Wednesday, 29 July 2015

Reinstatement is inevitable on acquittal of civil servant

PLJ 2015 Tr.C. (Services) 154[Punjab Service Tribunal, Lahore]
Present: Ashtar Abbas, Member-IV
versus
Appeal No. 2677 of 2012, decided on 11.12.2014.
----Dismissal from service--Prima fice, competent authority committed mistake by switching over from one provision of law to another provision of law.                                     [P. 156] A
----When statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the witnesses--In absence of this, it cannot be said that I.O. carried out full-fledge regular inquiry.    [P. 156] B
----It is also settled principal of law that once civil servant is acquitted after trial by competent Court of law, department would be wrong in refusing to reinstate him.                       [P. 157] C
Rana Abdul JabbarAdvocate for Appellant.
Mr. Hussain Ahmad Mughal, D.D.A. & Mr. Ali Waqas, Clerk for Respondent No. 2.
Date of hearing: 11.12.2014.
Judgment
Through this judgment, an appeal filed by Muhammad Zafran, Ex-Warder No. 5220 against orders dated 8.10.2010, 9.2.2011 and 10.5.2012 whereby the appellant was ordered to be dismissed from service is being decided.
2.  Arguments advanced by the learned counsel for the appellant hearad and available record perused.
3.  Annex (A) available in the file is basic order, which was passed by the Superintendent of Central Jail, Rawalpindi on 19.6.2007 on the basis of which the Superintendent of Central Jail, Rawalpindi by invoking the provisions of Punjab Removal from service (Special Powers) Ordinance, 2000, the appellant was dismissed from service on an allegation that he was involved in case FIR No. 411 dated 07.09.2006 under Section 9-C, P.S Sadar Baruni, Rawalpindi for smuggling of narcotic (Charas 1000 grams) between the night 07/08 of September 2006 from Tower No. 5 and the same was recovered by SG Warder Mola Bukhsh and SG Warder UlfatAli. Previously this basic order was assailed by filing an appeal Bearing No. 1968/2008 before this Tribunal and vide order dated 31.12.2008 the then Hon'bleMember-V allowed the appeal in the following fashion:--
“Under the circumstances, the impugned orders passed by the authorities do not sustain. The instant appeal is accepted and the impugned orders are set aside. Consequently, the appellant is reinstated in service. The case is remanded to the competent authority with the direction to decide the same afresh after holding a regular inquiry into the matter and provide the appellant an opportunity of producing defence in accordance with law. The status of intervening period shall be decided by the competent authority at the time of finalization of the inquiry. “
4.  During post remand proceedings, DIG, Prisons Rawalpindi Region, Rawalpindi switched over the proceedings from Punjab Removal from Service (Special Powers) Ordinance, 2000 to the provisions of PEEDA Act, 2006 and vide order dated 08.10.2010 awarded major penalty to the appellant and dismissed him from service with immediate effect. Against this order i.e. dated 08.10.2010, departmental appeal was filed, which was ultimately rejected by the Inspector General of Prisons, Punjab, Lahore on 09.02.2011. Both the above said orders were challenged by filing revision petition, which were not entertained as the appeal of the appellant has already been dismissed by AIG (Security and Discipline) for the office of Inspector General of Prisons, Punjab, Lahore vide missive No. 3160 dated 10.05.2012.
5.  It is admitted fact that initial basic proceedings were taken up by the Superintendent of Central Jail, Rawalpindi under Section 3 of the Punjab Removal from service (Special Powers) Ordinance, 2000, whereby major penalty of dismissal from service was imposed upon the appellant as he was found involved in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA Police Station Saddar Beruni, Rawalpindi. After post remand proceedings, by the order of this Tribunal dated 31.12.2008 DIG Prisons Rawalpindi Region, Rawalpindi switched over to the provisions of the Section 4 of the PEEDA Act,2006 and by invoking the provisions of PEEDA Act, 2006 appellant was ordered to be dismissed from service with immediate effect. Switching over from one act to another is not appreciate by the Hon'ble Supreme Court of Pakistan in case titled District & Sessions Judges vs Muhammad Nawaz reported in 2003 SCMR 1720. Prima fice, the respondents/competent authority committed mistake by switching over from the one provision of law to another provision of law. It is important to high light that after the remand of the case by the order of this Tribunal, Ch. Azmat Hayat, Superintendent, Sub Jail Chakwal conducted regular inquiry. His report is Annex (L). This report reveals that I.O. recorded the statements of Muhammad Anwar, Assistant Jail, Mola Bakhsh, Warder and Ulfat Hussain, Warder. Report is silent that when statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the said witnesses. In absence of this, it cannot be said that the I.O. carried out full-fledge regular inquiry. This fact escaped from the notice of the respondents thus they have committed material illegality. It is also important to note that report under Section 173, Cr.P.C. was sent to the competent Court of law for trial of the present appellant/accused in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA, 1997, P.S Saddar Beruni, Rawalpindi and ultimately vide judgment dated 04.09.2007, learned Additional Sessions Judge, Rawalpindi acquitted the accused Muhammad Zafran from the criminal liability. Nothing is on the record to show that the

police department/prosecution further assailed the judgment of the learned Additional sessions judge mentioned above and the same has been set aside and appellant has been held guilty. In absence of all that, I feel no hesitation to say that the order passed by the learned Additional sessions Judge mentioned above has attained finality. It is also settled principal of law that once civil servant is acquitted after the trial by the competent Court of law, department would be wrong in refusing to reinstate him (2003-TD (Service) 339 is referred). While rejecting the appeal and revision, the appellate as well as revisional authority did not keep in their mind the fact of acquittal of the appellant from the criminal liability hence, they have committed illegality.
6.  In view of what has been discussed above. The appeal is allowed/accepted, impugned orders are set aside and the appellant is reinstated in service with all back benefits.
(R.A.)  Appeal allowed

Punishment of Dismissal from Service

PLJ 2015 Tr.C. (Services) 161[Punjab Service Tribunal, Lahore]
ZESHAN HAIDER--Appellant
versus
Appeal No. 2900 of 2014, decided on 11.3.2015.
Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006 (XII of 2006)--
----S. 9--Civil servant--Punishment of dismissal from service--Denovo proceedings--Challenge to--Validity--Inquiry officer neither recorded statement of any prosecution witnesses nor he asked appellant to put cross-examinations--Major penalty is a serious and extreme punishment in context of service laws--Such penalty can not be imposed lightly and without proof of serious allegation and for that quality incriminating evidence/material should be of high standard and same is missing in present case.
                                                                                                                        [Pp. 164, 165 & 166] A, B, D & E
----Art. 71--Incriminating evidence--Opinion of investigation officer--Inadmissible in evidence--It is settled law that opinion of investigation officer is inadmissible in evidence and not relevant for purpose of any decision or conviction in terms of Art. 71 of Qanun-e-Shahadat Order, 1984--Incriminating evidence available against present appellant, inquiry officer could have discussed same in his inquiry report. [P. 165] C
Malik Muhammad Asif Javed, Advocate for Appellant.
Mr. Kewan Basit, D.A. Mr. Irfan Sial, Inspector legal for CCPO, Lahore.
Date of hearing: 11.3.2015.
Judgment
Brief facts for the disposal of the instant appeal are that show-cause notice No. 1690/PS dated 09.12.2011 was issued against the present appellant by DIG of Police Operations, Lahore which was replied by him.
Vide order dated 16.02.2012, DIG of Police Operations, Lahore by invoking the provision of PEEDA Act, 2006, awarded major punishment of dismissal from service against the appellant. The appellant filed departmental appeal before the CCPO, Lahore who rejected the same on 07.04.2012. Thereafter, revision petition was filed which was also rejected on 04.07.2012. The above said orders were challenged by filing service appeal before this Tribunal which was partly allowed, whereby the appellant was reinstated in service and the case was remanded to the competent authority i.e. CCPO, Lahore to initiate denovo proceedings vide order dated 12.10.2012.
2.  During post remand proceedings, the CCPO, Lahore reinstated the appellant in service and appointed Superintendent of Police, CRO & Computerization, Lahore as inquiry officer vide order dated 5.11.2012 to conduct denovo regular inquiry. The inquiry officer Mr. Jamat Ali Bukhari after conducting inquiry, submitted his report on 21.11.2012 before Respondent No. 1 (CCPO, Lahore) while exonerating the appellant from the charge sheet. It is contended that assistant director of CCPO Office, Lahore due to ulterior motive got the denovo inquiry conducted through DIG Operations, Lahore vide order dated 31.01.2013. The DIG Operations, Lahore to whom denovo inquiry was marked second time, did not carry out the inquiry himself but Sr. Superintendent of Police, Investigation, Lahore Mr. Abdur Rab Chaudhary conducted the inquiry and did not allow the appellant to cross-examine any witness. The second inquiry officer after obtaining the written statement of Sub Inspector Abdul Sattar, Investigating Officer of the criminal case FIR No. 650/11 under Section 392, PPC, Police Station Race Course, Lahore held the appellant guilty of the charge. The CCPO, Lahore without giving due consideration to the contentions of the appellant as well as inquiry conducted by the first inquiry officer, passed an order dated 20.09.2013 whereby inflicted punishment of dismissal from service upon the present appellant by invoking the provision of PEEDA Act, 2006. The appellant again challenged the said order by filing departmental appeal before Respondent No. 2 (Inspector General of Police, Punjab, Lahore) who vide his order dated 27.03.2014 rejected the appeal. Hence, this appeal.
3.  Learned counsel for the appellant contended that the impugned orders are against law, facts and have been passed on the basis of no evidence; impugned orders have been passed in contravention of laws/rules governing the Civil Servants; the respondents failed to note that impugned punishment have been inflicted on the basis of vague charges; the order of the Hon'ble Tribunal was not followed in its letter and spirit; inquiry officer was requested by the appellant to record statement of the complainant of the case, the dacoits and to put them under cross-examination to dig out the truth but it was not done by the inquiry officer; inquiry officer carried out inquiry in a slip shod manner and relied on hearsay evidence; Learned counsel for the appellant next contended that impugned orders are illegal and coram non judice,prayed that appeal be accepted impugned orders be set aside and the appellant be reinstated in service with all back benefits.
4.  Conversely, the learned District Attorney vehemently opposed the arguments advanced by the learned counsel for the appellant and made his reliance on the parawise comments furnished by the respondents. Learned District Attorney contended that appeal is without any substance, hence, it be dismissed.
5.  Arguments heard and available record perused.
6.  Annex (A) is a photocopy of show-cause notice Bearing No. 1690/PS dated 09.12.2011 which was issued by DIG of Police Operations, Lahore to the present appellant in the following manners:
“As communicated by the CCPO/Lahore vide his office No. 9388-90/R-CCPO dated 02.12.2011, case FIR No. 650/11 dated 11.10.2011 under Section 392, PPC was registered at PS Race Course on the complaint of Constable (Driver) Qamar Abbas No. 355 that you alongwith Constable Sohail Akhtar N. 23423 had taken his (Constable Driver's) official motorcycle No. LEG-1213 (Honda-125) on 11.10.2011 for obtaining CBC test from Shaukat Khanam Laboratory near Shadman Market. On your way back from the Laboratory, two persons snatched away the official motorcycle from you on gunpoint and left their motorcycle CD-70 (without Number) at Mall Road under-pass.
An enquiry into the allegations was conducted by the SSP/D&I, Lahore who concluded that while coming back from the Laboratory, you alongwith Constable Sohail Akhtar had started checking of the documents of a motorcycle (CD-70) from the boys riding on it, for ulterior motives. You also made their personal search but they had no documents with them. You alongwith Constable Sohail kept on roaming with the accused so that they give you money as illegal gratification. On failure to get money from the accused, you alongwith constable Sohail tried to take them to the police station and asked accused Shehbaz to drive the official motorcycle towards the police station but both the accused succeeded to flee away taking the official vehicle with them. You called DSP Mazhar Hussain (your father) on the spot who immediately got the above said case registered at PS Race Course to shroud your guilt and to save your skin that you had done checking of the documents from the accused for personal gains which caused the incident of taking the official vehicle by them, hence, you are guilty of gross misconduct and are liable for strict departmental action against you under Punjab Employees Efficiency Discipline and Accountability Act, 2006.”
7.  Earlier the DIG of Police Operations, Lahore vide his order dated 16.02.2012 by invoking the provisions of PEEDA Act, 2006 awarded major punishment of dismissal from service against the present appellant. Departmental appeal was earlier filed and disposed of by the CCPO, Lahore vide his order dated 04.04.2012 whereby the order dated 16.02.2012 was up held. The Inspector General of Police, Punjab, Lahore also rejected the revision petition vide his order dated 04.07.2012.
8.  The above said orders were earlier challenged by filing service Appeal No. 2933/2012 and it was partly allowed by this Tribunal vide order dated 12.10.2012 and after the order of reinstatement of the appellant, his case was remanded to the competent authority (CCPO, Lahore) to initiate denovo proceedings against the appellant.
9.  During post remand proceedings, vide order dated 5.11.2012, Superintendent of Police, CRO & Computerization, Lahore Mr. Jamat Ali Bukhari was appointed as inquiry officer to conduct inquiry and submitted his findings. After conducting departmental inquiry, Mr. Jamat Ali Bukhari, Police, CRO & Computerization, Lahore submitted his report vide Letter No. 1125-PSO-CRO dated 21.11.2012 by observing that the reply given by the appellant to the charge sheet was found satisfactory and he recommended for taking lenient view against him. On perusing the said inquiry report, CCPO, Lahore without showing any cogent reason ordered for initiation of denovo inquiry and for that appointed DIG Operations, Lahore to carry out inquiry against the appellant under Section 9 of the PEEDA Act, 2006 vide order dated 31.01.2013.
10.  Pursuant to the order dated 31.01.2013, Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore conducted denovo departmental inquiry and recommended major punishment of dismissal from service against the present appellant.
11.  I have gone through the inquiry report submitted by Sr. Superintendent of Police, Investigation, Lahore time and again and feel no hesitation to observe that the said inquiry officer neither recorded the statement of any prosecution witnesses nor he asked the present appellant to put cross-examinations, he mainly relied on the written statement of one Sub-Inspector, Abdul Sattar, who was Investigating Officer of criminal case FIR No. 650/11 under Section 392, PPC registered at Police Station, Race Course, Lahore.
12.  Para No. 4 of the inquiry report is reproduced as follows:--
“4. SI Abdul Sattar, the Investigating Officer of case FIR No. 650/11 under Section 392, PPC PS Race Course, Lahore stated in his written statement (attached as Annexure-D) that during investigation of the case it. transpired that Constable Zeshan Haider and Muhammad Sohail Akhtar stopped accused Muhammad Shahbaz and Muhammad Tanveer near Under Pass, Canal Mall Road who were coming on a without number motorcycle and asked to show the documents of motorcycle. The accused persons did not produce the documents of the motorcycle. Constable Zeshan Haider went on the motorcycle of the accused to bring the vehicle from the P.S. Constable Muhammad Sohail Akhtar could not drive the motorcycle and handed over the motorcycle to the accused Shahbaz for driving and sat their behind. When accused started the motorcycle and accelerated, Constable Sohail Akhtar fell down and accused fled away on official motorcycle. During investigation, it was not proved that the accused were armed. The accused changed the colour of the motorcycle as black. During investigation both the accused persons were arrested, official motorcycle was recovered and challaned to Court.”
13.  Scanning of this Para would bring this fact on the surface that in order to declare the present appellant guilty of the charge, the inquiry officer mainly made his reliance on the investigation carried out by Abdul Sattar, Sub Inspector in a criminal case FIR No. 650/11. It is settled law that opinion of the Investigation Officer is inadmissible in evidence and not relevant for the purpose of any decision or conviction in terms of Article 71 of the Qanun-e-Shahadat Order, 1984. Had there been any incriminating evidence available against the present appellant, inquiry officer could have discussed the same in his inquiry report. The inquiry which was carried out by Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore was apparently defective and not according to the principal of natural justice.
14.  It is necessary to add that major penalty is a serious and extreme punishment in the context of service laws. It means the end of

a person's career. Such penalty can not be imposed lightly and without proof of serious allegation and for that quality of incriminating evidence/ material should be of high standard and the same is missing in the present case.
15.  It is interesting to accentuate that CCPO, Lahore did not appoint Mr. Abdur Rab Chaudhary, Sr. Superintendent of Police, Investigation, Lahore as inquiry officer and there is noting available in the file that as to how Mr. Abdur Rab Chaudhary became the inquiry officer in place of DIG of Police Operations, Lahore. While passing the impugned orders, the above said crucial facts escaped from the notice of the respondents and thus they have committed material illegality.
16.  In view of what has been discussed above, the impugned orders are set aside and the appellant is reinstated in service with all back benefits.
(R.A.)                                                                       Appeal accepted.

Monday, 27 July 2015

Powers of Court in Execution Proceedings

PLJ 2015 Lahore 774
Present: Ali Baqar Najafi, J.
versus
W.P. No. 15567 of 2014, decided on 22.4.2015.
----S. 52--Land Revenue Act, (XXV of 1967), S. 80--Constitution of Pakistan, 1973, Art. 199--Execution proceedings--Responsibility of attorney and surety with judgment debtor is coextensive--Execution of decree can be effected by procedure for recovery of arrears of land revenue--Under Section 52 of C.P.C. executing court can adopt five measures including arrest, detention and prison--Judgment debtor, his attorney as well as his surety cannot frustrate execution of decree for reason that Family Court’s proceedings are special in nature, therefore, executing court will try and put in all efforts to execute decree--Courts are well aware of their powers to ensure execution of their judgments and decrees which are not passed in vacuum and have full support of law and procedure of country.
                                                                                                                        [P. 776] A & C
----S. 13(3)--Execution proceedings--Responsibility of attorney and surety with judgment debtor--Procedure for recovery--Under Section 13(3) of Family Courts Act, 1964 money decree can be executed through process for recovery of arrears of land revenue.
                                                                                                                        [P. 776] B
Mr. Abdul Hameed Rana, Advocate for Petitioners.
Mian Waqas-ul-HaqAdvocate for Respondents No. 3, 4 & 5.
Sardar Faiz Rasul Khan Jalbani, Advocate/amicus curiae assisted by Mr. UsmanNawab, Advocate for Respondents.
Date of hearing: 22.4.2015.
Order
Through this Constitutional petition the petitioners seek setting aside of order dated 02.01.2014 passed by the learned Executing Court/Civil Judge 1st Class and order dated 26.05.2014 passed by the learned Additional District Judge whereby Petitioner No. 1, the brother of judgment debtor, Farooq Ahmed was kept in jail for one year i.e. 06.09.2013 who was to be released on the payment of the amount or after the expiry of the said period.
2.  Brief facts giving rise to the filing of this writ petition are that a decree dated 26.09.2011 was passed against Qamar-uz-Zaman and during the execution proceedings his attorney/brother (Farooq Ahmed) was sent to the civil prison but released on the payment of
Rs. 1,00,000/- and by submitting the surety bond of one Mehboob Ahmed/Petitioner No. 2 to the extent of remaining amount by Farooq Ahmed the general attorney. Meanwhile, Qamar-uz-Zaman returned back from abroad and sent a notice to his brother to cancel the power of attorney by claiming that he has nothing to do with the judgment debtor and also filed an application for his release before the learned Executing Court. The said application was contested on the ground that the balance amount of Rs. 1,40,000/- is his responsibility. Another application for release of the surety filed by Farooq Ahmad/Petitioner No. 1 which was also contested. On 02.01.2014 the learned Executing Court dismissed the application on the ground that since the attorney has been pursuing the case on behalf of judgment debtor throughout and resultantly the decree for the maintenance allowance was passed in favour of the minor i.e. the real son of the judgment debtor and that since he is the real brother of the judgment debtor who paid Rs.1,00,000/- out of total amount of Rs.4,00,000/- with an undertaking to give Rs. 1,00,000/- on the next date of hearing and, therefore, on account of failure the judgment debtor and the attorney have to face legal consequences. The other application for absolving MehboobAhmed/Petitioner No. 2 as surety was also dismissed. The appeal also met the same fate. Hence this writ petition.
3.  Arguments heard. File perused.
4.  Admittedly, Farooq Ahmed/Petitioner No. 1 is the attorney of Qamar-uz-Zaman (Respondent No. 6), his real brother, who has been defending him throughout in a suit for recovery of maintenance allowance by the minor before the Family Court. It is also not denied that Mehboob Ahmed/Petitioner No. 2 is the surety of the attorney, namely, Farooq Ahmed/Petitioner No. 1. It is also not denied that some amount was paid and as a consequence the judgment-debtor was released. The responsibility of the attorney and surety with the judgment-debtor is coextensive and the execution of a decree can be effected by following procedure for recovery of the arrears of land revenue. Under Section 80 of the Land Revenue Act, nine modes have been provided to effect the recovery of such arrears, namely, service of notice, arrest and detention, distress and sale of movable property, by transfer of the holding, attachment of property, by annulment, by sale of holding and by proceedings against other immovable property of the defaulter. Under section 52 of the C.P.C the Executing Court can adopt five measures including arrest, detention and prison. Under Section 13(3) of the Family Courts Act, 1964 the money decree can be executed through the process for recovery of the arrears of land revenue. This special procedure for the recovery of the arrears prescribed under Section 13 of the above Act has been approved in Syed Muhammad versus Mst.Zeenat and others (PLD 2001 SC 128) upheld in Muhammad Sadiq versus Dr. Sabria Sultana (2002 SCMR 1950). The liability of the judgment debtor has been described and upheld by the Hon’ble Supreme Court while interpreting Section 13 of the Family Courts Act in Muhammad Pervez versus Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352). The liability of the surety to receive the decretal amount was made voluntarily and was also acted upon.
5.  Scanning the above case law I am convinced to hold that the judgment debtor, his attorney as well as his surety cannot frustrate the execution of the decree for the reason that the Family Court’s proceedings are special in nature, therefore, the Executing Court will try and put in all efforts to execute the decree. In my humble opinion, the Courts are well aware of their powers to ensure the execution of their judgments and decrees which are not passed in vacuum and have full support of the law and the procedure of the country.

6.  For the above stated reasons, this petition has been found meritless and is, therefore, dismissed.


Power of Attorney must be valid for filing Ejectment Petition

PLJ 2015 Lahore 800
Present: Ibad-ur-RehmanLodhi, J.
versus
A.D.J., FAISALABAD & 2 others--Respondents
W.P. No. 1338 of 2014, decided on 27.4.2015.
----Compulsory registered--Legal significance--It is also by now a settled position that contents of power of attorney shall strictly be construed and no power or authorization is to be read into same, which is not expressly set out therein.                                                                                            [P. 802] A
Ejectment Petition--
----Unauthorized person, who was not duly and specifically authorized to file, sign verify proceed ejectment petition--Power of attorney annexed with petition as valid document--Validity--Document annexed with ejectment petition empowering a law officer of Bank, does not conform to requirements of relevant law, providing a valid document of power of attorney--Bank, if required to initiate a legal proceeding, is under legal obligation to execute a separate and distinct power of attorney authorizing any of its officer in view of resolution of Board of Directors and every such power is to be distinctly provided--While construing present document strictly that does not make it a valid document, which can be called a power of attorney.                            [P. 803] B
M/s. Malik Ali Imran and Hassan Iqbal Warraich, Advocates for Petitioner.
Mian Nisar MahmoodAdvocate for Respondent No. 3.
Date of hearing: 27.4.2015.
Order
This judgment shall dispose of the following writ petitions:--
(i)      Writ Petition No. 1338 of 2014 (Crescent Jute Products vs. A.D.J., Faisalabad & 2 others)
(ii)     Writ Petition No. 2125 of 2014 (M/s. Ittehad Chemical vs. A.D.J., Faisalabad & 2 others)
(iii)    Writ Petition No. 4211 of 2014 (Shamas Textile Mills vs. A.D.J., Faisalabad & 2 others)
as all these petitions have been filed against judgment dated 26.11.2013, passed by a learned Additional District Judge, Faisalabad.
2.  In all these matters, the ejectment petition was filed by the Habib Bank Limited, Respondent No. 3 herein.
3.  The tenant, present petitioner, in addition to other objections, objected to the maintainability of the ejectment petition on the ground that, it was filed by an unauthorized person, who was not duly and specifically authorized to file, sign, verify, proceed the ejectment petition and to appear in such particular ejectment matter on behalf of the Bank.
4.  Issue No. 2 was specifically framed reflecting such controversy, and the learned Special Judge (Rent), while giving findings on said issue, decided in favour of the tenant and held the ejectmentpetition as not competent by means of order dated 30.09.2011.
5.  The Bank preferred an appeal, which came up for hearing before a learned Additional District Judge, Faisalabad, on 26.11.2013, who by reversing the findings of the learned Special Judge (Rent), allowed the appeal and termed the power of attorney annexed with the petition as a valid document and, thus, the eviction of the tenant was ordered.
6.  The learned counsel for the petitioner, while referring the document, shown as Officer’s power of attorney submits that perusal thereof reveals that it is a cyclostyled proforma prepared at Central Office Karachi of the Bank and then circulated in all its regions and wherever it is required, the same is being used, after filling in the blanks by inserting the name of the Officer of the relevant Region, shown to have been appointed as attorney and in general terms, the powers were shown to have been extended in favour of such Officer of the Bank.
7.  The Bank in the ejectment petition has introduced itself as a company incorporated under the Companies Ordinance, 1984, but the document styled as Officer’s power of attorney has been filed without any resolution of the Board of Directors of the Bank, specifically authorizing such nominated person to represent the Bank and to use such power on behalf of the Bank. In absence of such resolution, which is a condition precedent for initiating any legal process on behalf of any legal person, the document calls Officer’s power of attorney would not meet the requirement to initiate a valid proceeding.
8.  The learned counsel for Respondent No. 3-Bank has mainly argued by highlighting the administrative problems of the Bank, to the effect that if the Bank, in every case, is required to execute a separate power of attorney providing specific powers in favour of the appointed attorney to initiate the legal proceedings, it would cause numerous difficulties and incur huge expenses.
This may be the administrative problem of the Bank, but without that, the legal requirements cannot be fulfilled. If the law requires to perform an act in a particular manner, that particular act is to be performed in that manner alone. The Bank keeping in view its stated administrative problems cannot be absolved from its legal duty.
9.  The law of the power of attorney has developed to such extent that the Hon’ble Supreme Court of Pakistan in case of Habib Bank Limited vs. Zelins Limited and another (2000 SCMR 472) has held in clear terms that, if objection was raised about the competence of the Officer of the Bank instituting the ejectment proceedings against the tenants of the Bank, burden lies upon the Bank to establish that the person instituting the ejectment proceedings was authorized by the Bank in that behalf. In case of Messrs A.M. Industrial Corporation Limited vs. Aijaz Mehmood and others (2006 SCMR 437), it was the authoritative view of the Hon’ble apex Court that the ejectment petition of petitioner-company was rightly dismissed on the sole ground that the person, who signed the ejectment petition, was not authorized by the petitioner-company through a resolution of Board of Directors nor any power of attorney was executed in his favour for institution of ejectment proceedings.
10.  Viewing from another angle, the document introduced as power of attorney is not of any legal significance, as the same lacks its registration under the Registration Act, 1908, and Stamp Act, 1899. Such power of attorney is compulsorily registerable.
11.  It is also by now a settled position that the contents of power of attorney shall strictly be construed and no power or authorization is to be read into the same, which is not expressly set out therein.

12.  The document annexed with the ejectment petition empowering a law officer of the Bank, does not conform to the requirements of relevant law, providing a valid document of power of attorney. The Bank, if required to initiate a legal proceeding, is under legal obligation to execute a separate and distinct power of attorney authorizing any of its officer in view of the resolution of the Board of Directors and every such power is to be distinctly provided. While construing the present document strictly that does not make it a valid document, which can be called a power of attorney.
13.  The findings on Issue No. 2 arrived at by the learned Special Judge (Rent) on 30.09.2011 were, thus, justified and having legal backing, which were erroneously reversed by the learned first appellate authority. The findings of the learned first appellate authority arrived at on 26.11.2013 are not sustainable, thus, the same are set-aside by restoring the findings and final order passed by the learned Special Judge (Rent).
14.  The result of above peroration is that, all these petitions are allowed, and the ejectment petitions filed by the Bank are held as filed by an incompetent person on behalf of the Bank and, thus, were not proceedable.

Saturday, 25 July 2015

Exit From Pakistan Control Ordinance 1981

THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981
(XLVI OF 1981)
CONTENTS
1. Short title, extent and commencement
2. Power to prohibit exit from Pakistan
3. Review
4. Punishment
5. Power to make rules
TEXT
THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981
(XLVI OF 1981)
[21st December, 1981]
An
Ordinance
to provide for the control of exit of certain persons from Pakistan.
Whereas it is expedient to provide for the control of exit of certain persons from Pakistan.
And whereas the President is satisfied that circumstances exist which render it necessary
to take immediate action:
Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read with
the Provisional Constitution Order, 1981(CMLA Order No 1 of 1981) and in exercise of all powers
enabling him in that behalf, the President is pleased to make and promulgate the following
Ordinance:
1. Short title, extent and commencement.— (1) This Ordinance may be called the Exit from
Pakistan (Control) Ordinance, 1981.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Power to prohibit exit from Pakistan.— (1) The Federal Government may, by order,
prohibit any person or class of persons from proceeding from Pakistan to a destination outside
Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.
(2) Before making an order under sub-section (1), the Federal Government shall not be
necessary to afford an opportunity of showing cause to the person against the order.
(3) If, while making an order under sub-section (1) it appear to the Federal Government
that it will not be in the public interest to specify the ground on which the order is proposed to be
made, it shall not be necessary for the Federal Government to specify such grounds.
3. Review.— (1) Any person aggrieved by an order of the Federal Government under subsection
(1) of section 2 may, within fifteen days of the making of the order, make a representation
to the Federal Government for a review of the order, setting out in the representation the grounds
on which he seeks the review.
(2) The Federal Government may, after giving the person making a representation an
opportunity of being heard, make such order as it may deem fit.
(3) Subject to the order of the Federal Government in review, an order under subsection
(1) of section 2 shall be final and shall not be called in question before any courts or other
authority.
4. Punishment.— Whoever contravenes, or attempts or conspires to contravene, or abets
the contravention of, any order made under sub-section (1) of section 2 shall be punishable with
imprisonment for a term which may extend to five years.
5. Power to make rules.— The Federal Government may, by notification in the official
Gazette, make rules for carrying out the purposes of this Ordinance.

Wednesday, 22 July 2015

Freedom of Travel is denied when name is placed in ECL

PLJ 2010 Karachi 13 (DB)
Present: Sarmad Jalal Osmany and Aziz Ullah M. Memon, JJ.
Mian MUNIR AHMED--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others--Respondents
Constitutional Petition No. D-91 of 2005, decided on 3.5.2005.
Constitution of Pakistan, 1973--
----Art. 199--Exit From Pakistan (Control) Ordinance, 1981, S. 2--Constitutional petition--Fundamental right of freedom to travel--Request to put petitioner name in the exit control list--Mere pendency of civil/criminal cases against a citizen is no ground to deny fundamental right of freedom to travel within or without Pakistan--No reasons have been given in the notification whereby the petitioner's name was put in the exit control list, which would mean the petitioner had been condemned unheard--Although Government could in exercise of powers available under Section 2 of the Exit from Pakistan (Control) Ordinance, 1981, place the name of a citizen on the exit control list, However, such power could not be exercised arbitrarily or without giving right of a fair hearing to a citizen against whom action is proposed to be taken--Petition was allowed.
                [Pp. 14 & 15] A
1989 CLC 79; PLD 1997 Lah. 619; 1998 MLD 490; PLD 1999 Kar. 177; PLD 2003 Pesh. 102; 2003 CLC 246 & PLD 2003 Kar. 708.
Mr. Hassan Akbar, Advocate for petitioner.
Mr. S. Mehmood Alam Rizvi, DAG.
Mr. Shaukat H. Zubedi, DPGA, NAB.
Date of hearing: 3.5.2005.
Order
Learned Counsel for the petitioner submits that admittedly no reason has been given in the notification dated 10.10.1998 issued by the Ministry of Interior and Narcotics Control, Government of Pakistan whereby the name of the petitioner was placed in the Exit Control List. However, per copy of the letter of said Ministry filed by the Learned DAG, dated 08.04.2005, the petitioner was placed in the list on the recommendation of FIA/SEP as he was loan defaulter. Per Learned Counsel, according to dated 13.01.2005 of the State Bank ofPakistan filed alongwith the Petition, the petitioner's name was not recommended to be placed in revised ECL forwarded to the Ministry of Finance, on 09.02.2003. Even otherwise per Learned Counsel, it is settled law that mere pendency of criminal and civil matters against a citizen is no ground to deny the freedom as guaranteed by the constitution to travel within or without Pakistan.
Furthermore, per Learned Counsel, according to the list of cases supplied today which were filed against the petitioner viz. 25 in number out of which 19 have been disposed of and 3 of them being criminal cases filed before the Banking Court rest being suits, executions and appeals etc. At the moment, the petitioner is a party in only 6 known civil matters pending before the Courts which relate to the Central Cotton Mills Limited, in which the petitioner was the Director and which has now been wound up by this Court. In this regard he has relied upon Abdul Hafiz Pirzada V/s. Government of Pakistan (1989 CLC 79), Wajid Shamas-ul-Hassan V/s. Federation of Pakistan (PLD 1997 Lahore 617), Arshad Sami Khan V/s. Federation of Pakistan (1998 MLD 490), Saleem Akhtar V/s. Federation of Pakistan (PLD 1999 Karachi 177), Major (Retd) Mir Mazhar Qayyum V/s. Federation of Pakistan (1999 YLR 111), Munawar Ali Sherazi V/s. Federation of Pakistan (PLD 1999 Lahore 459), Babar Khan Ghori V/s. Federation of Pakistan (PLD 1999 Karachi 402), Sikandar Hayat Khan V/s. Government of Pakistan (PLD 2003 Peshawar 102), Mehtab Ahmed V/s. Federation of Pakistan (2003 CLC 246) and Hashmat Ali Chawla V/s. Federation of Pakistan (PLD 2003 Karachi 705).
For all the foregoing reasons, Learned Counsel has prayed that the Petition be allowed as prayed.
Learned DAG and the Learned DPGA, NAB have only submitted that the petitioner's name has been put in the ECL since he was loan defaulter and the cases are pending against him.
We have heard the Learned Counsel for the petitioner. Learned DAG and Learned DPGA, NAB. It would be seen that as per settled law mere pendency of civil/criminal cases against a citizen is no ground to deny  him  fundamental  right  of  freedom  to  travel  within  or  without Pakistan. Similarly, it would be seen that no reasons have been given in the notification whereby the petitioners name was put in the Exit Control List, which would mean the petitioner had been condemned unheard. Although Government could in exercise of powers available under Section 2 of the Exit From Pakistan (Control) Ordinance, 1981 place the name of a citizen on the Exit Control list. However, such power could not be exercised arbitrarily or without giving right of a fair hearing to a citizen against whom action is proposed to be taken a.
In view of the foregoing observations, we are of the opinion that this Petition should be allowed to the extent that the petitioner may go abroad and return to Pakistan freely as the Learned Counsel has not pressed the challenge to vires of the Ordinance mentioned above. Order accordingly.
(S.S.)       Petition allowed.

Placement of Name on Exit Control List

PLJ 2011 Lahore 552
[
Rawalpindi Bench Rawalpindi]
Present: Asad Munir, J.
ZIA MOHYUDDIN--Petitioner
versus
ADDL. DIRECTOR (EMIGRATION FEDERAL INVESTIGATING AGENCY AIRPORT, KARACHI etc.--Respondents
W.P. No. 3273 of 2009, decided on 4.12.2009.
Exit from Pakistan (Control) Ordinance, 1981--
----S. 2(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power of Federal Government to prohibit any person from proceeding abroad--Petitioner was selected and awarded a scholarship by HEC for pursuing a master degree programme in South Korean University--Agreement deed was executed between the parties--Surety bond was also executed to effect that all the expenses incurred on his education shall be repaid to HEC if after successful completion of office studies training he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by HEC and sough employment outside Pakistan without prior approval of HEC--Grievance in breach of agreement failed to pay him the last two month stipend US Dollar and forced him to return to Pakistan without letting him undergo the training in a South Korea which was necessary after obtaining the degree as per deed of agreement--After successful completing the degree, petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC but no effort was made by HEC to find a job for him in a public sector--Petitioner challenged his inclusion in watch list for being arbitrary and violative of his fundamental rights of movement and education and also in breach of deed of agreement--Validity--Power to prohibit any person from leaving Pakistan must be exercised by means of an order which would be communicated to affected person as soon as the order was passed u/S. 2(1) of Ordinance--If any order was passed by same was not communicated to the person, it would be a case of arbitrary exercise of power if the order was kept secret only to surprise the person later the moment he was leaving the country--Held: High Court had occasion to go through the SOP issued by FIA which includes a list of person who can be kept on the watch list and stopped from leaving Pakistan--List includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they had acted in breach of their contrast with HEC or were leaving the country in breach of the condition which obliges them to stay in Pakistan for a period of time--Further held: High Court was unable to understand as to what lawful authority or lawful reason HEC had to have the name of petitioner placed in watch list which led to off-leading of the petitioner from the plane when he was on his way to South Korea--HEC as well as FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to korea--Acts of placement of the petitioner in the watch list/E.C.L and disallowing petitioner to proceed to south korea were declared to be unlawful and without lawful authority--Respondents were directed to remove the name of petitioner from watch list and to allow him to proceed abroad without any let or hindrance and without any delay.          [Pp. 554, 555, 556 & 557] A, B, C, D, G, H & J
Watch List--
----Words and Phrases--Watch list is a mere euphemism for E.C.L. as in either case FIA exercises its authority to ensure that the person in-question does not leave the country.            [P. 556] E
Exit Control List--
----Placement of a person on watch list or E.C.L. curtails the freedom of movement of a citizen--Held: A person cannot be placed in watch list/E.C.L. unless a show-cause notice and opportunity of hearing is provided to him before the adverse action is taken against him.      [P. 556] F
Higher Education Commission--
----Agreement deed between petitioner and H.E.C.--Civil remedy of damages--In case petitioner failed to serve in Pakistan as directed by HEC for a period of two years--Money spent on the petitioner by HEC for education would become payable--Even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages--HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan.            [P. 557] I
Mrs. Raila Sabohi, Advocate for Petitioner.
Mr. Attiq-ur-Rehman Kiani, Advocate for (Standing Counsel).
Malik Anwar Mukhtar, Advocate for Respondent No. 3 alongwith Mr. Asif Kaleem (Project Manager).
Date of hearing: 4.12.2009.
Order
Brief facts giving rise to this petition are that the petitioner, Zia Mohyuddin vide letter dated 23.6.2006 was selected and awarded a Scholarship by Higher Education Commission, Respondent No. 3, for pursuing a Masters Degree Programme in a South Korean University. After the award of Scholarship to the petitioner, a deed of agreement dated 21.7.2006 was executed between the petitioner and Respondent No. 3.
2.  Clauses 5, 8 and 10 of the said agreement, being relevant, are reproduced below:-
5.  "During two years of Master Programme the Scholar shall not undertake employment whether paid or otherwise without approval of the HEC. After completion of MS Programme, the six months training at Korean Industries is not the subject of this clause."
8.  "after the completion of master programme (in approved filed) and on the job training in one of the leading Korean Industry. The Scholar shall serve public sector Universities/R & D Organization inPakistan for two years."
10.  "If an awardee after completion of masters programme, gets a Ph.D. Scholarship from sources other then HEC, he may do so, getting approval from HEC, subject to the undertaking given by him in writing and HEC prescribed format, that after completion of Doctorate Programme, he/she will return to Pakistan and serve any University/R & D Organization from 2 years.
3.  Simultaneously, a surety bond was also executed by the petitioner to the effect that all the expenses incurred on his education in South Korea shall be re-paid to the Higher Education Commission if after successful completion of office studies/training, he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by the Higher Education Commission and sought employment outside Pakistan without prior approval of Higher Education Commission.
4.  The petitioner did go to Korea for the two years Masters course but his grievance is that the Respondent No. 3 in breach of the agreement failed to pay him the last two months stipend i.e. 1400 US Dollars and forced him to return to Pakistan without letting him undergo the training in a South Korea Industry, which was necessary after obtaining the degree as per clause 5 of the deed of agreement. Aftersuccessfully  competing  the  Masters degree, in a Korean University, the petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC, but no effort was made by HEC to find a job for him in a Public Sector University or R & D Organization in the country.
5.  Having found no job on his own or through Respondent No. 3, the petitioner felt frustrated till he was offered a scholarship by a South Korean University for Ph.D. in the field of Bio Medical Engineering. The petitioner joined the Ph.D. Programme in South Korea and came back to Pakistan to meet his parents but on 19.8.09 when he took the flight to return to South Korea, he was off loaded by FIA, who arrested him and put him in FIA Jail, Saddar Karachi. As it transpired later, the petitioner was off-loaded because he was put on the watch list by FIA at the behest of HEC. After getting released from FIA Jail, the petitioner requested the Chairman HEC to allow him to proceed abroad for completion of his Ph.D. but there has been no response.
6.  Through the present writ petition, the petitioner has challenged his inclusion in the Watch List for being arbitrary and violative of his fundamental rights of movement and education and also in breach of the Deed of Agreement between the parties.
7.  Learned Standing Counsel as well as Mr. Asif Kaleem (Project Manager), Malik Anwar Mukhtar (Law Officer) of HEC, have opposed the petition on the ground that the petitioner must not leave in the country as under clause 8 of the Deed of Agreement and the Surety Bond he is bound to serve in Pakistan for two years even if no job is available for him.
8.  A reference to the Exist from Pakistan (Control) Ordinance, 1981, would be necessary to see in what circumstances, the authorities have the power to stop a person from leaving the country. Section 2(1) of the Ordinance empowers the Federal Government to prohibit any person from proceeding abroad. As per list published by the Ministry of Interior, the following categories of persons can be placed in Exit Control List:--
a.         Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property.
b.         Government employees involved in economic crime where large Government funds have been embezzled or institutional funds committed.
c.         Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening natural security.
d.         Key directors of firms having tax default/liabilities of Rs. 10 Million or more.
e.         Only 2-3 Key directors of firms having more than Rs. 100 Million loan default/liabilities.
f.          Names of persons if recommended by the Registrar, High Courts/Supreme Court of Pakistan and Banking Courts only.
However, the power to prohibit any person from leaving Pakistan must be exercised by means of an order which should be communicated to the affected person as soon as the order is passed under Section 2(1) of the Ordinance. This means that if any order is passed but the same is not communicated to the person concerned, it would be a case of arbitrary exercise of power if the order is kept secret only to surprise the person later the moment he is leaving the country. It appears that the phrase "Watch List" is a mere euphemism for Exit Control List as in either case the FIA exercises its authority to ensure that the person in question does not leave the country. Since the placement of a person on the Watch List or Exist Control List curtails the freedom of movement of a citizens, it is settled law that a person cannot be placed in the said list unless, a show cause notice, and opportunity of hearing is provided to him before the adverse action is taken against him. In this regard, reference can be made 2008 CLD 1607. So far as the facts of the present case are concerned, the inclusion of the petitioner's name in the watch list was done secretively as the petitioner was never served with any notice that his name was included in the watch list let alone providing him an opportunity of hearing before placing him in the Watch List. On these grounds alone, the acts of Ministry of Interior/FIA culminating in the off loading of the petitioner from the plane is without unlawful authority.
9.  I have also had occasion to go through the SOP issued by FIA, which includes a list of persons, who can be kept on the Watch List and stopped from leaving Pakistan. The subject list includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they have acted in breach of their contract with HEC or are leaving the country in breach of the condition, which obliges them to stay in Pakistan for a certain period of time.
10.  I am unable to understand as to what lawful authority or lawful reason HEC had to have the name of the petitioner placed in the watch list which led to the off-loading of the petitioner from the plane when he was on his way to South Korea. It may be stated here that along with the Deed of Agreement, the petitioner also submitted a bond to the HEC on the prescribed performa, which was to the effect that in case the petitioner failed to serve in Pakistan as directed by HEC for a period of two years, the money spent on the petitioner by HEC for his education in Korea, would become payable. As such even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that the HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages. However, HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan. It is also to be kept in view that admittedly, the petitioner could not find a job in Pakistan nor one was found for him by HEC. In the circumstances, HEC could not reasonably have any objection to let the petitioner go abroad to improve his qualifications by acquiring a Ph.D. Degree instead of sitting idle in Pakistan.
11. In view of the aforesaid discussion, HEC as well as Ministry of Interior/FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to Korea. Therefore, the acts of placement of the petitioner in the Watch List/Exist Control List and disallowing the petitioner to proceed to South Korea are declared to be unlawful and without lawful authority. The respondents are directed to remove the name of the petitioner from the Watch List and to allow him to proceed abroad without any let or hindrance and without any delay.
(R.A.)  Petition allowed.

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