S. AHMED SARWANA, J.--- This petition has been filed against (1) Federation of Pakistan through the President; (2) Federal Government through Secretary, Ministry of Education; and (3) Province of Sindh through Secretary, Ministry of Education, seeking, inter a/ia, a declaration that right to education is a fundamental right under the Constitution, direction that the respondents within a fixed period as determined by this Court introduce compulsory and free education for ever child and order that the respondents render account of finds collected through levy of "Iqra" Surcharge from its inception to enable the Court to examine whether the funds so collected were used for the purposes that these were meant for.
2. The petition was fixed for Katcha Peshi before a learned Division Bench consisting of Zahid Kurban Alvi and S.A. Rabbani, JJ. After hearing the learned counsel, a different of opinion arose between the two learned Judges. Zahid Kurban Alvi, J. Was of the opinion that the petitioner as a tax-payer is entitled to know whether the funds generated from lqra Surcharge were used for the purpose for which they were collected and that if the information were not easily available from the executive then the public could approach the High Court for obtaining such information and concluded that the petition should be admitted for Regular Hearing. On the other hand, learned S.A.
Rabbani, J. Was of the opinion that the reliefs sought by the petitioner are beyond the scope of Article 199 of the Constitution and especially the prayer of rendering accounts of lqra Surcharge cannot be grantedas the Courts cannot assume the function of Auditor General because under Article 169 of the Constitution and President's Order No. 21 of 1973, it is the function of the Auditor General to audit the accounts of the Federation and the Provinces and to see whether the funds have been used for the purpose for which they were meant and consequently ordered its dismissal in limine.
3. The principal question, therefore, which I have to decide is whether the petition is maintainable. It may be mentioned here that if the petitioner makes out a case for grant of any one of the four reliefs mentioned in the Prayer Clauses, this petition would be maintainable.
4. I have heard Mr. Shaiq Usmani, learned counsel for the petitioner, who highlighted the importance of education and referred to . Various incidents from Muslim history and the dissenting judgment in the case of United States et at v. William B. Richardson, 418 US 166 in support of his contentions. On The other hand Mr. Syed Zaki Muhammad, the learned Deputy Attorney General for Pakistan, referred to the observations in the opinion of learned S.A. Rabbani, J. To contend that the Constitution Petition ought to be dismissed in limine. Mr. Suleman Habibullah, learned A.A.-G.
Stated that he had nothing to say as the Province was not involved in the levy of lqra Surcharge.
'5. It would be appropriate to reproduce here some of the relevant provisions of the Preamble, FundaMental Rights and Principles of Policy of the Constitution of Islamic republic of Pakistan. The preamble reads as follows:- "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust, And whereas it is the will of the people of Pakistan to establish an order-- 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; ............ (emphasis added).
Article 37 of the Constitution provides:- "37. Promotion of social justice and eradication of social evils. The State shall--
(a) (b) remove illiteracy and provide free and compulsory secondary education within minimum possible period;
(c) There can be no two opinions about the importance and necessity of education and acquiring of knowledge by the people of any faith of any country. The first message of Allah, which was sent to the Holy Prophet (peace be upon him) highlights the importance of knowledge and education.
The relevant part of the message reads as follows:- "Read! And you Lord is the Most Generous. Who has taught (the writing) by the pen. He has taught man that which he knew not". (Surat Al-Alaq XCVI-Verses 3 to 5)
It can also not be disputed that in spite of the duty imposed by the Constitution upon the State to remove illiteracy and provide free and compulsory secondary education within a minimum possible period has not been fulfilled in letter or spirit. A very low percentage of the GNP is spent on the education of the people of this country. Realizing the past mistakes and the necessity and importance of education in the modern day world, the Majlis-eShoora in the Finance Act of 1985 levied additional Customs duty as lqra Surcharge on the importation of goods, which continued to be collected until 1995. According to the speech of the Finance Minister in support of the Surcharge, the funds so collected were to be utilized to fulfil the national obligation by providing education to the existing and future generations. It has been alleged in para 12 of the petition that huge amounts collected as lqra Surcharge till its abolishment in 1995 have been misused by the successive Governments and have never been accounted for to the detriment of petitioner No. 2 and millions of other citizens like him. Respondent No. 2 in its Parawise Comments has admitted all the improper acts and omissions highlighted by the petitioner in Paragraph Nos. 11 to 16 which includes the misuse of lqra Surcharge mentioned in Paragraph 12.
6. The State of Pakistan was created so that the Muslims of the sub-continent are enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah (Preamble of the Constitution). Though, in my humble opinion, it was not necessary to state that the laws laid down by the Holy Quran and Sunnah of the Holy Prophet (peace be upon him) shall be the supreme and governing law of the land, the Legislature in order to avoid any doubt incorporated the same by inserting Article 2A in the Constitution making the principles and provisions set out in the Objective Resolution, a substantive part of the Constitution. The Preamble of the Constitution as well as of the Objective Resolution clearly state that soyereignty over the entire Universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan is to be exercised through its people within the limits prescribed by Him is a sacred trust. It has been enjoined in the Holy Quran: "58. Verily! Allah commands that you should tender back the trusts to those to whom they are due; and that when you judge between men, you judge with justice, Verily, how excellent is the teaching which He (Allah.) gives you! Truly, Allah is Ever. All-Hearer, All-Seer".
(Translation of the meanings of the'Noble Qur'an in the English language by Dr. Muhammad Taqi- ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan, King Fahad Complex for the Printing of the Holy Qur'an, K.S.A.).
It would be appropriate to narrate here the gist of the warning in respect of the duty of the rulers given by the Holy Prophet (peace be upon him) which is as follows:- "252. Narrated Abdullah bin Umar (R.A.) Allah's Apostle (peace be upon him) said, "Surely! Everyone of you is a guardian and is responsible for his charges: the Imam (ruler) of the people is a guardian and is responsible for his subject, .... Surely, everyone of you is a guardian and responsible for his charges." (The Translation of the Meanings of Shah Al-Bukhari, by Dr. Muhammad Muhsin Khan, Kazi Publications, Lahore, Vol. IX, Pages 189190).
It has been narrated by the First Caliph,. Hazrat -Abu Baker Siddique (R.A.) that the person who is a ruler shall, be subject to the heaviest accountability and the strictest punishment and the person who is not a ruler will be subject to light accountability and the risk of punishment for him would be light because there is a greater possibility/opportunity for the ruler to inflict ' zulm on the Muslims and a Muslim who is guilty of ' zulm' on other Muslims is a rebel of God. (See Abul Aala Maududi, Khilafat Wa Mallukiyat, ldara-e-Tarjmanul Quran, Lahore, 8th Edition 1975, page 67).
7. Islamic history is full of precedents 'Where Caliphs either gave an account of their actions to the people or sought permission for minor expenditure required by them. On one occasion when Hazrat. Salman Farsi saw two pieces of cloth-sheets worn by Hazrat Umar, he asked him to explain as to how it was that he was wearing two pieces of cloth-sheets when. Every other person had been distributed only one. Hazrat Umar produced his son as a witness who informed the congregation that the second piece had been given by him to his father .(See Muhammad Salahuddin, Bunyadi Haqooq, Idara-e-Tarjamunl Quran, Lahore 1978 Edition page 227). It is said that Hazrat Umar took great care in compiling the accounts of 'Baitul Maal' (Treasury). A Register was maintained in respect of all Zakat and Sadqa which were deposited in the Baitul Maal'. The details were specific to the extent that even the, appearance, colour and age of the animal was written down. On occasions Hazrat Umar used to write the register himself by hand (See Allama Shibli Naumani, Al-Farooq, Madina Publishing Company, Karachi, 2nd Edition page 426). Once, when Hazrat Umer fell ill, it was suggested to him to take some honey as medicine. There was some honey available in the Baitul Maal but Hazrat Umer was of the view that he could not take it without permission. He, therefore, went to Masjid Nabvi and asked the people for their permission to take a little honey from the Baitul Maal (ibid page 484). From this incident, it is apparent that the intention of Hazrat Umer was not only to show that there was need to take permission before taking anything out of Baitul Meal but also to show that even the Caliph was not above the law and had no power to take or spend anything from the Treasury for his personal use.
8. The right of the tax-payer to obtain from the government information containing the details of expenditure by an agency of the Government came-up for consideration before the US Supreme Court in the case of United States et al v. William B. Richardson, 418 US 166. The request for information was denied by the Supreme Court by a majority judgment of 5 to 4; however the dissenting opinion, specially that of Justice Douglas, is more in line with the principles of accountability, referred to above from Islamic history. The learned Judge observed:- "Respondent in the present case claims that he has a right to "a regular statement and account" of receipts and expenditures of public moneys for the Central Intelligence Agency. As the Court of Appeals noted, Flast recognizes "standing" of a tax-payer to challenge appropriations made in the face of a Constitutional prohibition, and it logically asks, "how can a tax-payer make that challenge unless he knows how the money is being spent? 465 F2d 844, 853.
History shows that the curse of Government is not always venality; secrecy is one of the most tempting coverups to save regimes from criticism."
"Whatever may be the merits of the underlying claim, it seems clear that the tax-payer in the present case is not making a generalized complaint about the operation of the Government. He does not even challenge the cohstitutionality of the Central Intelligence Agency Act. He only wants to know the amount of tax money exacted from him that goes into CIA activities. Secrecy of the Government acquires new sanctity when his claim is denied. Secrecy has, of course, some Constitutional sanction. Articles 1 and 5, cl. 3, Provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts as may in their judgment require Secrecy...."
(pp. 197-198)
"The sovereign in this Nation is the people, not the bureaucracy. The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If tax-payers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to ran our affairs." (page 201).
9. Needless to say that corruption .Has grown rampantly in Pakistan satiety during the last several decades and is rapidly spreading like cancer. Both the ordinary persons with small discretionary power and the persons, in high authority commit defalcations with impunity whenever they get an opportunity. Mr. Usmani vehemently contended that the public funds collected as /qra Surcharge were squandered and utilized allegedly for the personal benefit of the rulers and the civil servants and their coverries with the result that the nation was forced to extend the begger's bowl for and before foreign entities in spite of the country enjoying rich mineral wealth and unspoiled honest population whose talents were not used for the advancement of the social and economic well being of this country. The members of Parliament did not do their duty and ask the executive for an account of expenditure of the public funds; the bureaucracy continued to serve the cause of the dishonest and corrupt politicians without hesitance and in the exercise filled their on coffers. The contention of Mr. Usmani, prima facie, appears to be correct. It may not be out of place to mention here that for good governance there must be transparency in the system and in several civilized societies the citizens by appropriate statute have been given the right to obtain information from the executive so that they may be in a position to curtail the abuse of power and discretion by those in authority. The simple general admission by the learned DAG that the income from levy of iqra Surcharge has been misused is not sufficient and does not solve the problem of abuse of power by those in authority in future. It is, therefore, necessary to decide whether the people of this country and specially the tax-payers have the right. To obtain information with regard to the ,running of the country and the expenditure incurred by the executive subject, of course, to law, reasonableness and confidentially in the national interest so that the Court may. Set down guidelines for running the affairs of an Islamic State in an honest and transparent manner and pass appropriate orders in respect of persons found responsible for acts of commission and omission in the discharge of their duty. The prayer of the petitioner, in the prevailing circumstances in the country, requiring the respondents to render account of the funds collected through the levy of lqra Surcharge appears to be justified in light of the Injunctions of the Holy Quran, the. Precedents of the Holy Prophet (peace be upon him), the precedents of the later Muslim Rulers and the principles of transparency, good governance and justice. Would, therefore, admit this petition for Regular Hearing.