judge or that. For my part I would like to go back a thousand years and take my lessons in justice from those whom favour never tempted and fear never deterred while they were engaged in dispensing justice between man and man or between man and Sovereign."
30. He has added that with the addition of Article 2A to the Constitution, it has given more Islamic tinge to our judicial system and despite certain provisions thereof conferring immunity on senior State functionaries such as President, Prime Minister, Governor, Chief Minister etc., they are now accountable for their illegal acts and the probe held by this Court has rather revealed that the contesting respondents are guilty of serious crimes for which there can be no Constitutional or legal immunity at all. He is of the view that if as erroneously argued on behalf of the respondents and the Provincial Government, this Court has no jurisdiction to ask them as under what authority they have frittered away the valuable State property, then who else in the country has the authority to ask them (respondents) as to how and under what law they have, in the exercise of their so- called discretionary powers, arbitrarily distributed thousands of State-owned residential and commercial plots worth billions of rupees, belonging to the entire nation, to their favourites?
According to him, it is unimaginable that no one in the country is competent to ask them to account for their misdeeds.
31. I am inclined to agree with the contention of the learned counsel for the petitioner that to call this writ petition as a `suo motu' writ petition would be a misnomer. No doubt, on 19-7-1993 the proceedings were commenced on the Press reports and no one was present before this Court as writ petitioner but no effective order was passed on this date as the only thing done on that day was that the learned Advocate-General, Punjab, was asked to cause the production of the relevant record, concerning the allotment of plots by Mian Manzoor Ahmad Wattoo, on 28-7-1993. On this date of hearing, Mr. Sarfraz. Syed, Deputy Editor 'Daily Khabrain' put in appearance as a writ petitioner, of his own accord to pursue his news item. He also appeared as such on 8-8-1993, the next date of hearing. On this date, as already indicated, he was replaced by Al-Jehad Trust, Rawalpindi, represented by Mr. Habib-ul-Wahab Al-Khairi, Advocate and Sh. Muhammad Salim, Advocate. This writ petitioner since then continues to persue this petition. It is, therefore, not a suo motu writ petition as it is being erroneously described by the learned counsel representing Mian Nawaz Sharif and Mr. Ghulam Haider Wyne respondents and the case-law cited by him on his point has no relevancy.
32. Assuming for the sake of arguments that it is a suo motu. Writ petition, as contended by the respondents' counsel because when on 19-7-1993 this Court commenced proceedings on Press reports, no aggrieved person was present before it as a writ petitioner, which was the requirement of Article 199(1)(a) of the Constitution, even then it was, in my opinion, maintainable because the nature of proceedings commenced by this Court was inquisitorial in character and not accusatorial or adversary, which was introduced by the British Judicial system in this part of the world about oneand-the-half century ago as a sequel to the British Rule. The Islamic Judicial system, which, prior to the advent of British Raj, had been in force for many centuries in India, was drastically modified, if not altogether transplanted, by the Anglo-Sexon system, of which our present judicial system is the hang-over and continues to hold that field even now despite the introduction of Islamic concept of justice though by intermittent and half-hearted measures, mostly due to the Westernized legislators and British-system trained lawyers and Judges. By the very nature of our judicial procedure, which is based on precedents, we are always prone to follow the beaten track instead of departing from it and exploring new concepts. To go back to our splendid judicial heritage based on Divine Law is considered to be a retrograde step despite the fact the very basis our State is Islam. However, fortunately during the recent years there has been a realization in our legal and judicial circles to reintroduce Islamic tenets and precepts side by side the new concepts being adopted in the fast-changing world around us, with a view to keep pace with the contemporary systems. For instance, the 'aggrieved person' of the AngloSexon legal system inherited by us and the one mentioned in Article 199(1)(a) ibid, is no more the same which he was or had been a decade before. After the adoption of the new concept of 'public interest litigation' in 1982 by the Indian Supreme Court in S.P. Gupta and others v. President of India and others AIR 1982 SC (India) 149, which spilled over to Pakistan in mid-Eighties, is now sufficiently popular and is being enforced by our superior Courts frequently in appropriate cases. To my mind, an aggrieved person in an inquisitorial jurisdiction is quite different from the one in adversary or accustorial jurisdiction because in the former he has to have no personal interest in the subject- matter of the litigation and has to endeavour purely for the welfare of general public or any section thereof, while in the latter he has to have a specific grouse or grievance against his opponent or a group of opponents and on that account he must have a cause of action or a locus standi to come to the Court for seeking relief. In other words, if a person, who comes to the Court in a public interest litigation in order to enforce a right common to the general public, obviously he may or may not be so keenly interested in pursuing his remedy like a person who invokes the jurisdiction of the Court for seeking a relief against a particular person or group of persons who are his adversaries and as such the former may at any time walk out of the Court-room, saying that he has brought a public grievance or a melody of general nature to the notice of the Court and that is what he could possible do. Further, he may not be in a position even to finance the litigation and leave it half way, may be also due to the pressure of his opponents if he is pitted against some powerful official agency. In that event it becomes the duty of the Judge or the Court to continue the proceedings and redress the public grievance even if the aggrieved person, for some reason has chosen to run away.. As held in a recent judgment of the Full Bench of Lahore High Court reported as Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lahore 595, in the public interest litigation the petitioner may not be allowed to abandone the cause even if he so wishes. This being so, the presence of an aggrieved person in a public interest litigation is only a matter of legal formality and not of real substance. In other words, in a pubic interest litigation, wherein the welfare of the general public is involved, the proceedings assume the form of an inquisitorial probe in which the matter is between the Court and the respondent and the presence of the third party as petitioner becomes immaterial. These proceedings ultimately assume the form of suo motu jurisdiction. Therefore, in this case even if Mr. Sarfraz Syed, the Deputy Editor of 'Daily Khabrain', the first writ petitioner, or for that matter, Al-Jehad Trust, the present writ petitioner, had not turned up to act as a petitioner, even then this Court had the jurisdiction to commence probe on the press report and continue the same till its logical end in public interest.
33. In an Islamic State like ours, the public interest litigation in the form of suo motu jurisdiction has to get further impetus and importance in order to check the excesses and wayward tendencies of the senior State functionaries who, instead of behaving like the servants of the people {{URDU TEXT}} who put them into power by their votes are behaving like kings and despotic rulers of medieval ages, having no regard for the Constitution and law and acting in sheer detriment to their interest, not hesitating even to deny them which is their due.
34. To be a little more precise, Pakistan is perhaps the only State in the world which was carved out on the basis of a religion -- Islam. Its very name `Islamic Republic of Pakistan', reflects its creative background. The Preamble of the Constitution lays down that Sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives is to be a sacred trust. It has to be a democratic State based on Islamic principles of equality, tolerance, social and enocomic justice, aimed at creating an egalitarian society through a new order. As per Article 2 of the Constitution, Islam is the State religion and the Objectives Resolution, passed by the Constituent Assembly of Pakistan, by virtue of Aritcle 2-A now forms substantive part thereof. Section 3 of the recently enacted Enforcement of Shariah Act, 1991 declares Shariah i,e, the Injunctions of Islam as contained in Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) as the supreme law of the country and section 5 thereof subject every Muslim citizen to observe Shariah and act accordingly. All these provisions, if read together, give the Constitution a predominantly Islamic character. In a purely Islamic State nobody is above law and every one, howhighsoever he may be, even the Head of the State (who has to be a directly elected one by the people but.Unfortunately our Constitution for the time being does not so provide) is accountable even to an ordinary citizen, muchless to a Muslim Qazi who has an exalted place in the administrative and judicial set-up. These are the salient features and the high ideals of a true Muslim society in a Muslim State like ours but unfortunately majority of those, who have been charged with the duty of running the affaris of the State, have, in practice, drifted far away from these high ideals, by adopting a selfish and materialist way of life, and considering themselves as omnipotents, are blatantly refusing to submit to the process of accountability by taking shelter behind legal techincalities which now cannot be allowed to stand in the way of substantial justice.
35. There is yet another aspect of the matter in the context of jurisdiction of this Court. As rightly argued by the petitioner's counsel, there is a vacuum or omission in the Constitution with regard to the accountability of the high State functionaries such as President, Prime Minister, Governor, Chief Minister etc. As there is no provision therein to compel them to account for for `heir illegal acts before any forum. This being the position, the vacuum has to filled in by Shariah, which is now statutorily recognised supreme law of the and, as held by the Supreme Court in a number of authorities referred to by he petitioner's counsel. Under Shariah, this Court, as a Qazi of a Muslim state, can lawfully ask the respondents to explain as to under what authority hey have allotted a large number of plots, constituting public property, belonging to the entire nation, to a chosen few and for what reason? For this reason too this Court has the jurisdiction.
36. In view of the above, this Court, in the exercise of its powers under Article 199(1)(a) read with Article 2A thereof, coupled with the Quetta Declaration of the Chief Justices' Conference on Public Interest Litigation and Fundamental Rights read with sections 3, 4 and 5 of the Enforcement of Shariah Act, 1991, has the jurisdiction to look into the grievance voiced in the Press report about the illegal and arbitrary allotments of the State-owned plots by Mian Manzoor Ahmad Wattoo respondent during his chief ministership of the Punjab as also into his grievance of similar rather of more serious nature, as spelt out in his written statement, against his two predecessors-in-office, namely, Mian Nawaz Sharif and Mr. Ghulam Haider Wyne respondents. The preliminary objections raised on behalf of the last two respondents regarding the jurisdiction of this Court and matters incidental thereto are, therefore, overruled.
37. Having settled the question of jurisdiction I now proceed to consider the next contention of the petitioner's counsel. With reference to the provisions of Article 173 of the Constitution, he has submitted that neither the Federal nor the Provincial Legislature has enacted any law for the grant, sale, disposition or mortgage of any property owned by, or vesting in, the Federal or the Provincial Government, and as such the State-owned plots allotted at reserved price by the Prime Minister in Islamabad Capital Territory located in C.DA.'s development schemes, and those allotted by the Punjab Chief Ministers in various development schemes of the Provincial Housing and Physical Planning Department and its Development Agencies, from their respective so-called discretionary quotas, in the absence of such law, are without lawful authority and all such allotments are liable to be cancelled and the plots resumed to the State. In this connection, he refers to certain provisions of the Capital Development Authority Ordinance, 1960 and Regulations of 1988 made thereunder, and to the policy decision or administrative instrustions of the Punjab Government contained in Circular Letter Nos.S.O.(D-II)-HP&EP-2-86, dated 23-12-1986, issued by the Housing and Environmental Planning Department, Government of the Punjab, the anchor-sheet or the so- called law governing the allotment of the State-owned plots in the Punjab.
38. So far as the question of allotment of plots in C.DA.'s development schemes by the former Prime Minsters is concerned, it shall be dealt with in Writ Petition No,8623 of 1993 which exclusively deals with that subject. In the writ petition in hand we are concerned with only those plots which were located in various development schemes of the Housing and Physical Planning Department and its Development Agencies in the Punjab.
39. It is an admitted position that for the grant, allotment, sale, exchange, mortgage or transfer by any other mode, of the State-owned plots located in different development schemes of the Housing and Planning Department of the Punjab as also those located in various schemes of its Development Agencies, such as LDA, MDA, FDA, RDA etc. And those of Improvement Trusts in the Province, there is no enacted law in the form of an Act or Ordinance of the Provincial Legislature, and the allotment, transfer and disposal of the plots therein are governed by the administrative instructions contained in the aforesaid Circular letter, dated 23-12-1986. As this letter by itself indicates, during the Third Martial Law, which was lifted on 30-12-1985, the allotment, transfer and disposal of the State-owned residential, commercial and industrial plots in the Province of the Punjab were being governed by Martial Law Instruction No,113 and the policy now in vogue was framed on the consequent repeal of this Instruction. Article 270-A of the Constitution, which gives protection to, and confers validity on, various legal and legislative measures of the Third Martial Law regime, makes mention only of the Proclamation of 5th July, 1977, the President's Orders, Ordinances, c Martial Law Regulations and Martial Law Orders, and it makes no mention of any Martial Law Instructions. It is, therefore, doubtful if Martial Law Instruction No,113 was a valid law affording legal cover to the allotment, transfer and disposal of plots in various development schemes in the Punjab. There had allegedly been a good deal of bungling, corruption and mismanagement under the cover of Martial Law during the said period in the allotment of plots by some high-placed State functionaries in favour of their favourites, especially some senior Government servants of almost every department and official agencies, some of whom are said to have built empires with plots, money as they continued their dubious liaison also with the political Governments in the post-Martial Law period. Their misdeeds also need to be looked into and the looted national wealth retrieved from them.
40. Adverting to the policy decision of the Punjab Government as contained in Circular Letter No,S.0.
(D-II)-HP&EP-2-86, dated 23-12-1986, issued by the Housing and Environmental Planning Department, it was issued, more or less, on the pattern of Martial Law Instruction No,113. This circular letter, which is even now being acted upon, is no substitute for the Constitutional requirement of enacting a law by the Provincial Legislature as contained in Article 173 ibid. It may be noted here that Government of Sindh has already complied with this Constitutional mandate by promulgating Sindh Disposal of Plots Ordinance, 1980, though it also seems to be defective in many respects, especially in the matter of conferring unguided direction on the Government, which is said to have been misused by the high-placed State functionaries, as in the Punjab, in allotting valuable plots in Karachi and Hyderabad to the influential persons. Government of the Punjab fully knew its Constitutional obligations but it purposely kept silent and continued to act upon the administrative instructions as they gave them lot of scope, mobility and manoeuvrability to commit irregularities for gaining personal ends and political advantages. Since these administrative instructions had no legal cover, the allotments and transfers of plots made thereunder in any development scheme in the Province of the Punjab, appear to be against law and without lawful authority, irrespective of the fact: whether the same have been, or are being, executed by the Provincial Housing and Physical Planning Department directly, or through its Development Agencies such as LDA, MDA, FDA, RDA etc. Or by Improvement Trusts, unless validated by an Act of Provincial Legislature. This being so, all allotments of plots made by all the three Chief Ministers (respondents) from their so-called discretionary quotas during their respective tenures, including the allotment of plots in MA. Johar Town Scheme made to the three police officers, namely, M. Asghar Malik, former I.G.P.; Major (Retd.)
Muhammad Akram, former D.I.G., Lahore; and Haji Habib-ur-Rehman, former S.S.P., Lahore, by Mian Manzoor Ahmad Wattoo respondent for their alleged meritorious service to save his Government, are illegal. As already held in the Provincial Bait-ul-Maal case decided by this Court, Mr. Wattoo, who had directed the payment of reserved price of their plots from his discretionary funds, had no such authority to squander away lacs of public money to oblige them. It may be mentioned here that Shariah, by virtue of section 3 of the Enforcement of Shariah Act, 1991, is now the supreme law of the land and the Provincial Legislature, while enacting the validating law and therein also providing for future disposal of plots, shall keep its provisions in view in order to save the new law from being rendered ultra vires.
41. Alternatively speaking, if, assuming for the sake of argument, the policy decision of the Provincial Government contained in the aforesaid Circular Letter, dated 23-12-1986, had the force of law (which I am sure it did not have) and the Chief Ministers of the Punjab had 10% discretionary quota of the total number of plots category-wise in every development scheme, none of them during the period from 31-12-1985 to 18-7-1993 exercised his discretion in a reasonable and equitable manner, as I will demonstrate in the succeeding paragraphs, and for that reason too all allotments made by them during this period were without lawful authority and hence ineffective. To be a little more precise, Hon'ble Supreme Court in a recent ruling reported as Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 has laid down the following guidelines and criteria for the performance of official duties by a public functionary and for the fair exercise of discretion by him:- "A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonable and in complete good faith without such delay as would frustrate its ultimate objective. One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute his duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, virtue officio, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs."
42. On the exercise of discretion it was further observed as under:-- 'Wherever wide-worded powers conferring discretion are found in a Statute, there remains always the need and the desirability to structure the discretion..
' Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power."
43. These principles and guidelines do not seem to have been followed by the respondents while allotting plots in various schemes from their discretionary quotas, if at all the same lawfully existed.
In this connection I will refer to certain facts embodied in the revised and rechecked record produced by the Housing and Physical/Environmental Department regarding the development schemes being executed by it directly and through its Development Agencies, including the record of Lahore Development Authority, through the learned Acting Advocate-General and the Legal Advisor of LDA. As per this record, Mian Nawaz Sharif respondent during his tenure as Chief Minister of the Punjab from 7-3-1985 to 6-8-1990 allotted 1111 plots in various development schemes of LDA and 2027 plots, mostly of smaller size, in different schemes, of the Housing and Physical/Environmental Planning Department of the Punjab and in those of its Development Agencies (other than LDA) such as MDA, FDA, RDA and Murree Improvement Trust. Total being 3138 plots, from his discretionary quota. Besides, he allotted, or directed the allotment on lease basis of, 8 pieces of land of different sizes in Murree area, some of them said to be quite valuable, having costly trees of timber wood planted and maintained by the Forest Department, to different persons, including some political figures, for setting up some buiness concerns thereon and a few of them have allegedly already established their business places thereon after the clearance of costly timber wood. These allotments were made by the Board of Revenue, perhaps after resuming these tracts of land from the Forest Department.
44. Similarly, Mr. Ghulam Haider Wyne during his tenure as Chief Minister of the Punjab from 7-8- 1990 to 25-4-1993, allotted 1291 plots in different homing schemes of Lahore Development Authortiy
(LDA) and 549 plots in various housing schemes of Housing and Physical/Environmental Department and its Development Agencies (others than LDA) such as MDA, FDA, RDA and Improvement Trust, total being 1840 plots, from his discretionary quota.
45. As already indicated, Mian Manzoor Ahmad Wattoo, during his chief ministership from 24-4- 1993 to 18-7-1993, allotted a number of plots in various schemes of LDA and of Housing and Physical/Environmental Deparment and its other Development Agencies in the Province but before leaving office he cancelled some allotments for the reasons best known to him and now only 92 plots stand allotted in different schemes of LDA and 32 in other schemes.
46. To be a little more precise, from the list of plots converted from one category to another supplied by the Housing and Physical Department vide Letter No, DG-HMS-LAI-WP-9/, dated 7-8- 1993, it appears that Mian Nawaz Sharif as Chief Minister converted 27 plots, mostly commercial and some community as well, into residential ones and Mr. Ghulam Hyder Wyne as Chief Minister converted 9 commercial plots into residential ones, in different housing schemes in the Punjab being executed by the said Department and allotted the same to certain persons of their choice at reserved price. Under. The said letter, whatever its binding force was, commercial plots were to be disposed of only by public auction and they could never be converted into residential and allotted as such and community plots were to be given to the concerned agencies on reserved price.
Similarly, LDA has supplied the list of plots which were either commercial or community plots or were meant for Government offices and were converted into residential and allotted to some favourites, mostly by Mian Nawaz Sharif. Mention has already been made regarding the resumption of pieces of forest land in Murree from Forest Department and their allotment to different persons, including a Provincial Minister (Col. (Retd.) Muhammad Yamin) through the Board of Revenue under his orders for their utilization for commercial purposes on nominal amount of lease annually. There was some so-called discretionary quota of the Chief Minister so far as the residential plots in the housing schemes were concerned, but what he had to do with the forest land in Murree and its allotment through the accommodating Board of Revenue to certain persons of his choice for commercial purposes?
47. As mentioned earlier, Major General (Retd.) M.H. Ansari, a former Director-General of Lahore Development Authority, was appointed as a Local Commissioner/Court Representative with some guidelines to scrutinise the lists of plots supplied by LDA. It was, in fact, on the request of Mr. Manzoor Ahmad Wattoo and Mian Nawaz Sharif both, made by them in their respective written statements, that a Court Representative was deputed to check the accuracy of the lists. However, when General (Retd.) Ansari started executing his commission, Mian Nawaz Sharif respondent began to feel uneasy and after an abortive attempt before this Court to get his mandate cancelled, took recourse to a Division Bench of the High Court in an I.CA. And got the execution of his assignment stayed, vide its order dated 12-9-1993. Till then he had, however, submitted some reports containing startling facts about certain allotments made by Mian Nawaz Sharif but due to the stay order issued by the learned Division Bench in the I.CA., I would refrain from referring to and relying upon his findings. However, I would refer to a summary submitted by a Director-General, L.DA. To the Chief Minister, forming part of one of his reports. Copy of the Summary, dated 27-9- 1988, alongwith its enclosures, submitted to Mian Nawaz Sharif as Chief Minister by Mr. All Kazim, Director-General, L.DA., indicates that on the said date no plot of one/two Kanals was available in Chief Ministers' discretionary quota in any housing scheme of L.DA. Further details appended to the Summary show that in MA. Johar Town Scheme the Chief Minister had already allotted 66 one- Kanal plots as against his discretionary quota of 20 one-Kanal plots and in Sabzazar Housing Scheme he allotted 45 one-Kanal plots as against his quota of 37 one-Kanal plots. So 20 persons, who were allotted one/two-Kanals plots in the said Summary, were directed to be accommodated against 10-Marla plots of discretionary quota in MA. Johar Town Scheme and Zubzazar Housing Scheme and after this adjustment and that of some other allotments, no 10 Marla plot of discretionary quota of the Chief Minister in MA. Johar Town Scheme and no plot of any kind and size of his quota in Sabzazar Housing Scheme, was available after 27-9-1988. If it was so, then from which discretionary quota Mian Nawaz Sharif and his two successors-in-office namely, Mr. Ghulam Haider Wyne and Mian Manzoor Ahmad Wattoo were making allotments to various persons in different housing schemes (except Tajpura Housing Scheme of 3 to 5 Marla plots) of L.DA. After 27- 9-1988? Obviously all allotments made by them after this date were in violation of the aforesaid policy decision/circular letter, which prescribed their discretionary quota, and hence the same were without lawful authority if it had the force of law.
48. ' Another aspect of the exercise of discretion by the Chief Executives of the Country and the Provinces is that they belong to, rather, they are the heads of, one or other political party, and everyone in the country is aware of the decree of polarization, rather, animosity between the two major political parties which have been ruling the country and its federating units. In a situation like this, is it possible to expect that a Chief Executive belonging to a political party shall allot a plot, a costly and coverted thing nowadays, to any person of another political party, except for horse- trading or purchasing his political loyalty? This being the position, naturally he must have been allotting plots to his own political associates, friends and relations and to none else. If it was so, then in the country none else, excepting his own men, resided and only they were entitled to reap all benefits? What about the teeming millions who belong to other political parties or are otherwise non-aligned? How then the Chief Executives, some of whom are respondents herein, justify the fair exercise of their discretion in allotting plots from their discretionary quotas if at all the same existed in law?
49. Paragraph 8 of the Circular Letter, dated 23-12-1986, which constitutes law for the allotment of plots in the Punjab, inter alia, lays down that a person shall not be eligible for the allotment of a plot in any housing scheme in the Punjab if he/she or his/her wife/husband or dependent children owns/own a house or plot in any urban area in the Punjab. It obviously implies that all housing schemes in the Punjab, by whichever official agency they are formulated and executed, are basically meant for shelterless persons already residing in urban areas but having no plot or house of their own, or for those who are residing in rural areas but have no plot or house in urban area. In other words, these schemes were primarily meant for the poor and middle-class families to enable them to build shelters for themselves in urban areas on plots provided to them on comparatively cheaper rates in well-planned localities. These schemes were certainly not meant for well-to-do sections of the society such as politicians, bureaucrats, senior State functionaries of other departments, officers of Armed Forces who have their own housing schemes, big businessmen and fuedal lords for building palatial houses for themselves and making the plots a source of their lucrative business, adding lacs of rupees to their already overflowing coffers. One can see almost in every town and city, splended buildings and costly houses come up in every housing scheme.
Obviously no poor or middle class family can afford to build these palaces and in fact they have been deprived of their rights by their rich and influential fellow citizens with the help of persons at the helm of affairs, mostly the politicians and the top bureaucrats, who have also filled their own pockets from easy-gotten and ill-gotten plots money by getting the plots allotted, mostly from dubious discretionary quotas, in fictitious names or benamis at the reserved price of a few thousands rupees and selling the same in the market for many lacs. All this is apparent from the record made available to this Court and much more can be dug out if the probe is instituted into these bunglings.
50. In fact, Retired General Ansari, as a representative of this Court, was doing a useful job in unearthing big frauds, scandals, under hand deals, bogus allotments and loss of record, causing loss of billions of rupees to the L.DA. But unfortunately he was stopped by a Division Bench of the High Court and the matter stands hushed up. Position in other Development Agences in the Punjab can be no better either, but the question is who will bell the cat which has done all this? As a result of the General Elections now in progress, most probably the political Governments of the two major political parties are to come back in the saddle at the Centre and in the Provinces. Since the high- ups of both of them have already besmeared their hands with the spoils of the plots and other economic resources of the country during their respective regimes, naturally they are not going to initiate any legal action against themselves or against their opponents out of the fear of retaliation, rather, they would try to justify their misfeasance, as some of them have already started doing so in their electioneering campaigns and there is no higher forum provided in the Constitution for looking into the matter and rectify the wrong. So the wronged masses have no remedy and, as the famous proverb goes 'what cannot be cured must be endured', they will have to forebear the tyranny which has already brought them to the verge of starvation and the country on the brink of bankruptcy on account of economic crises created by their merciless exploitation by a few families at the helm of affairs eversince the creation of Pakistan.
51. In view of the above, all allotments, grants, leases and transfers of State-owned plots or tracts of land, of whatever kind and size, located in the Province of the Punjab---
(a) in any development scheme of Housing, Physical and Environmental Planning Department, Government of the Punjab, executed, or being executed, by it directly;
(b) in any development scheme of any Development Agency of the said Department or of any other Department of the Provincial Government, such as Lahore Development Authority, Multan Development Authority, Faisalabad Development Authority, Rawalpindi Development Authority, or similar other Development Authorities; and
(c) in any development scheme of any Improvement Trust or of any other Department or official agency of the Provincial Government, including Board of Revenue; ' made by or under the orders or directions of any officer or Authority (including the Chief Ministers of the Punjab from their so-called discretionary quota or otherwise as Chief Executives of the Province) under the policy decision of the Provincial Government contained in its Circular Letter No,S.O. (D-II)-HP&EP-2-86, dated 23-12-1986, issued by the Housing and Physical Planning Department, are hereby declared against law, without lawful authority and having no legal effect ever since 30-12-1985, the day the Third Martial Law was lifted, till now.
52. Since this declaration would also adversely affect the genuine allotments, grants and transfers made by various officers and authorities (other than the Chief Ministers) of Housing and Physical Planning Department and those of its Development Agencies, the Provincial Legislature shall have to enact a validating law for the validation of all those allotments, grants, leases and transfers so far made by them. The law to be so enacted shall, with a view to satisfy the Constitutional mandate of Article 173, also have to provide for the future disposal of State-owned lands and plots in urban areas in the Province, as has been done by the Government of Sind, which has got enacted Sindh Disposal of Plots Ordinance, 1980, but without repeating the flaws of that legislation briefly pointed out in paragraph No,40 of this judgment. It may be mentioned here that Shariah (Injunctions of Islam as contained in the Holy Qur'an and Sunnah) by virtue of section 3 of the Enforcement of Shariah Act, 1991 is now the supreme law of the country and also a Federal Law. Therefore, while enacting the new law, the Provincial Legislature shall have to keep in view the provisions of the said Act to save that law from being rendered ultr. Vires.
53. As exhaustively indicated in the body of the judgment, since all the three Chief Ministers, the respondents herein, have been misusing their discretion, which in fact did not exist at all, the validation to be made in that respect shall have to be made carefully as in certain cases even the plots reserved for the community, public and environmental purposes were also allotted by them to certain persons of their choice for residential or commercial purposes and if those plots are still lying vacant, they will have to be resumed in public interest for the purposes for which they were originally carved out. However, if the Government decides not to resume any such plot which were allotted by the respondents from their so-called discretionary quota, then it would be in the fitness of things if the original allottees thereof are compelled to pay the market value prevalent at the relevant time. This will have the effect of not only denuding them of the wrongful gain that they made by obtaining costly plots worth lacs of rupees at throw-away reserved price due to the `Mehrbani' of the respondents, but shall also bring lot of money to the depleted provincial exchequer.
54. As regards certain tracts of land in Murree area, the details of which have been provided by the Board of Revenue in (Annex. 111/1-8) if the Government decides not to resume them, the lessees thereof shall have to pay to the Government the adequate lease money, including the compensation for the valuable trees of timber wood allegedly standing thereon. Since even the senior Government functionaries are not resisting the unlawful orders of the high political functionaries; which is contrary to the dictates of law enjoining them to resist, it would be better if the Government initiates suitable legal action against the accommodating officers of the Board of Revenue for sheepishly obeying the unlawful commands of the Chief Ministers in leasing out costly Forest land on nominal rates.
55. So far as the liability of the respondents is concerned, they have definitely incurred heavy liability, civil and criminal both, but I would leave this aspect of the matter to the discretion of the Provincial Government.
56. Before parting with this judgment, which is the last in the series, I would like to place on the record my appreciation for the National Press as also for Al-Jahad Trust, Rawalpindi, represented by Mr. Habib-ul-Wahab AlKhairi and Mr. Muhammad Salim Sheikh, Advocates as writ petitioner, beisdes Mr. Rashid Murtaza Qureshi, Advocate, for rendering valuable assistance to this Court, despite heavy odds, purely for a national cause in public interest.