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RAZIA BEGUM versus NAB

The accountability court signed a voluntary return with the ope jurisdiction-accused National Accountability Bureau to record an investigation into the real property of the anonymous property under which it surrendered immovable and immovable assets - the subject property which It was also part of the applicant's name. List of surrendered properties - The petitioner moved the application for removal of his property from the said list petition The petition filed by the applicant as well as the objections filed by him were dismissed by the Accountability Court, and Application for title transfer was allowed by the Accountability Bureau and possession of the property transferred to the accused. Claims by the Accountability Bureau that the accused seized huge sums from the Government Bank and used those funds to purchase transferable and immovable properties, which were named after various relatives. The applicant is also included, so the accountability court headed by the petitioner was properly dismissed. Accuracy - The applicant appeared as a witness and presented the actual sale of the subject property, however, in his own investigation, he recognized that he was a housewife and had no source of income. On her own - petitioner claimed that her husband and son had provided funds to buy the property in question, but they did not present either of these to the court. Fails to provide that her husband or son must provide the necessary funds to purchase the property.

P L D 2017 Lahore 665 

Before Sved Mansoor Ali Shah, C J

HASSAN SHAHJEHAN—Petitioner

versus

FPSC through Chairman and others—Respondents

Writ Petitions Nos.28579 and 23578 of 2016, heard on 13th June, 2017.

(a) Constitution of Pakistan—

"-Arts. 199, 201, 202, & 203—interpretation of Constitutional construct of the Judicature—Exercise of Constitutional jurisdiction of tyh Court under Art. 199 of the Constitution—Nature of the Constitutional jurisdiction of High Court vis-a-vis Provincial character of the High Court—Relief granted by the High Court while exercising its Constitutional jurisdiction could not go beyond the Provincial boundary and affect any other Province, area or its peoples—Concept and contours of the territorial jurisdiction of High Court under Art. 199 of the Constitution, expounded. Constitutional terms like "High Court for each Province” "within the territorial jurisdiction of the Court" and "all courts i subordinate to it" construct a High Court, which has a provincial character. The term "within the territorial jurisdiction of the Court" ubiquitously recurs throughout Article 199 emphasizing the territorial limitation on the jurisdiction of a High Court. The term "All courts subordinate to it" repeated in Articles 201, 202 and 203 place the Provincial High Court atop a provincial pyramidical hierarchy of courts. Constitutional architecture of a Provincial High Court provides that while it enjoys judicial power to examine all laws or actions of the federal, provincial and local governments or authorities, it can only do so if the cause of action arises or the respondent government or authority is located or if the impugned act or order affects a person within the territorial jurisdiction of this Court i.e., within the Province. As a corollary, the relief granted or the writ issued by the High Court also remains within the territorial jurisdiction of this Court and can only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot go beyond the Provincial boundary and affect any other Province or Area or its people. So for example, if a federal law or federal notification is struck down by Lahore High Court, it is struck down for the Province of Punjab or in other words the federal law or the federal notification is no more applicable to the Province of Punjab but otherwise remains valid for all the other Provinces or Areas. Unless of course the Federation or the federal authority complying with the judgment of the Lahore High Court, make necessary amends or withdraw the law or the notification. Which of course would then be open to challenge by the other Provinces or Areas or their people, if they so decide. The other eventuality is that the Federation or the federal authority may or may not enforce the said law or notification in other Provinces, as a matter of administrative decision and instead challenge the judgment of the Lahore High Court before the apex Court of the country. These are the operational repercussions and effects of a judgment, setting aside a federal law or federal notification or decision. However, on a purely constitutional and legal plane, the federal law or federal notification remains in existence for the rest of the country but for the Province of Punjab. This is further fortified by the fact that in case the same federal law or federal notification is challenged in any other Province or Area, the High Court concerned is not bound by the decision of the Lahore High Court and can declare the same federal law or federal notification to be valid law (Reference Article 201 of the Constitution). Therefore, under the Constitution, while the High Courts can judicially examine and strike down a federal law or federal notification, infact, the said federal law or notification is made non-applicable to the extent of the Province unless the matter is finally decided by the Supreme Court of Pakistan or else if the Federation or the federal authority decide to withdraw or amend the law on their own, in compliance of the judgment, [p. 678] A

What does "Within the territorial jurisdiction of this Court” mean Relying on the constitutional jurisprudence developed • over the years and the provincial constitutional architecture of a High Court, writ cannot be issued by High Court against any person which is located geographically outside the territorial limits of the Province, having no physical or legal presence within the Province, [p. 679] B

If the order or action of the Government or Authority (federal or provincial), present within the Province, affect the rights of a person within the Province, writ can be issued against the said Government or Authority (irrespective of its federal character) and relief given to the aggrieved person located within the Province, [p. 679] C

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue .and others PLD 1997 SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869; The Oxford Handbook of Indian Constitution, edited by Sujit Choudhry Madhav Khosla and Pratap Bhanu Mehta, Oxford University Press © 2016 Federal Scheme Chapter 25 and Guy Regimbald and Dwight Newman-The Law of the Canadian Constitution (Lexis Nexis) p.97-98 rel.

(b) Constitution of Pakistan —

—Art. 199—Constitutional jurisdiction of High Court—Nature of territorial jurisdiction of the High Court under Art. 199 of the Constitution—Scope—Per developed Constitutional jurisprudence and the Provincial Constitutional architecture of a High Court, a writ could not be issued by a High Court against any person who was located geographically outside the territorial limits of the Province, having no physical or legal presence within such Province—If an impugned order or action of the Government or Authority (Federal or Provincial), present within a Province, affected the rights of a person within such Province, a writ could be issued against the said Government or Authority (irrespective of its federal character) and relief given to the aggrieved person located within the said Province. [p. 679] B & C

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758 and Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 rel.

(c) Constitution of Pakistan—

—Preamble, Part VII [Arts. 175 to 212] & Part V [Arts. 141 to 259]— Interpretation of the Constitution—Federal mature of the

Constitution—Concept of "Federalism"/"Federal Principle" generally, and under the Constitution of Pakistan—Federalism/federal principle in the context of the Judicature—Vertical sharing of jurisdiction between the Supreme Court and the High Courts—Concept of Judicial federalism with emphasis on its effect on the territorial jurisdiction of High Courts elucidated.

The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or power -legislature, executive, judicial, and financial — between the general and the regional governments; (iii) supremacy of the constitution — that is, the foregoing arrangements are not only incorporated in the Constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising any power or for perfÓrm;ing any function. Federalism is in fact the basis of the division of powers...The principle of Federalism is a central, organizational theme of the Constitution and represents a political and legal response to underlying social and political realities... A federal system of government allows different provinces to pursue specific policies tailored to the particular concerns and interests of residents in that province. The Principle of Federalism also enables provinces to enact specific statues to pursue specific collective goals, and may promote different cultures and linguistic minorities within a specific province or areas. At the same time federalism allows citizens to construct and achieve goals on a national scale through a Federal Government acting within the limits of its jurisdiction. Consequently, federalism is key to enable citizens to participate in different collectivitie.s and to pursue objectives at local, provincial and national levels, [p. 680] D

Federalism or Federal Principle under Constitution of Pakistan envisages independent federating units with autonomous legislature, executive and judiciary. Chapter 1 of Part V of the Constitution provides for distribution of legislative power between the Federation and the Provinces. Chapter 2 of the same Part deals with distribution of executive power between the Federation and the Provinces. Chapters 1 to 3 of Part-VII deal with Judicature and the vertical sharing of jurisdiction between the Supreme Court of Pakistan and the High Courts, as well as, the horizontal jurisdictional limits between the High Courts. The Constitution provides a separate High Court for each Province and a Supreme Court of Pakistan with an overarching jurisdiction with an overlapping power with the High Court under Article 184(3) of the Constitution. The provincial jurisdictional limits, delineating judicial power between co-ordinate High Courts on the basis of territory and the vertical overlap of judicial power under Article 184(3) between the High Court and the Supreme Court of Pakistan is judicial federalism. Every Provincial High Court and the High Court of the Islamabad Capital Territory has its own jurisdictional space. Any order passed by a High Court is, therefore, effective in the Province and has merely a nonbinding persuasive value in other Provinces. Province is a federating unit and has its own legislature, executive and judiciary. Similarly, within the Province, the provincial High Court also functions on the same Federal Principle and exercises judicial power within the limited provincial jurisdictional space or within the Islamabad Capital Territory, [p. 681] E

The Oxford Handbook of Indian Constitution, edited by Sujit Choudhry Madhav Khosla and Pratap Bhanu Mehta, Oxford University Press © 2016 Federal Scheme- Chapter 25 and Guy Regimbald and Dwight Newman- The Law of the Canadian Constitution (Lexis Nexis) p.97-98 rel,

(d) Forum non conveniens, doctrine of—

—Principle, concept and scope—Principle of forum non conveniens was a discretionary power, which allowed Courts to dismiss a case where another court or forum was much better suited to hear the same—Such dismissal did not prevent a plaintiff from re-filing his or her case in a more appropriate forum and said doctrine also allowed a Court with jurisdiction over a case to dismiss the same on ground that convenience of the parties and interest of justice would be better served if said case was brought in a court having proper jurisdiction at another venue—Doctrine of forum non conveniens i.e. that some other forum was more appropriate in the sense that the same was more suitable for the ends of justice—Court may decline to exercise jurisdiction, after giving consideration to the interests of the parties and the requirements of justice, on ground that a case could be suitably

tried only in another court—Basic principle was that a court was satisfied that there was some other available forum, having competent jurisdiction, which was the appropriate forum for the trial of the action (meaning such a forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice), [p. 682] G

(e) Constitution of Pakistan—

—Arts. 199, 184(3) & 27—Constitutional jurisdiction of High Court— Civil Service—Safeguard against discrimination in services—Federal Principle of the Constitution—Exercise of Constitutional jurisdiction by High Court under Art. 199 of the Constitution, where relief sought would affect other Provinces—Application of the doctrine of 'forum non conveniens" in the exercise of the Constitutional jurisdiction of High Court—Scope—Petitioner challenged the Constitutionality of geographical allocation of quota amongst Provinces in the national Competitive Examination of the Central Superior Services ("CSS"), inter alia, on the ground that the same violated Art.27 of the Constitution—Validity—High Court under its Constitutional

jurisdiction enjoyed power to sit in judgment over quota allocated to Punjab, and its power under Art. 199 of the Constitution was "subject to the Constitution " and would remain subject to the Federal Principle of the Constitution—In the present case, quota in question was interlinked and combined with the quotas of other Provinces and any interference by the High Court would affect national allocation of quota in other Provinces and areas—Relief, in such respect, could not be granted to a person in Punjab without depriving the allocation of quota of the people of other Provinces, therefore, such a relief or writ issued by High Court would amount to travelling beyond the territorial limits of the Province and would offend the federal principle and the core value of the Constitution—Application of the principle of forum non conveniens" meant that the present case could only be resolved by the Supreme Court—His Lordship observed that if the quota was struck down by High Court, it would not only abolish the Punjab quota but also the quota of other Provinces for the purposes of CSS Examination and such interference would be Constitutionally inappropriate and impermissible—High Court while declining to exercise its

Constitutional jurisdiction, left the parties to approach the Supreme Court of Pakistan for the redressal of their grievance—Constitutional petition was dismissed, in circumstances, [pp. 681, 682, 683] F, G & H

Ahmad Yar Chohan v. Federal Public Service Commission and 2 others 1998 MLD 1832; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869; K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376 and High Court Bar Association and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6 others PLD 2013 Bal. 75 ref.

Kh. Isaam Bin Harris and Khalid Ishaq for Petitioner (in W.P. No.28579 of 2016).

Mushtaq Ahmad Mohal and Afrasiab Mohal for Petitioner (in connected writ petition).

Respondents by:

Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Anwar Hussain, Additional Advocate General Punjab.

Amanullah Kanrani, Advocate General Balochistan.

Syed Ali Raza, Advocate General, Azad Jammu and Kashmir.

Malik Akhtar Hussain Awan, AAG, Azad Jammu and Kashmir.

Rafey Altaf and Saad Rasool amici curiae.

Assisted by

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre (LHCRC).

Date of hearing: 13th June, 2017.

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