Powers of Wafaqi Mohtasib are limited

 PLJ 2016 SC 796

[Appellate Jurisdiction]

Present: Amir Hani Muslim, Ejaz Afzal Khan and Tariq Parvez, JJ.

PESHAWAR ELECTRIC SUPPLY COMPANY LTD.--Petitioner

versus

WAFAQI MOHTASIB (OMBUDSMAN) ISLAMABAD and others--Respondents

C.P. No. 701 of 2016, decided on 25.7.2016.

(On appeal against the judgment dated 4.12.2015 passed by the Peshawar High Court, Peshawar, in Writ Petition No. 1796-P/2015).

Words & Phrases--

----Mal-Administration--Dictionary meaning of term 'mal administration' is “to handle a matter inefficiently or improperly”.

                                                                                              [P. 799] A

Establishment of Office of Wafaqi Mohtasib Order, 1983--

----Ss. 9(1) & (2)--Conferment of powers--Mal-practices--Ma-administration against public functionaries--Power of appointment--Wafaqi mohtasib can only exercise powers which are not in conflict with language of Arts. 9(1) and (2) of Order--High Court while dismissing petition has inter alia, held that Petition was not competent as an alternate remedy, in terms of Art. 32 of Order, was available--Wafaqi mohtasib did not have jurisdiction to order and or recommend appointment of a person on 20% quota reserved for employees of different categories.            [Pp. 799 & 800] B & C

1994 SCMR 728, PLD 2001 SC 142 & PLD 2004 SC 99, ref.

Establishment of Office of Wafaqi Mohtasib Order, 1983--

----S. 9(2) & 32--Order of wafaqi mohtasib--Recommendations of wafaqi mohtasib--Implementation--Mal-administration against public functionaries--Question of--Whether order confers authority on ombudsman to entertain grievance of nature under garb of power granter and whether wafaqi mohtasib can recommend appointment of such nature by relaxing upper age limit of a person--Validity--Appointment and or recruitment in a public sector company like petitioner is an executive function and such function cannot be performed by Wafaqi Mohtasib under Art. 9 of Order which excludes his jurisdiction to entertain a complaint of nature--If, ex facie, ombudsman is not conferred with such a power, and order of nature is passed by it, High Court can always in exercise of its constitutional jurisdiction rectify such error--An alternate remedy provided under Art. 32 of Order cannot restrict Constitutional jurisdiction of High Court--Order of wafaqi mohtasib was outside domain of Art. 9--Jurisdiction of wafaqi mohtasib is expressly excluded in cases of personal grievances of public servants or functionaries serving in any “Agency” in respect of maters relating to their service--It is well established law that his order can be interfered with by High Court in exercise of its constitutional jurisdiction--Alternate remedy to aggrieved to approach president of Pakistan by filing a representation against order of wafaqi mohtasib, but where order of Wafaqi Mohtasib, on face of it, is against language of Art. 9 of Order or without jurisdiction, High Court can exercise its constitutional jurisdiction so as to prevent injustice done to an aggrieved.                                                    [P. 800] D, E, F & G

Mr. Abdul Rauf Rohaila, ASC and Mr. M.S. Khattak, AOR for Petitioner.

Hafiz Ahsan-ud-Din Khattak, AOR and Raja Abdul Ghafoor, AOR for Respondents (1-2).

Rana Waqar Ahmed, Addl. AG on Court Notice.

Date of hearing: 25.7.2016.

Judgment

Amir Hani Muslim, J.--Through these proceedings, the Petitioner has impugned the judgment dated 04.12.2015, of the Peshawar High Court whereby Writ Petition filed by the Petitioner against the order of Wafaqi Mohtasib was dismissed, inter alia, on the ground that the Petitioner has failed to avail the alternate remedy provided under Article 32 of the Establishment of the Office of Wafaqi Mohtasib Order, 1983 (hereinafter referred to as the Order).

2.  The relevant facts of the case are that owing to the unsatisfactory performance of WAPDA, its power wing was privatized and distribution companies were created in various areas for distribution of electricity which, for operational purposes, seek guidance from PEPCO. The Peshawar Electric Supply Company (Pvt.) Ltd (PESCO) was created and incorporated under the Companies Ordinance, 1984, to distribute electricity in the Province of Khyber Pakhtunkhwa. PESCO has no statutory rules and its employees are regulated by the service rules of WAPDA, PEPCO and Government Service Rules.

3.  On 08.04.2004, WAPDA issued an Office Order, directing, inter alia, that 20% of the posts in BS-01 to BS-09 in all categories are reserved for the children of WAPDA deceased or retired employees and employees who died during service. The point in issue between the parties is that certain persons filed applications before the Wafaqi Mohtasib for a direction to the PESCO to appoint them in the PESCO against the said 20% quota, after relaxing certain conditions. Thereafter, the Wafaqi Mohtasib made recommendations for their appointments after relaxing the prescribed conditions. Not only that, the Wafaqi Mohtasib also issued notices to the PESCO for implementation of these recommendations.

4.  The PESCO impugned the recommendations of the Wafaqi Mohtasib and the letters for implementations before the Peshawar High Court, through a Writ Petition which was dismissed vide impugned judgment dated 04.12.2015, inter alia, on the ground of maintainability. Hence this Petition for leave to Appeal.

5.  The learned Counsel for the Petitioner has contended that the jurisdiction of the Ombudsman is dependent on the provisions of Article 9 of the Order. According to him, Article 9(1) clearly demarcates powers conferred on the Ombudsman under the Order. In substance, the jurisdiction of the Ombudsman to entertain a complaint is dependent on the term “mal-administration” used in Article 9. He submits that neither the Ombudsman has the power to order and recommend any appointment in the Petitioner-Company, nor can it implement the recruitment policy of the Petitioner-Company, in view of bar contained under Article 9 of the Order. In support of his contention, he has relied upon the case of Raft Ullah Khan v. Settlement Commissioner, Lahore (1998 SCMR 84).

6.  As against this, the learned Additional Attorney General while supporting the impugned judgment, has contended that the term “mal-administration” includes recruitment policy and the Ombudsman can recommend the appointment of this nature. He next contended that the Ombudsman can recommend under Article 9 of the Order for appointment on the 20% quota of the Petitioner's employees by relaxing the age.

7.  We have heard the learned Counsel for the Petitioner, the learned Law Officer and have perused the record with their assistance. The legislature has established the office of the Wafaqi Mohtasib by introducing the Order of 1983. By an Act XIV of 2013, called the Federal Ombudsman Institutional Reforms Act, the legislature has further supplemented the aforesaid Order. Both these legislative instruments are meant to confer powers on the Wafaqi Mohtasib to deal with the complaints of mal-administration against the public functionaries as provided under Section 2(2) of the Order.

8.  It is not possible to mould the term “mal-administration” used in Article 9(1) of the Order under a rigid definition. The dictionary meaning of the term 'mal-administration' is “to handle a matter inefficiently or improperly”. In its wider sense, it refers to various types of mal-practices which are opposed to law, fair play and principles of equity and justice. In common parlance, the introduction of the office of the Ombudsman and the conferment of powers upon it through the Order was styled to check administrative excess and abuses of bureaucracy. However these powers, within the Order, are not absolute and are subject to the restrictions contained in Article 9 of the Order. In other words, the Wafaqi Mohtasib can only exercise powers which are not in conflict with the language of Article 9 (1) and (2) of the Order. The term “mal-administration” has been interpreted by this Court in a number of cases reported as Muhammad Mumtaz Khan Bhaba vs. Special Court of Mr. Justice Munir. A Shaikh, (1994 SCMR 728), Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) and Capital Development Authority vs. Zahid Iqbal (PLD 2004 SC 99)

9.  In the case in hand, the learned High Court while dismissing the Writ Petition of the Petitioner has, inter alia, held that the Petition was not competent as an alternate remedy, in terms of Article 32 of the Order, was available. The grievance of the Petitioner was that the Wafaqi Mohtasib did not have the jurisdiction to order and or recommend the appointment of a person on the 20% quota reserved for the employees of different categories referred to in paragraph 3 above, who were admittedly over age. We have to examine as to whether the Order confers authority on the Ombudsman to entertain grievance of the nature under the garb of powers granted to him under Article 9 of the Order. In other words, whether the Wafaqi Mohtasib can recommend the appomtment of this nature by relaxing the upper age limit of a person? We are of the considered view that the appointment and or recruitment in a public sector company like Petitioner is an executive function and such function cannot be performed by the Wafaqi Mohtasib under Article 9 of the Order which excludes his jurisdiction to entertain a complaint of the nature.

10.  If, ex facie, the Ombudsman is not conferred with such a power, and the order of the nature is passed by it, the High Court can always in exercise of its constitutional jurisdiction rectify such error. An alternate remedy provided under Article 32 of the Order cannot restrict the Constitutional jurisdiction of the High Court once it comes to the conclusion that the Order of the Wafaqi Mohtasib was outside the domain of Article 9. Sub-article (2) of Article 9 clearly indicates that jurisdiction of Wafaqi Mohtasib is expressly excluded in cases of personal grievances of public servants or functionaries serving in any “Agency” in respect of the maters relating to their service. The term “Agency” has been defined in Article 2(1) of the Order which means a Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporations or other institution established or controlled by the Federal Government. The Petitioner is a Company and is controlled by the Government and clearly falls within the purview of term “Agency”, therefore, the jurisdiction of Wafaqi Mohtasib is barred under clause 2 of Article 9 of the Order.

11.  The question as to whether the learned High Court can entertain a Constitutional Petition against an order of the Wafaqi Mohtasib, it is well established law that his order can be interfered with by the learned High Court in exercise of its constitutional jurisdiction if the Petitioner satisfies that the order of the Wafaqi Mohtasib is without jurisdiction. We have not lost sight of Article 32 of

the Order which provides alternate remedy to the aggrieved to approach the President of Pakistan by filing a representation against the Order of Wafaqi Mohtasib, but where the Order of the Wafaqi Mohtasib, on the face of it, is against the language of Article 9 of the Order or without jurisdiction, the High Court can exercise its constitutional jurisdiction so as to prevent injustice done to an aggrieved.

12.  In this backdrop we are satisfied that the jurisdiction of Wafaqi Mohtasib is limited as provided under Article 9 of the Order and he cannot order and or recommend appointment of a person in the Petitioner-Company under any of the categories mentioned hereinabove which power rests with the executive authorities. The above are the reasons for our short order which reads as under:--

“For reasons to be recorded later, this petition is converted into Appeal and allowed. The impugned judgment is set aside.”

(R.A.)  Appeal allowed

Importance of 342 Statement in a Criminal Trial

PLJ 2018 SC 453[Appellate Jurisdiction]

Present: Manzoor Ahmad Malik, Faisal Arab & Mazhar Alam Khan Miankhel, JJ.

MUHAMMAD SADDIQUE--Appellant

versus

STATE--Respondent

Crl. Appeal No. 298 of 2013, decided on 6-6-2017.

(On appeal from the judgment dated 12-11-2012 passed by the High Court Balochistan Quetta in Crl. Appeal No. 09/09 & M. R. No. 1/09)

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 47--Death of witness--Earlier statement--Evidentiary value--Held: Validity--When a witness meets a natural death or other circumstance as provided in Article 47, before recording of his statement before Court, then in that case, evidence of such person authorized under law to record same become relevant for purpose of proving those fact but it should be between same parties or their representatives and that person is cross examine during process.

                                                                                              [P. 456] A

Criminal Procedure Code, 1898 (10 of 1898)--

----S. 342--Incriminating material--Production of--Principle--Any piece of incriminating evidence must be put to accused in his statement under Section 342, otherwise same cannot be used against him.

                                                                                              [P. 457] B

Dr. Farhat Zafar, ASC for Appellant.

Mr. Tahir Iqbal Khattak, Addl. PG Punjab for State.

Date of hearing: 6.6.2017.

Judgment

Mazhar Alam Khan Miankhel, J--This appeal with leave of this Court is directed against the judgment dated 12.11.2012 of the High Court of Balochistan whereby the convictions and sentences awarded to the appellant by the trial Court were maintained/upheld by dismissing his appeal and Murder Reference No. 01/ 2009 was answered in affirmative. The appellant was convicted by the trial Court under Section 302(b), PPC and was sentenced to death on two counts with a further direction to pay Rs. 100,000/- as compensation to the legal heirs of the deceased persons Peer Muhammad and Muhammad Aslam as provided under Section 544-A, Cr.P.C He was also convicted under Section 324, PPC and sentenced to ten years R.I. with fine of Rs. 20,000/- and in default whereof to further suffer S.I. for two months. He was also convicted under Section 337-F(iii), PPC and directed to pay a sum of Rs. 30,000/- as Daman to the legal heirs of injured Jumma Khan with further direction that till the recovery of Daman amount he shall remain in S.I.

2.  The appellant Muhammad Saddique was indicted by the Sessions Judge Khuzdar, Balochistan to face trial in case FIR No. 17/1999 levies dated 17.2.1999, Police Station Nall registered under Sections 302, 324, 337, PPC. After fullfledged trial, the trial Court vide its judgment dated 09-01-2009 convicted appellant as above. The appellant then questioned his convictions vide an appeal before the High Court which was dismissed. Thereafter his Criminal Petition for leave to appeal before this Court was allowed vide order dated 30.09.2013. Hence this appeal.

3.  We have heard learned counsel for the appellant as well as learned Additional Prosecutor General and have perused the record with their assistance.

4.  The case of the prosecution is that on 17.02.1999 at about 9:00 a.m. the appellant allegedly fired at Peer Muhammad and Muhammad Aslam sons of Saleh Muhammad Complainant/ PW-1 and his father Jumna Khan. The complainant who was present nearby his fields was attracted to the spot on hearing the fire shots. The moment he reached the spot, his two sons, who succumbed to the injuries, were lying in the pool of blood and mud whereas his father Jumma Khan was lying in an injured condition who informed him that Muhammad Saddique appellant (the real brother of the complainant, uncle of both the deceased and son of Jumma Khan injured) has fired at them and has decamped from the spot. The matter was accordingly reported and a proper case was registered against the accused/appellant vide above stated FIR.

5.  Initially this case was tried by a Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (the ‘Act of 1975’) and the appellant was tried in absentia because of his absconsion and was convicted by the Special Judge but his conviction was set-aside vide judgment dated 26.09.2007 by the High Court by way of his jail appeal after his arrest and a trial afresh was ordered by keeping the appellant as under trial prisoner. During the trial in absentia, complainant Saleh Muhammad appeared as PW-1, Lal Bukhsh son of Imam Bukhsh as PW-2, Jumma Khan son of Saleh Muhammad as PW-3, Dr. Ahmad Khan appeared as PW-4 and Mehboob Ali, Naib Tehsildar, who registered the FIR, appeared as PW-5.

6.  Since the appellant was absconder so initially incomplete challan was submitted but for a trial afresh, complete challan was submitted by the S.H.O. Prosecution to prove its case against the accused/appellant again produced complainant Saleh Muhammad as PW-1 who narrated the story given in the FIR. PW-2 Dr. Ahmad Khan produced Medico Legal Certificate of Jumma Khan, injured PW, as Ex.P/2-A and death certificates of Peer Muhammad and Muhammad Aslam, the two deceased, as Ex.P/2-B & C respectively. Report of occurrence was recorded in the shape of FIR by Mehboob Ali, Naib Tehsildar who appeared as PW-3. Jan Muhammad appeared as PW-4 who initially informed the Naib Tehsildar Mehboob Ali. Nasir Khan SHO submitted the complete challan and appeared as PW-5. After recording of the prosecution evidence statement of accused under Section 342, Cr.P.C. was recorded who simply denied the commission of offence. He refused to record his statement on oath under Section 340(2), Cr.P.C. and also refused to produce any defence evidence on record.

7.  The most important aspect in this case is that the only direct evidence available to the prosecution was the ocular account to be furnished by the injured eye-witness Jumma Khan, father of the complainant and the appellant but during the trial afresh, only the statement of CW-1 Abdul Karim son of Rehmat Ullah constable No. 1476 was recorded who was given the task of service of summons of said Jumma Khan to appear in the Court as a witness. He by producing the certificate from the Local Nazim, disclosed that Lal Bakhsh and Jumma Khan PWs have met their natural death. Jumma Khan PW (appeared as PW-3 in trial in absentia) was the person who was an injured eye-witness of the occurrence and his evidence was the only direct evidence against the appellant but during fresh trial he alongwith Lal Bakhsh were reported to have met their natural death and were no more in this mortal world. The trial Court on receiving the death report from CW-1 straight away accepted and considered the earlier statement of said Jumma Khan without being brought on the record according to law and passed his judgment of conviction which too was upheld by the High Court through the impugned judgment.

8.  The law on the point is very much clear and settled. When an accused is absconding, the trial Court has to issue proclamation and attachment under Sections 87/88 Cr.P.C. When the absconsion is established and proved on the record, then the trial Court can proceed with the matter under Section 512, Cr.P.C. and record the evidence of all the witnesses which later on can be used against the accused in the circumstances provided in Section 512(1), Cr.P.C. But it was not the case where proceedings under Section 512, Cr.P.C. were to be initiated and completed against the appellant rather the appellant was tried in absentia by the Special Court under the Act of 1975 as provided under Section 5-A(4) of the said Act. The basic difference between the two is that in the former case, only evidence in absentia is recorded under Section 512(1), Cr.P.C. which can be used against the accused in the circumstances as provided in Section 512(1), Cr.P.C. but the Court cannot record conviction after recoding evidence in absentia under Section 512, Cr.P.C. whereas in the latter case, it is full fledge trial of the accused in absentia under Section 5-A(4) of the Act of 1975 and the Court under Special Law is empowered to record conviction of the person in absentia as was done in the earlier trial of the appellant. While coming back to the facts and circumstances of the case, the High Court in earlier Jail Appeal after arrest of the appellant had set aside the conviction so recorded in absentia and sent back the case to the trial Court for fresh regular trial. Here in this situation the prosecution again was duty bound to lead entire evidence to prove its case beyond any shadow of doubt against the appellant. Prosecution has again produced available evidence but has not bothered to look after the ocular account earlier furnished by the injured eye-witness Jumma Khan who according to report met a natural death before initiation of the trial de novo. Such an evidence was necessary to prove the charge against the appellant. The law also caters for such like situation that when a witness meets a natural death or other circumstances as provided in Article 47 of the Qanun-e-Shahadat Order, 1984 before recording of his statement before the Court, then in that case the evidence of such person earlier recorded in any judicial proceedings or before any person authorized under the law to record the same becomes relevant for the purpose of proving those facts but it should be between the same parties or their representatives and that person is cross-examined during that process. Article 47 of the Qanun-e-Shahadat Order, 1984 caters the situation which is reproduced for ready reference:--

47. RELEVANCY OF CERTAIN EVIDENCE FOR PROVING, IN SUBSEQUENT PROCEEDING, THE TRUTH OF FACTS THEREIN STATED.--Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided that:--

the proceeding was between the same parties or their representatives-in-interest,

the adverse party in the first proceeding had the right and opportunity to cross-examine;

the questions in issue were substantially the same in the first as in the second proceeding.

By keeping in mind the above provision of law and facts and circumstances of the earlier judicial proceedings against the appellant though in absentia but under the Special Law, it was the bounden duty of the prosecution to have brought the said evidence on the judicial record. The statement of said Jumma Khan was neither before the Court nor was brought on the record in accordance with law. The record of the case is completely silent in this regard. No doubt the statement of said Jumma Khan was recorded in the trial in absentia but that cannot be considered/looked into by the trial Court on its own especially when that has not been brought legally on the judicial file and is there in the file of trial in absentia. Besides the above all, not a single question of earlier statement of Jumma Khan recorded during the trial in absentia was ever put to the appellant during his statement recorded under Section 342, Cr.P.C. Law on the subject is very much clear and settled that any peace of incriminating evidence must be put to accused in his statement under Section 342, Cr.P.C. otherwise the same cannot be used against him. Here in this case, the trial Court has based its judgment of conviction by keeping in mind the earlier statement of the ocular account of Jumma Khan which legally was not before the Court and the long standing abscondence of the appellant. There is nothing on the record to establish the abscondence of the appellant in the shape of proceedings under Sections 87/88 Cr.P.C. So

for that matter, the appellant in reply to the question of his absconsion has simply denied.

9.  Prosecution in this case has also failed to bring on record any supportive or corroborative peace of evidence to prove the guilt of accused. There is no recovery of weapon of offence. No motive is brought against the appellant. Though the question of Article 47 was agitated before the High Court in appeal but that was not appreciated by the High Court.

10.  So, for what has been discussed above, we are of the considered view that the prosecution has failed to prove the guilt of appellant to the hilt. Resultantly, this appeal is allowed. The sentence and conviction of the appellant are set aside. He is acquitted of the charges. He shall be released forthwith, if not required or detained in any other case.

The above are the reasons for our short order of even date which reads as under:

“For detailed reasons to follow, this criminal appeal is allowed. The conviction and sentence of the appellant-Muhammad Siddique are set aside. He is acquitted of the charges. He shall be released forthwith, if not required or detained in any other case.”

(W.I.B.)           Appeal allowed