1. CH. MUSHTAQ AHMAD KHAN, J.---Mr. M.D. Tahir, Advocate who is a Muslim Citizen of Pakistan, has challenged the legality, propriety and justification of the expenditures incurred on tours of President of Pakistan to U.S.A. And that of Prime Minister of Pakistan to perform Haj-i-Baitullah, which were undertaken during the last year.
2. Report and parawise comments were called from Federation of Pakistan respondent No.1, wherein it has been explained that the questioned tours were undertaken in the public interest, in official capacity; that the expenditures incurred thereon are neither illegal nor unjustified as both the tours had been undertaken for the betterment of people of Pakistan and in the best interest of the country; that the President of Pakistan himself paid an amount of Rs.1,21,124.75, the expenditures incurred by his family members, therefore, the writ petition is liable to be dismissed.
3. Today, we have heard Mr. M.D. Tahir petitioner in person and Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who has appeared on behalf of respondent No.1 and Mr. Farooq Baidar, learned Additional Advocate-General Punjab, Lahore, who has appeared on behalf of respondent No.2. In support of this petition, the petitioner has contended that the tours conducted by both the functionaries of the State referred to above were of private nature and that the said tours were not at all needed for the betterment of the people and in the interest of Pakistan, but for private purposes as Pakistan is a poor country and every child born in this country is under a debt of Rs.5,000, therefore, the expenditures from public exchequers are not justified on such like private tours. We have asked the learned counsel as to whether he has objected to such like tours which have been undertaken by various functionaries of the State prior thereto and which are being undertaken since the creation of Pakistan? Learned counsel states that he does not approve of those tours as well yet he has no explanation for not challenging the legality and propriety of the aforementioned tours either in this petition or previous thereto. We have further asked the learned counsel about his locus standi to ; file this Constitutional petition in view of the protection about the issuance of process by this Court, against the President and Prime Minister of Pakistan, as contained under the provisions of Article 248 of the Constitution? Learned counsel contends that the petitioner being a Muslim Citizen of Pakistan, is entitled to ask for the details of the expenditures from the public exchequers by the public functionaries in the light Of "Nass" relatable to the rule of the great Caliph Hazrat Umar (R.A.) when a Muslim Citizen was allowed to ask the explanation from the Caliph as to wherefrom he had taken the second `Chadar'. He hence states that keeping in view the above Injunction of Islam, which is the Supreme Law of t his country, he has a locus standi to ask for the legality and justification of the expenditures referred to above through this Constitutional petition. In support of his case he has referred to the following cases and verses:---
(1) Islamic Republic of Pakistan through Secretary, Mitry of Interior and Kashmir Affairs, Islamabad v.
2. Abdul Wail Khan, MNA, Former President-of Defunct National Awami Party (PLD .1976 SC 57),
(2) Man Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and
(3) M/s. Gadoon Packing (Pvt.) Ltd. v. Central Board of Revenue and 5 others (1994 SCMR 2128).
3. Verse No.188 Para. No.20 Verses Nos. 5, 29 & 40 from Surah `AI-Nisa'
4. Verses Nos. 63 to 67 from Surah `A1-Furqan', Verse No. 3 from Surah ,Al-Aaran'
5. Verses Nos.26 to 27 & 34 from Surah 'Bani israif Verses Nos.40, 76, 77, 96 & 97 from Surah `Ale Imran', Verses Nos.54 to 58 from Surah `Al_Infal Verses Nos.2 to 5 & 15 from Surah `Al-Ahzab', Verse No.177 from Surah `Al-Baqrah', Verse No.10 from Surah `Al-Fateh', .
6. Verses Nos.1, 89 from Surah `Al-Maidah'
7. Verses Nos.1 to 4, 7 to 9,10 to 13 and 75 to 77.from Surah `Al-Tauba'
8. Verse No.188 from Surah `Al-Momnoon', Verses Nos.151-152 from Surah `Al-Inaam', Verses Nos.20 & 21 from Surah `Al-R'ad'
9. Verses Nos.91 & 94 from Surah `AI-Nahal'
10. Verses Nos.14 to 19 from Surah `Al-Mujadilah'
11. Verse No.2 from Surah `Al-Munafqoon'
12. Verse No.3 from Surah `Al-Tahreem'
4. In reply to the above arguments, M/s. Faqir Muhammad Khokhar, learned Deputy Attorney- General of Pakistan and Mr. Farooq Baidar, learned Additional Advocate-General, Punjab have stated that at the time when the people's Government came into power after winning of the general elections, the country was under threat of being declared as a terrorist country, on account of the policies of the previous Government, there were allegations of Narcotics trafficking by the ex- State functionaries and the country had gone at the verge of bankruptcy as a result whereof it was decided by the present regime that efforts should be made through camoflague/under-cover, diplomacy to have good relations with foreign countries including U.S.A., which country is undoubtedly as super power these days, and matter, in international affairs. It is in pursuance of this decision that a series of tours and visits were arranged by the Government through delegations of various tiers, headed by various diplomats including the public representatives, to visit the foreign countries and to make them understand the position and point of view of Pakistan on various disputed issues. The questioned visits were also steps taken in the same series, as in Islam even while performing Haj, there is no bar to discuss the issues of mutual interest between the Muslim countries inter se, Heads of which countries are usually present at the time of Haj, which objects were achieved as is clear from the current successful foreign policy, in-flow of foreign investment, good relations with foreign countries and the coming invited tour of Pakistan to U.S.A., that the Head of the Government and Head of the State are entitled as of right to take the decision as to what number and what type of persons are to be included in their entourage during their visit of foreign country; that family members of both the functionaries are entitled to free travel and visit; that expenditures on such like tours are form the budgeted amount and, therefore, it cannot be said that any financial irregularity was committed by the respondent No.1 to arrange for and spend on the questioned tours; that in spite of the protection enjoyed by both the functionaries of the State as per Article 248 of the Constitution, they being staunch believers of independence judiciary and being conscious of their obligation to submit their official acts open to judicial review in the light of the Injunctions of Islam, have decided to furnish complete details of their visits before this Court, which details clearly belie the contentions raised by the petitioner who has come to this Court in a mala fide manner as it is for the first time that he has objected to the legality and propriety of the questioned visits although there has been such like tours many times earlier, including the tours by Gen. Zia-ul-Haq i.e. "Cricket diplomacy tours".
5. We have considered the arguments addressed by the learned counsel for the parties and for detailed reasons to be recorded later. We hold that the questioned tours by the President and Prime Minister of Pakistan were not personal in their objects and were conducted in official capacity for the betterment of people of Pakistan and in the best interest of the country; that no financial irregularity or illegality has been committed by the respondents, while incurring expenditures on the aforementioned tours; that the President of A Pakistan has contributed the expenditure incurred by his family members from his own pocket, which has been done perhaps for the first time in the history of Pakistan, is a commendable act and can be quoted as an example/precedent; that this writ petition is not bona fide and at any rate is barred by principles of estoppel, and, hence, is dismissed.
13. (SD.) CH. MUSHTAQ AHMED KHAN, (SD.) SHARIF HUSSAIN BOKHARI, JUDGES.
14. Date of hearing:1st March, 1995.
15. M.D. Tahir,In person.
16. Petitioner Chief Secretary, etc.M/s. Faqir Muhammad Khokhar, Deputy Attorney-- Respondents byGeneral of Pakistan and Farooq Beidar, Additional Advocate-General, Punjab, Lahore.
17. CH. MUSHTAQ AHMAD KHAN. J. This detailed judgment shall be read in addition to, as a part of and in continuation of short order dated 1-3-1995, whereby the writ petition was dismissed.
2. The facts of the case as well as the detailed arguments addressed by the petitioner and learned counsel for the respondents have been mentioned in the short order, therefore, it will not be necessary to repeat them in this part of the judgment, but the same shall form part of this judgment.
3. Before embarking upon the detailed discussion of the contentions raised by the petitioner and the learned counsel for the respondents and decision of the issues involved in this matter, it will be appropriate to reproduce brief resume of the relevant case-law on the subject as well as the English translation of verses from Holy Qur'an referred to by the petitioner during the course of arguments.
4. In case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad. v. Abdul Wali Khan, MNA, Former President of Defunct National Awami Party (PLD 1976 SC 57), it has been held that news items in the newspapers in relation to contemporaneous events are admissible in evidence, particularly when such events are of local interest or of such public nature as would be generally known to the community, testimony of eye-witnesses whereof is not available and the same are not contradicted. Similar observations have been made in case of Mian Muhammad 'Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473).
5. In case of M/s. M.Y. Electronics Inds. (Pvt.) Ltd. Through Manager. v. Government of Pakistan (Ministry of Finance), Islamabad and 5 others (1994 SCM R 2123), it has been held that the doctrine of legitimate expectations from Head of State, if violated, the power of judicial review to control the actions of the Executive Authorities shall be attracted: TRANSLATION OF VERSES FROM HOLY QUR'AN BY MARMADUKE PICKTHALL.
18. SURAH AN-NISA Verse No. 5---Give not unto the foolish (What) is in your (Keeping of their) wealth, which Allah hath given you to maintain; but feed and clothe them from it, and speak kindly unto them.
19. Verse No.29. --O ye who believe! Squander not your wealth among yourselves in vanity, except it be a trade by mutual consent, and kill not one another. Lo! Allah is ever Merciful unto you.
20. Verse No.40.---Lo! Allah wrongeth not even of the weight of an ant; and if there is a good deed, He will double it and will give (the doer) from His presence an immense reward.
21. SURAH-AL-A `RAF.
22. Verse No.3.---(Saying): Follow that which is sent down unto you from your Lord, and follow no protecting friends beside Him. Little do ye recollect!
23. SURAH AL-BAOARAH Verse-177.---It is not righteousness that ye turn your faces to the East and the West; but righteous is he who believes in Allah and the Last Day and the angels and the Scripture and the Prophets; and giveth his wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor- due. And those who deep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the God-fearing.
24. SURAH AL-INFAL Verse No.54. --(Their way is) as the way of Pharaoh's folk and those before them; they denied the revelations of their Lord, so We destroyed them in their sins. And We drowned the folk of Pharaoh. All were evil doers.
25. Verse No.55.---Lo! The worst of beasts in Allah's sight are the ungrateful who will not believe.
26. Verse No.56.---Those of them with whom thou madest a treaty, and then at every opportunity they break their treaty, and they keep not duty to (Allah).
27. Verse No.57. --If thou comest on them in the war, deal with them so as to strike fear in those who are behind them, that haply they may remember.
28. Verse No.58.---And if thou fearest treachery from any folk, then throw back to them (their treaty) fairly, . Lo! Allah loveth not the treacherous".
29. SURAH AL-TAUBAH.
30. Verse No.1.---Freedom from obligation (is proclaimed) from Allah and His messenger toward those of the idolaters with whom, ye made a treaty.
31. Verse No.2.---Travel freely in the land four months and know that ye cannot escape Allah and that Allah will confound the disbelievers (in His guidance).
32. Verse No.3.---And a proclamation from Allah and His messenger to all men on the day of the Greater Pilgrimage that Allah is free from obligation to the idolaters, and (so is) His, messenger. So if ye repent it will be better for your; but if ye are averse, then know that ye cannot escape Allah.
33. Give tidings (O Muhammad) of a painful doom to those who disbelieve.
34. Verse No.4.---Excepting those of the idolaters with whom ye (Muslims) have a treaty, and who have since abated nothing of you right nor have supported anyone against you. (As for these), fulfil their treaty to them till their term. Lo! Allah loveth those who keep their duty (Unto Him).
35. Verse No.7.---How can there be a treaty with Allah and with His messenger for the idolaters save those with whom ye made a treaty at the Invioable place of Worship? So long as they are true to you, be true to them. Lo! Allah loveth those who keep their duty.
36. Verse No.8. ---How (can there be any treaty of the others) when, if they have the upper hand of you, they regard not pact nor honour in respect of you? They satisfy you with their mouths the while their hearts refuse. And most of them are wrongdoers.
37. Verse No.9.---They have purchased with the revelations of Allah a little gain, so they debar (men) from His way. Lo! Evil is that which they are wont to do.
38. Verse No.10. --And they observe toward a believer neither pact nor honour. These are they who are transgressors.
39. Verse No.11.---But if they repent and establish worship and pay the poor due, then are they your brethern-in-religion. We detail Our revelation for a people who have knowledge.
40. Verse No.12.---And if they break their pledges after their treaty (hath been made with you) and assail your religion, then fight the heads of disbelief--Lo! They have no binding oaths--in order that .They may desist.
41. Verse No.13.---Will ye not fight a folk who broke their solemn pledges, and purposed to drive out the messenger and did attack you first? What! Fear ye them? Now Allah hath more right that ye should fear Him if ye are believers.
42. Verse No.75. --And of them is he who made a covenant with Allah (saying): If He give us of His bounty We will give alms and become of the righteous.
43. Verse No.76.---Yet when He gave them of His bounty they hoarded it and turned away, averse.
44. Verse No.77.--So He hath made the consequence (to be) hypocrisy in their hearts until the day when they shall meet Him because they broke their word to Allah that they promised Him, and because they lied.
45. SURAH AR-R'AD.
46. Verse No.20.---Such as keep the pact of Allah, and break not the covenant.
47. Verse No.21.---Such as unite that which Allah hath commanded should be joined, and fear their Lord, and dread a woeful reckoning.
48. SURAH AL-NAHAL.
49. Verse No.91.---Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after the asseveration of them, and after ye have made Allah surety over you. Lo! Allah knoweth what ye do.
50. Verse No.94.---Make not your oaths a deceit between you lest a foot should slip after being firmly planted and ye should taste evil for as much as ye debarred (Men) from the way of Allah, and yours should be an awful doom.
51. SURAH BANI ISRAIL.
52. Verse No.26.--Give the kinsman his due and the needy and the wayfarer and squander not (thy wealth) in wantonness.
53. Verse No.27.---Lo! The squanderers were ever brothers of the devils, and the devil was ever an ingrate to his Lord.
54. Verse No.34.---Come not near the wealth of the orphan save with that which is better till he come to strength; and keep the covenant. Lo! Of the covenant it will be asked.
55. SURAH ALE IMRAN Verse No.76.---Nay, but (the chosen of Allah is) he who fulfilleth his pledge and wardeth off (evil); for lo! Allah loveth those who ward off (evil).
56. Verse No.77.---Lo! Those who purchase a small gain at the cost of Allah's covenant and their oaths, they have no portion in the Hereafter. Allah will neither speak to them nor look upon them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful doom.
57. Verse No.96.---Lo! The first sanctuary appointed for mankind was that at Mecca, a blessed place, a guidance to the peoples; Verse No.97. ---Wherein are plain memorials (of Allah's guidance); the place where Abraham stood up to pray; and whosoever entereth it is shall be secure.
58. SURAH AL-FURQAN Verse, No.63.---The (faithful) slaves of the Beneficent are they who walk upon the earth modestly and when the foolish ones address them answer Peace.
59. Verse No.64.---And who spend the night before their Lord, prostrate and standing.
60. Verse No.65. --And those who: Our Lord! Avert from us the doom of hell; lo! The doom thereof is anguish.
61. Verse No.66.---Lol it is wretched as abode and station; Verse No.67.---And who say: when they spend, are neither prodigal nor grudging; and there is ever a-firm station between the two; SURAH AL-AHZAB Verse No.2.---And follow that which is inspired in the from thy Lord. Lo! Allah is Aware of what ye do.
62. Verse No.3. --And put thy trust in Allah, for Allah is sufficient as Trustee.
63. Verse No.4.---Allah hath not assigned unto any man two hearts within his body, nor hath He made your wives whom ye declare (to be your mothers) your mothers, nor hath He made those whom ye claim (to be your sons) your sons. This is but a saying of your mouths. But Allah Sayeth the truth and He showeth the way.
64. Verse No.5.---Proclaim their real parentage. That will be more equitable in the sight of Allah. And if ye know not their fathers, then (they are) your brethren in the faith, and your clients. And there is no sin for you in the mistakes that ye make unintentionally, but what your hearts purpose (that will be sin for you). Allah is Forgiving, Merciful.
65. Verse No.15---And verily they had already sworn unto Allah that they would not turn their backs (to the foe). An oath to Allah must be answered for.
66. SURAH AL-FATH Verse NO.10.---Lo! Those who swear allegiance unto the (Muhammad), swear allegiance only unto Allah. The Hand of Allah is above their hands. So whosoever breaketh his oath, breaketh it only to his soul's hurt; while whosoever keepeth his covenant with Allah, on him will He bestow immense reward.
67. SURAH AL-MUJADALAH Verse No.14.----Hast thou not seen those who take for friends a folk with whom Allah is wroth? They are neither of your nor of them, and they swear a false oath knowingly.
68. Verse No.15.---Allah hath prepared for them a dreadful doom. Evil indeed is that which they are wont to do.
69. Verse No.16.---They make a shelter of their oaths and turn (men) from the way of Allah; so theirs will be a shameful doom.
70. Verse No.17. --Their wealth and their children will avail them naught against Allah. Such are rightful owners of the Fire; they will abide therein.
71. Verse No.18.---On the day when Allah will raise them all together then will they swear unto Him as they (now) swear unto you, and they will fancy that they have some standing. Lo! Is it not they who are the liars?
72. Verse No.19.---The devil hath engrossed them and so hath caused them to forget remembrance of Allah. They are the devil's party. Lo! Is it not the devil's party who will be the losers?
73. SURAH AL-TAHRIM Verse No.3: --When the Prophet confided a fact unto one of his wives and when she afterward divulged it and Allah apprised him thereof, he made known (to her) part thereof and passed over party. And when he told her she said: who hath told the? He said: The Knower, the Aware hath told me.
6. We have considered the arguments addressed by the petitioner and the learned counsel for the respondents, have perused the record, the case-law cited at the Bar as well as the cited verses from Holy Quran and have examined the case in the light of the aforementioned Holy verses as well as the case-law, propositions laid down wherein have no cavil, therewith.
74. 6-A. It is a matter of common knowledge that the visit of foreign countries undertaken by the Heads of the Government and State, are presumed to be official unless otherwise proved, no matter whether the same are comouflaged/under cover or invited visits. As per provisions of the Constitution and the law Heads of the State and the Government, are entitled to certain privileges including expenditures on their travelling within and outside the country and for these expenditures, provision is made in the Budget itself. The procedure is also laid down which regulates the expenditures on visits by the High public functionaries. In the case in hand, engagements/commitments of both the Heads of State/Government, in United States of America and Saudi Arabia, during the course of their visits and after effects thereof, like improvement/normalcy of inter se relations, .Better understanding of Kashmir, atomic, terrorism and narcotic issues, reciprocal visits of foreign delegations and Heads of the Government and State, signing of memorandums of understanding of foreign investments in the country and the coming invited visit of Mohtarma Benazir Bhutto, Prime Minister of Pakistan to U.S.A., is a strong piece of evidence to draw an inference that the questioned visits cannot be described as private in nature and were conducted in public good and in the interest and welfare of the people of Pakistan. To further elaborate the above taken view, a cursery galance on the details of the functions attended and meetings, held by the President of Pakistan in U.S.A. Will clearly demonstrate that the main object of the President's visit to U.S.A. Was to discuss the matters of mutual interest between the two countries as their inter se relations had gone strained, serious differences had arisen on all the major issues referred to above and the country was at the verge of being declared as a terrorist country when the people's Government had taken over. There was a misunderstanding about the atomic policy of the Government. There were differences on Kashmir issue. There was a misunderstanding with regard to the involvement of people of Pakistan in Drug and Narcotic trafficking, which are issues of great public importance. Inflow of foreign investment and even from the international organizations like World Bank, etc. Has almost stopped.
75. It is in these circumstances it appears, that the Government in power had decided to take steps to normalise its relations with the foreign countries particularly the U.S.A. Undoubtedly, which is a super power and does matter in the present "world order", and to explain the point of view of Pakistan on all the aforementioned major issues including the issue of foreign investment, and with this end in view various delegations headed by the Parliamentarians and Experts were decided to be sent to U.S.A., Saudi Arabia and other Muslim/other foreign countries. The tour undertaken by the President of Pakistan is also established to be one of the kind in the series of the abovesaid visits.
76. The very fact that regarding private part of the visit President of Pakistan contributed expenditures from his own pocket, clearly demonstrates that the Head of the State was quite conscious of his obligation not to spend from public exchequer/funds on private part of his visit and this fact is rather commendable than to be condemned as held by us, in our short order. Similarly, the visit of Prime Minister of Pakistan at the time of Haj alongwith other members of her entourage is also not established to be private in nature. Haj is the occasion whereon most of the Heads of the Muslim countries get together, and, therefore, there is an opportunity to discuss the inter se issues and relations between brotherly Muslim countries, on this sacred occasion. In Islam one major object of collective worship is to discuss and solve internal and external issues pertaining to collective good and betterment of the people. Islam does not make any distinction between the politics and the religion, as in Islam religion includes the politics as well. Therefore, the said visit also cannot be said to have been undertaken for private purposes. In the face of the clear stand taken by the respondents that both the questioned tours were official in nature and no financial irregularity has been committed regarding expenditures thereof, which, stand has a presumption of correctness, the findings rendered and circumstances noted in the earlier part of this order, nothing having been brought on the record by the petitioner to prove his bald allegations, we hold that during the course of both the visits neither any financial irregularity has been committed nor there has been violation of Injunctions of Islam as contained in Holy Qur'an and Sunnah or the Constitution and the law of the land.
8. Examined the case from another angle also, this writ petition appears to be misconceived. The controversy which has been brought before this Court in fact pertains to the area of foreign policy of the executive and raises political issues of very sensitive nature, which controversy can better be discussed and resolved by the Legislators/representatives in/outside the Parliament/ Assemblies and not before this Court, therefore, it can safely be held that the controversy as raised in this Constitutional petition is not at all justiciable before this Court. In support of the above view, there is plathora of case-law, a few cases of which category are referred to as follows:----
(i) In case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595), it has been held that all the three organs of the State namely judiciary, executive and the legislature have to perform their functions within the four corners of the area assigned to each organ by the Constitution.
(ii) In case of A.G. Prayagi v. State of M.P. And others (AIR 1987 M.P. 25) where a petitioner who was a tax payer filed a Constitutional petition seeking a prayer for issuance of writ of mandamus for removal of Cabinet Minister and High Officers of Government department for misuse of power and public funds and in this behalf to direct the Chief Minister to advise the Governor to do the needful, it was held that such a petition cannot be held to be bona fide and hence the petitioner has no locus standi to file a petition and further that decision of such questions is outside the purview of writ jurisdiction, hence the writ was held to be incompetent and it was held that proper forum to raise such issues was "Lok Ayukt and Up-Lok Ayukt Adhiniyam". In paragraph 8 of the report it has been held as under:--- "Under Article 163 of the Constitution, there shall be a Council of Ministers with the Governor appoints a Minister on the ad-vice of the Chief Minister and holds office during the pleasure of the Governor. A Minister can be dismissed by the Governor on the advice of the Chief Minister. The Cabinet is accountable to the State Legislature and can hold offices so long it enjoys the confidence of Lok Ayukt Evart Up-Lok Ayukt Adhiniyam, 1981 and under section 7 they are empowered to enquire into allegations of misuse of power favouritism, nepotism and corruption against Ministers including Chief Minister and public servants. Action can be taken by the Government on the report under section 12. Article 226 is not the forum at the first instance to enquire into the allegations made by the petitioner against the Minister and the head of the Department, moreso when the allegations are controverted as being false and malicious. The writ jurisdiction cannot be used to wash dirty linen. This Court cannot issue a writ of mandamus to the Chief Minister to advise the Governor to dismiss the respondent No.2 and to the minister to dismiss the respondent No.3. The petitioner, if he has genuine grievances to make, should approach the Lok Ayukt and Up-Lok Ayukt. The petition is incompetent and the prayer made in the petition is outside the purview of this Court. The petitioner's two petitions M.P. Nos. 950 and 2047 of 1984 against his suspension and D.E. Will be considered on their own merits."
(iii) In case of Mr. Zulfikar A.I Bhutto v. The State (PLD 1978 SC 40), while discussing extent of powers of judicial review their Lordships of the Supreme Court has held that it must be clearly understood that in judging whether an action taken -by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant actions, its methodology and procedural details, must rest on that authority. It has further been held that the Court would traverse outside scope of its powers of judicial review in dictating to Government procedural and administrative details necessary for holding elections.
(iv) In case of the Government of N: W.F.P. Through the Secretary to the Government of N.-W.F.P.
77. Communications and Works Departments, Peshawar v. Muhammad Said Khan and another (PLD 1973 SC 514) at page 520 of the report, it has been held that:--- "The High Court cannot itself make any executive order, its functions being confined to issuing of directions on matter of law. Therefore, where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law, i.e. Exercises a jurisdiction not vested in him by law."
78. It has further been held that while determining as to whether the allegation against the Bank Officer amounted to misconduct or not, it could only be determined after a satisfactory inquiry and the High Court cannot substitute its own Judgment for that of the Inquiry Officer.
(v) In case of Government of Pakistan v. M/s. Indo-Pakistan Corporation Ltd. Etc. (PLD 1979 SC 723); where the question was as to whether the delayed policy/decision taken by the Government regarding declaration of the status of enemy property is lawful or not, at page 739 of the report, it has been held as under:--- "Mr. Iftikhar then reminded us that the Company had been declared an enemy firm during 1965 emergency by a notification dated 21-9-1965, but as this notification had been withdrawn on 1-7- 1964, learned counsel's submission was that there was no justification for declaring the Company as enemy farm again during the 1971 emergency, and further as the impugned notification had been issued long after the cessation of the hostilities with India, the further submission was that this delay in declaring the Company, as enemy firm was itself a strong piece of evidence in support of the Company's allegations of mala fides against the appellants. The argument assumed that the Government was justified during the 1965 emergency in withdrawing the notification declaring the company to be an enemy firm, and as Mr. Lone challenged this assumption, Mr. Iftikhar pointed out that the notification of 17-1-1966 by which the Company had ceased to be an enemy firm had been issued in accordance with the policy decision of the Federal Government that Indian Muslims should not be treated as enemies for the purpose of the Enemy Property Laws, and even Mr. Lone admitted that the Federal Government made a policy decision during the earlier emergency as submitted by Mr. Iftikhar. But his contention was that the Government was entitled to change its policies in the light of the changing political situation. Mr. Lone's submission is correct, and as the Courts do not interfere with policy decisions of the Government, the fact that first appellant had revised its policies during the 1971 emergency is neither any evidence of mala fides, nor does it furnish any ground whatsoever to the Company for challenging the impugned notification."
(vi) In case of Lt.-Col. Farzand A.I and others v. Province of West Pakistan through the Secretary, Department of Agriculture Government of West Pakistan, Lahore PLD 1970 SC 98, where the question arose as to whether a decision taken by the Government is in the .Public interest or not, it has been held that it is the Government alone, which is the best Judge to determine. While dialating upon the issues, at page 130 of the report it has been held as under:--- "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to- whether retirement of the Officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage.
79. Learned counsel for the respondents have in support of this view, relied a number of decisions from the Indian jurisdiction wherein the Supreme Court of India had taken the view that the compulsory retirement of an officer under Note (1) to Article 465-A of the Civil Service Regulations is based purely on the satisfaction of the--- authorities who have to take action.
80. A somewhat similar view was also taken by Munir, C.J., in Chaudhry Muhammad Ismail v. Punjab Province PLD 1956 Lah.125.Even where the compulsory retirement is as a measure of punishment, as under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, this Court has in the case of Zafarul Ahsan v. Republic of Pakistan (2) taken the view that the Government could even without the formality of an enquiry retire a Government servant `if it were of the opinion' that he was guilty of corruption or misconduct or even `had the reputation of being corrupt'.
81. It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which `public interest' can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
9. The writ petition is also proved to be tainted with mala fades as the petitioner has never challenged the validity and legality of such like tours undertaken by the previous Heads of the Government and the State including the visit of late Gen. Ziaul Haq, ex-President of Pakistan, to India in the name and style of "Cricket Diplomacy", for which lapse no justifiable explanation could be given by the petitioner, in the petition and even during the course of arguments before us. The petitioner, hence, has not approached this Court with clean hands. This petition as such is liable to be dismissed on this score as well.
10. Before parting with this judgment, we are constrained to observe that in the recent past a trend has developed that people have started filing vaxatious and frivolous petitions before this Court, sometimes with the sole object of their own agrandisement, sometimes for getting their 'names published in the newspapers and many a time to malign/blackmail the Government in power/Authorities and for political considerations, without there being any substance in the petitions, knowing fully well that disposal of such like petitions is resulting in choking of this Court with heavy pendency of cases and sheer wastage of valuable public time which otherwise can be devoted to decide the pending/fresh causes of genuine litigants, quickly. Regarding similar class of litigants very apt observations have been made in case of Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. And others (AIR 1960 SC 2060), wherein a Constitutional petition, was filed alleging environmental pollution because of smoke and effluents caused by running of Mills and Plants in the area and the owners of these Mills and Plants were found to be complying with statutory provisions, it was found that the allegations were the result of long history of enmity and animosity. It has been held by their Lordships of the Supreme Court of India that the Court must protect that society from the so-called "protectors", and, hence, the application being devoid of any merit or principles of public interest and public protection was dismissed holding that the application certainly creates bottlenecks in Courts and is an abuse of the process of Supreme Court. Therefore, in their own and public interest, people should avoid filing of frivolous/vaxatious petitions before this Court, as filing of a vaxatious and frivolous petition may entail liability to pay special costs besides possibility of prosecution for abuse of the process of the Court.
11. Resultantly, we see .No force in this writ petition, hence, the same is dismissed with the above observations.