' Petitioner a Zamindar and an industrialist from Jacobabad whose name and fame rose because sometimes ago he was elected as Member of Provincial Assembly or Member of National Assembly, has stated that State power is being misused by Mr. Sabhago Khan Jatoi, Deputy Commissioner of Jacobabad, respondent No,2. According to him that he has lost 1997 Elections and rival candidate of present ruling party won the elections. He has further stated that respondent No,2 is known to be more royal than the monarch, and at the behest of his political masters always gives rough deals to the defeated candidates. Because of political connections of petitioner with the opposition he is being harassed by the respondent No,2 at the behest of the political rivals who are in power today. Respondent No,2 told petitioner that soon he will be eliminated. At the behest of respondent No,2, A.S.I. Anwar who was also sitting with respondent No,2 misbehaved and threatened him. Such threats have created fear in the mind of petitioner and apprehends that his life, liberty and dignity are at stake and has filed that petition claiming harassment.
2. After this petition was filed comments were called from the Deputy Commissioner Mr. Sabhago Khan Jatoi who is also in attendance. Mr. Jatoi had filed comments earlier and denied every allegation. However, he did not file affidavit in support of such comments to controvert the case of petitioner. On the last date of hearing i,e, 22-9-1997 learned Deputy Commissioner stated in Court that he has issued notice for the recovery of Octroi dues to the persons holding contracts of Municipal Committee in his capacity as Administrator of Municipal Committee and since the petitioner was real beneficiary of those contracts and for that reason this petition of harassment has been. Filed alleging foul play against him. I directed him to file further comments stating the entire position. He has done so and the comments are on the record of this Court. He has stated in the comments that the persons who had taken the contracts were actually front runners of the petitioner, they were holding the contracts in benami while real owner was the petitioner. He has given the name of those persons and the amount outstanding against them since 1984. However, additionally in para. 15 he stated as follows:-- "15. That the notices were issued against all the Defaulting Contractors to effect the recoveries.
Those who were served had declared verbally that in fact they were Benami and the real Beneficiary of these Contracts was the petitioner and therefore, I had telephoned him to explain his position. I cannot give the exact date of his contact on the telephone but it was perhaps in the month of March or April, 1997. Copies of the notice are attached and they refused to accept the same which were handed over to the clerk of Tax Branch namely Bahadur Ali Soomro for service . "
3. When this petition, which was fixed for Kacha Peshi taken up, at the very outset learned counsel for the petitioner stated that he has instructions not to press this petition and, the same be dismissed. I declined the request of the learned counsel for the reason that the law has been set in motion and once the cognizance has been taken, appropriate order have been issued, and entire exercise has been undertaken to call for the comments, which have been filed, the respondent No,2 has been in attendance, allowing the petitioner to withdraw this petition would amount to subverting the cause of justice. Moreover the grievance of the petitioner is not peculiar to him but a growing menace of maladministration and it was necessary to lay down guidelines for the exercise of power vested in the administrations by law, as this Court is considered bulwark of a limited Constitution and barrier to encroachment and oppressions, I declined the prayer for withdrawal of this petition.
3-A. Both the learned counsel desired that the whole petition be heard and disposed of, which being fair suggestion was accepted, this petition is converted into regular hearing and is disposed of accordingly. I have given anxious consideration to such pleas urged in the petition and considered the comments and have heard the learned counsel.
4. Pakistan is a Republic. In this country, there is Government of laws and not men. The dream of founding fathers of this country is enshrined in the Objectives Resolution which is now substantive part of the Constitution and this Objectives Resolution was preamble of all Constitutions which were framed. The dream of the egalitarian society and the destiny set by our founding fathers is: "And whereas it is the will of the people of Pakistan to establish an order. Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;"
5. In the same part where Article 2A has been incorporated, Article 4 reflects the will of the Sovereign, and that is, to enjoy the protection of law and to be treated in accordance with law, is the inalienable right of every citizen wherever he may be and of every other person for the time being within Pakistan. The mandate of this Article which has been equated with Due Process clause of the American Constitution is that not only the citizens but even aliens who are for the time being living in Pakistan are entitled to such protection. Apart from that in our Constitution a unique provision has been embodied that is Article 14 which guarantees to all citizens of this country that their dignity and subject to law their privacy of home is inviolable. Article 29(1) of the Constitution reads as follows: "29(1). The principles set out in this Chapter shall be known as the Principles of Policy, and it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority." (Underlining is mine).
5-A. Member of Parliament in the first instance is citizen of this country. He does not have special status in the society. At the most because people of the constituency posed confidence in his ability by electing him to represent them in the Parliament, he can only claim to be "First amongst equals". He does not get any licence to deal with his opponents to settle old score through administration after success in elections (particularly when such member is in ruling group). Nor the administration is subservient to his wishes or orders. Although in a slightly different context, Honourable Supreme Court has also ruled in the case of Munawar Khan v. Niaz Muhammad and others 1993 SCMR 1287 as follows:-- "8. As regards the allocation of quota of posts to the local M.P.As. Or M.N.As. For recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/M.N.As/M.P.As. And appointments made thereunder are all illegal, ab initio and have to be held by all Courts, Tribunals and authorities."
6. A Deputy Commissioner in a district is a highest officer of the Administration and holds responsible position. He has to act in accordance with law at all time. Not only that but with the powers which are given to him in law more responsibilities are saddled on his shoulders corresponding to the powers. It is his duty to treat the poor and rich alike (and also winning and defeated candidate alike) in accordance with the Injunctions of Islam and teachings of Qur'an and Sunnah. He must treat all children of Adam (which includes non-Muslims citizens as well) without any discrimination which is not only the essence of Islamic way of life but also in consonance with Article 25 of the Constitution. He is a public servant and not a private employee of any person holding authority either in the federation or in the federating unit. It is expected of the Deputy Commissioner that like Ceasar's wife he should be above suspicion in his words, actions and dealings. It is expected that he should follow the law and in the letter and spirit. He has to deal with all matters of people in accordance with the law and in terms of Article 30 of the Constitution he has to judge his own actions. In other words if the action of the respondent No,2 is firmly embedded in law, it is to be respected and honoured. But if he exceeds and transgresses lawful limits, the Courts are duty bound to check such action, declare it unlawful and direct him to act in accordance with the law.
7. In the light of above stated principle I will now scrutinize his reply.
8. Admittedly in para. 15 quoted in the earlier part of the judgment he has stated that he was verbally informed by the persons to whom the notices were issued by him that the real beneficiary of all these contracts was the petitioner and not they. It is also admitted in the comments that he issued the notices for recovery in his capacity as Administrator. When asked in the open Court as to what was the basis of his authority in law for the recovery of dues, he was unable to pin-point any provision of law which may empower him, to collect the dues or for that matter issue notices.
Even learned Additional Advocate-General was unable to pin-point any provision which may confer such authority on respondent No,2 to issue such notices. The dues are outstanding since 1984 and in 13 years period no effort was taken to recover the dues. He has chosen this period to recover outstanding dues from the fore runners who according to the learned A.A.-G. Were benami for the petitioner, on the face of record it cannot be considered to be bona fide exercise of power, as the respondent No,2 has come to know that the dues are outstanding against the petitioner (or his men) since 13 years. What was the administrator doing for all these 13 years?
9. Even otherwise the contention of respondent No,2 Deputy Commissioner is that he was verbally informed by the front men of the petitioner that he is beneficiary. Verbal information and verbal proceedings have no sanctity in law. Admittedly the respondent No,2 has not issued any notice to the petitioner even when it came to his knowledge that the petitioner was beneficiary of all the contracts and not the front men. Contention is that respondent No,2 telephoned the petitioner to enquire about such matter. Even law does not authorise him to gather information on telephone. It is well-settled law that oral orders and oral enquiries are alien to the process of the law and the Courts as all orders enquiries of the judicial or quasi-judicial nature must be in writing. This is the law laid down by this Court in the case of Majidullah and 2 others v. National Industrial Relations Commission, Karachi PLD 1976 Kar.
207. Since verbal orders, enquiry and telephone conversation have no sanctity in law I would, therefore hold that the learned respondent No,2 has exceeded lawful limits and has misused this power/authority if not abused the same, although the line of demarcation between misuse and abuse is very thin, and has definitely harassed the petitioner in an unlawful manner, which is.
Beyond the call of his duty.
10. Unfortunately most civil servants, time and again, ignored the observations of Honourable Supreme Court given repeatedly that the public servants are not bound to obey the illegal orders of the Higher Authorities. In order to please their superiors, repeatedly it is seen that the principle of justice, equity and fair play, which is hallmark and back bone of our Constitutional system are put at the altar of selfishness .By self-seeking administrators, therefore, prevents the society as a whole to achieve the desired dreams of our founding fathers. It is expected of the administration that while dealing with all manner of people they should keep in mind the mandate of Constitution and cherished principles of our founding fathers, and treat all citizens equally and in accordance with law.
11. To some extent in my above observation I am supported by a judgment of Lahore High Court reported in 1992 PLC (C.S.) 117 Mr. Justice Gul Zarin Kiani was pleased to hold as follows:-- "Public pronouncements about political non-interference and observance of rule of merit and fair play are more observed in their violation than compliance. When this becomes the order of the day despondency prevails all around and causes desperation in the affected minds. Why is it that we cannot set our house in order is a gaping question for all of us to answer. High Court is neither anxious nor keen to appropriate to itself the field belonging to others but when people are not dealt with fairly and are victims of administrative tyranny, they look to the High Court for redress of their grievance. It is in this eventuality that the High Court steps forward to scrutinize the matter and, in a deserving case, is prone to give relief to the oppressed and victimized persons. I think, sufficient has been said to legitimately expect that something shall be done for eradicating the hydra headed monster of unfairness, nepotism, and corruption, for faith in merit to revive."
12. Under the circumstances I would warn respondent No,2 to conduct his affairs in accordance with law and the rules and may deal with all citizens in the same manner irrespective of their political affiliation, caste, colour or dogma, as all citizens are equal before law and are entitled to the equal protection of law which is the primary duty of the Deputy Commissioner in a district.
13. After hearing the parties and as stated earlier, by consent this petition is finally disposed of with above observations. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.