IN
THE HIGH COURT OF SINDH, KARACHI
C.P.
No. D-2865, 2020 of 2013 and 4026
of 2012
Before:
Mr. Justice Faisal Arab, J, and
Mr. Justice Salahuddin
Panhwar, J
Petitioner: Rashid
Latif,
Through
M/s Umair A. Kazi, advocate
&
Mr.
Abdul Sattar Pirzada,
advocate.
Respondents Federation of Pakistan,
Pakistan Cricket Board and another,
Mr. Asif Hussain Mangi,
Standing Counsel on behalf of respondent
No.1.
Mr.
Taffazul H. Rizvi, advocate
for respondents No.2 & 3.
Date of Hearing: 24.09.2013.
Date of Judgment: 27.11.2013.
J U D G M E N T
SALAHUDDIN PANHWAR, J. Through
this common judgment we intend to dispose of above captioned petitions, whereby
petitioner has challenged the appointment of Chairman Pakistan Cricket Board
and vires of its constitution.
2.
Precisely, relevant facts as set out in the all
three petitions are that:
C.P. No.
D-2865/2012: Petitioner is a former captain and player
of Pakistan National Cricket team and also runs a cricket academy free of cost
under the name and style of Rashid Latif Cricket
Academy. The respondent No.1, being federal body, is responsible for regulating
development and control of sports in
(a) Declare that the respondents
No. 1&2 have acted in violation of
law and failed to follow procedure laid down in the law.
(b) Declare and hold that appointment of
respondent No.3 by respondent
No.1 is unconstitutional.
C.P. No. D-2020/2013: This petition challenges the appointment
of respondent No.3 (Zaka Ashraf) and seeks declaration
of part 4 of the constitution
2013, as illegal and unconstitutional.
C.P. No.
D-4026/2012: This petition questions
legality of constitution of Pakistan Cricket Board 2007, on the ground that
same is against the spirit of constitution
of Pakistan 1973.
3. Leaned
counsel for the petitioner while reiterating the contention of instant
petition, inter alia, has contended
that appointment of respondent No.3 is against the procedure provided in
Article 6(2) of the Constitution of 2013 (PCB); therefore respondent No.3 cannot
hold such post and thereby all acts/actions of said respondent are contrary to
the law and elaborate procedure is provided for the appointment of Chairman but
respondent No.1 has completely by-passed such mode. He further asserted that
composition of Board of Governors (BoG), is defined
in Section 9 which reflects that it has 15 regions all over the country, thus
this Court has jurisdiction to entertain this petition and nullify the
Notification issued by respondent No.1 in favour of respondent No.3, in support
of his contention, he has relied upon case of A.R. KHAN & SONS (PVT.) LTD.
through Authorized Officer versus FEDERATION OF PAKISTAN through
Secretary, Ministry of Commerce, Islamabad (2010
CLD 1648); Trading Corporation of Pakistan (Pvt) Ltd
vs. Pakistan Agro Forestry Corporation (Pvt) Ltd (2000
SCMR 1703); Al-Iblagh ltd., Lahore vs. Copyright board, Karachi (1985 SCMR 758); Messrs
FACTO Belarus Tractors Limited Karachi vs. Federation of Pakistan through
Secretary, Ministry of Industries, Production and Special Initiatives Islamabad
(PLD
2006 K 479); Ardeshir
Cowasjee vs. Karachi Building Control Authority
(KMC), Karachi (1999 SCMR 2883); Muhammad Naseem Hijazi
Versus Province of Punjab (2000 SCMR 1720); Dr. Azim-ur-Rehman
Khan Meo versus Government of Sindh and
another (2004 SCMR 1299).
4. On
the contrary, learned counsel for respondents stoutly refutes the claim of
petitioner and has raised legal objection with regard to the jurisdiction of
this Court. Per counsel Islamabad High Court in similar type of petition has
passed a verdict therefore in pursuance of that judgment respondent No.3 is
working as caretaker Chairman of Cricket Board; impugned Notification was issued
by Prime Minister, who sits at Islamabad, therefore territorial jurisdiction
lies to the Islamabad High Court and this Hon’ble Court can direct
functionaries within its territorial jurisdiction only, hence issue involved in
this petition is out of the jurisdiction of this Court. In support of his contention
he has relied upon AIR 1961 Supreme Court 532 (Lt. Col. Khajoor
Singh Vs. Union of
5. Before
addressing the merits of the case, it would be significant to examine the
jurisdiction of this Court, thus it would be conducive to reproduce Article 199
(1) (a) (i) & (ii), of the Constitution of Pakistan, which read as
follows:-
(i)
directing a person performing, within the territorial
jurisdiction of the Court, functions in connection with the affairs of the
Federation, a Province or a local authority, to refrain from doing anything he
is not permitted by law to do, or to do anything he is required by law to do,
or
(ii)
declaring that any act done or proceeding taken within
the territorial jurisdiction of the Court by a person performing functions in
connection with the affairs of the Federal, a Province or a local authority has
been done or taken without lawful authority and is of no legal effect;
Bare perusal of the above
clause (s), illustrates that the High Court (s) have been vested with
powers, jurisdiction and authority to examine any order / action complained to
be unlawful because the High Court is the ultimate guardian of the rights of
the people residing within its territorial jurisdiction. Thus function (s) or
act (s) / proceeding (s) of the Person on behalf of Federation are not exempted
from judicial scrutiny and examination of the High Court (s). The purpose and
object behind this seems to be nothing but that rights, interest and fundamental
rights of the people residing in territorial jurisdiction (s) of all High Court (s), likely to be effected by such function (s) or act
(s) of the Federation, are not left unattended by the Legislature (s).
6. Further, the plain reading of
the clause (i) shows that what the legislature
has insisted upon for invoking Constitutional Jurisdiction of the High
Court is the phrase “ within the
territorial jurisdiction of the Court, functions in connection with the affairs
of the federation…………”. (Underlining
is provided for emphasis).
This phrase is required
to be given its due weight and meaning in its true spirit as intended by
legislature. The clause (i) has been confined to the word “function” which, per Black’s
Law Dictionary means:
1.
Activity that is
appropriate to a particular business or profession;
2.
Office; duty; the
occupation of an office
and
if the said meaning is taken in continuity of the phrase “within the territorial jurisdiction of the Court” it can well be
concluded that it is the impact of function(activity,
office, duty or the occupation of an office) which should have been within territorial jurisdiction, which would be
sufficient for one to invoke the Constitutional Jurisdiction if the same
results in effecting the person residing within jurisdiction of such High Court.
we may further add here that it is
always the impact (s) and effect (s) of an act or order which makes one to
invoke the constitutional jurisdiction or to approach court of law for legal
rescue and not the act or order itself alone. The citizens residing at
place “A” cannot be allowed to suffer from the effect (s) of an act or order
solely for the reason that it was done / passed at place “B” rather the High
court of place “B”, being ultimate guardian of the rights, interests and claims
of the public masses, shall have to come forward for rescue else it would
frustrate the purpose of justice because
the principle of judicial system is that justice at no cost and at no stage be
allowed to fall prey to the procedural technicalities. Thus technicalities must
be ignored if they tend to create hurdle in the way of justice.
7.
At this juncture, we would like to refer the case
of L.P.G. Association of Pakistan through Chairman Vs.
Federation of Pakistan and others reported in 2009 C.L.D. 1498 Lahore, wherein
the question was same that of territorial
jurisdiction of the High Court. Said controversy was resolved while
examining, the case of Sandalbar Enterprises reported
in PLD 1997 SC 334, case of Messrs Al-lblagh limited
Lahore reported in 1985 SCMR 758, case of Dr Zahoor Ahmed shah reported in 2005 MLD 718, case of Dr Qaiser Rasheed
reported in PLD 2006 L 789, case of Messrs Ibrahim Fibers reported in PLD 2009
K 154, case of Abdul Ghafar Lakhani
reported in PLD 1986 K 525, case of Amin Textile Mills reported in 1998 SCMR
2389, case of Flying Craft Paper Mills reported in 1997 SCMR 1874, case of Shah
Abdul Sattar Lasi reported
in 2006 CLD 18, and other cases reported
as
PLD
1988 SC 387 (Superintendent of Police Headquarter Lahore & others vs.
Muhammad Latif), 1995 CLC 1027 (Ghulam
Haider Badini & others
vs. Govt. of Pakistan through Ministry of Information and Broadcasting and
another), PLD 1997 SC 334 (Sandalbar Enterprises (Pvt) Ltd vs. CBR), 1998 PLC (CS) 239 (Muhammad Idrees v. Government of Pakistan through Secretary,
Establishment Division, Islamabad and 5 others), PLD 2001 Peshawar 7 (Messrs
Lucky Cement Ltd. v. The Central Board of Revenue and others),
PLD 1976 Pesh. 66 (Muhammad Aslam Khan and 9 others v. Federal Land Commission through
its Chairman, Central Secretariat Islamabad and 3 others) and 2000 SCMR 1703 (Trading
Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation
(Private) Ltd. and another), and the answer was in para
6, which is reproduced as follows:
“From the judgments
cited at the Bard on both the sides, the
portions whereof have been
extensively reproduced, the following ratio is deducible:-
(A)
The
Federal Government or any body politic or a corporation or a statutory
authority having exclusive residence or location at Islamabad with no office at
any other place in any of the Provinces, shall still be deemed to function all
over the country.
(B)
If such Government, body or authority passes
any order or initiates an action at
(C)
This shall be moreso
in the cases where a party is aggrieved or a legislative instrument (including
any rules, etc.) on the ground of it being ultra vires, because the cause to
sue against that law shall accrue to a person at the place where his rights
have been affected. For example, if a law is challenged on the ground that it
is confiscatory in nature, violative of the fundamental rights to property;
profession, association etc. and any curb has been placed upon such a right by
a law enforced at Islamabad, besides there, it can also be challenged within
the jurisdiction of the High Court, where the right is likely to be affected.
In this context, illustrations can be given, that if some duty/tax has been
imposed upon the withdrawal of the amounts by the account holders from their
bank account and the aggrieved party is maintaining the account at Lahore,
though the Act/law has been passed at Islamabad, yet his right being affected
where he maintains the account (Lahore), he also can competently initiate a writ
petition in Lahore besides Islamabad; this shall also be true for the violation
of any right to profession, if being conducted by a person at Lahore, obviously
in the situation, he shall have a right to seek the enforcement of his right in
any of the two High Courts.
(D)
On
account of the above, both the Islamabad and Lahore High Courts shall have the
concurrent jurisdiction in certain matters and it shall not be legally sound or
valid to hold that as the Federal Government etc. resides in Islamabad, and operates
from there; the assailed order/action has also emanated from Islamabad,
therefore, it is only the Capital High Court which shall possess the
jurisdiction. The dominant purpose in such a situation shall be irrelevant,
rather on account of the rule of choice, the
plaintiff/petitioner shall have the right to choose the forum of his
convenience.
8. In
another case of Barrister Sardar Muhammad Vs. Federation of Pakistan and others reported in P.L.D.
2013, Lahore, page 343, the appointment of Chairman of P.T.A. was
challenged and same jurisdictional point was raised but while maintaining the
petition such appointment was declared illegal, the ratio of the said dictum is
that:
“Para No. 22 to 23.
22. Even if the Act provided that the head
office of Chairman P.T.A. is in
23. In the present case Members and Chairman
P.T.A. enjoy nation-wide jurisdiction hence a nation-wide presence. These
public offices, therefore, fall within the territorial jurisdiction of every
High Court in the country. It would be different if the public office belonged
to a provincial public or statutory authority with its jurisdiction limited to
a province. In such a case, the public offices of the said authority,
will fall within the territorial jurisdiction of the High Court of the relevant
province. The foundational concept of territorial jurisdiction for the purposes
of Article 199 has already been deliberated in detail in Messrs Sethi & Sethi Sons through Humayun Khan V. Federation of Pakistan through Secretary,
Ministry of Finance, Islamabad and others (2012 P.T.D. 1869) and L.P.G. Association
of Pakistan through Chairman v. Federation of Pakistan through Secretary
Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009
C.L.D. 1498). The reasoning and logic of the above judgments has been simply
extended to the writ of quo warranto.”
From
the above it is evident that mere existence of an office of Federation outside
the jurisdiction of the High Court shall not alone be sufficient to take the
matter away from the extra- ordinary jurisdiction of High Court (s) to examine the
issue (s) relating to vires of law, statutes, rules and action (s) if the same
are going to cause an effect upon the rights of the people, residing within such area because the
principle is that an office, law, rule
and legislation is always done / established to provide security and safety to
the rights, interests and claims of the people for whom such office, law rules
and legislation is meant, so at all material times, the law requires such
actions, law, rules and legislation to be strictly in accordance with law
keeping the rights, interests and claims of the masses at their proper place.
9. Let’s
examine the case law relied upon by respondents advocate. In the case of Lt. Col. Khajoor
Singh (supra), one army officer who was working in Jammu and Kashmir which
force was amalgamated with the defence force of the union of India and his
retirement date was 20th November, 1961 but in July, 13, 1954
government of India issued letter whereby he was retired from August, 12, 1954
thus he challenged the same before High Court of Jammu and Kashmir who issued
certificate in favour of petitioner same was assailed in Supreme Court whereby
with majority judgment it was held that since Notification was issued from
Delhi therefore High Court of Jammu and Kashmir was not having
jurisdiction.
In
the case of Danish Kaneria (supra) relevant
facts were that petitioner was selected on merit by the respondent No.2 as
special leg spinner and he was selected to play for Essex County in the United
Kingdom and other various places but he was stopped to play series against
South Africa, West Indies and New Zealand and further in national team. Hence , being aggrieved, he filed petition before this Court
but such petition was dismissed, relevant paras ,
inter-alia, are as under:
7. A
perusal of the memo of petition indicates that the thrust of the attack of the
petitioner was directed against the letters of Respondent No.2 calling up the
petitioner to appear before the Integrity Committee which is housed at Central
Office of P.C.B, Lahore, all the correspondences were issued to the petitioner
from the Central Office of the respondent No.2 which is housed at Lahore. In
our view this fact would not be sufficient to oust the jurisdiction of Lahore
High Court within whose jurisdiction the main cause of action accrued. Article
199(1)(a)(i)(ii) of the Constitution of Islamic Republic of Pakistan, 1973
(herein after referred to as the Constitution ) and that perusal of above
clause (a)(i) of the above articles indicates that a High Court has power to
issue direction to a person performing within its territorial jurisdiction,
functions in connection with the affairs of the Federation, a province or local
authority to refrain from doing anything which he is not permitted by law to do
or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) the High Court has powers to declare any act done or
proceedings taken within the territorial jurisdiction of the Court by a person performing
function in connection with the affairs of the Federation, a Province or a
local authority.
8. We have observed that the Central Office
of the Respondent No.2 is located at
In case of M/s Sethi
& Sethi sons (supra) petitioner was
businessman having office at Lahore. An F.I.R.
was lodged against him that he has committed tax fraud by issuing fake sales
tax invoices. Simultaneously show cause notice was issued to him by Director
General Intelligence and Investigation Karachi thus he challenged the same
before Lahore High Court but such petition was dismissed on the ground of jurisdiction
as discussed in para No.21, same is as under:-
“There is yet another dimension to
the above principle. In managing its day-to-day affairs a PERSON, performing
functions in connection with the affairs of the Federation may often delegate
its powers to its officers. Such delegation ordinarily limits the power of the
officer within a specified territorial domain. In such a situation, the all encompassing countrywide territorial jurisdiction of the
PERSON is localized to a specific limited territorial jurisdiction. For
example, Collector of Customs, and officer of F.B.R, has specific territorial jurisdiction
limited to a particular area, as opposed to the countrywide territorial
jurisdiction enjoyed by F.B.R. Such an officer, therefore, performs a localized
function in connection with the affairs of the Federation in a particular area
and will be considered to be performing functions within the territorial jurisdiction
of the High Couth within whose territorial jurisdiction the territorial jurisdiction
of the Officer/PERSON falls. In the present case the Deputy Director is an
officer of the Directorate General of the Intelligence and Investigation,
F.B.R. at
In case of Sabir Din (supra) the petitioner was posted
as Deputy Assistant Military Estate Officer of Hazara
circle Abbotabad, wherefrom he was transferred to Muzaffarabad as Deputy Military Estate Officer which is
stated falls within Hazara circle. The petitioner
challenged his reversal order in Peshawar High Court through a writ petition,
which was dismissed. Hon’ble Supreme Court also dismissed such petition while
holding that:-
“The normal consideration of
‘residence”, etc. and the “cause of action’ qua territorial jurisdiction, even
if attracted in the circumstances, do not support the petitioner’s case. The
cause of action partly arose at Muzaffarabad and
partly at
The question having arisen in the
context of a writ petition the Peshawar High Court was justified in refusing to
exercise jurisdiction on another ground as well. As provided in Article 199(1)(a) of the Constitution the impugned action or the authority
taking the same should be within the territorial jurisdiction of the High
Court, for exercise of jurisdiction thereunder. None of those conditions is
satisfied herein. Therefore, the refusal by the Peshawar High Court to exercise
jurisdiction is unexceptionable. The argument of the learned counsel that the
petitioner has been left with no forum for seeking relief has not impressed us.
There is no reason why should he not act on the observation made in the
impugned order that if so advised, the Lahore High Court may be moved in this
behalf. We are of the view that it is not a case of first impression. The law
has already been laid down in the rulings of this Court including those cited
at the Bar and qua special circumstances of this case, no separate general
treatment is necessary so as to grant leave to appeal.”
In case of Sandalbar Enterprises (pvt)
Ltd. Vs. Central Board of Revenue and others reported
in P.L.D. 1997 (S.C.) page 334 the petitioner imported certain consignments
from abroad. The same arrived at
“We
may observe that it has become a common practice to file a writ petition either
at
In
all these cases the dispute/issue was not related to the Federation and the
effect/impact of the action (function) was not found to be having a general
impact upon the general public as is usually found in the matter (s) of
enactment of law (s), rule (s), statute (s) or notification/order of the nature
having its effect upon the people at large or a class of people residing within
territorial jurisdiction of different High Court (s).
10. Before
the conclusion of moot issue, relating to the territorial jurisdiction of the
High court (s), we would like to refer to the meaning of the word Federation in Black’s Law Dictionary
which reads as under:
Federation. A league or union of states, groups, or people arranged
with a strong central authority and limited regional sovereignties—though the
individual states, groups, or peoples may retain rights of varying degrees.”
The plain reading of above leaves nothing
to doubt that it speaks about groups or people arranged with a strong central
authority thereby meaning that all linked with such central authority be deemed
to be one.
11.
Now, we come to what we
find from comparative study and analysis of case laws on the said point. This
can well be mewed as follows:-
a)
The Federal
Government or any body or a corporation or a statutory
authority having exclusive residence or location at Islamabad with no office at
any other place in any of the provinces shall still be deemed to function all
over the country for those act (s) / action (s) which are meant for whole of
the State;
b)
If such Government,
body or authority passes any order or initiates an action at Islamabad which
has an effect of general applicability upon all souls of the State or a
particular class of people;
In
such like situation the aggrieved party shall be well within rights to seek
help and constitutional protection towards its / their rights.
However, if a
particular order or action of an authority is not having its impact upon people
at large but is confined to a particular individual, re then the jurisdiction
to challenge such order or action shall remain with the High Court wherefrom
that order or action has been done or taken.
12. In view of above touchstone,
there is no cavil in the proposition that in the instant proceedings, petitioner
has challenged the notification issued by the respondent No.1(Federation
of Pakistan), moreover there can be no denial to the status that there are as
many as 15 regions of PCB which run their affairs under the PCB hence the PCB
is not a body having its function at Lahore only but does function all over the
State, wherever the regional body is established. Not only this but we
cannot confine the game of ‘cricket’ to a particular place only because the
object of establishment of the PCB is to promote ‘Cricket’ all over the country
and choose a team from all over the country , thus notification impugned and the function (s) of respondent No. 1, are
undoubtedly having a general impact all over the region (s) of PCB. This makes
us to view that this court is competent to examine the legality and validity of
notification issued by the respondent No.1
13. Having attended the above
objection, now we would like to examine the another legal position, surfaced in
instant proceeding, candidly similar
controversy was adjudicated by Islam Abad High Court by judgment dated 04.7.2013 in writ petition No.2242 of 2013,
which is assailed by respondents in intra court appeal No: 928/2013, before
same court. The operative part of judgment regarding the issue, involved, being
material is reproduced hereunder:-
“Practically, Mr. Najam Sethi is no more Acting
Chairman rather his status is of Caretaker being appointed by this court for a
period of ninety (90) days with the object to look into day to day affairs of
PCB, cooperate, and ensure the holding of election by the Election Commission
of Pakistan within the stipulated period commencing from 21st July,
2013 to 18th October, 2013 which period shall not be extended on any
pretext whatsoever”.
The above makes it clear that Mr. Najam Sethi is not an Acting Chairman but is a Caretaker who has been appointed by the
Court for a specific purpose and specific period i.e
18th October 2013. Thus once the legality of respondents No. 3, was
adjudicated by a competent court, the propriety demands that this court , must not examine the legality and validity thereof
for the simple reason that a decision of this court, if in conflict with said
order, will cause confusion and complicity
of the case and if comes in affirmation it will result in prejudicing the intra
Court appeal, filed by respondents. In other words, issue, decided by a
competent court , if pending determination before
appellate forum, the court of same status should refrain from deciding such
issue as a demand of propriety, fairness, good conscious and equity, therefore,
we refrain ourselves to discuss the vires of impugned notification, however petitioner
is at liberty to joined the proceeding of Intra court appeal, if so advised.
Accordingly,
this petition is disposed of in terms stated above.
14. Regarding the petition No.2020
of 2013; petitioner has challenged the appointment of respondent No. 3 (Zaka Ashraf) and vires of part 4 of the impugned
notification as illegal and unconstitutional but record reveals that respondent
No.3 is no more working as Chairman, Pakistan Cricket Board and his
re-appointment has already been set-aside as is evident from operative para of judgment of Islamabad High Court which reads as
under:-
“Appointment of Mr.
Zaka Ashraf by the patron, vide notification dated
13.10.2011 was not on the basis of his career as cricketer, knowledge about
game of cricket, administrative qualities and management skills but apparently
for the reasons that he was President of ZGBL, a banker in status and due to personal
affiliation with the persons on the helm of affairs. Re-appointment of Mr. Zaka Ashraf, is totally deceptive, as no election in
accordance with the spirit of democratic process has been held, therefore, same
is hereby set aside”.
It
is also matter of record , later part of prayer was also resolved in
same dictum, which follows:
“In this view of the matter,
Part-IV of the Constitution of Pakistan Cricket Board consisting of Sections
28, 29,30 and 31 is hereby declared to be void as initio, unconstitutional,
besides the democratic values, offensive to rights of individuals qualified to
be elected as Chairman PCB, against the principle of transparency, fairness,
impartiality, credibility and openness, therefore, all the provisions under
Part-IV of the Constitution of P?CB are declared to be of no legal effect and
it is directed that the same may be deleted forthwith.”
Thus, it is evident that this petition has
become infructuous and is dismissed as such.
15. So
far as the petition No 4026 of 2012; petitioner has mainly
challenged constitution of 2007, on the ground that same is against spirit of
Ordinance 1962 and against fundamental rights provided in chapter 2 of Constitution
of Pakistan 1973. During proceedings it has come on record that such Constitution
is no more in field thus instant petition being infructuous is also dismissed.
J U D G E
Announced on November ____
2013.