' Abdul Hameed Kausar petitioner was employed in Government service. After his retirement he received commuted pension amounting to Rs,2,42,334 in addition to arrears in the sum of Rs,37,393.
He deposited the voucher in respect of the said amount in his P.L.S. Account with Habib Bank Limited, Cantonment Branch, Lahore on 30-1-1993. The 1st Ramzan-ul-Mubarik fell on 23-2-1993. An amount of Rs,7,044 was deducted as Zakat from his account on the Ist of Ramzan-ul-Mubarik i,e, on 23-2-1993. The petitioner moved the Hon'ble Wafaqi Mohtasib, Pakistan voicing his grievance towards the deduction of the aforesaid amount of Rs,7,044 as Zakat. He took up the pleas that the Zakat was to be deducted on the -6th of Shaban and not on the Ist of Ramzan-ul-Mubarik and secondly that the Zakat had already been deducted at the sources in the Office of Accountant- General Punjab, Lahore.
2. The report was submitted by the concerned Bank. Both Abdul Hameed Kausar petitioner and Muhammad Afzal, Assistant Vice-President of the Habib Bank participated during the investigation at the end of the Wafaqi Mohtasib Pakistan. The petitioner took up the plea that he was not Sahib- e-Nisab on the date of deduction on the aforesaid amount as Zakat as he has not kept the money in the Bank in the preceding year. This assertion was not given the weight in view of Rule 23 of Zakat (Collection and Refund) Rules, 1981 which provides that a person can claim exemption from deduction of Zakat on the ground that he was not Sahib-e-Nisab on the valuation date or for the whole of the Zakat year preceding the valuation date by submitting a certificate on Form LZ-51 issued by the Chairman, Local Zakat Committee of the area where he resides permanently to the concerned Branch of the Bank. It was expressed that the complainant being an Advocate by profession is not supposed to plead ignorance of law on the subject who was advised to claim exemption from the proper forum.
3. The remaining contentions of the petitioner were also not given the weight in view of the findings contained in para. No,4 of the final order dated 16-11-1996 which is being reproduced as under: "According to the First Schedule to Zakat and Ushr Ordinance, 1980, the deduction date of Zakat in respect of S.B. Accounts and similai Accounts is the Ist of Ramazan-ul-Mubarik which is also the Valuation date and the commencement date of the Zakat year. This means that the Valuation date and the deduction date were the same, that is, for the year 1993 it was 23rd of February, i,e,, the first day of Ramazan. The relevant record shows that the Zakat was deducted on this date and not 6th of Shaban as mistakably stated by the complainant. He also failed to establish that Zakat was deducted twice from his Account, i,e,, first at source by the Accountant-General's Office, and secondly, by the Agency from his Account."
4. It is proper to express that 'Agency' means the Habib Bank Limited, Cantonment Branch, Lahore.
5. Consequently the petition submitted by Abdul Hameed Kausar petitioner was dismissed on 16- 11-1996.
6. Feeling aggrieved by the aforesaid order dated 16-11-1996 of the Hon'ble Wafaqi Mohtasib, Pakistan, Abdul Hameed Kausar petitioner has failed this writ petition wherein he has impugned the vires of the aforesaid order on the grounds that the same stands vitiated due to misapplication of law resulting in patently unjust decision. He contended that the compulsory deduction of Zakat in a manner adopted in the Bank is violative of Article 227(1) of the Constitution of Islamic Republic of Pakistan, 1973. He averred that the case-law reported as Miss Farzana Asar v. Messrs National Investment Trust through Managing Director and 2 others (PLD 1991 Karachi 335) has not been relied upon according to which the Muslim believers of Fiqaha Hanfia have been given the right to exercise their option against the compulsory deduction of Zakat and that it was the bounden duty of Hon'ble Ombudsman to pass the order according to the view of the superior Courts. He contended that the impugned order dated 26-11-1996 conveyed to him on 28-11-1996 was not sustainable wherein the relevant provisions of law were not gone through and followed.
7. Keeping in view the provisions of Article 29 of the President's Order 1 of 1983 about the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983 whereby there was bar of jurisdiction of the Courts or other authority to question the order of the Wafaqi Mohtasib, I felt it proper and necessary to hear the arguments about the maintainability of this writ petition in this Constitutional case.
8. On 9-2-1998 the preliminary arguments about the jurisdiction of this Court to make the analysis of the order passed by the learned Wafaqi Mohtasib were heard as this judgment is intended to dispose of the aforesaid controversy.
9. Abdul Hameed Kausar petitioner is a learned Advocate who canvassed that the dispute has not been disposed of in the true perspective by the learned Wafaqi Mohtasib as the provisions of law relevant in the matter have not been invoked and even the case-law has been ignored. He maintained that the equitable treatment has not been afforded to him within the purview of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and that this Court has the jurisdiction to dissect the impugned order dated 16-11-1996.
10. Before making an analysis and dissection of the controversy in hand and expressing my view thereof, I would like to reproduce as under Articles 9, 29, 32 and 33 of the aforesaid President's Order 1 of 1983:-- ' Article 9.--Jurisdiction, functions and Tower of the Mohtasib.--(1) The Mohtasib may, on a complaint by any aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case May be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any agency or any of its officers or employees.
' Article 29. Bar of Jurisdiction.--No Coiirt or other authority shall have jurisdiction--
(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or
(2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib.
' Article 32. Representation to President.--Any person aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit.
' Article 33. Informal resolution of disputes.--(1) Notwithstanding anything contained in this Order, the Mohtasib and a member of the staff shall have the authority to informally conciliate, amicably resolve, stipulate, settle or ameliorate any grievance without written memorandum and without the necessity of docketing any complaint or issuing any official notice.
(2) The Mohtasib may appoint for purposes of liaison counsellors, whether honorary or otherwise, at local levels on such terms and conditions as the Mohtasib may deem proper.
11. At the very outset I would record that on the query made by this Court the petitioner frankly conceded that against the impugned order dated 16-11-1996 conveyed to him on 28-11-1996 he has not moved the Hon'ble President of Pakistan within a period of thirty days in terms of Article 32 of the President's Order No,1 of 1983. He filed this writ petition before this Court on 17-2-1997 directly. It means that the petitioner has not availed the aforesaid efficacious remedy provided under the aforesaid Article 32 of the President's Order No,1 of 1983 before entering the portal of this Court and on this ground he is not entitled to the Constitutional discretion, if any of this Court.
12. At this stage, even though not argued by the petitioner, I would like to refer to the case-law printed as Secretary of State v. Mask & Co. (AIR 1940 Privy Council 105) wherein it has been ruled that the exclusion of the jurisdiction of. The Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is further expressed therein that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. In this respect I have to express that Article 33 of the President's Order No,1 of 1983 provides that the matters can be resolved and settled as well as conciliated without legal formalities. As such the said dictum of first impression enunciated in the aforesaid case-law (AIR 1940 Privy Council 105) is not applicable to the instant dispute.
13. With respect to the Office of the Ombudsman (Wafaqi Mohtasib) it would be proper to express as under: "In Pakistan, the Office of Ombudsma n was established under the 'Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983' (President's Order No,1 of 1983). The salient features of this reproduced below will be of some interest.
' It is provided under Article 9 that Ombudsman may, on a complaint by any aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of mal- administration on the part of any agency or any of its officers or employees, except when the matter is sub judice, relates to the external affairs of Pakistan or to the defence of Pakistan. Vide Article 2(2), maladministration includes: "(i) a decision, process, recommendation, act of omission or commission which: (a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or (c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as; bribery, jobbery, favouritism, nepotism and administrative excesses; and (ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities". The agency is defined under Article 2(1) to mean 'a Ministry Division, Department, Commission or Office of the Federal Government or statutory Corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. Under Article 3(3)' the Ombudsman is to perform his functions and exercise his powers 'independently of the executive' and 'all executive authorities throughout Pakistan shall act in aid of the Mohtasib.
' Recommendations of the Ombudsman are required to be implemented or reasons for non- compliance are to be given under Article 11(2). In case of defiance, the matter can be reported to the President under Article 11(5) read with Article 12. The defiance of recommendations can attract punitive action for the defaulting functionaries. The recalcitrant can also be punished under the provisions for contempt of Court vide Article 16. Article 33 authorises the Ombudsman notwithstanding anything in the Order to informally conciliate, amicably resolve, settle or ameliorate any grievance without legal formalities. Under Article 29, "no Court or other Authority shall have jurisdiction (i) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order, or
(ii) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib". Under Article 32, any person aggrieved by a decision or order of Mohtasib, may within thirty days, make a representation to the President who may pass such order as he may deem fit. This right is for a person who has not been granted relief by the Mohtasib for any limitation of law or otherwise. The President may grant him relief in his discretion. However, this right of representation cannot be evoked by any Agency defined in Article 2(1) which is expressly barred by Article 29 aforementioned to question any action taken or order made by the Mohtasib under the Order."
14. It is the proper stage to refer to Article 199, under the Heading Jurisdiction of High Court from the Constitution of Islamic Republic of Pakistan, 1973 which reads as under: ' Article 199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; Or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person with the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part H.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where---
(a) an application is made to a High Court for an order under paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying.Out of a public work or of otherwise bring harmful to public interest (or State property) or of impeding the assessm ent or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order--
(i) would not have such effect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn by the Court earlier.
(4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.
(5) In this Article, unless the context otherwise requires,-- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means--
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General, for the Province in which the application is made.
15. Under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 the High Court has no jurisdiction to dispose of and decide the matters falling within the purview of the one or more Administrative Courts or Tribunals which can be exercised exclusively by the Administrative Courts or Tribunals pertaining to matters mentioned there in the said Article in detail. When making comparison of the jurisdiction of the Wafaqi Mohtasib (Ombudsman) vis-a-vis the High Court it can safely be expressed and held that the Wafaqi Mohtasib has more, larger and wider powers and hence my view is that the orders of Wafaqi Mohtasib Pakistan cannot be analysed and dissected by the High Court.
16. The Forum of Wafaqi Mohtasib was chosen by A. Hameed Kausar writ petitioner who cannot escape the effect of the legal provisions as referred to above. Against the order of the Wafaqi Mohtasib, who practically is a judicial personality at high pedestal, the opening of such a new legal front is simply uncalled for especially when all the Executive Authorities have to act in his aid as provided under Article 3(3) of the President Order No,1 of 1983.
17. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, discussion and findings would be that the impugned order dated 6-11-1996 passed by the Hon'ble Wafaqi Mohtasib Pakistan cannot be looked into and analysed by this Constitutional Court for want of jurisdiction. I, therefore, dismiss this writ petition in limine.