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FAREED AHMED A. DAYO versus CHIEF MINISTER SINDH

- The application of the theory of "casus ommesis", the nature of the doc nature, the meaning of the sphere and the "casus omissis". But was not provided according to any law, then it cannot be provided by the courts, it would be legislative and would not be interpreted, which was not the work of the courts - the theory of "casus ommesis" Applies to a situation or situation that was not provided by law and therefore the matter was governed by law, or the (new) judge made the law - the classical rule was that the court vacated the law. Will not be served because their duties were "justified dossier". And not "justification dare" (which was to declare or decide the law), so the signing of "Casus Omesis" outlines situations where the court is clearly unaware of the legislative error in drafting a particular provision. Thus, the court was not fully tied to T's hands, but it only applied when the legislature registered some possibilities but missed some of them. [P 228] B

P L D 2017 Sindh 214 

Before SajjadAli Shah, C.J., and Zulfiqar Ahmad Khan, J

FAREED AHMED A. DAYO—Petitioner versus

CHIEF MINISTER SINDH through Principal Secretary and 5 others—Respondents

Constitutional Petition No.D-3980 of 2016, decided on 22nd November, 2016.

(a) Interpretation of statutes —

— “Casus omissus”, doctrine of—Nature, scope meaning and application of the doctrine of “casus omissus”—“Casus omissus” literally meant “case omitted”—Application of the doctrine of “casus omissus” was that a matter which should have been, but had not been provided for in a statute, then the same could not be supplied by the courts, as to do so would be legislation and not interpretation, which was not a function of the courts—Doctrine of “casus omissus” applied to an eventuality or situation not provided for by the statute and was therefore governed by case-law, or (new) judge-made law—Classic rule was that the court would not fill the gap in the statute as their functions were “jus dicere” and not “jus dare”(that was to declare or decide the law)—Doctrine of “casus omissus” therefore, outlined the circumstances where a court could supply a clearly unintended omission by the Legislature in drafting a particular provision, thus the court*s hands were not completely tied but it was only applicable when the Legislature had enlisted certain possibilities but missed a few ones. [p. 228] B

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Associated Provincial Picture Houses. Ltd. v. Wednesbury Corporation 1947 (2) All ELR 680; Council of Civil Service Unions and others v. Minister for the Civil Service (1984 (3) All ELR 935; Nottinghamshire Country Council v. Secretary of State for the Environment 1986 (1) All ELR 199; The Chairman East Pakistan Railway Board v. Abdul Majid Sardar PLD 1966 SC 725; Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan PLD 1990 Kar. 9; Executive District Officer (Revenue) District Khushab at Jauharabad v. Ijaz Hussain 2012 PLC (C.S.) 917; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6; Muhammad Ismail v. The State PLD 1969 SC 241; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhry PLD 2016 SC 637 and Zahid Iqbal v. Hafiz Muhammad Adnan 2016 SCMR 430 distinguished.

(b) Constitution of Pakistan—

—Arts. 130(11) & 93—Appointment of “advisers” by the Provincial Chief Minister—Basic and fundamental requisite for such

appointment—Exercise of discretion by the Chief Minister-Constitutional criteria for appointment of adviser under Art. 130(11) of the Constitution—“Adviser”, meaning of—Scope—“Adviser” was a person who gave advice in a particular field—Word “advice” meant “guidance or recommendations offered with regard to prudent action ” and the word “prudent” meant “acting with or showing care and thought of the future”—Said combined dictionary meanings therefore depict an “adviser” to be a person, who based on his prudence and thoughtfulness would be called upon for giving guidance and recommendations with regard to a futuristic action—Any person to be appointed as an Adviser under Art.130(11) of the Constitution should therefore be able to satisfy such fundamental and basic requisite as anticipated by the ordinary meaning of the word “adviser”— Constitution therefore, did prescribe the requisites for anticipated appointment of an Adviser under Art. 130(11) of the Constitution and did not leave it open to the Chief Minister to appoint any person as an Adviser who did not fulfil the intent or purpose as extruded out of the Constitution—For appointment of handpicked Advisers under Art. 130(11) of the Constitution, the Provincial Chief Minister had apparent unhindered constitutional privilege of appointing them, but such power should never be seen to have been exercised by the Chief Minister in a manner as if he was a Monarch or a King, not answerable to anyone, as the Chief Minister carried the trust of those who elected him to make decisions solely on merit and not on account of favour or fear . [pp. 229, 230] C, D & F

Oxford Dictionary of England and Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224 rel.

Ahmad Yousuf Ali Rizvi v. Munawar Ali Butt PLD 2000 Kar.

333; American International Sc.hool System v. Mian Muhammad Ramzan 2015 SCMR 1499; Karachi Cooperative Housing Societies Union Ltd. v. Government of Sindh and others 1990 MLD 389; Shah Ahmad Khan v. Government of Punjab PLD 2007 Lah. 191; Hakim khan v. Government of Pakistan PLD 1992 SC 595; Bhai Khan and others v. the State PLD 1992 SC 14; Ghulam Hussain v. The State 1999 YLR 1596; Abdul Malik v. The State PLD 2006 SC 365; Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151; Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1974 (2) AELR 680; Council of Civil Service Unions and others v. Minister for the Civil Service 1984 (3) AELR 935; Notingbamshir CC v. Secretary of State for Environment [1986 (1) AELR 199; Muhammad Ismail v. The State PLD 1969 SC 241; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary PLD 2016 SC 637 and Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 ref.

(c) Words and phrases

— “Adviser”—Meaning of—“Adviser” was a person who gave advice in a particular field—Word “advice” meant “guidance or

recommendations offered with regard to prudent action” and the word “prudent” meant “acting with or showing care and thought of the future”—Said combined dictionary meanings therefore depict an “adviser” to be a person, who based on his prudence and thoughtfulness would be called upon for giving guidance and recommendations with regard to a futuristic action, [p. 229] C

Oxford Dictionary of England rel.

(d) Public functionary —

—Duties of—Appointment of persons made by public functionaries— Exercise of discretion by public representatives/functionaries— Principles of probity, prudence, and good governance—Appointment on which no specific criteria was prescribed by law—Principles and scope—Whenever a person was appointed, who was not a public representative, and in particular when such person’s remuneration and allied expenses were paid from the public exchequer, it was important that the authority which was handpicking such an individual had to ensure that such individual’s selection fit every bit of the purpose and intent of such appointment being made, in order to ensure that the rule of “right person for the right job ” became evident in every Hiook and corner of such an appointment—Said appointments were not a matter of public money only, but also of public perception as rule of law and

respect for merit should not be seemed to have been slaughtered at the hands of the authority making such an appointment—In cases where the law did not provide any criteria or qualification for the appointment to a position and left such appointment on the absolute discretion of an authority, then there existed a taxing responsibility to justify the said appointment on the touchstone of prudence, good.governance, fair play and such freedom could not be misused to accommodate people of oneys choice—Such appointments should withstand the tests of fairness, fitness, judiciousness as well as impartiality; and arbitrary and capricious actions should be avoided [pp. 230, 242] R & Q

(e) Constitution of Pakistan—

—Preamble & Arts. 93, 90, 91, 129, 130, 131, 132 & 138 — Representative democracy—“State shall exercise its powers and authority through the chosen representatives of the people”—Exercise of executive authority of Federal and Provincial Governments— Constitutional mandate for the exercise of executive authority by elected representatives only—Constitutional restriction mandating the exercise of any and all executive authority by elected representatives only—Advisers appointed by Prime Minister and Chief Ministers under Arts. 93 & 130(11) of the Constitution, respectively—Nature and role of such Advisers—Restrictions on exercise of executive authority by such Advisers—Rationale, scope and contours of such restrictions

extensively discussed, [pp. 226, 232, 233, 234] A, G, H, I, J, K & L

(f) Constitution of Pakistan—

—Arts. 130(11), 93, 91(9), 129(9) & Preamble—Representative democracy—Constitutional mandate for the exercise of executive authority by only elected representatives—Advisers appointed under Art.93 & 130(11) of the Constitution—Exercise of executive authority by such Advisers—Scope—Under the Constitution, neither in the Federal Government, nor in the Provincial Govemment(s), any executive authority was entrusted upon the respective Adviser, and rather being non-elected individuals, per Arts. 91(9) & 129(9) of the Constitution, no executive authority was to be exercised by such an individual beyond a period of six months from date of appointment— Constitution did not provide for taking an oath from a FederaL or Provincial Adviser, meaning thereby, that such an Adviser, (as a non-elected individual) was neither answerable to the National Assembly, cabinet; any constituency, nor bound himself through an oath and for such reason, the Constitution did not encapsulate any possibility of an Adviser to exercise executive authority since such an exercise would be violative of the fundamental principles of democracy, and any act of giving any executive authority to an Adviser, would be an attempt to

place non-elected persons at the helm of affairs to discharge executive authority which the Constitution solely reposed on the shoulders of the elected representatives which were additionally bound by the oath of their respective offices. [p. 234] K&L

(g) Constitution of Pakistan—

—Arts. 130(11), 129, 199 & Preamble—Sindh Government Rules of Business, (1986), Rr. 6 & 7(ii)—Sindh Advisers (Appointments, Powers, Functions, Salaries, Allowances and Privileges) Act (I of 2003) S.4(2)—Vires of Sindh Government Rules of Business (1986), Rr.6(H) & 7(ii) & S.4(2) of Sindh Advisors (Appointment, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003—Constitutional mandate for the exercise of executive authority by the Provincial Government—Appointment of Advisers and Special Advisers— Delegation of executive authority of Ministers to Advisers appointed by the Chief Minister—Representative democracy—Constitutional

restriction on unelected Advisers exercising executive authority— Scope—Provisions of Rr.6(ii) & 7(ii) of the Sindh Government Rules of Business, 1986 were in direct conflict with the scheme of democratic government as enshrined in the Constitution where right to exercise of executive authority was solely reposed on the elected representatives, however, pursuant to the Rr. 6 & 7 of the Sindh Government Rules of Business, 1986, the Chief Minister had been given the authority to delegate exercise of such executive authority unto his Advisers, of which neither any room was made in a democratic setup nor in the Constitution—High Court held that the R.6(ii) of the Sindh Government Rules of Business, 1986 in toto and R. 7(ii) of the Sindh Government Rules of Business, 1986 to the extent of the delegation of powers to Advisers was ultra vires the Constitution, thus void ab inito and of no legal effect—Similarly, S.4(2) of the Sindh Advisers (Appointments, Powers, Functions, Salaries, Allowances and Privileges) Act, 2083 enabled such unconstitutional and undemocratic act of use of executive authority by an Adviser and was also ultra vires the Constitution and was accordingly held to be void ab inito and of no legal effect, [pp. 232. 236] M, N & O

Shah Ahmed Khan v. Government of Punjab PLD 2007 Lah. 191; Ahmad Yousuf Ali Rizvi v. Munawar Ali Butt PLD 2000 Kar. 333; Karachi Cooperative Housing Societies Union Ltd. v. Government of Sindh and others 1990 MLD 389 and Halsbury’s Laws* of England (Fourth Edn.) Volume at para. 32 rel.

(h) Delegation of Powers—

—Maxim: “Delegatus non potest delegare”—Executive power

conferred by a statute upon a particular functionary could not be delegated in absence of express words or necessary implication. [p.238] P

Halsbury’s Laws of England (Fourth Edn.) Volume at para. 32 rel.

(i) Maxim:—

—"Delegatus non potest delegare”—Delegated can not delegate. [p. 238] P

Mustafa Lakhani for Petitioner.

Makhdoom Ali Khan for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Umer Lakhani for Respondent No.4.

Ghulam Mustafa Maheser, A.A.G, for Respondent No.5.

Nemo for Respondent No.6.

Dates of hearing: 30th September, 6th, 7th, 21st and 25th October, 2016.

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