IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-417 of 2010

Present:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Farooque Ali Channa,

Petitioner : Raja Zaheer Ahmed Khuharo, through Mr. Mazhar Ali

Siddiqui, Advocate.

Respondents : Province of Sindh & others.

Mr. Azizul Haque Solangi, Assistant Advocate General.

Date of hearing: 28.11.2012. Date of Order : 28.11.2012.

O R D E R.

NAIMATULLAH PHULPOTO, J.- Petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution for a direction to respondents for recruitment of petitioner in the rank of Constable against ‘Shaheed’ Quota.

2/- Concisely, the facts of this petition are that one Khan Muhammad was serving as Police Constable in Sindh Police Department and was posted in District Shikarpur. During service he was murdered on 29.3.1998. Such F.I.R bearing crime No.13/1998 was registered at Police Station Rustam, under Sections 324, 148, 149, P.P.C. Subsequently, Section 302, PPC was added. It is the case of the petitioner that Government of Sindh, Police Department, has issued Standing Order No.225 of 2008 for recruitment in the rank of Constable against the Shaheed Quota. Petitioner being nephew of deceased P.C Khan Muhammad applied for the post of Police Constable in the District Police Shikarpur against the ‘Shaheed’ Quota in the place of his uncle Khan Muhammad. It is stated that application of the petitioner was considered and forwarded by competent authority to the Regional Police Officer, Sukkur, who vide order dated 12.11.2009 declined the request and observed that case of the petitioner did not fall within the purview of ‘Shaheed’ Quota as per Standing Order referred to above. It is stated in the petition that P.C Khan Muhammad died issueless. It is further stated that Regional Police Officer, Sukkur Region has turned down application of the petitioner without an opportunity of hearing and assigning sound reasons, which is against the principle of natural justice. Petitioner has prayed for the following reliefs :-

a) The Honourable Court may declare that the petitioner is entitled to be appointed as constable in place of Shaheed Khan Muhammad on Shaheed Quota;

b) To direct the respondents to appoint the petitioner as constable against Shaheed Quota;

c) To award costs of the petition;

d) To award any other equitable relief as is deemed fit and proper in the circumstances of the case.

3/- Notices were issued to the respondents as well as Addl. A. G.

4/- District Police Officer, Shikarpur, respondent No.5, in the comments has denied the claim of the petitioner and stated that PC Khan Muhammad was killed in the course of his private affairs. Such F.I.R bearing crime No.13/1998 was registered at Police Station Rustam. It is further stated that an application of the petitioner was forwarded to the Regional Police Officer, Sukkur, but competent authority found that case of the petitioner did not fall within the purview of Standing Order No.225 of 2008. In the comments it is clearly stated that P.C Khan Muhammad was not killed while preparing his official duty or in the result of terrorism.

5/- Respondent No.3/Regional Police Officer, Sukkur, in his comments has stated that he had received the case of the petitioner from District Police Officer, Shikarpur and considered the application within the parameter for appointment under ‘Shaheed’ Quota and found that case of petitioner did not fall under the purview of ‘Shaheed’ Quota Standing Order No.225 of 2008 of PPO Sindh, Karachi and submitted that petition is liable to be dismissed.

6/- Mr. Mazhar Ali Siddiqui, learned advocate for the petitioner, contended that PC Khan Muhammad was murdered during his service. He has also pointed out that deceased had died issueless. Petitioner being his nephew is entitled to be appointed as Constable on ‘Shaheed’ Quota in the place of his uncle PC Khan Muhammad. Lastly, he argued that RPO Sukkur has acted contrary to Standing Order No.225/2008 of PPO Sindh, Karachi.

7/- Mr. Aziz-ul-Haque Solangi, learned Assistant Advocate General, vehemently opposed the petition and argued that P.C Khan Muhammad was killed in the course of his private affairs and such F.I.R was lodged at Police Station Rustam bearing crime No.13/1998. He further argued that case of the petitioner did not fall under the purview of Standing Order No.225 of 2008 of PPO Sindh. Lastly, he argued that petitioner is the nephew of the deceased constable, hence does not come within the meaning of legal heir defined in order No.225 of 2008, as such he is not an aggrieved person and Constitutional Petition is not maintainable.

8/- We have carefully heard the learned Counsel for the parties and perused the relevant record.

9/- Under Article 199 of Constitution only a person whose rights have been infringed can file a petition, except a writ of habeas corpus and a writ of quo warranto which can be invoked by any person. The application under sub-Article (1)(a) of Constitution can be moved by any “aggrieved party” while the application under sub-Article (1)(c) of Article 199 can be moved by any “aggrieved person”. A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, which he has a right to demand or wrongfully affected his title in something. In order that a person be considered an “aggrieved person” within the meaning of Article 199, he must show that his legal rights have been violated or that has been deprived of the fundamental rights guaranteed under the Constitution or that he seeks performance of the legal duty by the State functionaries and that the non-performance of the duty is to result in loss of some personal benefit or advantage or the curtailment of a privilege.

10/- Record reflects that deceased PC Khan Muhammad died in the course of his private affairs. Such F.I.R bearing crime No.13/1998 was lodged at Police Station Rustam. Petitioner moved an application to the Senior Superintendent of Police, Shikarpur for recruitment in the rank of Constable against ‘Shaheed’ Quota, the same was forwarded to the Regional Police Officer, Sukkur. He in his comments has clearly stated that request of the petitioner was considered and case of above-named petitioner did not fall under the purview of Standing Order No.225 of 2008 of P.P.O., Sindh. For the sake of convenience, Standing Order No.225 of 2008, dated 4.8.2008, issued by Government of Sindh, Police Department, is reproduced as under :-

“STANDING ORDER NO.225/2008

Subject: RECRUITMENT IN THE RANK OF CONSTABLE

AGAINST SHAHEED QUOTA.

In exercise of the powers conferred by Article-27 of the Police Order-2002, the Provincial Police Officer is pleased to notify the following Standing Order:-

2. This shall come into force at once.

3. This order may be called “Recruitment in the rank of Constable against Shaheed Quota”.

4. OBJECTIVES

To extend relief to the bereaved families of Shaheed Police officials who lost their lives in the line of duty.

5. DEFINITION

(a) Shaheed means who lost his life in the line of duty as a result of act of terrorism / target killing, encounter with criminals also include traffic officials on traffic duty killed by vehicle of any kind.

(b) Legal heirs means son / daughter / widow/ brother or sister,

6. ELIGIBILITY

(i) Legal heirs of ShaheedPolice Official i.e. son / daughter / widow / brother or sister, who laid down his life in the line of duty as a result of act of terrorism / target killing, encounter with criminals also includes traffic officials on traffic duty killed by vehicle of any kind. In case there is no son / daughter / widow of the Shaheed, brother / sister of the Shaheed can be considered in order of preference.

(ii) Only one claim shall be given to the legal heir of the Shaheed.

(iii) Only persons domiciled in Sindh Province shall be eligible for

recruitment against Shaheed quota.

7. QUALIFICATION

Recruitment will be the same as per regular appointments of Male/Female candidates.

8. RECRUITMENT COMMITTEES

The Recruitment Committees shall comprise of :-

(i) Chairman Head of Region / Unit / Branch.

(ii) Member / Secretary DIGP / ADIGP / Region / Branch

(iii) Member SP of the Unit.

9. SCRUTINY OF APPLICATION

Scrutiny of applications shall be done by the recruitment committees on receipt of the applications through the concerned TPO / DPO / SP of the Unit.

10. PROCEEDING OF THE RECRUITMENT COMMITTEE

(i) The Provincial Police Officer, Sindh may grant relaxation / condonation as per Police Rules.

(ii) The candidates who are deficient in educational qualification for the post of Constable can be offered post of Naib Qasid if found suitable otherwise.”

11/- ‘Shaheed’ has been defined in Standing Order No.225/2008 who lost his life in the line of duty as an act of terrorism / target killing, encounter with criminals, also include traffic officials on traffic duty killed by vehicle of any kind. Legal heirs means son /daughter /widow /brother or sister. Claim of the petitioner did not fall within the purview of above definition as is evident from the F.I.R mentioned above, in which it is stated that P.C Khan Muhammad was killed due to enmity between the parties. Petitioner has no statutory right or a right recognized by the law to seek recruitment as constable against ‘Shaheed’ Quota. Therefore, petitioner cannot be said to be an aggrieved person.

12/- We have arrived at an irresistible conclusion that petitioner has failed to establish his legal right as such he is not an aggrieved person to invoke the Constitutional jurisdiction of this Court to maintain this petition. Learned Counsel for the petitioner has not been able to cite any law to justify the maintainability of this petition.

Accordingly, the petition is dismissed.

JUDGE

T.H. Qazi/*

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