Term ‘police authorities’ used in Section 22-A(6), Cr.P.C. is wide enough to include FIA

 PLJ 2022 Lahore (Note) 83

Present: Ali Zia Bajwa, J.

NATIONAL BANK OF PAKISTAN and another--Petitioners

versus

STATE and others--Respondents

W.P. No. 30742 of 2021, decided on 21.5.2021.

Constitution of Pakistan, 1973--

----Art. 199--Availability of alternate remedy--Jurisdiction of Justice of peace--Police authorities--Powers of Police officials--Maintainability--To challenge vires of inquiry conducted by Federal Investigating Agency on allegations of illegal issuance of loans and money laundering--Question of--Whether term ‘Police authorities’ used in Section 22-A(6), Cr.P.C. includes F.I.A. and if it does, whether judicial review under Article 199 of Constitution is maintainable--Crucial question emerging for consideration is whether F.I.A. falls within expression ‘police authorities’ as used in Section 22-A(6), Cr.P.C.--Ex-officio justice of peace is very much competent to issue directions to respondents as it can issue to Provincial police and contention of counsel for petitioners regarding lack of jurisdiction of ex-officio justice of peace in matters of F.I.A. is not tenable--Term ‘police authorities’ used in Section 22-A(6), Cr.P.C. is wide enough to include FIA officials and does not only connote provincial police authorities especially when FIA authorities can use all powers of a police officer of provincial police under Cr.P.C.--Directions under Section 22-A(6), Cr.P.C. can be issued to F.I.A. as status of F.I.A. is also of police--An aggrieved person can also seek his remedy against F.I.A. by filing complaint before ex-officio justice of peace--Provisions of Section 22-A (6), Cr.P.C. were made part of statute book with object to reduce burden of this Court by designating Sessions Judges and on their nomination Additional Sessions Judges as ex-officio justice of peace to share powers of this Court--Due to availability of an adequate and efficacious alternative remedy under Section 22-A (6), Cr.P.C. instant writ petition is not maintainable.

                                      [Para 1, 11, 12, 13, 14 & 16] A, B, C, D, E & F

PLD 2013 Islamabad 26; 2010 MLD 1346; 2011 SCMR 1813; 2005 MLD 1593; PLD 2007 SC 571 ref.

Mr. Khurram Abbas Jafri, Advocate for Petitioners.

Mr. Asad Ali Bajwa, Deputy Attorney General for Federation with Mr. Zahid Javed Butt, Assistant Attorney General for Respondents.

Hafiz Asghar Ali, Deputy Prosecutor General on Court’s call.

Date of hearing: 21.5.2021.

Order

Instant writ petition has been filed under Article 199 of the Constitution of Pakistan, 1973 (hereinafter ‘Constitution’) to challenge the vires of inquiry conducted by Federal Investigating Agency (hereinafter ‘F.I.A’) on the allegations of illegal issuance of loans and money laundering. Primarily it has been prayed that F.I.A. authorities be directed to drop the inquiry against the petitioner bank and its employees on the ground of excess committed by the respondent investigating agency.

2. It was fervidly contended by the learned counsel representing petitioner bank that no illegality had been committed by the bank as due process was followed for issuance of loans. It was further argued that allegation of money laundering is postscript. Further prayed that respondents be restrained from harassing bank employees and also to comply with the mandatory procedural requirements of Section 94 of the Code of Criminal Procedure, 1898 (hereinafter ‘Cr.P.C.’) for obtaining the Bank record of documentation pertaining to issuance of loans in question. Petitioner No. 2 Khadim Hussain, Executive Vice President/Regional Corporate Head, Faisalabad and Multan National Bank of Pakistan is accused against whom inquiry in question is in progress.

3. When learned counsel for the petitioners was confronted with the question of maintainability of instant petition, he submitted that instant petition is competent in every respect as no other efficacious and adequate remedy is available to the petitioners as respondents are transgressing their authority and are harassing the officers of petitioner bank which has badly affected its business and renown. It was argued that Section 22-A(6), Cr.P.C. only applies to F.I.A. to the extent of issuance of direction qua the registration of case.

4. While on the other hand, learned law officer refuted all the contentions of the petitioner side with vehemence and asserted that this petition is not maintainable in presence of an adequate alternate remedy under Section 22-A(6), Cr.P.C. by filing a complaint with ex-officio Justice of Peace regarding any alleged misuse or excess of authority by the F.I.A. officials. He further asserted that Section 25 Anti-money Laundering Act, 2010 ousts the operation of Section 94, Cr.P.C. and has an overriding effect being a non obstante clause incorporated in the special law which otherwise prevails over general law. Lastly contended that no illegality has been committed by the respondent authority and inquiry in progress is strictly in line with the relevant law.

5. Matter heard in detail.

6. After hearing both the parties, the vital questions, which require consideration in the instant writ petition are whether the term ‘Police authorities’ used in Section 22-A(6), Cr.P.C. includes F.I.A. and if it does, whether the judicial review under Article 199 of the Constitution is maintainable.

7. Before dilating upon the maintainability of writ petition in hand, it will be advantageous to have a bird eye view of the powers available to an ex-officio justice of peace under subsection (6) of Section 22-A, Cr.P.C. which was inserted into the statute through the Code of Criminal Procedure (3rd Amendment) Ordinance, 2002 which provides infra:

“22-A(6) an ex-officio justice of peace may issue appropriate directions to the police authorities concerned on a complaint regarding-

(i)       non-registration of a criminal case;

(ii)      Transfer of investigation from one police officer to another; and

(iii)     Neglect, failure or excess committed by a police authority in relation to its functions and duties.”

8. Above reproduced provision of law is self-explanatory and Court does not have a slightest of hesitation to hold that it provides an adequate and efficacious alternative remedy to any person who is aggrieved by the excess committed by the ‘police authorities’.

9. Now the next crucial question emerging for consideration is whether F.I.A. falls within the expression ‘police authorities’ as used in Section 22-A(6), Cr.P.C. It shall be beneficial to scrutinize few provisions of the Federal Investigation Agency Act, 1974 (hereinafter Act of 1974). F.I.A. was constituted under Section 3 of this Act and under Section 4 superintendence and administration of agency shall vest in Director General of Agency. Sections 4 and 5 are reproduced hereinafter for further elaboration:

“4-Superintendence and administration of the Agency:

1.       The Superintendence of the Agency shall vest in the Federal Government.

2.       The administration of the Agency shall vest in the Director General who shall exercise in respect of the Agency such of the powers of an Inspector General of Police under the Police Act, 1861 (V of 1861), as may be prescribed by rules.

5-Powers of the members of the Agency:

1.       Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.

2.       Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-charge of a Police Station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a Police Station discharging his functions as such within the limits of his station.

3.       …………………..

4.       For the purpose of the exercise by the members of the Agency of the powers of an officer-in-charge of a Police Station,” Police Station” includes any place declared, generally or specially, by the Federal Government to be a Police Station within the meaning of the Code.”

10. Section 4(2) of the Act of 1974 provides that the administration of the Agency shall vest in the Director General who shall exercise, in respect of the Agency, the powers of an Inspector General of Police under the Police Act, 1861. While Section 5(1) in most unequivocal manner provides that the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of Provincial Police have in relation to the investigation of offences under the Cr.P.C. or any other law for the time being in force. Likewise, Section 5(2), for the purpose of any inquiry, empowers a member of the agency, who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer-in-charge of a Police Station.

11. Therefore, when status, functions, rights, privileges and liabilities of officials of F.I.A. are same as that of Provincial Police officer under the Cr.P.C., ex-officio justice of peace is very much competent to issue directions to the respondents as it can issue to the Provincial police and contention of the learned counsel for the petitioners regarding lack of jurisdiction of ex-officio justice of peace in matters of F.I.A. is not tenable.

12. The term ‘police authorities’ used in Section 22-A(6) Cr.P.C. is wide enough to include FIA officials and does not only connote provincial police authorities especially when FIA authorities can use all the powers of a police officer of provincial police under the Cr.P.C. There is no quibble that there may be some provisions of Act of 1974, which one may find in direct conflict with the provisions of Cr.P.C. and in that case, being special enactment, provisions of the Act of 1974 shall take precedence but this is not the case in instant lis as no provision of the Act of 1974 contradicts the powers of ex-officio justice of peace granted under Section 22-A(6) Cr.P.C. This view is further fortified by the dictum in Makhdoomzada Syed Mushtaq Hussain Shah’s case cited as (PLD 2013 Islamabad 26), where Islamabad High Court has vividly held that directions under Section 22-A(6) Cr.P.C. can be issued to F.I.A. as status of F.I.A. is also of police. Relevant paragraph is reproduced hereunder:

“14. Though by Section 10 of the Act, the Pakistan Special Police Establishment Ordinance, 1948 was repealed on promulgation of Federal Investigation Agency Act, 1974, therefore, there remained no ambiguity to concerned agency (FIA) and powers exercised by its members as officer Incharge of the Police Station. Therefore, status of the FIA defines as Police Station and Incharge whereof is officer Incharge of the Police Station as Station House Officer, therefore as defined being Police Station and Officer Incharge of the said Police Station. The Ex-Officio Justice of Peace can issue such direction while exercising powers under Section 22-A, Cr.P.C., which includes the appropriate direction to the Police Authority concerned. For such purpose FIA, being Agency is a Police Authority comes within such definition.”

13. Same view was taken by this Court in Ch. Abdur Rehman’s case, reported at (2010 MLD 1346) that an aggrieved person can also seek his remedy against F.I.A. by filing complaint before the ex-officio justice of peace. Therefore, an aggrieved person is fully competent to file a complaint under Section 22-A(6), Cr.P.C. with the ex-officio justice of peace against any neglect, failure, or excess committed by the F.I.A. authorities and can conveniently get adequate redressal of his grievance from that quasi-judicial forum.

14. Regarding efficacy and adequacy of this alternate remedy, suffice is to say that in view the judicial prescriptions expounded by the august Supreme Court in Dr. Sher Afgan Khan Niazi’s case reported at (2011 SCMR 1813) and by this Court in Mehboob Ali Malik’s case reported at PLD 1963 (W. P.) Lahore 575 to judge the adequacy of an available remedy, filing complaint with an ex-officio justice of peace is very much adequate and efficacious alternate remedy for an aggrieved person, with respect to its nature, extent of relief, point of time of availability of relief and the conditions on which that relief would be available particularly the conditions relating to the expense and inconvenience involved in securing the same.

As it is clearly established that petitioner had an alternate remedy under Section 22-A(6) Cr.P.C. and in such like cases, this Court always shows reluctance to encourage the practice to invoke the extra-ordinary writ jurisdiction under Article 199 of the Constitution. It has become more necessary than ever to put a legitimate check on the carefree constitutional petitions under Article 199 of the Constitution, considering the heavy burden of pending cases in the Constitutional Courts. The provisions of Section 22-A(6) Cr.P.C. were made part of the statute book with the object to reduce the burden of this Court by designating Sessions Judges and on their nomination Additional Sessions Judges as ex-officio justice of peace to share the powers of this Court in the matters mentioned in subsection (6) of Section 22-A Cr.P.C. In Syed Zafar Ali Shah’s case reported at (2005 MLD 1593), this object was highlighted by this Court in the following words:

“4. Section 22-A, Cr.P.C. was inserted in the Code of Criminal Procedure just to lessen the burden on this Court whereby such-like matters ought to be resolved by the Court of first instance by deciding matter.”

Contention of the learned counsel for the petitioners that Section 22-A(6) Cr.P.C. is only applicable to the extent of direction to F.I.A. authorities qua the registration of criminal case has no substance as it a cardinal principle of interpretation of statutes that provision of law must be read and applied in toto as was held by the august Supreme Court of Pakistan in Mirza Shaukat Baig’s case cited as PLD 2005 SC 530.

It was reiterated in Fazal Dad’s case cited as (PLD 2007 SC 571) that:

“It is a settled law that provisions of law must be read as a whole in order to determine its true nature, import and scope as law….”

Same view was taken by a full Bench of this Court in Aziz Ahmad’s case reported at 2019 YLR 355, where it was categorically held by this Court that:

“…A Statute is to be read and constructed as a whole and the same holistic approach is to be adopted with regard to a particular provision/section thereof and, thus, a provision cannot be dissected into pieces….”

Although learned law officer has also resisted this petition on merits but it is settled law that once this Court makes-up its mind that in presence of an alternate adequate remedy, relief cannot be granted to a petitioner, Court should refrain itself from commenting upon the merits of the case and should leave this exercise for the competent alternate forum, otherwise no fruitful purpose would be served to send such aggrieved person to that alternate forum. In this regard this Court is enlightened from the decision of august Supreme Court in Khalid Mehmood’s case cited as 1999 SCMR 1881, where it was firmly held by the august Supreme Court that:

“To sum up, therefore, the High Court in the circumstances, should have declined to say anything on merits of the dispute and preferred to non-suit the petitioner on the sole ground of maintainability.”

15. To summarize the legal position discussed above, this Court holds:

i.        Phrase ‘police authority’ as used in Section 22-A (6) Cr.P.C., includes FIA officials therefore any neglect, failure or excess committed by them in relation to their functions and duties, can be complained before ex-officio justice of peace.

ii.       Remedy provided under Section 22-A (6) Cr.P.C. is adequate and efficacious in nature, hence constitutional jurisdiction cannot be invoked without exhausting that remedy.

16. The resultant position that emerges from the discussions in the foregoing paragraphs is that due to availability of an adequate and efficacious alternative remedy under Section 22-A (6) Cr.P.C. instant writ petition is not maintainable, hence dismissed in limini without touching the merits of the case.

(Y.A.)

FIA had no authority to enter into an inquiry over alleged allegation of money laundering without any report from reporting agency

 PLJ 2025 Civil (Note) 69

[Lahore High Court, Lahore]

Present: Shams Mehmood Mirza, J.

MUBASHER SHAHZAD--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

W.P. No. 4142 of 2024, decided on 31.10.2024.

Anti-Money Laundering Act, 2010 (VII of 2010)--

----S. 25--Issuance of notice--Complaint--Allegation of money laundering--No authority of FIA--No report from reporting agency--Challenge to--The FIA had no authority to enter into an inquiry over alleged allegation of money laundering against petitioner without there being any report from reporting agency as prescribed by Act--The exercise of authority by FIA was thus patently illegal and without lawful authority--Impugned notice itself did not reflect any application of mind regarding prima facie guilt or otherwise petitioner before initiation of inquiry--Petition allowed.                                                                                        [Para 7] A

PLD 2024 Lahore 584 & 2023 PTD 1434 ref.

Mr. Abad-ur-Rehman Advocate for Petitioner.

Mr. Sheraz Zaka Assistant Attorney General.

Mr. Ahmad Anwar Advocate for Respondent No. 6.

Date of hearing: 31.10.2024.

Order

This writ petition calls into question the assumption of jurisdiction by Federal Investigating Agency (FIA) and issuance of notice dated 13.01.2024 to the petitioner on the allegation of money laundering.

2.       It is stated that one Shakeel Masih filed a complaint with the FIA against the petitioner, who at the relevant time was contesting the general election from PP-107 Faisalabad. It is alleged that the account number and the amount lying therein were taken from the information supplied by the petitioner in his nomination papers. Pursuant to the said complaint, FIA issued notice to the petitioner and various banks/Financial Institutions under Section 25 of the Anti-Money Laundering Act, 2010 (the Act) seeking information and for seizure of the bank accounts.

3.       Learned counsel for the petitioner has placed reliance on the case of Abdus Saboor v. Federation of Pakistan etc 2023 PTD 1434 to contend that FIA could not assume jurisdiction over the subject matter of the complaint filed by Shakeel Masih who was an anonymous person. It is furthermore submitted that the petitioner was victimized as he belongs to Pakistan Tehreek-e-Insaf.

4.       Report and parawise comments have been filed by Respondents No. 2 to 4 in which stance of the petitioner was controverted.

5.       This Court in Abdus Saboor’s case after going through various provisions of the Act made the following observations regarding the procedure to be followed in cases where the allegation of money laundering is involved

13.     The process under the Act is set in motion by the Financial Monitoring Unit (FMU) which receives Suspicious Transactions Reports (STRs) and Currency Transactions Reports (CTRs) from the reporting entities which in turn are analyzed by it and in respect of which it is empowered to call for the record and information from any agency or person. After analyzing the STRs and CTRs, the FMU disseminates the same to concerned Investigating or Prosecuting agencies for inquiry or further action under the Act under Section 6 of the Act

32.     The essence of the Act from the reading of Section 2(xxviii), Section 4 and Section 9 is that the proceeds of crime is the centerpiece or core of the offence of money laundering and that the said offence only materializes once the substratum condition of proceeds of crime comes into existence. It is for this reason that the investigating officer is required to make determination and record it into writing that the property in respect of which a notice was sent to the person concerned is indeed involved in money laundering on the basis of the available material before him before applying to the Court for confirmation of the attachment of the said property (Section 9 of the Act). It has already been noted above that the proceedings under the Act are initiated against the person concerned when the directorate (1 & 1) receives information from FMU which then results into provisional attachment of the property and issuance of a notice contemplated by Section 9 of the Act, the objective being to ascertain and verify the fact that the property has been acquired through the proceeds of crime. It is thus a mandatory requirement of Section 9 that the person against whom the allegation is made must be provided with all the relevant information to put him on notice about the case he must meet. Similarly, the said provision also requires that he must be provided the opportunity to produce all the material before the investigating officer to prove that the property is not involved in money laundering.

39. ... it may be stated that the investigative process is triggered when FMU receives STRs and CTRs from the reporting agencies and analyses the same. FMU has the power to call for the record and information from any agency or person. After analyzing STRs and CTRS, FMU then proceeds to disseminate the necessary information and material to the concerned investigating or prosecuting agency for inquiry. The starting point for the engagement of the investigating officer under Section 8 is receipt of the said report from the investigating or prosecuting agency whereupon he is required to provisionally attach the property, with the prior permission of the Court, which he reasonably believes to be the property involved in money laundering. This belief can only exist based on information or material which is sufficient to give rise to such a belief in the mind of a reasonable person. This information or material, however, need not satisfy the standards applicable to admissibility of evidence and that is why vast powers are conferred by the Act for further investigation of the matter. The investigating officer is required to forward a copy of the attachment order and the report to the head of the concerned investigating agency in a sealed envelope within forty-eight hours. The investigating officer shall then serve a notice on the person concerned requiring him to provide his sources of income, earning or assets from which he acquired the property and the evidence on which he relies and other relevant information and particulars and to show-cause why all or any of such properties be not declared to be the properties involved in money laundering and forfeited to the Federal Government. Finally, the investigating officer shall by taking into account the reply to the notice and all relevant material placed on record and after granting hearing to the concerned person record a finding as to whether all or any other of the properties in respect of which notice was issued are properties involved in money laundering. The investigating officer after making the second determination that the property is involved in money laundering shall apply to the Court seeking an order confirming the attachment of the property. The Court, after giving opportunity of hearing to the concerned person, may pass an order confirming the attachment, retention, seizure or as the case may be, release of the property. The investigating officer after confirmation of the attachment order is required to forthwith take over the possession of the attached property and if the property seized is perishable in nature or subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, he may apply to the Court which may order immediate sale of the property in any manner deemed appropriate in the circumstances. These steps in the inquiry/ Investigation as envisaged by Sections 6, 8 and 9 are exhaustive and are not dependent on the rules. It may relevantly be pointed out that where the legislature intends that rules are required to be framed for a certain function under the statute to be performed or carried out, it makes provision for it by requiring it to be done through the prescribed manner. The term “prescribed” is defined in Section 2(xxvii) of the Act to mean prescribed by rules and regulations under the Act. For the investigative processes to be carried out by the investigating officer under Sections 8 and 9 relating to attachment, the legislature did not stipulate that these functions be further regulated and guided by rule making. This fact alone restrains the hands of this Court in issuing any direction for framing the rules.

6.       This Court in the case of Muhammad Bilal Nawaz v. Director General, FIA Punjab Lahore etc PLD 2024 Lahore 584 made the following pertinent observations regarding the powers of FIR for seizure of bank accounts:

Therefore, whenever the FIA issues a directive restricting an individual’s bank account, whether during an inquiry or investigation, it must promptly notify the relevant Magistrate or Court, which would then issue an order in accordance with the law appropriate to the situation and circumstances.

7.       It is apparent parent that the FIA has no authority to enter into an inquiry over the alleged allegation of money laundering against the petitioner without there being any report from the reporting agency as prescribed by the Act. The exercise of authority by FIA is thus patently illegal and without lawful authority. Furthermore, the impugned notice itself does not reflect any application of mind regarding the prima facie guilt or otherwise the petitioner before initiation of the inquiry.

8.       For what has been stated above, this writ petition is allowed and it is declared that FIA without any lawful authority initiated inquiry against the petitioner. Resultantly, notice dated 13.01.2024 is also set aside.

(Y.A.)  Petition allowed

Procedure in Impotency Cases

 PLJ 2022 Peshawar 113

[Mingora Bench, Sawat)]

Present: Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ.

UMAR KHITAB--Petitioner

versus

Mst. SANA SHAH and another--Respondents

W.P. No. 932-M of 2021 With Interim Relief (N), decided on 9.3.2022.

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

----S. 2(v)(vi)(ix)(c)--Constitution of Pakistan, 1973 Arts. 2-A & 199--Suit for dissolution of marriage--Impotency of petitioner--Application for Medical Examination of petitioner during pendency of suit--Allowed--Determination of impotency of petitioner--Direction to--Denial of allegations of impotency--Second marriage of petitioner--Mode, manner and methodology adopted by Judge Family Court for determination of issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance--Petitioner has contracted a second marriage with Mst. Aziza Bibi and who have gave birth to a baby boy and thus if impugned direction of appearance before Medical Board is allowed to sustain, then it will cause to cast a doubt over legitimacy of new born baby--Procedure adopted by Judge Family Court for determination of impotency of petitioner is declared as alien to law on subject, we hold that petitioner has not been treated in accordance with law--He has been compelled to do which law does not require him to do and petitioner has been deprived of protection of law of land--Petition allowed.

                                                                      [Pp. 119 & 120] A, B & C

Malak Ahmad Jan, Advocate for Petitioner.

Mr. Tariq Aziz, Advocate for Respondent No. 1.

M/s. Barrister Dr. Adnan Khan and Abdul Nasir, Advocates as amicus curiae.

Dates of hearing: 1 & 9.3.2022.

Judgment

Muhammad Ijaz Khan, J.--Through the instant petition, the petitioner has challenged the order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021, whereby petitioner was directed to appear before Medical Board for his medical examination so as to ascertain the factum or otherwise of his impotency.

2. Precisely the facts of the case are that Respondent No. 1 namely Mst. Sana Shah had filed a suit for dissolution of her marriage on the ground of impotency of the petitioner, non-payment of maintenance as well as cruelty. She has also prayed for payment of maintenance as well as for the return of dowry articles as per list attached with the plaint.

3. Petitioner, then defendant, was summoned who submitted his written statement, whereby all the allegations leveled against him by the plaintiff/Respondent No. 1 were denied, specially with respect to his impotency as he has annexed his medical report from a famous laboratory and he has also stated that in-fact it was Respondent No. 1/plaintiff who is not ready to perform marital obligation and failure of all jirga, he has contracted second marriage and are living a happy life. The controversies between the parties were reduced into as many as seven issues, including the issue of dissolution of marriage on the basis of non-fulfillment of marital obligations.

4. At the stage of recording evidence of the plaintiff/ Respondent No. 1, it was on 29.05.2021, when Respondent No. 1/ plaintiff namely Mst. Sana Shah submitted an application for sending the present petitioner for medical examination regarding the impotency or otherwise before the trial of the suit, which application was strongly resisted by the present petitioner by submitting a detailed reply, however, the learned Judge Family Court vide impugned order dated 28.09.2021 allowed the aforesaid application with the following observations:

“Thus, in the light of the above, application is allowed and the defendant Umar Khitab is directed to appear before the Medical Board for his medical examination. Moreover, the Medical Superintendent D.H.Q. Hospital Saidu Sharif shall be addressed through a separate letter to constitute a Medical Board for the purpose of determining that whether respondent/defendant Umar Khitab is able to perform sexual intercourse/fulfill his conjugal rights or not. The report shall be submitted on or before date fixed. The medical/ examination expenses shall be borne by plaintiff.”

The petitioner has challenged the aforesaid order before this Court through the instant petition.

5. We have heard arguments of learned counsel for the parties as well as learned amicus curiae in detail and perused the record with their able and valuable assistance.

6. In this case, the questions before this Court for determination are that;

i.        As to how and in what manner the impotency of an husband is to be ascertained and determined when such allegations are leveled against him by his wife?

ii.       As to whether the mode and manner adopted by the learned Judge Family Court by directing the petitioner to appear before the Medical Board for his medical examination so to as ascertain his impotency or potency as the case may be, is legally correct as per the law of the land? And

iii.      As to whether the petitioner has been treated/dealt with in accordance with the law of the land?

7. As far as the first and second questions are concerned, to answer these question, Section 2 clauses (v), (ix) and proviso (c) of clause (ix) of The Dissolution of Muslim Marriages Act, 1939 are relevant, which are reproduced hereunder:-

“2. Grounds for decree for dissolution of marriage.--A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i)                                                                                            

(ii)                                                                                           

(iii)                                                                                          

(iv)                                                                                          

(v)      That the husband was impotent at the time of the marriage and continues to be so;

 (vi)                                                                                         

(vii)                                                                                         

 (viii)                                                                                       

(ix)     on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law:

          Provided that--

(a)----------------------------------------------------------------------------------

(b)----------------------------------------------------------------------------------

(c)      Before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.”

The aforesaid provision makes it unmistakably clear that for passing a decree on the ground of impotency of an husband, the Court is not required to send the husband to appear before a Medical Board for its report but what is required from a Judge Family Court is that it has to pass an order requiring the husband to satisfy it within a period of one year from the date of such order to the effect that the husband has ceased to be impotent and if the husband satisfies the Court, then no decree shall be passed on the said ground.

8.  It would also be relevant for the purpose of the present controversy to quote some extracts from مجموعہ قوانین اسلام authored by Dr. Tanzeel-ur-Rehman:

"تفریق بسبب نامردی:

"122۔ (i) جس عورت کا نکاح شرع اسلام کے بمو جب منعقد ہوا ہو بدیں بناء عدالت سے تنسیخ نکاح کا حکم حاصل کر سکتی ہے کہ اس کا شوہر بوقت نکاح نامرد تھا نیز یہ کہ اس کی وہ حالت برقرار ہے۔

(ii) شوہر کی درخواست پر عدالت پر لازم ہو گا کہ بر بناء نامر دی تنسیخ نکاح کا حکم جاری کرنے سے قبل شوہر کو ایک سال کی مہلت دے تا کہ شوہر اس ایک سال کی مدت میں عدالت کو مطمئن کر سکے کہ وہ نامرد نہیں رہا ۔ اگر شوہر اس مدت میں عدالت کو مطمئن کر سکا تو عدالت نامردی کی بناء پر تنسیخ نکاح کا حکم دینے کی مجاز نہ ہو گی ۔

تشریح

 نامر د کی تعریف:

 فقہی اصطلاح میں نامرد ( عنین ) اس شخص کو کہتے ہیں جو عضو تناسل رکھنے کے باوجود عورت سے جماع کرنے پر قادر نہ ہو ، خواہ یہ حالت پیدائشی ہو یا کسی مرض کے سبب پیدا ہوئی ہو یا کمزوری یا بڑھاپے یا کسی اور وجہ سے پیدا ہوئی ہو ۔ اگر کوئی ایسا شخص جو بعض عورتوں سے جماع کرنے پر قادر ہے مگر بعض عورتوں سے جماع کرنے پر قادر نہیں تو وہ شخص ان بعض عورتوں کے حق میں جن سے جماع کرنے پر قادر نہیں ہے نامرد سمجھا جاۓ گا یا جس مرد کو عورت کی مخالطت سے قبل ہی انزال ہوجا تا ہو ، نامرد سمجھا جائے گا ۔

 ایسے مرد کی زوجہ کو جو اس سے جماع کرنے پر قادر نہ ہوا ہو شرع نے بذریعہ عدالت طلب تفریق کا اختیار دیا ہے اور یہ اختیار زوجہ کے مطالبہ کی تاخیر سے خواہ کتنا عرصہ گزر جائے باطل نہیں ہوتا ۔

جب زوجہ اپنا معاملہ عدالت کے روبرو پیش کرے تو قاضی کے لئے لازم ہے کہ وہ شوہر سے حقیقت حال معلوم کرے ۔ اگر شوہر اس بات کا اقرار کرے کہ وہ اس عورت سے جماع کرنے پر قادر نہیں ہواتو حاکم عدالت علاج کرنے کے لئے اسکو ایک سال کی مہلت دے گا ۔ لیکن اگر شوہر عورت سے جماع کرنے کا ادعا کرے اور عورت کنواری ہونے کی مدعی نہ ہو تو شوہر سے حلف لیا جاۓ گا اگر اس نے قسم کھالی کہ اس نے اس عورت سے جماع کیا ہے تو عدالت زوجہ کی درخواست مسترد کر دے گی لیکن اگر شوہر حلف لینے سے انکاری ہو تو عدالت اس کو علاج کرنے کے لئے ایک سال کی مہلت دے گی ۔ لیکن اگر عورت اس بات کی مدعی کی ہے کہ وہ کنواری ہے تو عدالت اس عورت کے طبی معائنہ کا حکم دے گی اگر طبی معائنہ کی رو سے عورت کا باکرہ ہونا ثابت نہ ہو تو شوہر سے حلف لیا جائے گا اگر اس نے قسم کھائی کہ اس نے اپنی ز وجہ سے جماع کیا ہے تو عدالت تفریق کا حکم جاری نہ کرے گی لیکن اگر شوہر حلف لینے سے انکار کرے تو عدالت ایک سال کی مہلت دے گی ۔ لیکن اگر طبی معائنہ سے یہ ثابت ہو کہ عورت اس وقت تک کنواری ہے تو عدالت شوہر سے حلف لئے بغیر اس کو علاج کی غرض سے ایک سال کی مہلت دے گی ۔ اسی طرح اگر عورت اپنے ثیبہ ہونے ( کنوارے پن کے ازالہ ) کے متعلق یہ کہے کہ شوہر نے اسکا ازالہ انگلی سے یا کسی دوسرے طریقے سے کیا ہے وطی سے نہیں اور شوہر وطی کرنے کا مدعی ہو تب بھی یہی حکم ہو گا ۔ حنیفہ کے نزدیک ڈاکٹری معائنہ کا نتیجہ کہ اسکی بکارت کس طرح زائل ہوئی معتبر ہو گا لیکن افضل یہ ہے کہ ڈاکٹر نیوں کی تعداد 2 ہو ۔

 ایک سال کی مدت حاکم عدالت کے مہلت دینے کی تاریخ سے شمار ہو گی اس سے پہلے خواہ کتنی ہی مدت گزر چکی ہو اس کا اعتبار نہ کیا جائے گا ۔

اگر ایک سال کی مدت میں شوہر کسی طرح علاج کر کے تندرست ہو گیا اور ایک مرتبہ بھی عورت سے جماع کرنے پر قادر ہو گیا تو عورت کا اس بناء پر فسخ نکاح کا حق باطل ہو جائے گا ۔

لیکن اگر اس ایک سال کی مدت میں شوہر ایک بار بھی عورت سے جماع پر قادر نہ ہو سکا تو عدالت عورت کی خواہش پر ، شوہر کو طلاق دینے کا حکم دے گی ۔ اگر شوہر طلاق دینے سے منکر ہو تو عدالت خود تفریق کر دے گی ۔ "

A comparison of the abovementioned extracts from مجموعہ قوانین اسلام and provisions of The Family Courts Act would show that Section 2 (v), (ix) and proviso (c) of clause (ix) of The Act of 1939 is in line and conformity of Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court.

9. In the case in hand, petitioner being an husband and who in his written statement has taken a specific plea that when the aforesaid allegations of impotency were made by the Respondent No. 1, then plaintiff, in presence of his father-in-law, thereafter her parents required the present petitioner to undergo necessary medical test which he has accordingly conducted from a laboratory and as per the report of the laboratory dated 04.06.2020, petitioner has been declared as a healthy and potent man. Therefore, the legal worth of the aforesaid report and plea of the petitioner of being a healthy and potent man was yet to be determined by the learned Judge Family Court after recording of pro & contra evidence, however in the middle of the way, the Judge Family Court by allowing the application of the Respondent No. 1/plaintiff has directed the present petitioner to appear before the Medical Board for ascertainment of the impotency or otherwise of the petitioner, and thus the mode, manner and methodology adopted by the Judge Family Court for the determination of the issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by the parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance, therefore we believe that the Judge Family Court has erred in law by allowing application of the Respondent No. 1, then plaintiff, and by restoring to a procedure, which is alien to law on the subject.

10. It is also a matter of record and as stated in Paras-v, vi & vii of the instant petition that petitioner has contracted a second marriage with one Mst. Aziza Bibi and who have gave birth to a baby boy and thus if the impugned direction of appearance before the Medical Board is allowed to sustain, then it will cause to cast a doubt over the legitimacy of the new born baby, so on this score too, petitioner would face an unending social humiliation and as such would amount to deprive him of an opportunity of social justice as guaranteed to him by the preamble and Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.

11. To answer the Question No. 3, it may be noted that it is the inalienable right of every citizen to be treated in accordance with the law of the land, so it would be relevant to trace the aforesaid right of the petitioner being a citizen of Pakistan in the Constitution of Islamic Republic of Pakistan, 1973, the following provisions would be relevant:

“Preamble.--Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him in a sacred trust;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;”

Under Article 2-A of The Constitution of lslamic Republic of Pakistan, 1973, the objective resolution has been declared as substantive part of The Constitution, where the following provisions are relevant for the fact in issue:-

“Wherein the principles of democracy, freedom, equality, tolerance and social justice as annunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Article 4. Right of individuals to be dealt with in accordance with law, etc.--(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a)    No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)    No person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)    No person shall be compelled to do that which the law does not require him to do.”

Article 25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.”

12. So keeping in view the aforesaid mandate of the Constitution of Islamic Republic of Pakistan, 1973, the procedure adopted by the learned Judge Family Court for determination of the impotency of the petitioner-husband is declared as alien to law on the subject, we hold that petitioner has not been treated in accordance with law. We also hold that he has been compelled to do which the law does not require him to do and as such we further hold that petitioner has been deprived of the protection of law of the land.

13. In view of the aforesaid discussion, the instant writ petition is allowed, the impugned order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021 is set aside and consequently the learned Judge Family Court-I, Swat is directed to proceed in the case in accordance with law and as per the aforesaid mode and manner for determination of the impotency of the petitioner-husband, if any, essential for a just and fair decision between the parties.

(Y.A.)  Petition allowed

Public Functionaries are bound to obey direction of Wafaqi Mohtasib

 PLJ 1999 Lahore 947

Present: CH. IJAZ AHMAD, J. Rana MUHAMMAD USMAN KHAN--Petitioner

versus GENERAL MANAGER TELEPHONE etc.--Respondents

W.P. No. 25122/1998, decided on 26.1.1999.

Constitution of Pakistan, 1973--

—Art. 199-Telephone connection-Non-installation of-Petitioner appro­ached to Wafaqi Mohtasib for installation of telephone-Non-implementation of orders of Wafaqi Mohtasib^ffnt petition-President Order No. 1 of 1983 is that public functionaries are bound to obey direction of Wafaqi Mohtasib but action of respondents (Telephone Deptt.) is not in accordance with P.O. No. 1 of 83—Respondents (Telephone Department) failed to agitate the matter before High Court as well as before President of Pakistan-This brings case of petitioner in the area that respondents are not acting in good faith, therefore, action of res­pondents department is malafide-Writ petition accepted and respondent telephone department is directed to implement direction of Wafaqi Mohtasib in letter and spirit within 4 months. [Pp. 948 & 949] A & B

Petitioner in person.

Mr. Muhammad Raftque Shed, Advocate for Respondents.

Date of hearing: 26.1.1999.

JUDGMENT

The brief facts giving rise to this writ petition are that the petitioner submitted an application before respondents for connection of telephone but the respondents malafide did not provide the same to the petitioner and did not decide the application of the petitioner in true prospects. The petitioner further states that the respondents sent even bill to the petitioner qua the telephone number but the telephone was not installed at the premises of the petitioner. The petitioner was constrained by the circumstances and approached ( ^I <^-^£ ij>\Js ), who after providing opportunities to the respondents gave direction to the respondents vide order dated 7.9.98 in the following terms:-

"In view of the above, the Agency has been found guilty of mal­administration. The General Manager, LTR(N) is, therefore, directed to provide telephone connection to the complainant within 30 days, after receipt of these findings, without the cost of telephone posts and D/wire. With these observations, this case is closed."

The petitioner further states that respondents did not file any appeal against the aforesaid order of ($* ' ^l-^ J k_5 ) before the President of Pakistan. He further states that the order of Wafaqi Mohtasib Ahla was not agitated by the respondents before this Court. He further alleged that the respondents have provided telephone connections in the locality to other persons and the petitioner is penalized only; that the petitioner knocked the door of tyt<.J2 '<j(jf ). The contents of para 9 of writ petition is as follows:-

2.         The learned Legal Advisor for respondents contended that  espondents did not file any appeal against the order of ( <}*•' v"^ J ^5 ). He further states that the petitioner has alternative remedy of file contempt petition before the (^ i._--^ij U i ) and the writ petition is not maintainable. He further stated that petitioner failed to bring on record any instance; that the respondents installed telephone connection to other persons in the locality, therefore, action of respondents is in good faith. It is further stated that for the purpose to supply connection to the petitioner; the respondentshave to installed 14 Poles i.e. policy matter and this Court has no jurisdiction to substitute its own decision in place of policy maker.

3.   I have given my anxious consideration to the contentions of the learned counsel for the respondents and also heard the petitioner in person.It is admitted fact that the petitioner approached the Wafaqi Mohtasib who has given ample opportunities to the respondents to appear before him butthe respondents did not appear before him and the Wafaqi Mohtasib was constrained by the circumstances to give direction to the respondents toinstall   telephone  without  the   cost   of telephone   poles   D/Wire.   The respondents did not file any appeal against the said order. The respondents are public functionaries; they are bound to act within the framework of
Constitution and law and the respondents have no authority whatsoever under  any  provisions   of the   Constitution   and   law  to   frustrate   the recommendation   of   Wafaqi   Mohtasib   unless   and   until   the   public functionaries have agitated the matter before the President of Pakistan or to file writ petition for setting aside the recommendation of Wafaqi Mohtasib. The respondents failed to agitate the matter before this Court as well asbefore the President of Pakistan. This brings the case of the petitioner in the area that the respondents are not acting in good faith, therefore, the action ofrespondents are malafide as the principle laid down by the Hon'ble  Supreme ourt in the following judgments:-

Ghulam Mustafa Khar's case               (PLD 1989 S.C. 26);

Zia-ur-Rehman 's case                          (PLD 1973 SC 490); and

(PLD 1974 SC 151).

The President Order No. 1 of 83 is that the public functionaries are bound to obey the direction of Waqafi Mohtasib but the action of respondents is not in accordance v/ith the P.O. No. 1 of 83.

4. In view of above discussion, this writ petition is accepted with no order as to costs. The respondents are directed to implement the direction of Wafaqi Mohtasib in letter and spirit within four months.

(K.K.F.)                                                                       Orders accordingly.