Appeal against acquittal in forgery case

 PLJ 2024 Cr.C. 618

[Islamabad High Court]

Present: Arbab Muhammad Tahir, J.

Ms. GHAZALA ALI--Appellant

versus

SIKANDAR RAMZAN Chaudhry and another--Respondents

Crl. A. No. 172 of 2021, decided on 5.12.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 249-A & 417(2A)--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Acquittal from charge--Registration of FIR--Transfer of house--Family settlement agreement--Settlement agreement was not cancelled--FIR was lodged after twenty years of transaction--Report of handwriting expert--Allegation of forgery--Non-implication of respondent--Estate of deceased was settled through an agreement--The appellant and her brother were also signatories of agreement--The said agreement, as per documents, still holds field and was not yet been cancelled by Court of competent jurisdiction despite questioned by appellant and her brother--Subject FIR was got registered by appellant in year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of first agreement wherein she had also been a signatory, challenged same subsequently after twenty years of alleged transaction--Before registration of instant FIR, appellant had already filed suit for cancellation of agreement with a delay of more than twenty years--The report reveals that signatures of late Ch. Ramzan Ali were similar in characteristics with his routine signatures--Report, authenticated and verified by Deputy Director and Director Technical Wing FIA, negated allegation of forgery, as alleged by appellant in her FIR-- Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict respondents for offence alleged, comprised of documents mentioned in recovery memo.--Neither CDA nor Investigation Agency alleged any forgery in preparation of said documents--Entire prosecution evidence did not implicate respondents for commission of alleged fraud and forgery--Appeal dismissed.

                                                      [Pp. 621, 624 & 625] A, B, C, D & E

PLD 2007 SC 386 & 2022 CLC 1064 ref.

Raja Iftikhar Ahmad, Advocate for Appellant.

Mr. Mudassar Hussain Malik, Advocate for Respondents.

Mr. Hazrat Younas for State.

Date of hearing: 8.11.2023.

Judgment

Through the listed criminal appeal in terms of Section 417 (2A) Cr.P.C., “appellant” namely Ms. Ghazala Ali (complainant) impugns order dated 12.10.2021, passed by learned Judicial Magistrate Section-30, Islamabad-West whereby respondents 1&2 namely Sikandar Ramzan Ch. and Ms. Samina Babar Ramzan (‘respondents’) were acquitted in terms of Section 249-A Cr. P.C in case FIR No. 228, dated 25.05.2018, under Sections 420, 468 & 471 PPC, Police Station Aabpara, Islamabad.

2. Precisely, subject FIR stood registered on the complaint of appellant Ms. Ghazala Ali wherein it was alleged that she is daughter of Ch. Ramzan Ali, who was owner of House No. 41, Street No. 12, Sector F-6/3 Islamabad (‘subject house’); that her father died in the year 1990; that her two brothers namely Sikander Ramzan Ch. (Respondent No. 1) and Babar Ramzan Ch. (late), by producing fake person in CDA and putting fake signatures of her father got transferred subject house in their name; that at the relevant time, other brother and sisters had been abroad, therefore, remained unaware regarding said forged transaction; that their father Ch. Ramzan Ali died on 30.10.1990 while the subject house stood transferred in the name of two brothers on 23.11.1991; that her brother Babar Ramzan Ch. died in the year 1992 and at that time their mother Ms. Anwar Sultana was alive and entitled to 1/6th share in subject house; that her mother Ms. Anwar Sultana died in the year 1997; that after the death of her mother, her legal heirs including appellant and brother Tariq Ramzan Ch. were entitled to their due share in the subject house; that in the year 2005 respondents Sikandar Ramzan. and Ms. Samina Babar Ramzan prepared forged succession certificate and fraudulently got transferred the subject house in their names and in the names of their children, thus deprived the appellant and other legal heirs of their legal share in subject house by employing fraud and forgery.

3. After due investigation, report in terms of Section 173 Cr.P.C was submitted before the Court of competent jurisdiction for trial. The said report primarily based upon documentary evidence including the application and transfer forms collected from CDA containing signatures of late Ch. Ramzan Ali and Opinion of Handwriting Expert wherein on examination, questioned signatures of the late found not similar with that of his routine signatures. Subsequently, on an application by Respondent No. 1 regarding tendering of Opinion with fake signatures of the Examiner, supplementary report under Section 173, Cr.P.C. was submitted before the Court with Opinion of Handwriting Expert of even date i.e. 19.04.2019 wherein, the signatures of the late on questioned documents and routine signatures were found similar in nature. At the trial, respondents were charge-sheeted on 31.07.2019 where after they filed an application under Section 249-A, Cr.P.C. The learned Trial Court after hearing the parties, accepted the application vide order dated 12.10.2021, being impugned through the listed appeal.

4. Learned counsel for the parties addressed lengthy arguments by referring previous litigation, both civil and criminal, launched by the appellant and one of her brother Tariq Ramzan Ch. against respondents and others. Both the sides documented the appeal to highlight their respective contentions. Respondents through separate civil misc. placed on record copies of FIRs, orders passed thereupon and copies of civil litigation and orders thereupon besides an agreement-family settlement dated 17.01.1998.

5. The circumference of the submissions advanced by learned counsel for the appellant had been to the effect that respondents by playing fraud and forgery, deprived the appellant and other legal heirs of their share in the subject house; that forgery and fraud is substantiated by the Opinion of Handwriting Expert and that in order to perpetuate illegal act just to grab the property by depriving other legal heirs, respondents subsequently got prepared succession certificate by deliberately concealing all legal heirs and then fraudulently got transferred the subject house in their names and in the names of their children. Learned counsel in support of his submissions referred various documents, tendered before the CDA for the purpose of transfer of allotment of subject house by the respondents. According to learned counsel, the subject transfer of allotment in the name of respondents, on the face of it, is bogus as it was made after the death of Ch. Ramzan Ali, who died on 30.10.1990 while alleged transfer of allotment in the name of respondents was made much later on 23.11.1991, therefore, under the circumstances, proper course for the Trial Court was to record evidence and then decide the case on merits instead to knockout the appellant without affording her due opportunity to produce evidence, thus impugned order being against the spirit of natural justice, contrary to incriminating material made basis to indict the respondents for the alleged offence and offensive to right of fair trial envisaged in Article 10-A of the Constitution is liable to be set aside.

6. On the other hand, learned counsel for respondents vehemently repelled the submissions advanced by learned counsel for the appellant by contending that respondents had been/are facing dense litigation, both civil and criminal, initiated by the appellant and the other brother Tariq Ramzan Ch. while none of the other two sisters came forward to support the appellant; that the matter inter se the parties had already been settled regarding estate of their predecessor through family settlement in the year 1998 where after, appellant and her brother Tariq Ramzan Ch. launched criminal and civil actions, one after the other out of personal grudge and vendetta against widow of their late brother and the other brother with whom they had already settled the family issue; that in an identical case lodged by Tariq Ramzan Ch, respondents were acquitted in terms of Section 249-A, Cr.P.C. and appeal against the said order was also dismissed by this Court with costs, therefore, instant appeal being frivolous, vexatious and offshoot of malicious prosecution launched by appellant, deserves the same treatment.

7. Heard the learned counsel for the parties and consulted the documents made available on file with their able assistance.

8. The parties-to-lis hail from common pedigree. The subject house was owned by Ch. Ramzan Ali (predecessor in interest of the parties) who died on 30.10.1990. the appellant and respondents are closely related with each other. The appellant and Respondent No. 1 Sikander Ramzan Chaudhry are real brother and sister while Respondent No. 2 Ms. Samina Babar Ramzan Ch. is widow of Babar Ramzan Chaudhry, late brother of appellant and sister-in-law (bhabi) of appellant. Late Ch. Ramzan Ali (died in 1990) was survived by Ms. Anwar Sultana (died in 1997) widow, three sons Tariq Ramzan Ch., Sikander Ramzan Ch. (Respondent No. 1), Babar Ramzan Ch. (died in 1992) and three daughters Bushra Bibi, Zahida Parveen and Ms. Ghazala Ali (appellant).

9. As per the documents made available on file, before the rift cropped up between the parties, dispute with regard to estate of the deceased was settled through an agreement dated 17.01.1998. The appellant and her brother Tariq Ramzan Ch. were also signatories of the said agreement. The said agreement, as per documents, still holds the field and has not yet been cancelled/revoked by the Court of competent jurisdiction despite questioned by the appellant and her brother Tariq Ramzan Ch through a civil suit.

10. Record further reveals that appellant and her brother Tariq Ramzan Ch commenced the litigation, both civil and criminal, against respondents and others in the year 2018, then in 2019 and 2020 as well.

The first action was initiated on 09.01.2018 by appellant and her brother Tariq Ramzan Ch by filing suit against respondents and others seeking decree for declaration, partition, cancellation of agreement dated 17.01.1998, permanent and mandatory injunction.

After about five months of filing of said suit on 25.05.2018 appellant got registered FIR, subject matter of instant appeal wherein respondents were acquitted vide impugned order.

Thereafter, on 11.12.2018, Tariq Ramzan Chaudhry got registered FIR No. 432, under Section 420 PPC, at same Police Station i.e. Aabpara Islamabad, regarding preparation of forged agreement dated 13.02.2007 (after more than ten years of said agreement) against respondents. In the said case, respondents were acquitted in terms of Section 249-A Cr.P.C by learned Judicial Magistrate Section-30 Islamabad-West vide Judgment dated 12.10.2021. Tariq Ramzan Chaudhry assailed the said order before this Court through Crl. Appeal No. 199 of 2021 which was dismissed with costs of Rs. 200,000/-. Paragraph 7, 8 and 9 being significant are reproduced:

          “07. Father of the appellant namely Ch. Ramzan Ali, got transferred House No. 41, Street No. 12, Sector F-6/3, Islamabad in the names of his sons Sikandar Ramzan and Babar Ramzan on 11.08.1990, in his life time, by adopting legal procedure in the office of Capital Development Authority, Islamabad.

          08. The deceased father affixed his signatures and thumb impression himself on the transfer application form, consequently transfer letter was issued by the office of C.D.A on 23.11.1991, after the death of Ch. Ramzan Ali but all the legal and codal formalities of transfer of the property were completed on 11.08.1990, during life time of Ch. Ramzan Ali.

          09. When confronted, learned counsel for the appellant has admitted that there is no expert report that the thumb impressions and the signatures of deceased father are fake or forged.” {Emphasis added}

On 20.02.2019, Tariq Ramzan Chaudhry again got registered another FIR Bearing No. 131, under Section 420, 468, 471 PPC, this time at Police Station Civil Lines Rawalpindi, against the respondents on the same allegation of preparing forged agreement dated 13.02.2007. It this juncture, it is necessary to mention that as per stance of respondents said agreement had been made pursuant to original agreement/ settlement of 1998 in order to protect rights of legal heirs.

On 09.05.2019 Tariq Ramzann Chaudhry filed an application against his sister-in-law/Respondent No. 2 Ms. Samina Babar Ramzan for cancellation of guardianship certificate dated 25.07.1995 but the same was dismissed by learned Guardian Judge vide order dated 02.12.2021.

On 11.09.2019 Tariq Ramzan Chaudhry fled suit for declaration, possession, mesne profits and permanent injunction against respondents and others.

On 23.12.2019, one Tariq Masood, employee of Hammad son of Tariq Ramzan Chaudhry got registered FIR No. 435, under Sections 324, 34 and 109 PPC, at Police Station Shalimar Islamabad against respondents and others wherein the latter were acquitted in terms of Section 249-A Cr.P.C by the learned Judicial Magistrate Section 30 Islamabad-West vide order dated 02.11.2021.

On 01.05.2020, Tariq Ramzanan Chaudhry got registered FIR No. 122, under Section 420, 468, 471, 201, 498-A and 466 PC, at Police Station Shahzad Town Islamabad, on the allegation of fraudulent transfer of property of her in laws by excluding other legal heirs wherein Respondent No. 2 Samina Babar Ramzan was allowed pre-arrest bail by learned ASJ-II Islamabad East vide order dated 30.07.2021.

11. Perusal of documents regarding above litigation, launched by appellant and her brother Tariq Ramzan Chaudhry reveals that respondents were subjected to face criminal and civil litigation primarily on the same subject matter. Besides present FIR, four FIRs were got registered against them besides two civil suits, filed by appellant and her brother Tariq Ramzan Chaudhry against respondents and an application for cancellation of guardianship certificate which was dismissed. It appears that the appellant and her brother Tariq Ramzan Chaudhry had been/are keeping the respondents on their target. The above mentioned proceedings though no directly related to subject FIR yet their relevance and significance cannot be ignored, primarily for the reason of having one and the same original cause of action, made basis by appellant and her brother Tariq Ramzan Ch. to launch proceedings against respondents and the aspect that same do form part of judicial record, having direct nexus with the subject matter of instant appeal. Under the principle, documents that retain such like qualifications can be made basis to take judicial notice of the same. Ordinarily, documents are produced through a witness who testifies on oath and who may be cross-examined by the other side. However, there are exceptions with regard to facts which need not be proved; these are those which the Court can take judicial notice of under Article 111 of the Qanun-e-Shahdat Order, 1984 and are mentioned in Article 112, and facts which are admitted (Article 113, Qanun-e-Shahdat Order, 1984), pertaining to part of judicial record, having direct nexus with subject matter of instant appeal. Reliance is placed upon recent pronouncement of the Supreme Court of Pakistan in the case of Manzoor Hussain (deceased) through LRs v. Misri Khan (CA No. 1698 of 2014).

12. Adverting to the merits of the case, it is noticed that the alleged transaction of transfer of allotment in the name of two brothers i.e. Respondent No. 1 Sikandar Ramzan Chaudhry and Babar Ramzan Chaudhry (late), husband of Respondent No. 2 was made in the year 1991 while subject FIR was got registered by the appellant in the year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of the first agreement wherein she had also been a signatory, challenged the same subsequently after twenty years of alleged transaction. Before the registration of instant FIR, the appellant had already filed suit on 09.01.2018 for cancellation of agreement dated 17.01.1998 with a delay of more than twenty years.

13. As there were two reports of Handwriting Expert of even date, filed before the Trial Court along with reports under Section 173 Cr.P.C, one allegedly contained fake signatures of the Official concerned while the other, filed with supplementary report under Section 173 Cr.P.C, testified as genuine. In order to verify the veracity of the report, on the direction of this Court, FIA filed comprehensive report on 24.10.2022 highlighting the procedure and SOPs, being followed for examination of questioned documents. As per said report, made part of file, after careful examination and adopting due process, report was prepared by the concerned official, then examined and approved by Deputy Director Technical and thereafter Director Technical Wing FIA. The report dated 19.04.2019 reveals that signatures of late Ch. Ramzan Ali are similar in characteristics with his routine signatures. Thus, report, authenticated and verified by the Deputy Director and Director Technical Wing FIA, negates allegation of forgery, as alleged by the appellant in her FIR and pressed to seek full-length inquiry on the basis of reports containing fake signatures of the official concerned, which of course, deserves stern departmental action against the delinquent/s, after tracing them out by the FIA and the police as well.

14. Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict the respondents for the offence alleged, comprised of documents mentioned in the recovery memo. The same are allotment letter in the name of original owner pertaining to the year 1964, application form for transfer of allotment, requisition of transfer application, document containing signatures of late-predecessor in interest of the parties, transfer letter, application for transfer of share, letter of transfer of allotment in the name of Respondent No. 2, letter of division of subject house and photo copies of CNICs. None of these documents even remotely suggest that any fraud, as alleged, had been played by the respondents. It was also for the reason that neither the CDA nor the Investigation Agency alleged any forgery in preparation of said documents. Therefore, entire prosecution evidence did not implicate the respondents for commission of alleged fraud and forgery.

15. It is well settled that in terms of Section 249-A Cr.P.C, the Magistrate may acquit an accused at any stage of the case if, after hearing the prosecutors and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. The prerequisites for invoking the power in terms of Section 249 Cr.P.C are to the effect that before passing the order, Magistrate should hear the parties and consult the incriminating material and draw opinion regarding acquittal on the basis of said incriminating material only in case when the charge appears to be groundless or there is no probability of the accused being convicted of any offence. In the present case, as discussed above, charge against respondents, on examination of incriminating material, appears to be groundless and there was no probability of the respondents being convicted of any offence, in case prosecution was allowed to lead entire prosecution evidence.

16. To sum up, on careful examination of incriminating material, made basis to indict the respondents coupled with the fact of launching dense litigation, both civil and criminal highlighted above, by the appellant and her brother Tariq Ramzan Ch., whose identical appeal was earlier dismissed by this Court with costs, it can safely be held that charge against the respondents was groundless and there was no remote probability of their conviction in case the prosecution was allowed to produce entire evidence.

17. It is significant to note that instant case appears to be a classic example of frivolous litigation. It appears that there was blatant abuse of process of law to settle personal vendetta instead to agitate genuine grievance despite the fact that parties are closely related to each other. Such frivolous, vexatious and speculative litigation unduly burdens the Courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such type of litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs. The specter of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the process fee and lawyer’s fee paid in relation to the litigation. The imposition of costs in frivolous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivolous claims or defences brought to the Court but also absence of such cases allows more Court time for the adjudication of genuine claims. The imposition of costs lay foundation for expeditious justice and promotes a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous, vexatious and speculative claims and defences. The imposition of costs encourages alternative dispute resolution; settlements between the parties; and reduces unnecessary burden of the Courts, so that they can attend to genuine claims. The costs are a weapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into Court. Reliance is placed upon Qazi Naveed ul Islam v. District Judge, Gujrat etc. (CP 3127 of 2020), Province of Balochistan v. Murree Brewery Company (PLD 2007 SC 386 (5-MB), Vinod Seth v. Devinder Bajaj (2010) 8 SCC) and Edwin Coe LLP v. Naseem Ahmad Sarfraz Khan (2022 CLC 1064-Islamabad).

18. In view of above, impugned order, being in accordance with law and facts of the case, does not call for any interference. Consequently, by following the course adopted by learned co-equal Bench while dismissing Crl. Appeal No. 199 of 2021, titled “Tariq Ramzan Chaudhry v. Sikander Ramzan etc.” instant appeal is dismissed with costs of Rs. 200,000/-which the appellant shall pay to respondents within a period of two months from the date of this judgment. In case of non-payment of costs by the appellant within the prescribed time, same shall be recovered from her as money decree with 10% monthly increase, and the costs of the execution proceedings shall also be recovered in addition thereto. Office is directed to transmit copy of this judgment to IG, ICT and DG FIA to hold in-depth inquiry and proceed against the delinquent(s) in accordance with law in terms of Paragraph 12 above.

(Y.A.)  Appeal dismissed

Non Payment of Pensionary Benefits

 PLJ 2024 AJ&K 99

Present: Syed Shahid Bahar, J.

MUHAMMAD BASHIR KHAN--Petitioner

versus

AZAD GOVT. OF THE STATE OF JAMMU & KASHMIR through its Chief Secretary, Muzaffarabad, Azad Kashmir
and others--Respondents

W.P. No. 759-A of 2020, decided on 19.1.2024.

Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971--

----Rr. 5.1 & 5.2--AJK Interim Constitution, (VIII of 1974), Art. 44--Retirement after superannuation--Non-payment of pensionary benefits--Obligation of--Direction to--petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order had not been finalized after passing many years till today--All concerned authorities were under legal obligation to sanction pension a month before date of retirement--This statutory provision had been ignored which resulted into creating hardships and anomalous situations and agony for retiring petitioner--Petition accepted.                                                               [P. 102] A, B & C

2015 SCR 1396 ref.

Barrister Humayun Nawaz Khan, Advocate for Petitioner.

Representative of Education Department.

Date of hearing: 19.1.2024.

Judgment

1. Expressum Facit Cessare Tacitum.

Supra maxim of law denotes that something expressed nullifies what is unexpressed. If doing of a particular thing was made lawful doing of something in conflict with that would unlawful.

2. So the thing must be done in a way/procedure prescribed for it to get its validity in the eye of law otherwise it would not be conferred legality.

3. Lax and abstracted authority instead of adopting pragmatic approach slept over the matter for a long time, resultantly the petitioner a retired employee has been deprived from pensionary benefits. Exfacie it is a worst type of maladministration and administrative injustice on part of the relevant authority. Loath petitioner feeling aggrieved as a last resort invoked the extraordinary jurisdiction of this Court conferred under article 44 of the Interim Constitution, 1974. Thus, this Court cannot remain aloof and on looker.

A stanza from William Shakespeare’s sonnets :

4. The phoenix and tratle drew my attention while handing down the judgment in hand:

Truth may seem, but cannot be; beauty brag, but’ til not she; Truth and beauty buried be.

5. All sort of power take breath and colour from the power bank of relevant statutes under the umbrella of the Constitution.

6. Voltaire rightly said that every man is guilty of all the good he did not do.

7. Pensions are periodic payments, usually for the natural life of a person who retires because of age or disability, sometimes, the term refers to periodic payments to wives, widows or children of a primary deceased person or pensioner, occasionally, a pension will be conveyed solely as an honour for conspicuous service or valour. Pensions are provided by Government in three guises:

1)       As compensation to war veterans and families for old age or for disability or death, usually from service causes;

2)       As disability or old age retirement benefits for civilian employees of government; and

3)       As social security payments for the aged, differently abled or deceased citizenry based on past.

Pension is a Right:

8. It goes without saying that a person who enters Government Service has something to look forward to post his/her retirement which are called retirement benefits, of which grant of pension is the most valuable of such benefits. Pension like salary of a civil servant is no longer a bounty or an ex-gratia payment but a right accrued / acquired in consideration of his/her past service which was a vested right with legitimate expectation. The right to pensions conferred by law which cannot be abridged or reduced arbitrarily except in accordance with such law.[1]

9. Through the titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner is seeking direction against the respondents to issue the Pension Payment order of petitioner and pay him monthly pension alongwith all benefits in accordance with law.

10. Brief facts forming background of the instant writ petition are that the petitioner is 1st Class State Subject of Azad Jammu and Kashmir, and he was retired from service as Junior Clerk on 26.02.2013 upon his superannuation vide order dated 15.03.2017 from Girls High School Nalian, District Sudhnoti. The petitioner contended that the respondents even after laps of more than three years (now six years) failed to pay the pension to the petitioner by issuing his pension payment order, under pretext of an audit para against the Girls High School Nalian, District Sudhnoti. The petitioner submitted various applications for obtaining his legal right of pension, but all in vain. Lastly, the petitioner submitted an application on 26.11.2019 and affidavit dated 29.1.2020 that in case any liability is declared against him, he would be liable for the same. The petitioner alleged that District Education Officer (Female) Elementary and Secondary Education wrote to the Headmistress of Girls High School Nalian, District Sudhnoti vide letter dated 03.03.2020 for issuance of NOC but she refused to issue the same on the ground that at relevant time of retirement, she was not holding the post of Headmistress, Girls High School Nalian, District Sudhnoti. The D.E.O E/S also wrote to the DPI (female) E/S vide letter dated 16.03.2020 by enclosing petitioner’s affidavit but no progress is being made till to date.

11. Writ petition was admitted for regular hearing on 07.07.2020 and respondents were directed to file written statement but respondents have failed to submit written statement, hence, their defence was closed on 1.2.2022.

12. Arguments heard. Record perused.

13. The claim of the petitioner is that respondents be directed to issue the Pension Payment Order of petitioner and pay him monthly pension alongwith all benefits of pension for which he is entitled, in accordance with law.

14. A perusal of file it reveals that the petitioner-Muhammad Bashir Khan on completion of age of superannuation dated 26.02.2017, retired from his service as a Junior Clerk from Girls High School Nalian, District Sudhnoti, vide order dated 15.03.2017 with all pensions privileges alongwith leave encashment. Annexure “PB” reveals that petitioner filed an application before D.P.I Schools (female) for obtaining NOC on 26.11.2019, which was received in the said office on 13.12.2019, however, after passing many years NOC has not been issued by the official quarters with one or the other reasons and petitioner herein has been constrained to approach this Court by filing this petition.

15. The petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order has not been finalized after passing many years till today. Delaying of pension of the petitioner is against the spirit of law and concept of good governance as well as creates a question mark upon the performance of the official quarters. Whereas, according to the statutory provisions all the concerned authorities are under the legal obligation to sanction the pension a month before the date of retirement. It is usefully to refer here rules 5.1 and 5.2 of the Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971, as infra:

“5.1. All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive his pension on the date on which it becomes due.

5.2. The responsibility for initiation and completion of pension papers is that of the Head of Department/ Attached Department concerned in the case of gazette officers, and of the Head of Officer concerned in the case of non-gazzetted Government servants. The action should be initiated one year before a Government servant is due to retire, so that pension may be sanctioned a month before the date of his retirement. For this purpose, every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement.

          Provided that in case in which the date of retirement cannot be foreseen 6, months in the advance, the Government servant, may be asked to submit his pension application immediately after the date of his retirement is known.”

16. In this regard, reference can be placed upon the case reported as 2015 SCR 1396.

17. Unfortunately, this statutory provision has been ignored which resulted into creating hardships and anomalous situations and agony for the retiring person/petitioner.

18. For reason recorded above, the instant writ petition is accepted and official-respondents are directed to take immediate

actions regarding payment of pension to the petitioner and finalize the pension matter of the petitioner within a period of one month, and after doing needful, compliance report be submitted to Registrar of this Court. One Lac rupees (Rs. 1,00,000/-) cost is imposed to the Education Department as well.

File shall be kept in record room.

(Y.A.)  Petition accepted

---

[1].      Deokinandan Prasad v. State of Bihar (AIR 1971 SC 1409); Govt. of N.W.F.P v. Muhammad Said Khan (PLD 1973 SC 514); State of Punjab v. Iqbal Singh (AIR 1976 SC 667); I.A. Sharwani v. Govt. of Pakistan (1991 SCMR 1041); Secretary, Government of Punjab v. M. Ismail Tayer (2014 SCMR 1336); Pakistan Telecommunication Employees Trust v. Muhammad Arif (2015 SCMR 1412) and Riffat Sattar v. Govt. of Punjab [2016 PLC (C.S) 472].

Application for Impleadment in Appeal

 PLJ 2022 Lahore 437

[Multan Bench, Multan]

Present: Sultan Tanvir Ahmad, J.

Mst. SHAHNAZ PARVEEN--Petitioner

versus

Mst. ASMA KALSOOM & 20 others--Respondents

C.R. No. 113 of 2018 & C.R. No. 1674 of 2017, decided on 13.9.2021.

Civil Procedure Code, 1908 (V of 1908)--

----S. 42--Suit for declaration--Decreed--Appeal Filing of application
for impleadment as party during pendency of appeal--Accepted--Matter was remanded--Producing of documents at appeal stage
by respondent--Determination of documents--Challenge to--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and or chance to produce makers and witnesses of documents--Any ruling as to authenticity of documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and/or appeals-- Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed.       [Pp. 439 & 441] A, C & D

PLD 1962 SC 291 ref.

Power of Court--

----Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter.

                                                                                              [P. 439] B

Malik Muhammad Tariq Nonari, Advocate for Petitioner (in Revision Petition No. 113-2018).

Mr. Iqbal Hussain Jafri, Advocate for Respondents.

Mr. Iqbal Hussain Jafri, Advocate for Petitioner (in Revision Petition No. 1674-2017).

Malik Muhammad Tariq Nonari, Advocate for Respondents.

Date of hearing: 13.9.2021.

Judgment

Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.

2. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.

3. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst. Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.

4. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1, Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.

5. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.

6. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.

7. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.

8. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.

9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.

10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.

11. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):

".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is

negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. "

(Emphasis supplied)

12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.

13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.

14. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.

15. C.M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.

(Y.A.)  Petition dismissed

Legal Character of an Electric Inspector is not that of Court

 PLJ 2007 Lahore 10

[Multan Bench Multan]

Present: Fazal-e-Miran Chauhan, J.

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through its EXECUTIVE ENGINEER, MEPCO LTD.,

MULTAN--Petitioner

versus

M/s. HUSNAIN INDUSTRIES (PVT.) LTD. through the M.D., MULTAN and 4 others--Respondents

W.P. No. 436 of 2005, decided on 13.6.2005.

(i)  Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (I of 1983)--

----Arts. 9(1), 10(3)--Constitution of Pakistan (1973), Art. 199--Jurisdiction of the Wafaqi Mohtasib--Constitutional petition--Objection that since the matter was subjudice before the Electric Inspector, jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of S. 9(i) of Ordinance, 1983, was laid down--Held: No reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board."           [P. 14] A

 

(ii)               Electricity Act, 1910 (IX of 1910)—

 

 

----S. 36--Constitution of Pakistan (1973), Art. 199--Legal character of an Electric Inspector--Under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court--He does not act as a Court under the Arbitration Act the role assigned to the electric inspector is to determine the dispute under the Electricity Act.     [P. 14] B

 

 

 

(iii)             Electricity Act, 1910 (IX of 1910)—

 

 

----Ss. 36 & 52--Constitution of Pakistan, 1973 Art. 199--Arbitration Act, 1940, S. 52--Under Section 52 of the Electricity Act or the same has already been decided by him.          [P. 14] C

 

(iv)              Constitution of Pakistan, 1973—

 

 

----Art. 199--Establishment of Office Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Art. 32--Constitutional petition--Maintainability--Principle of laches and gross negligence--Alternate adequate remedy--It is declared that Writ Petition is hit by principles of laches--Petition dismissed.

            [P. 15] D

1974 SCMR 82; 1974 SCMR 38; PLD 2003 SC 123 & PLD 2004 SC 127 ref.

Mr. Muhammad Ashraf Sh., Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondent No. 1.

Ch. Saghir Ahmad, Standing Counsel with Haq Nawaz, Asstt. Wafaqi Mohtasib, Regional Office, Multan and Muhammad Sabir, Electric Inspector, Multan.

Date of hearing: 17.5.2005.

Order

Through this writ petition the petitioner has challenged the order dated 24.6.1998 passed by the Electric Inspector, Multan Region and order dated 20.2.1999 passed by the learned Advisory Board Govt. of Punjab, Irrigation and Power Department by which the application of the Respondent No. 1 consumer has been concurrently allowed and uphold.

2.  Brief facts of the case are that Respondent No. 1 is the consumer of petitioner (Wapda) running a Ghee Mills by using allotted Account No. 5121-959200 B-2 with sanctioned load fo 209 KW. All electric energy consumption bills were paid regularly and no arrear whatsoever was outstanding aginst the respondent. In the month of September, 1996, the Revenue Officer (P), WAPDA, Mumtazabad, Division, Multan issued electricty bill amounting to Rs. 604607/- against consumption of units of 5391 to the Respondent No. 1. Respondent No. 1 approached E.D.O. (L) WAPDA Mumtazabad Sub-divisions, Multan to enquire about the issuance of such excessive bill of Rs. 6,04,507/-. Respondent was informed that in the month of August, 1996, a Surveillance Team checked the meter of the Ghee Mills and found the meter slow @ 56.86%. The respondent challenged the report of the Surveillance Team, but he was directed to first deposit the disputed bill and then his grievance will be looked into by the petitioner, failing which his meter may be disconnected. Left with no option, the Respondent No. 1 deposited the disputed amount in favour of the petitioner and also requested to re-check the meter in presence of the respondent. As a result thereof, the working of the meter was found in-different and slowness was charged for the period May, 1996 to September 1996 and was found accurate during October, November, December 1996. As the behaviour of the meter was changed the metering equipment was ordered to be replaced and respondent consumer was allowed a refund of Rs. 5,97,181/- in the term of report of Surveillance Team. Being dissatisfied with the report, the Respondent No. 1 preferred an application, and under Section 26(2) Electricity Act, 1910 before Electric Inspector, Multan Division, Multan Respondent No. 2.

3.  The Electric Inspector after soughting reply, and record from the petitioner, hearing both the parties, and going through documentary evidence of both parties by his a very detail and elaborated order, declared that SDO of the petitioner played a drama of losses MLJ reading, just to cover up their losses and prove slowness. Meter of the respondent was not found to be slow in the said period. He directed the petitioner to refund the payment received as detection bill and also to serve Respondent No. 1 with bill for the month of September, 1996 as reading recorded by the KW meter actually and with actual multiplying factor.

4.  The petitioner preferred appeal before Respondent No. 3 (Advisory Board, Govt. of Punjab etc.) The respondentBoard dismissed the appeal of the petitioner, and decision of the Electric Inspector was upheld by order dated 20.2.1999. After 20.2.1999 petitioner filed this writ petition on 29.12.2004 challenging the order dated 24.6.1998.

5.  It is argued by the learned counsel for the petitioner that respondent paid the electricity bill, raised in view of the decision of the accredited authority of the department conveyed dated 8.8.1996 without any protest. The checking was carried out in presence of consumer, who also participate in test check but he refused to sign the report. Thereafter respondent was estopped to assail the same before Electric Inspector, request of consumer/respondent when acceded to recheck of meter by detective staff, there was no bonafide and lawful excuse to agitate the verdict of the 2nd report dated 24.12.1996. It is further argued that Respondent No. 2 (Electric Inspector) had no jurisdiction to determine the dispute. It was only Civil Court which has the jurisdiction to entertain and decide dispute involving monitory matter. Respondents Nos. 2, 3 did not adopt the procedure and decided the matter simply on the basis of the reports submitted, without checking the metering equipment. The law prescribes that, the thing to be done in accordance with the manner envisaged by law. The proceedings conducted by Respondent No. 2 are violative of Section 2.6(6) of Act of LX 1910. It was mandatory for Respondents Nos. 2 and 3 to convey the decision to licensee but they failed to convey the decision. The petitioner came to know when he received notice from the office of Wafaqi Mohtisab for implementation of the decision of the Respondents Nos. 2, 3. That without approaching the Civil Courts by filing suit for recovery and by affixing Court fee of Rs. 15,000/-, the consumer is not entitled to recover the amount. The consumer moved Respondent No. 4 illegally for recovery of alleged claim. Even otherwise Respondent No. 4 has no jurisdiction to take cognizance in the matter, which remains pending before the competent forum under the Electricity Act, 1910. There is further remedy under the law after decision of Electricity Act 1910, Respondent No. 4 is not the executing agency. There is a limitation imposed u/s 10(3) of Order 1 of 1983. Any claim beyond three months is not sustainable. The claim of the Respondent No. 1 is four year old and was barred by law and was to be subjudice before proper forum. That under Article 9 of the Wafaqi Mohtasib (Ombudsman) Order (PO 1 of 1983) matter pending before same Court or tribunal etc, were kept out of the jurisdiction of Ombudsman under Article 10(1) of Order 1 of 1983. The complaint of a person is competent and not that of a company, even otherwise respondent is estopped by his own conduct after the elapse of 6 years.

6.  On the other hand, learned counsel for the Respondent No. 1 argues that both decisions dated 24.6.1998 of the Electric Inspector and that of the Advisory Board dated 20.2.1999 are being challenged after elapse of almost 5 years is hit by principal of laches. That the Electric Inspector and Advisory Board decided the matter after hearing both the parties, the Advisory Board rejected the appeal filed by the petitioner holding that Respondent No. 1 was entitled to be refund of Rs. 6,04,607/- charged as an amount of 56.86% slowness of the meter for the month of May 1996 to September 1996, because in the opinion of the committee the meter was defective during May 1996 to September 1996, and the same became correct and was declared not slow from October 1996 onward.

7.  The Advisory Board rightly declared that the meter remains accurate during May 1996 to 31.12.1996, and the checking made by the petitioner/appellant in August 1996 declaring the meter to be slow to the extent of 56% was not correct, and decision of Electric Inspector dated 24.6.1998 was upheld and appeal of WAPDA was rejected on 20.2.1999. The petitioner remains silent and no remedy by way of filing writ was availed against the order of Electric Inspector and of Advisory Board Act, which attained finality. Now this writ petition, filed, challenging the order of Respondent No. 2 & 3 is hit by laches. The delay has not been explained. The impugned order passed by the competent authority was perfectly legal and had been passed in lawful exercise of authority and jurisdiction, and does suffered from any infirmity either in law and equity. High Court shall decline to interfere with such order in exercise of extra ordinary constitutional jurisdiction. He further argues that petitioner is guilty of gross negligence and laches is not entitled to the equitable relief. One, who seeks equity, must show that equities lean in his favour. The explanation, given in the application for condonation of delay is not explanatory. "And does not warrant condonation of delay. The explanation put forth does not inspire confidence. As has been held in L.H. Shaikh vs. General Manager, Karachi Telecommunication Region and others (1974 SCMR 82). Misplacement of file in the office of the petitioner is not supported by any document showing that any action was taken against such official held responsible for such misplacement. The Government is in no better position, then other, litigant is such matter. In civil matter, delay in filing appeal or petition, save in exceptional cases, shall not be lightly condoned, as a valuable right had accrued to the other party, who cannot be deprived of that except for very substantial reason. To make department of Govt. exception to this rule would be placing premium on negligence and want of proper diligence in public officer. As has been held in Chief Settlement and Rehabilitation Commissioner and another vs. Ghulam Ghaus etc. (1974 SCMR 38) and Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore vs. Syed Ashfaque Ali and others (PLD 2003 SC 123). It is further argued that an alternate adequate remedy by way of filing of representation to the President under Article 32 of the Establishment of Wafaqi Mohtasib (Ombudsman) Ordinance I of 1983 is available to the petitioner. The writ petition is pre-mature and the same may dismissed on this score only. Reliance is placed on Pakistan Railway vs. Abdul Barik Khan and others (PLD 2004 SC 127).

8.  I have heard the learned counsel for the parties at the limine stage. The argument advanced by the learned counsel for the petitioner mainly revolves around the jurisdiction of the Wafaqi Mohtasib. It is argued that, since the matter was subjudice before the Electric Inspector, the jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of sub-section (1) of Section 9 of Ordinance 1 of 1983.

9.  Proviso A of sub-section (1) of Section 9 laid down that:

"Mohtisab shall not have any jurisdiction to investigate or inquires into any mark which is, a; are subjudice before a Court of competent jurisdiction or judicial tribunal or Board in Pakistan on the date of the receipt of the complaint, reference or motion by him".

From the bare perusal of the above proviso-A it is clear that jurisdiction to investigate or inquire into any matter is barred only when the dispute referred through the complaint, reference or motion to the Wafaqi Mohtisab the same is pending adjudication before a Court/Judicial Tribunal or Board. Here in the present case, the dispute was referred to the Electric Inspector, whose decision was not being implemented by the petitioner, respondent moved a complaint to the Wafaqi Mohtisab on 9.8.2004. On this date, when the complaint was filed no reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board.

10.  Under Section 36 of the Act 1910 the Federal Government may by notification in official Gazette, appoint duly qualified person to be Electric Inspector or Provincial Government may, by notification in official Gazette, appoint duly qualified person to be Electric Inspectors within such area as may be assigned to them respectively. The Electric Inspector has been assigned an important role so far as determination of dispute arising under the Act, 1910. In deciding the case under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court. He does not act as a Court under the Arbitration Act. The role assigned to the Electric Inspector is to determine the dispute under the Electricity Act.

11.  Under Section 52 of the Arbitration Act where any matter is by or under this act directed to be determined by arbitration, the matter is referred to the Arbitrator nominated by the Provincial Government in this behalf. Its means that the appointment of Electric Inspector under the Electricity Act, (under Section 36) is not that of an Arbitrator. Meaning thereby, the Electric Inspector so nominated by the Federal Government or Provincial Government does not act as a Court or an Arbitrator. Thus, the proceedings pending before Electric Inspector are not proceedings pending before a Court or Tribunal creating bar on the jurisdiction of Ombudsman conferred under Article 9 of the Ombudsman Ordinance, 1983. Thus, the objection raised had no force that Ombudsman has no jurisdiction to entertain the complaint/reference, where the matter was pending before the Electric Inspector or the same has already decided by him.

12.  Conversely, learned counsel for the respondent argued that the Writ Petition filed by the petitioner is premature, the decision of the Electric Inspector for he refund of excess amount received by the petitioner was upheld by the Advisory Board on the appeal filed by the petitioner. Thereafter, the petitioner kept silent and never agitated the dispute before any Court of competent jurisdiction. Through this writ petition, the petitioner has challenge the order of Ombudsman by which the petitioner is directed to comply with the orders the Electric Inspector dated 24.6.1998 confirmed by the Advisory Board on 20.2.1999. If the petitioner feels aggrieved of the orders of Ombudsman he had a remedy under Section 32 of the Wafaqi Mohtisab Ombudsman Ordinance, 1983 to make a representation to the President of Pakistan. Here in this case the petitioner without availing the remedy available under the law has filed the writ petition challenging the jurisdiction of Ombudsman to decide the complaint filed by the respondents. Hence, the writ petition be dismissed being premature.

13.  He further argues that the petitioner who is guilty of gross negligence and laches is not entitled to equitable relief. One, who seeks equity must show that equity leans in his favour. In the present case, the order of Electric Inspector dated 24.6.1998 directed refund of amount received illegal by the petitioner was upheld by the Board by dismissing the appeal of petitioner on 20.2.1999 and after elapse of more than 4 years the present writ petition has been filed which hopelessly time barred and is hit by laches.

14.  The explanation given in the application for condonation of delay is not self-explanatory and does not inspire confidence. The misplacement of file in the office of the petitioner is not supported by any evidence showing the bona fides of the petitioner. The Government is not in a better position then the ordinary litigants in such matter. Since, no plausible explanation has been given for not filing the writ petition within the reasonable time. It is declared that writ petition is hit by principle of laches.

15.  For what has been discussed above, the writ petition is dismissed in limine being not maintainable.

(Mehmood Ahmed Alvari)    Petition dismissed.