' RAJA FAYYAZ AHMAD, C.J.--- By this order we, propose to dispose of the question which came up for consideration during pendency of Criminal (Ehtesab) Appeals Nos.9 of 2000, 6 of 2001, 45 of 2001 and 46 of 2001 as to whether appellant (Haji Behram Khan Achakzai) was released on parole by the then Executive Authority of the Province/ Governor in the lawful exercise of powers or otherwise.
2. Appellant Haji Behram Khan Achakzai, Ex-Minister, Forest, Irrigation and Power Department, Balochistan was tried in respect of References Nos.16 of 2000, 27 of 2000, 3 of 2001 and 2 of 2001 by the learned Accountability Court-I, Balochistan, Quetta, out of which accused/appellant in respect of Reference No,16 of 2000 was tried by the learned Accountability Court Balochistan, Quetta as at that time only one Accountability Court was established and functional for the Province of Balochistan. He was convicted by the learned Accountability Court respectively in all the references vide judgment, dated 16-10-2000, 31-2-2001 and in respect of References Nos.2 of 2001 and 3 of 2001 vide judgments dated 11-6-2001 and sentenced to various terms of imprisonment and fine as under;--
(i) Reference No,16 of 2000 ' Found guilty under section 9(a)(vi) of NAB Ordinance, 1999 and sentenced to 7 years' R.I. And fine of Rs,1,00,00,000. In default of payment of fine to further undergo two years' R.I. Under section 10(a) of NAB Ordinance. He was disqualified under section 15(a) of NAB Ordinance, 1999 for 21 years from taking part in any national, provincial and local bodies election nor can he hold any public office as well as debarred under section 15(b) of the NAB Ordinance for a period of 10 years to apply for any financial loan from any bank. Benefit of section 382-B, Cr.P.C. Was extended in his favor since the date of his being in custody i,e. 15-6-2000.
(ii) Reference No,27 of 2000 ' Convicted under section 9(a)(vi) of NAB Ordinance and sentenced to three years' R.I. And fine of Rs,6,00,000 under section 10(a) of NAB Ordinance. In default of payment of fine to further undergo one year's R.I. He was disqualified under section 15(a) of NAB Ordinance, 1999 for 21 years from taking part in any national provincial and local bodies election nor can he hold any public office as well as debarred under section 150) of the NAB Ordinance for a period of 10 years to apply for any financial loan from any bank. Benefit of section 382-B, Cr.P.C. Was extended in his favor since the date of his being in custody i,e, 15-6-2000.
(iii) Reference No,2 of 2001 ' Convicted under section 9(a)(vi) of NAB Ordinance, 1999 and sentenced to seven years' R.I. And fine of Rs,2,24,72,407 under section 10(a) of NAB Ordinance. The amount of fine is directed to be recovered by forfeiting his movable and immovable properties through Collector concerned. In case of non-recovery he shall further undergo two years' R.I. Benefit of section 382-B, Cr.P.C. Was extended in his favor. Also he was disqualified for taking part in any election and to hold any public office nor can obtain loan from any financial institution for ten years, to be computed from the date, the convict is released after serving out his sentence, and;
(iv) Reference No,3 of 2001 ' Convicted under section 9(a)(vi) of NAB Ordinance, 1999 and sentenced to two years' R.I. And fine of Rs,1,00,000 under section 10(a) of NAB Ordinance. The amount of fine is directed to be recovered by forfeiture on his movable and immovable properties through Collector concerned. In case of non-recovery of the amount of fine, the accused has to further suffer eight months' R.I. He was disqualified under section 15(a) of NAB Ordinance, 1999 for 21 years from taking part in any national, provincial and local bodies election nor can he hold any public office, as well as debarred under section 15(b) of the NAB Ordinance for a period of 10 years to apply for any financial loan from any bank. Benefit of section 382-B, Cr.P.C. Was extended in his favor since the date of his being in custody.
3. The convict/appellant assailed his conviction recorded by the learned Accountability Court in respect of the above mentioned References before this Court respectively by filing Criminal Ehtesab Appeals Nos.9 of 2000, 6 of 2001, 45 of 2001 and 46 of 2001. On a date fixed in the matter i,e, 3-4-2003 these appeals and a few other criminal Ehtesab appeals filed by some other convicts in respect of some other References were also fixed for hearing and it was brought to the notice of the Court by the learned ADPG that appellant/convict Haji Behram Khan and certain other convicts have been released from the prison on parole pursuant to the order passed by the Chief Executive of the Province/ Governor, therefore, it was deemed fit and proper by the Court to direct all the concerned in the suo motu exercise of powers under Article 199 of the Constitution to place on record, the order passed by the Competent Authority for release of the convicts on parole including all other documents relevant in the matter relating to the case of the appellant as well as the other convicts, whose appeals are pending in the High Court. Pursuant to such direction the learned Advocate-General filed relevant photocopies of the documents, processed by the Secretary, Government of Balochistan, Home and Tribal Affairs Department including the approval accorded by the Governor of the Province for the release of the convict/appellant on parole. The Deputy Director, Parole also filed relevant documents pertaining to the completion of all the legal formalities about the release of the convict on parole. The Superintendent, Central Jail, Mach filed photostat copy of release warrants, received from the Section Officer (Prisons) containing endorsement of the Superintendent, Central Jail, Mach for having released the convict in compliance with the release order.
4. After having perused the documents and the law on the subject, notice was directed to be issued to the appellant for his appearance in Court to be served through the Deputy Director, Parole, and to his learned counsel for 5-5-2003. As on that date Mr. M. Riaz Ahmed, the learned counsel for the appellant had left for his home reportedly due to some indisposition, matter was adjourned to 27-5-2003, but a general adjournment was granted to the appellant's learned counsel for his appearance before the Honourable Supreme Court of Pakistan at Islamabad, therefore, the same was adjourned to a date in office, after two weeks. On 17-6-2003 when the matter was fixed by the office for hearing; a miscellaneous application in these appeals was filed by the learned DPG, NAB pointing out therein that period of imprisonment undergone by the convict in respect of the various terms of imprisonment awarded by the learned Accountability Court, were not computed correctly by the Superintendent, Central Jail, Mach for release of the convict on parole, which undisputedly in view of the judgments impugned in appeals were to run consecutively and; as per Pakistan Prison Rules, the same were to run one after the other including the period of sentence in default of payment of fine, accordingly; it was prayed in the miscellaneous application that the appellant may be ordered to be taken into custody as his release on parole was illegal.
' Copy of the miscellaneous application was supplied to Mr. M. Riaz Ahmed, the learned Advocate- General and to the Superintendent, Central Jail, Mach, who were directed to file reply to the miscellaneous application and the case was accordingly; adjourned to 10-7-2003. On this date, the Superintendent, Central Jail, Mach filed reply to application, whereas; the appellant's learned counsel stated that he failed to contact the appellant, hence; in absence of instructions, he was incapable to file reply to application, dated 17-6-2003. In view of above noted position, in order to facilitate the appellant's learned counsel to seek instructions we; directed the Parole Officer, present in the Court, to procure attendance of the appellant so that Mr. M. Riaz Ahmed may be able to seek instructions from the appellant and the case was adjourned to 17-7-2003. Mr. M. Riaz Ahmed, on this date submitted that a couple of minutes before appellant arrived at Quetta and therefore, some more time in the interest of justice be afforded, so that he may be able to obtain instructions and can file reply to the application. Also, opportunity was afforded to the learned Advocate-General for filing of the reply to the miscellaneous application, if so deemed proper on behalf of the Provincial Government. On the date fixed in the matter i,e, 17-7-2003, Mr. M.S. Rakhshani, the learned DPG concluded his arguments/submissions in respect of the question relating to the release of the appellant on parole, whereas; Mr. M. Riaz Ahmed stated that he could not prepare the brief and sought for adjournment, who further submitted that he will be filing reply to the miscellaneous application and similar request was made by the learned Additional Advocate-General. In the interest of justice, request noted above was entertained and matter was adjourned to 21-7-2003. On this date Miscellaneous Application No,406 of 2003 was filed in the office of the Court by the appellant's learned counsel seeking for exemption from the personal appearance of the appellant on the ground that his close relative met a bus accident between Ormara and Pasni, on account of which, in the interest of justice, this application was allowed and personal appearance of the appellant was exempted for the date. Even on this date reply to the miscellaneous application moved by the DPG, was not filed by the learned appellant's counsel, who submitted that on account of above mentioned reason he was unable to get instructions. It was observed by the Court in the diary-sheet of even date that, though, the miscellaneous application filed by the learned DPG has been based on the official record and the report submitted by the Superintendent, Central Jail, Mach, yet; in the interest of justice, last opportunity was afforded to the learned counsel to file reply to the miscellaneous application. Also, the learned Advocate-General sought for adjournment to file reply to application. In the interest of justice, last opportunity as requested for, was afforded to the appellant's learned counsel and learned Advocate-General for filing of reply to miscellaneous application for 29-7-2003. Appellant's learned counsel did not file reply to miscellaneous application whereas;, the learned Advocate-General relied upon the parawise comments filed on 'behalf of the Government by the Secretary, Home Department on 26- 7-2003 in the office of the Court, accordingly; Mr. M. Riaz Ahmed commenced and concluded his arguments. Also, the learned D.A.-G. (on Court notice) and the learned Advocate-General were heard, whereas; the learned DPG already as noted in para. No,5 (supra) concluded his argutnents on 17-7-2003.
5. Mr. M.S. Rakhsnani, Advocate/DPG, NAB contended that son of appellant/convict, namely Rehmatullah Khan submitted an application to. The Home Secretary, Government of Balochistan for release of his father (convict) on parole for a few days only enabling the appellant to participate in the ongoing rites of their near relatives Sultan Muhammad. Who died recently, therefore, release of the appellant from the prison on permanent basis and in all the four cases in which he was convicted by the learned Accountability Court was void and without jurisdiction.
Moreover; , the relevant provisions of the Good Conduct Prisoners' Probational Release Act, 1926 read with Rule 4 of the Balochistan Good Conduct Prisoner's Probational Release Rules, 1997 have been seriously violated. According to the learned DPG as the appellant was not the first offender, rather; he was convicted to various terms of imprisonment in respect of four different References filed in the learned Accountability Court, therefore, his case for release on parole was not covered under the Parole Rules and the calculations made by the Superintendent, Central Jail, Mach to bring his case for release on parole were absolutely incorrect and misconceived. He further submitted that the offences committed by the appellant are not the schedule offences, therefore, his release on parole was illegal, inasmuch as; application for release on parole was sought for only in one case, whereas, appellant was by a sweeping order directed to be released on parole in all the cases in respect of which he was sentenced to various terms of imprisonment and fine which being consecutive in nature in terms of the judgments impugned in appeals was to run consecutively, one after the other, after expiry of the term of imprisonment in one case and so on.
The learned DPG emphatically contended that the order passed by the Chief Executive of the Province/Governor at the relevant time for release of the appellant on parole is void and without jurisdiction, hence; the same is liable to be set aside and the appellant be ordered to be committed to prison to undergo the various terms of sentence awarded by the learned Accountability Court.
6. Mr. M. Riaz Ahmed, the learned counsel for the appellant contended that the question with regard to the legality, validity or otherwise of the order passed by the Competent Authority for release of the appellant on parole cannot be examined by this Court in suo motu exercise of the powers vesting in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or under any other law for the time being in force and no writ nor any order can be issued or passed by this Court setting aside the order, pursuant to which the appellant was released from jail on parole. He placed reliance on the judgments reported in PLD 1993 Quetta 9, 2000 SCMR 1046 and 2001 SCMR 1822. Apart from such aspect of the matter, the learned counsel submitted that in the legitimate exercise of powers vesting in the Competent Authority i,e, Chief Executive of the Province/Governor, after completion of all the required formalities, report submitted by the Superintendent, Central Jail, Mach on process' of the application submitted to the Secretary, Home Department; a detail summary was submitted to the Competent Authority in the light of the relevant provisions of the law and the rules as well as nominal roll of the convict pointing out eligibility of the convict for release on parole, therefore, vide well-reasoned order, dated 29-11-2002 convict/appellant was directed to be released on parole under the rules. He further submitted that under the Rules, as it stood at the relevant time inclusive of remissions earned by the appellant since the date of his first conviction and the benefit of section 382-B, Cr.P.C. Accrued to him, as per calculation made by the Superintendent, Central Jail, Mach in the nominal roll of the prisoner he was , found eligible to be released on parole by the Competent Authority for having fulfilled and satisfied all the laid down conditions as envisaged by law and the rules, hence; the same being unexceptionable, does not warrant any interference by this Court, as the appellant had already served out sentence of imprisonment for the minimum specified period of sentence, keeping in view the total term of imprisonment awarded to him vide impugned judgment including the period in default of payment of fine.
7. The learned D.A.-G. Submitted that in four different cases appellant was convicted and sentenced to various terms of imprisonment and fine, which were to run consecutively in terms of the judgments impugned in Ehtesab appeals, hence; the period of imprisonment already suffered by the appellant in jail cannot legally be counted simultaneously in respect of all the sentences which were to run one after the other, after expiry of the first sentence and so on, secondly; no material within the purview of Rule 4 of the Balochistan Good Conduct Prisoners' Probational Release Rules, 1997 was available or submitted to the Competent Authority nor any assessment with regard to the conduct of the convict/prisoner was ever made by the Home Department for his release under section 2 of the Good Conduct Prisoners' Probation Release Act, 1926. According to the learned D.A.-G. The appellant did not qualify to be released on parole being not the first offender. The learned D.A.-G. Apart from the merits of the case submitted that the Honourable Supreme Court declined to interfere with the order passed in Intra-Court appeal by the Division Bench of the Lahore High Court whereby the High Court (Honourable Single Bench) converted the suo motu proceedings into Constitutional petition in the case of Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab-Al-Khairi and others reported in 2000 SCMR 1046. He also cited reported judgment of the Honourable Supreme Court in the case of Mst. Zubeda A. Sattar and others v. Karachi Building Control Authority and others 1999 SCMR 243 and submitted that the question as to whether High Court could register a Constitutional petition (suo motu) under Article 199 of the Constitution was left over to be decided by the Honourable Supreme Court in an appropriate case. As regards good conduct of a prisoner a reference was made to the case-law i,e, 1987 SCMR 1399. According to the learned D.-A.G. Order for release on parole was not passed in respect of all the cases, but it related to only one case and thus, release of the appellant from prison was bad in law. He further submitted that imprisonment in lieu of fine has to run after the expiry of the substantive sentence within the meaning of Rule 49 of the Pakistan Prison Rules, hence, period of sentence calculated in favor of the convict simultaneously and conjunctively with the various substantive sentences inclusive of the period in default of payment of fine was illegal.
8. The learned Advocate-General submitted that release of the appellant on parole was requested for which did not rest to only one case and the Competent Authority in the proper and lawful exercise of powers on consideration of all the facts, data and eligibility of the appellant for parole approved the summary submitted to it after due process and exercise, hence; the order passed by the Competent Authority is immune from being attacked on any ground, however; the learned Advocate-General submitted that this Court has the jurisdiction to examine the vires etc. Of the order.
9. The contentions noted above put forth on behalf of the parties learned counsel and the learned D.A.-G. (on Court notice) have been considered in the light of the documents placed on record on behalf of the official respondents pursuant to the direction of the Court, relevant provisions of the Good Conduct Prisoners' Probational Release Act, 1926 and the Rules made thereunder i,e, Balochistan Good Conduct Prisoners' Probational Rules, 1997. In view of the contentions raised by Mr. M. Riaz Ahmed, noted in para. No,7 (supra) it will be appropriate to first consider and examine as to whether suo motu exercise of powers vesting in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can be resorted to and; the vires, legality and validity or otherwise of the order passed by the Competent Authority for the release of the appellant on parole can be gone into in view of the provisions as contained in the abovesaid Article of the Constitution or any other law for the time being in force by taking suo motu action nor any writ or order can be passed/issued by this Court for setting aside of the order pursuant to which appellant was released on parole.
' Obviously under section 561-A, Cr.P.C. Such a power in respect of the matter under consideration cannot be pressed into service and; as regards suo motu exercise of powers vesting in High Court under the Constitution and initiation of writ proceedings, the High Court of West Pakistan at Lahore took suo motu action and directed notice to be issued to the Accountant-General requiring him to show cause as to why a writ of mandamus should not be issued against him to pass the bill. The proceedings so initiated, was described as a Writ Petition No,129 of 1959 in relation to the Judge of the High Court, under suspension, with effect from 24-11-1958, and; his pay bill sent by the High Court for the period i,e, 1st to 23rd November, 1958 was, after some exchange of correspondence between Registrar and the Accountant-General's Office, passed only provisionally and the latter office insisted on a charge relinquishment report to be furnished with the bill before it could be normally passed and subsequent bill similarly was dealt with. The proceedings so initiated by the High Court of West Pakistan at Lahore and the order passed by the Honourable Court for issuance of the notice to the Accountant-General to show cause as to why a writ of mandamus should .Not be issued against him directed him to pass the bill, was challenged by the Accountant-General, West Pakistan before the Honourable Supreme Court. The Honourable apex Court granted special leave to appeal. It was held by the Honourable Supreme Court in its reported judgment i,e, Fazl-e- Haq, Accountant-General, West. Pakistan v. The State PLD 1960 SC (Pak.) 260 that extraordinary jurisdiction relating to writ can only be exercised by the High Court when moved by a party whose legal right have been denied; and if, in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant-General in taking the action, it has violated the principle that `nobody should sit as a Judge of his own cause, and therefore, without considering necessary to determine, which Rule should apply to this case the entire proceeding in the case was also held to be misconceived and void and; there has been violation of two important judicial principles, above mentioned. Referring to the earlier reported judgments of Honourable Supreme Court and the dictum laid down therein; in the case of The Tariq Transport Company v. Sargodha Bhera Bus Service and others PLD 1958 SC (Pak.) 437 and. The State of Pakistan and another v.
Mehrajuddin PLD 1959 SC (Pak.) 147 it was respectively held that a High Court was not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under Article 170 of Constitution and in the latter case-law that the duty of paying salary to a public servant could not be regarded as falling within the expression "public duty" and mandamus cannot be issued wherein no statutory or public duty is involved or legal right claimed., The Honourable apex Court, therefore, observed that there has been an entirely improper exercise of judicial power, consequently; the appeal filed by the Accountant- General, West Pakistan was allowed and proceedings in Writ Petition No,129 of 1959 were quashed as being void and without jurisdiction.
' In the case of Tariq Transport Company, Lahore v. Sargodha Behra Bus Service and others PLD 1958 SC (Pak.) 437 as regards writ of certiorari the Honourable Supreme Court held that an application for an order of certiorari can only be made by an aggrieved party and not merely by one of the public, and in the case of an application for an order of mandamus it is an established rule that the applicant must show that there resides in himself a legal right to the performance of legal duty by the party against whom the mandamus is sought. It was further held that a High Court, not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under Article 170 of the Constitution. 'The Honourable. Supreme Court in-depth considered and examined the question of issuance writ of certiorari with reference to judicial, quasi-judicial administrative orders, lack of jurisdiction, excess and denial of jurisdiction and scope of powers of the High Court to issue directions and the extent of administrative orders amenable to judicial review as under:-- "The true question in the case of judicial or administrative Tribunals always in whether the act which is complained of is a judicial act and not whether the procedure adopted by the Tribunal is judicial or quasi-judicial or whether the dominant or general aspect of the Tribunal is that of a judicial, quasi-judicial or administrative body. A Tribunal is not always furnished with the trappings of a Court, not will such trapping make its action judicial. The character of the action taken in a given case and the nature of the right on which it operates must determine whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent.
' In the case of an administrative Tribunal, however, the emphasis is only policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a Tribunal the approach in determining the relevant facts is therefore, often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument.
' The word 'quasi' as prefixed to the word 'judicial' may. Either indicate that the. Tribunal is not acting purely administratively or that it is acting in a manner in which a judicial Tribunal is expected to act.
' In certiorari the initial question is whether the official whose action is called in question was acting under a law. If he was not, the act was that of a mere public agent and action at law and not certiorari is the remedy. If, however, a public functionary has acted in exercise of a statutory authority, then the question to be determined is whether he was the sole Judge of facts and of the necessity, expediency, advisability or reasonableness of the action to be taken. If the reply be in the affirmative, he was not acting judicially and his discretion is not liable to judicial review. But if he was under an obligation to find the facts in a judicial or a specially prescribed manner, a material departure from the procedure which has adversely affected the rights of a party would render his action liable to judicial review, even if, on the facts to be so found, the action to be taken depended on his discretion. These cases are distinguishable from those where whatever be the nature of the Tribunal, the order made is illegal in the sense that the Tribunal was not competent to make it or when on the facts found, whether subjectively or objectively, the order in question could not have been made or an order should have been but has not been made or where the Tribunal suffers from lack of jurisdiction. In all such cases, the order is liable to review by a superior Court in writ proceedings provided it has affected any right of the petitioner for a writ. What has to be seen in all such cases is the provision of the statute under which the action was taken and it is on a true construction of that provision in the context of the statute that the answer to the question under discussion will primarily depend. This however, is not laying down a precise definition of judicial or of administrative action; all that is meant is that the factors mentioned are important considerations for a correct determination of the question.
' The power of the High Court under Article 170 of the Constitution to issue directions, orders and writs is not limited to writs in the English form but extends to the making of orders restraining or directing any authority or Government which may be discharging executive functions under a statute. But this cannot be taken to mean that purely executive action can be controlled by the High Court. The Article is to be read in the context of the whole Constitution, the basic feature of which is a distribution of powers between the Legislature, the Executive and the Judiciary. Any encroachment by the High Court in the field reserved for the executive would, therefore, amount to judicial invasion and would be contrary to the spirit of the Constitution. In the exercise of its writ jurisdiction the High Court can never substitute itself for, or assume the responsibility of the executive, for the simple reason that it does not have the requisite information, experience and training to discharge executive functions. That Court cannot, therefore, itself make any executive order, its function being confined to the issuing of directions on matters of law. The conclusion to be deduced from this discussion is that where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order if he:--
(a) goes out of the law i,e,, exercises a jurisdiction not vested in him by law;
(b) wrongly denies or omits to exercise a jurisdictions, and
(c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law'.
' But the overriding requirement in all the three cases in that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should have injuriously affected some justiciable right of a party."
' In the case of Akhtar Abbas and others v. Nayyar Hussain and others 1982 SCMR 549 it was held by the Honourable Supreme Court that as their was no writ petition to challenge the order of the Additional Rehabilitation Commissioner dated 27-2-1965, the same could not, therefore, have been set aside as it is a settled law that in any writ proceedings, the relief must be confined to the prayer made in the writ petition and the High Court cannot issue a writ suo motu, PLD 1958 SC (Pak.) 437 ref.
' In the case of Ali Muhammad through legal heirs and others v. Chief Settlement Commissioner, as regards grant of relief to, respondents by the learned Judge in the Chambers of the High Court; without dilating in detail on the proposition it was observed that under Article 199 of the Constitution of Islamic Republic of Pakistan, High Court does not enjoy suo motu jurisdiction to grant relief to a party as it has been held in the case of Fazl-e-Haq, Accountant-- General, West Pakistan v. The State PLD 1960 SC (Pak.) 295; Shehnaz Begum v. The Honourable Judges of High Court, Sindh and Balochistan and another PLD 1972 SC 677; Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549 and Haji Muhammad Sadiq and others v. Khirati 1984 CLC 2239.
' The judgment of the Honourable Supreme Court referred to above i,e, 2001 SCMR 1822 in the case of Ali Muhammad through legal heirs and others v. Chief Settlement Commissioner and others; as regards suo motu exercise of jurisdiction by High Court under Article 199 of the Constitution, it has been held that High Court does not enjoy such a jurisdiction to grant relief to a party, and; in the case-law, commonly cited by Mr. M. Riaz Ahmed and the learned D.A.-G. Relating, to the case of Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab-al-Khairi 2000 SCMR 1046 the Honourable Court refused to grant leave to appeal against the judgment of the Lahore High Court, Lahore passed in Intra-Court Appeal. The facts relating to this case in brief relevant on the point are that High Court took suo motu notice of irregular allotment of certain residential plots and mismanagement of Federal Bait-ul-Mal funds by the then Prime Minister of the country and Chief Ministers of Provinces. The suo motu proceedings were converted into Constitutional petition and the decision rendered in such proceedings was assailed before the Division Bench in Intra-Court Appeals and it was found by the Division Bench that suo motu exercise of jurisdiction by High Court Judge under Article 199 of the Constitution was not available to,the High Court (Single Judge) therefore, the order passed by the Single Judge in exercise of suo motu jurisdiction under Article 199 of the Constitution was held to be without jurisdiction and consequently; the entire proceedings were quashed and besides, such proceedings, as there were other private individuals, who had challenged the action of the Government in so far the allotment of lands was concerned, thus; Honourable Court in Intra-Court Appeal observed that those Constitutional petitions could not have been decided without hearing the petitioners as well as other parties, who were arrayed in those petitions as respondents. Further the Division Bench of the High Court directed that the Constitutional petitions filed by individuals should be dealt with in accordance with law and disposed of after hearing the parties concerned.
' In the third reported judgment, cited by Mr. M. Riaz Ahmed, the learned counsel for the appellant i,e, PLD 1993 Quetta 9, passed in C.P. No,307 of 1992, the Division Bench of this, Court applying provisions of Article 189 of the Constitution in view of the facts of the case noted that the Selection Committee had ignored earlier decision of the Honourable Supreme Court on the identical principles of law, thus; it was observed that decision of the Supreme Court on identical principles of law would be building on all the forums whereas; in the case of Mst. Zubeda A. Sattar v. Karachi Building Control Authority and others 1999 SCMR 243 cited by the learned D.A.-G., the proposition as to whether High Court could register a Constitutional petition suo motu under Article 199 of the Constitution was left over to be decided by the Honourable Supreme Court in appropriate case quaere. The last cited reported judgment passed in criminal appeal arising out of the criminal petition for leave to appeal in the case of Muhammad Nawaz and another v. The State 1987 SCMR 1399 relates to the merits of the case in which the object, scope and import of sections 2 and 4 of the Good Conduct Prisoner's Probational Release Act, 1926 read with Rule 38 of the Rules made thereunder were examined.
10. It is an admitted feature of the case that the State through NAB. Authorities did not challenge the order passed by the then Chief Executive of the Province/Governor, pursuant to which the appellant was released on parole by filing application under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for issuance of writ in the nature of certiorari and seeking for appropriate direction of the. Court by invoking Constitutional jurisdiction within the specified parameters of Article 199 of the Constitution, rather; after quite sometime during pendency of suo motu proceedings miscellaneous application in these appeals was filed by the learned DPG/NAB seeking direction of the Court that the appellant may be ordered to be taken into custody as his release on parole was illegal on the grounds canvassed during arguments which by no stretch could be equated to a Constitutional petition filed under Article 199 of the Constitution nor the same can amount to such petition as that having been filed in accordance with the prescribed procedure and in the form of a Constitutional petition except that for all intents and purposes the same are only miscellaneous applications in which even the order passed by the Chief Executive of the Province/Governor was not challenged nor sought to be set aside. In view of the principles for issuance of writ in the nature of certiorari or to make an order giving direction to any person or authority including any Government exercising any power or performing any function in connection with the affairs of the Federation or 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 i,e, in the nature of mandamus or writ of prohibition as the case may be; in absence of application filed by an aggrieved person on any allegation of excess or absence of jurisdiction or exercise of jurisdiction not vesting in such authority, wrongly denies or omits to exercise a jurisdiction; we, are inclined to drop the instant suo motu proceedings, consequently, the notice issued to the appellant and to all other concerned pursuant to the suo motu action, taken by this Court stand discharged.
Suo motu proceedings dropped.