P L D 994 Lahore 466 (PLP)

MUNIR A. SHAIKH, J.‑‑‑This judgment will also dispose of ICAs. Nos.361/93, 363/93, 385/93, 386/93, 424/93, 508/93, 660/93, 19/94, 69/94 and 137/94 as common questions of law and facts have been raised in all of them and they are directed against various orders/judgments passed by the learned Single Judge in Suo motu Writ Petition No. 7459/93 and other writ petitions which are the offshoots of the said suo motu writ petition.

2. The facts forming the background of these appeals shortly stated are that on reading a news item in almost every prominent daily newspaper of 19‑7‑1993 published from Lahore relating to allotment of residential plots of various sizes to different persons in different schemes in the Province of Punjab, the learned Single Judge in exercise of suo motu writ jurisdiction in the public interest directed the learned Advocate‑General to place before the Court on 28‑7‑1993 the details of all the allotments of residential/commercial plots made by Mian Manzoor Ahmad Wattoo, the erstwhile Chief Minister of the Punjab, during his tenure of office to different persons in various residential/commercial schemes in the Punjab, giving full particulars of the plots, names and other particulars of their allottees and their price etc. The Press was also invited to participate in this exercise in the national interest. The list was submitted as directed on 28‑7‑1993.

3. On 28‑7‑1993 the learned Single Judge observed that it was proper to ask the person concerned to explain his position as regards allotment of plots, therefore, it. was directed that a notice be issued to Mian Manzoor Ahmad Wattoo for 1‑8‑1993. An order for conversion of these proceedings formally into suo motu writ petition was passed on this date which reads as follows:‑‑ "This order is being passed by this Court in the exercise of its Constitutional jurisdiction in public interest under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 2A thereof coupled with Quetta Declaration of Chief Justices' Conference on Public Interest Litigation and Fundamental Rights read with section 4 (enjoining interpretation of all laws in the light of Shariah) and section 5 (making the observance of Shariah obligatory for all Muslim citizens of Pakistan) of the Enforcement of Shariah Act, 1991. This being so, these proceedings are now formally converted into a suo motu writ petition." The said proceedings so converted into writ petition were registered as W.P. No. 7459/93 which shall hereinafter be called the main writ petition. Mst. Shahnaz Begum challenged this order for assumption of suo motu jurisdiction by the learned Single Judge and conversion of proceedings into suo motu writ petition through ICA No. 361/93 filed on 25‑8‑1993 which was admitted by a Division Bench of this Court. As regards interim relief prayed for by the said appellant the Division Bench passed the following order:‑‑ "The impugned order dated 28‑7‑1993 shall remain suspended meanwhile subject to notice."

4. During the hearing of the said matter regarding allotment of plots in the Province of Punjab by the Chief Minister, Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate, who was allowed to join the proceedings to assist the Court at his own request brought to the notice of the learned Single Judge on 8‑8‑1993 that irregularities of serious nature had also been committed by Mian Muhammad Nawaz Sharif, ex‑Prime Minister as regards utilization of Federal Bait‑ul‑Maal Fund, therefore, an order was passed for issuance of notice to Dr. Arshad Randhawa who was Incharge of the Federal Bait‑ul‑Maal directing him to produce the record of Federal Bait‑ul‑Maal on the next date of hearing alongwith statement showing the income and expenditure of the Federal Bait‑ul‑Maal from its establishment till 18‑7‑1993. This part of the proceedings was ordered to be separated and registered as suo motu Writ Petition No.9781/93 and was finally decided through judgment dated 29‑8‑1993 which was assailed by Mian Muhammad Nawaz Sharif through ICA No. 435/93 and by Al‑Jehad Trust etc. through Habib‑ul‑Wahab Al‑Khairi through ICA No.455/93. Both these ICAs have been decided through separate judgment, therefore, the said part of the proceedings need not be discussed separately here. On the same date i.e. 8‑8‑1993 the learned Single Judge observed that since an information regarding the allotment of plots in capital territory of Islamabad by different Prime Ministers from their discretionary quota had come on the record, therefore, notices similar to those already issued to the Chief Minister of the Punjab should also be issued to Mohtarma Benazir Bhutto, Mr. Ghulam Mustafa Jatoi and Mian Muhammad Nawaz Sharif for the date fixed i.e. I9‑8‑1993 to appear personally or through their counsel to explain their position. Mohtarma Benazir Bhutto challenged this order through 7CA No. 363/93. The proceedings relating to allotment of plots in Islamabad were registered as independent suo motu W.P. No. 8623/93 and decided finally through judgment dated 19‑9‑1993 by the learned Single Judge. This judgment has been assailed by the C.D.A. through ICA No. 660/93 and by one Javaid Iqbal an allottee of a plot through ICA No.69/94.

5. The learned Single Judge in these proceedings also took note of the utilization of the funds available in the Provincial Bait‑ul‑Maal also and decided to exercise suo motu writ jurisdiction and proceedings as regards the Provincial Bait‑ul‑Maal were registered as suo motu W.P. No. 8622/93 which was decided through separate judgment dated 25‑8‑1993 against which Mian Manzopr Ahmad Wattoo has filed the present appeal (ICA No. 359/93). Through order dated 19‑8‑1993 Mr. Haider Usman and Mr. S.M. Bashir were also ordered to be impleaded as respondents in W.P. No. 8622/93 as they were found to have been much concerned with the allotment of plots and mis appropriation of huge amount from Provincial Bait‑ul‑Maal Fund. Malik Haider Usman and Mr. S.M. Bashir alongwith one Abdul Jabbar Qureshi have also challenged judgment dated 25‑8‑1993 passed in suo motu Writ Petition No. 8622/93 through ICA No. 385/93.

6. Since the learned Single Judge also took exception to allotment of plots to Mr. Ghulam Asghar Malik, former inspector‑General of Police, Major (Retd.) Muhammad Akram, Deputy Inspector‑General of Police, Lahore Range and Habib‑ur‑Rehman, Senior Superintendent of Police, Lahore, and observed that the allotment of plots to these police officers had gained, a new dimension, therefore, that part of the proceedings should be registered at separate suo motu writ petition. A formal amended writ petition was, however, filed by Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate. Since the legality of allotments of plots made to the said three police officers had also been questioned they filed ICA No. 386 of 1993 in which they assailed interim orders passed by the learned Single Judge on 19‑7‑1993, 28‑7‑1993, 8‑8‑1993 and 26‑8‑1993 which was admitted by a Division Bench on 4‑9‑1993. On 5‑9‑1993 an order was passed in the said ICA for maintenance of status quo in the meanwhile.

7. On 19‑8‑1993 in the main writ petition (W.P. No.7459/93) the learned Single Judge also passed an order for appointment of Major‑General (Retd.) M.H. Ansari as Local Commissioner/Court Representative without fee to submit his report as to the correctness of the list of plots supplied by the L.DA., how many such plots had been allotted by the Lahore Development Authority in the names of fictitious/benamis, how many political personalities, especially the Ministers, MNAs and MPAs and high‑placed Government officers of any department etc., had obtained such plots, what was the approximate market value of each plot and what was the present position of each plot i.e. whether it was lying vacant, constructed or partly constructed etc. It was pointed out to the learned Single Judge by Mr. Maqbool Elahi Malik, Advocate, that this person had political affiliation with a prominent political party, therefore, had political bias against Mian Muhammad Nawaz Sharif, as such, should not be associated in these proceedings. A written application was also filed (CM No.1895/93) by Wan Muhammad Nawaz Sharif and Mian Ghulam Haider Wyne for recalling order for appointment of Major‑General (Retd.) M.H. Ansari as Local Commissioner he being their political opponent. The learned Single Judge vide order dated 30‑8‑1993 rejected the said application. This order has been challenged in ICA No. 424/93 by Mian Muhammad Nawaz Sharif which was admitted by a Division Bench on 12‑9‑1993. It was also ordered that status quo would be maintained which order was clarified through order dated 13‑9‑1993 that the said order for maintenance of status quo would be construed to mean the stay of the proceedings before Major‑General (Retd.) M.H. Ansari as Local Commissioner.

8. As consequence of the probe made by the learned Single Judge to the, main writ petition (W‑P. No. 7459/93) the said writ petition was decided through judgment dated 19‑9‑1993 and it grants, leases and transfers of state‑owned plots car tracts of land whatever kind and size, located in the Province of the Punjab‑ (a) in any development scheme of Housing, Physical and Environmental Planning, Department, Government of the Punjab, executed, or being executed by it directly; in any development scheme of any Development Agency of the ‑said Department or of any other Department of the Provincial Government such as Lahore Development Authority, Multan Development Authority, Faisalabad Development Authority, Rawalpindi Development Authority or similar other development authorities; and in any development scheme of any Improvement Trust or of any other Department or official agency of the Provincial Government, including Board of Revenue; made by or under the orders or directions of any officer or authority (including the Chief Ministers of the Punjab from their so‑called discretionary quota or otherwise as Chief executives of the Province) are against law, without lawful authority, having no legal effect eversince 30‑12‑1985 till now. Learned Single Judge was conscious of the fact that this declaration was calculated to affect adversely the genuine allotments, grants and transfers made by various officers and authorities (other than the Chief Ministers) of Housing and Physical Planning Department and those of its Development Agencies, therefore, it was observed that the Provincial Legislature shall have to enact a validating law for these allotments, grants, leases and transfers so far made by them. It was also remarked that the respondents in the said writ petition had definitely incurred heavy liability civil and criminal both but this aspect of the matter was left to the discretion of the Provincial Government.

9. Through a separate judgment passed on the same date i.e. 19‑9‑1993 the part of the suo motu proceedings relating to allotments of plots in Islamabad Territory which was registered as suo motu W.P. No. 8623/93 was also decided. After examining the provisions of Capital Development Ordinance, rules and the regulations it was declared that the allotment of all plots of whatever size and dimension and of whatever kind i.e. residential, commercial, industrial, agro‑farming and agro‑industrial situated in any residential, commercial, industrial, ago‑farming sector or in any agro‑village or sub‑urban centre in Islamabad Capital Territory allotted by or under the direction of any Prime Minister from his discretionary quota in favour of any person, firm or company during the period after the lifting of Third Martial Law in the country till the dissolution of National and Provincial Assemblies on 18‑7‑1993 are against law, without lawful authority and have no legal effect and declaration has been made accordingly. Learned Single Judge being oblivious ‑of the fact that this declaration was going to have far‑reaching repercussions as it was calculated to affect adversely even those allottees who had raised constructions over the plots with the passage of lime, therefore, it was observed that steps should be taken to cause minimum possible inconvenience to them. It was also noticed that some of the allottees might have transferred the plots to other persons through sale or otherwise, therefore, to protect the interest of genuine transferees from them, the C.DA. was directed to charge from the original allottees of the aforesaid plots, including their legal heirs if some of them had dead, the market value of the plots prevalent at that time in the locality, after complying with necessary legal formalities of serving show‑muse notice on them and affording them opportunity of being heard and. in case of their failure to pay the market price, to resume the plot for public auction after allowing them an opportunity to ,remove the structures, if any. It was also observed that as regards the liability incurred by the respondents for doling out, valuable public property to the persons of their choice, it was for the Federal Government to initiate such action, if any, against them as it may deem proper.

10. The part of proceedings relating to utilization of Provincial Jahez Fund, Provincial Bait‑ul‑Maal Fund and Discretionary Fund by the Chief Ministers of Punjab which was registered as suo motu W.P.No.8622/93 and was decided finally by the learned Single Judge through judgment dated 25‑8‑1993. It was held that Mr. Ghulam Haider Wyne and Mian Manzoor Ahmad Wattoo, their relations, friends and political associates, besides some official and non‑official members of the Punjab Bait‑ul‑Maal Council, and a senior civil servant, all were liable to the following various legal actions:‑‑ "(a) Director, Anti‑Corruption, Punjab shall cause a case under sec‑tion 409, P.P.C. and under section 5(2) of the Prevention of Corruption Act, 1947 read with section 161, P.P.C. to be registered against Mr. Ghulam Haider Wyne and Mian Manzoor Ahmad Wattoo, Sardar Nasrullah Khan Derashak, a former Provincial Minister; Mian Ahmad Shuja Wattoo, former Chairman, District Council, Okara; Mian Mazhar Ahmad Wattoo, Deputy Secretary, Punjab Assembly Secretariat; Malik Haider Usman, Advocate from Multan; Mr. S.M. Bashir, resident of Model Town, an office‑bearer of Wattoo's Muslim League; Mr. Hussain Haqani, a Journalist; Mr. Abdul Jabbar Qureshi, resident of outside Daulat Gate, Multan; Mr. Jalil Sheikh, Director Model Welfare Association, 73‑D Model Town, Lahore; and Mr. Muhammad Afzal, Principal, Lahore Cadet School, Gulberg‑III, Lahore, and after the registration of the case, serious efforts shall be made by the Investigating Officer, who shall not be below the rank of an S.P., to recover public money misappropriated by them. He shall submit the challan within a fortnight. (b) A reference shall be made to the Election Commission of Pakistan, Islamabad, against four Senators, 41 MNAs and 236 MPAs. as mentioned in the Jahaiz Fund lists (Annex. XI) and (Annex. XII) and against the MNAs and MPAs mentioned in the discretionary fund/Bait‑ul‑Maal Fund list (Annex. XIV) which is the combined list of four lists, 2 separate lists of Mr. Ghulam Haider Wyne and 2 separate‑fists of Mian Manzoor Ahmad Wattoo, for taking action against them under Article 62(f) read with Article 113 of the Constitution of Islamic Republic of Pakistan as, in the opinion of this Court, the manner they obtained funds from the Chief Ministers was more a form of political bribe, and they do not satisfy the requirements ‑of these provisions of the Constitution as they themselves were its trustees. (c) Reference shall also be made against Mian Nawaz Sharif, Mr. Ghulam Haider Wyne and Mian Manzoor Wattoo in terms of preceding clause (b) above, against the first one for illegally creating Chief Minister's Discretionary Grant (Utilization) Fund vide Order/Notification dated 3‑9‑85 and after unlawfully spending huge amounts from it, getting the same validated through a mala fide legislation (Punjab Act III of 1989); and against the last two for their various misdeeds as detailed above, especially when they have been adjudged as liars in the recent Fund Bench judgment of Lahore High Court, Lahore reported as Ch. Pervaiz Elahi v. Province of Punjab and another (PLD 1993 Lahore 595). (d) Reference shall also be made against Mian Muhammad Yaseen Wattoo, former M.N.A.; Dr. Muhammad Afzal Azaz, former MPA; Mr Sikander Khilji, former MPA and Mr. S.M. Bashir under Article 62(f) read with Article 113 of the Constitution for illegally transferring, alongwith other members of the Punjab Bait‑ul‑Maal Council, in its 12th Meeting, dated 12‑9‑1992, a sum of Rs.9,66,22,908 to the discretionary fund of the Chief Minister on the illegal demand of Mr. Ghulam Haider Wyne, who and his successor dissipated a major portion thereof. (e) Reference shall be made to the Secretary, Establishment Division, Islamabad, for initiating disciplinary action for misconduct under the Efficiency and Discipline Rules, 1973 against Mr. Tanvir Ahmad, Secretary, Education; Mr. Tariq Saeed Haroon, Secretary, Health, Mr. Tariq Sultan, Secretary, Finance; Ch. Muhammad Ashraf, Secretary, Social Welfare and Zakat, and Mr. Muhammad Jamil, Director General, Social Welfare, Government of the Punjab, for the first three through their representatives, and the latter two personally, having agreed as members of Punjab Bait‑ul‑Maal Council, alongwith certain non‑official members thereof, in 12th meeting of the council for illegally transferring a sum of Rs.9,66,22,908 from Bait‑ul‑Maal Fund to satisfy the illegal demands of the Chief Ministers of the Punjab and enabled them to misappropriate and squander away a major portion thereof for building up their political stature. (f) The Government of the Punjab shall‑‑‑ (i) on the completion of statements regarding the expenditures incurred from discretionary by Mian Nawaz Sharif during his period as Chief Minister of the Punjab and after its due scrutiny from the Audit, recover the amounts irregularly or illegally spent by him from this grant, besides the sum of Rs.2,85,050 which he obtained as loan from Mr. Wyne from Bait‑ul‑Maal Discretionary Grant for distribution as Eidi through Deputy Commissioner, Lahore; (ii) recover various amounts doled out to the public representatives mentioned in clause (b) above, by way of political bribe, by employing all possible coercive means; and (iii) suitably amend section 21 of the Punjab Act X of 1975 so as to remove its arbitrariness by specifying the maximum limit of discretionary grant, keeping in view the grant of the Prime Minister under the Law governing his pay, allowance and privileges. (g) Reference shall be made to Secretary, Establishment Division, Islamabad for initiating disciplinary action under E&D Rules for misconduct against Mr. Moaeen Afzal, former Finance Secretary, Government of the Punjab who is now said to be serving the Federal Government, for submitting a wrong summary to the Chief Minister on 6‑8‑1985 for illegally suggesting the institution of a parallel fund under the executive order, instead of advising him to amend section 21 f Act X of 1975, and after its approval enabling him to illegally spend public funds to the tune of lacs of rupees." This judgment has been appealed against through the present ICA (ICA No.359/93) by Mian Manzoor.Ahmad Wattoo and through ICA No. 385/93 by Malik Haider Usman, S.M. Bashir, and Abdul Jabbar Qureshi. It was also challenged by Mr. Ghulam Haider Wyne deceased through ICA No.360/93 which has been disposed of as having become infructuous:

11. It is clear from the facts as narrated above that suo Motu W.P.No.8623/93 relating to allotments of plots in Islamabad Territory and suo motu W.P. No.7459/93 i.e. the main writ petition relating to allotment of Plots in the Province of Punjab as aforementioned were decided on 19‑9‑1993. As observed above the learned Single Judge through order dated 28‑7‑1993 passed in the main writ petition (W.P.No.7459/93) converted the proceedings formally into suo Motu writ petition and thus decided to exercise suo Motu jurisdiction and as such took cognizance of the matter. This order was assailed by Mst. Shahnaz Begum through ICA No.361/93 which was filed on 25‑8‑1993 On 5‑9‑1993 the Division Bench was pleased to admit the said appeal and also passed order for suspension of the operation of the said order dated 28‑7‑1993. Since through order dated 8‑8‑1993 Mohtarma Benazir Bhutto the ex‑Prime Minister as she then was, was also directed to appear before the Court to explain her position as regards allotment of plots in Islamabad from Prime Minister Discretionary Quota during her tenure as Prime Minister, therefore, she challenged the said orders through ICA No.363/93 in which the Division Bench through order dated 5‑9‑1993 suspended the operation of the said two orders. On the passing of the said orders by a Division Bench in the said ICAs in our view no further proceedings in the main writ petition (W.P. No.7459/93) and in other matters emanating therefrom which had been registered as independent and separate suo Motu writ petitions could have been taken, and judgments passed by the learned Single Judge. We have examined the record of the said ICAs and find that the said interim orders are still operative even uptil today having not been got vacated. This being so, the judgments dated 19‑9‑1993 passed in suo Motu W.P. No.7459/93 and 8623/93 relating to allotments of plots in the Punjab Province and Islamabad Capital Territory respectively are nullity and liable to be set aside on this short ground.

12. Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate, faintly argued that the said ICAs were directed against interim orders passed by the learned Single Judge, as such, the same were not maintainable under section 3 of Law Reforms Ordinance, therefore, the interim orders were nullity and could be ignored. '

13. We are afraid the argument if accepted the judicial system as a whole would collapse and it would not be possible to maintain discipline in the judiciary if any Court or authority against whose proceedings the appellate Court or Bench passes interim orders for suspension of proceedings pending before it, is permitted to decide as to whether the same was valid or not. The proper course in such a case was to approach the Division Bench for vacation of the said interim orders. Suffice it to say that so long as those orders had not j been withdrawn or vacated they were operative and should have been acted upon and further proceedings stayed.

14. Reverting to the merits of the case of suo Motu W.P. Nos.7459/93 and 8623/93 .it may be observed that the effect of declaration made in the judgments passed in both the said writ petitions was that all the allotments of plots made in the Punjab Province and Islamabad Capital Territory during the specified period have been set aside in wholesale manner and it has been directed .that from some of the allottees market price of the plots should be recovered and in case of death of any one of them their legal heirs should be directed to pay the market price and in case they would fail to pay the same the plot allotted to their predecessor‑in‑interest should be resumed and superstructure constructed thereon may be allowed to be removed. Apart from this; wholesale condemnation was made as regards allotments of plots by different authorities such like Chief Ministers, Prime Ministers and the statutory bodies. Learned Single Judge had assumed suo Motu jurisdiction under Shariah. One of the cardinal‑principles embodied in the Injunctions of Islam is that nobody should be condemned unheard without providing him opportunity to defend himself. None of the allottees whose allotments were set aside were issued any notice and heard before passing the impugned judgments in the said two suo Motu writ petitions. None of the statutory bodies which had been created under the Statutes and had independent legal entity as juristic persons were also given opportunity of hearing before condemning allotments made by him, their laws and regulations under which they were performing functions. Though Mian Manzoor. Ahmad Wattoo initially was issued notice to explain his position who filed written statement in which he explained his position as to the transfers/allotments of plots but he was not given opportunity to produce evidence. In our view the opportunity given to Mian Manzoor Ahmad Wattoo to explain his position did not satisfy the requirement of law i.e. opportunity of hearing. Mian Manzoor Ahmad Wattoo explained that one of the plots was allotted to the widow of Habib Jalab and the other to the widow of an A.D.C. (G.). The plots of 5 Marlas each according to him were allotted/transferred to poor homeless persons. Some plots were allotted to police officers on account of their meritorious performance. The learned Single Judge did not consider on merits the case of allotment of 'each plot in order to arrive at conclusion as to whether allottees of the said plots should be deprived of ownership rights acquired by him in pursuance of an allotment made by an authority at the relevant time which was ostensibly empowered to transfer the same. Declaration about the validity of all the allotments has been made mechanically on the ground that the same were made by the Chief Ministers and the Prime Minister from their discretionary quota. If the reservation of quota for the Chief Ministers and the Prime Ministers was objectionable and the learned Single Judge was of the view that the same 'should not be allowed to be continued, even if suo motu jurisdiction was vested in such matters, directions should have been given for elimination of such quota prospectively instead of cancelling the allotments made to various persons who had acquired valuable rights and raised constructions. The allotments of such allottees could not have been declared illegal or set aside because as observed above they acquired proprietary rights in pursuance of the transfer made by the authority which was ostensibly vested with the power at the relevant time to allot/transfer the plots.

15. We have also noticed that in the impugned judgments the learned Single Judge expressed his own views about the prevailing evils in the country, condemned certain persons and the public functionaries who were specifically targetted. The statutory bodies established under the law have also been condemned alongwith their rules and the regulations. The Supreme Court in a case reported as Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) did not approve such kind of expressions. It was held that the expression of Court's own views about the prevailing evils in the country, widespread general, non‑specific condemnation of the established institution should not have been made in the process of expressing such views nor should individuals be targetted or a feeling of despondency or helplessness aggravated. The Supreme Court ordered for expungement of such remarks from the judgment impugned in the said appeal.

16. Coming to the merits of judgment dated 25-8-1993 passed in suo motu W.P. NO. 86622/93 which has been assailed in the present appeal (ICA No. 359/93) by Mian Manzoor Ahamad Watto and connected ICA No. 359/93 it may be observed that apart from others a direction has been made against 4 Senators, 41 MNAs and 236 MPAs alongwith Mian Muhammad Nawaz and Mian Muhammad Yasin Watto and Mian Muhammad Yasin Khan Wattoo etc. for making reference against them for their disqualification and registration of criminal cases and investigation of the same by a specified police officer and for their tiral without affording them opportunity of hearing as no notice was issued to them before condemning them. The learned Single Judge in the impugned judgment date 25-8-1993 as a matter of fact went to the event of holding them guilty of criminal offences and having incurred liability of being disqualified. Since express and definite findings have been recorded against all these props about their guilt arid a direction for registration of eases and making reference, conduct of investigation submission of challaand trial in consequence thereof are mere formality as no Court or investigating agency vas left with any choice to hold them not guilty. Rules of natal justice that no person should be condemned unheard and without affording opportunity of leering as embodied in the Injunctions of Islam lave also not been followed in this case.

17. Mr. Habib‑ul‑Wahab Al‑Khairi attempted to argue that those persons against whom in pursuance of directions made by the learned Single Judge in the impugned judgment dated 25‑8‑1993 for registration, of case, will have opportunity to defend themselves in case challan was submitted to the Court for trial. We are afraid as observed above in view of express findings recorded in the impugned judgment fair trial and investigation of the cases appears to be not possible as no scope has been left for the said authorities to whom the reference was directed to be made and challan submitted to come to a different conclusion.

18. The next question which falls for consideration is regards exercise of suo mote writ jurisdiction. This aspect of the use engaged our serious consideration. The main consideration on which the learned Single Judge decided to exercise suet mote jurisdiction as mentioned in the judgment dated 19‑9‑1993 '4.P. No.7459/93, judgment dated 25‑1993 passed in W.P. and dated 19‑1993 passed in W.P. No.8023/93 was that Minister, Governor and Chief Minister etc., as there was no provision to compel them to account for their illegal acts before and forum, as such, this vacuum had to be filled by Sharia which was the statutory recognised supreme law of the land. We do nest rid ourselves in agreement with the learned Single Judge on this point. In the Constitution provisions have been enacted for the impeachment f the President cal" Pakistan through the elected representatives Pakistan. There are also provisions for the removal of the through no confidence motion' which the sleeted representatives of the people of Pakistan could invoke in case the Prime Minister urea nod acting in accordance the Constitution, to law wishes of the people or m the interest of the country to remove him. As regards accountability of the elected members of the. Parliament and the Provincial Assemblies the Parliament and Provincial Assemblies is qualification for Membership) Order, 1977 (P3 11 & 17 of 1977) have been promulgated which are in force since 1977 and arc laws of the country. According to these laws the elected members c f the Parliament, the Provincial Assembly and even the Prime Minister Chief Minister and there silent be proceeded against or misuse of their position and power. The expression "misconduct" which has been defined in both these legislations is as follows:‑‑ "`misconduct'" refers to conduct after December, 1970, and includes bribery, corruption, jobbery, favouritism, nepotism, wilful and mal administration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise, and' any other abuse of whatsoever, kind of power or position and any attempt at, or abetment of such misconduct." It is manifest from this definition that it is comprehensive and under these laws, Chief Minister, Prime Minister and elected members of any of the assemblies could be proceeded against for all those acts in relation to which he learned Single Judge decided to exercise suo motu jurisdiction against the public functionaries and elected members of the Assemblies. Under these laws he President of Pakistan has been empowered to make reference to the special Court established under the said Statutes. Any person if found guilty by he Special Court according to these laws is to stand disqualified for seven rears from being member of Parliament or Provincial Assembly and from wing elected as member of such Assembly in addition to criminal liability for Which he could be tried and punished. Presidential Order 16 provides criminal prosecution for misconduct and awarding of sentence to such person if found utility.

19. According to Article 199(1)(a) of the Constitution any act done or proceeding taken by a public functionary could be avoided by an aggrieved reason through an application whereas under Article 199(1)(c) a High Court case been empowered to issue direction for enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II, on the application of air aggrieved person. It is, therefore, clear that for avoiding any act done or proceedings taken by a public functionary or for the enforcement of any of the Fundamental Rights the High Court could act if an application had been made )y an aggrieved person. Article 199(1) provides that jurisdiction is to be, .exercised subject to the Constitution. Article 175(2) enacts that no Court shall nave any jurisdiction save as is or may be conferred on it by the Constitution or )y or under any law. Reading all ‑these provisions of the Constitution and the was Presidential Orders 16 and 17 together it is not possible to hold that suo motu jurisdiction can be exercised in those matters regarding which express' provisions have been enacted in the Constitution itself or the law has been made in regard thereto. It is not possible to hold that suo motu jurisdiction is to be exercised in respect of a class of persons such like elected members of the Assemblies. Chief Ministers, Prime Ministers in connection with those matters about which provisions have been enacted in the Constitution itself or laws have been made providing the manner in which they were to be proceeded against. In this view of the matter reliance by the leaned Single Judge on sections 4 and 5 of the Shariat Application Act, 1991 and Article 2‑A of the Constitution for assumption of suo motu jurisdiction cannot be upheld as these provisions did not have the affect of conferring any jurisdiction whereas they merely provide guidelines for deciding the cases properly brought before the Court under the existing law. This view finds support from judgment of the Supreme Court in The Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service, Sargodha and others (PLD 1958 SC (Pak.) 437) in which while interpreting Article 170 of the Constitution of 1956 it was observed as under:‑‑ "I can see no ground for thinking that the intention of the Constitution was to empower the High Courts to send for the records of any of the proceedings before any executive or quasi judicial authority and satisfy themselves that every department of the Government is functioning satisfactorily." ' ` This view was reaffirmed by the Supreme Court in the case of Fail‑e‑Haq, Accountant‑General, West Pakistan v. The State (PLD 1960 SC (Pak.) 295). The law conferred expressly suo motu jurisdiction on the Court where it was intended to be conferred. Reference in this regard may be made to section 24 of the C.P.C. where the Court has been empowered to transfer a case of its own motion, section 115, C.P.C. and section 435, Cr.P.C. Even under these provisions of law before exercising the power the Court is required to hear the person who is likely to be affected by the order intended to be passed. So long as Article 175 is the part of the Constitution it cannot be held that the High Court could exercise any jurisdiction which had not been conferred expressly by law. Article 175 of the Constitution cannot be held repugnant to Article 2A of the Constitution as according to the rule laid down in the case of Hakim Khan and others v. Government of Pakistan and others (PLD 1992 SC 595), the test of repugnancy between the two provisions of the Constitution cannot be applied.

20. There are serious doubts as to whether the matters in relation to which the learned Single Judge assumed suo motu writ jurisdiction were in any manner related to or connected with the enforcement of Fundamental Rights. Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate, filed a petition directly before the Supreme Court under Article 184(3) of the Constitution in which the following prayers were made‑‑ The Supreme Court through judgment dated 16‑11‑1993 dismissed the said petition. As regards the prayers in relation to Fundamental Rights it was held as under:‑‑ "The petitioner has failed to demonstrate which of its specific Fundamental Rights has been infringed. The, above reliefs sought by the petitioner are of far‑reaching consequence and if granted may result into total collapse of the working of the policy in the country and may cause political choice. None of the above reliefs can be granted on the basis of the above . general averments made by the petitioner in the petition, besides the fact that most of them are not suited to be subject‑matter of the proceedings under Article 184(3) of the Constitution." It is manifest from this judgment that the matters similar to those in relation to which the learned Single Judge assumed suo motu jurisdiction were held to be not relatable to any specific Fundamental Right of any person, therefore, the Supreme Court did not allow the said petitioner to invoke the jurisdiction under Article 184(3) of the Constitution for enforcement of Fundamental Rights. '

21. During the hearing of these appeals Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate, submitted that so far as he was concerned his only anxiety was that the disposal of State properties should be regulated and controlled by law which should also provide guidelines for the public functionaries regarding thereto and if an undertaking was given by the Chief Minister of Punjab and the Prime Minister to make such laws and not to exercise powers for the disposal of State land except under such law he would be satisfied, no matter even if discretionary quota is reserved. 22: Learned counsel for Mian Manzopr Ahmad Wattoo, the Chief Minister of the Punjab has placed on record the following policy decision taken in this regard:‑‑ "I am directed to intimate that the Chief Minister Punjab has been pleased to approve the following actions and principles of policy for ensuring good governance in the Province:‑‑ . (1) With a view to return land/plots and take punitive measures, a high powered committee has already been constituted to probe into the illegal/irregular allotments of plots in the Lahore Development Authority in the past. (2) The Government proposes to pilot a Bill in the provincially legislature to frame legislation to cover allotment of urban Government lands, allotted through the Housing and Physical Planning Department. (3) The Government also proposes to develop a policy framework to circumscribe the exercise of discretion and bring it within the ambit of the established principles of prudence and good sense. (4) My Government is fully conscious of its responsibility towards the appropriate, judicious and transparent use of Government funds. However, Government proposes to take further concrete steps to develop appropriate systems for the better utilization of public finance. In any case, Government should and is fully prepared to probe into any noticeable financial irregularities or inaccuracies. (5) The Punjab Government during my current tenure has not allotted any plots so far as we are in the process of developing a comprehensive policy and a legal framework to cover the same. Even during my previous tenure no conversion of commercial plot to residential was allowed, plots of 3‑5 Marlas were allotted only to the poor and the deserving, and only a handle of large size plots were allotted to individuals on grounds of extreme distress or for rendering meritorious services. I would like the above principles to be observed in future and to be translated into concrete action. I would also like the Secretary, Law to file the above principles of policy in the Honourable High Court in Inter‑Court Appeal 137/1994, entitled Government of the Punjab v. Al‑Habib Trust."

23. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney‑General has also placed on record the, latest regulations framed by the C.DA. according to which the discretionary quota of Prime Minister for allotment of State land in Islamabad Capital Territory has altogether been abolished and done away with. They provide guidelines and criteria for allotment of plots in Islamabad. Mr. Habib‑ul‑Wahab Al‑Khairi, Advocate, submitted that so far he is concerned his grievances stand redressed and he is no more concerned with these matters.

24. The Chief Minister of the Punjab according to the policy decision placed on the record has already constituted a high‑power committee to probe into the illegal/irregular allotments of plots in the L.DA. in the past and as‑ a consequence of the said probe shall certainly take stern action against those who would be found responsible for misusing their powers or guilty of favouritism and nepotism how highsoever they may be.

25. Before closing this part of the judgment we may observe here that the learned Single Judge in these proceedings also made observations against the Chief Minister of the Punjab in relation to his certain acts and as regards disputes between the Federal Government and the Government of the Province of the Punjab in respect of the extent of the exercise of administrative authority of the Federation in the Province and condemned him. Apart from the fact that this condemnation was made without providing opportunity to him of hearing, under Article 184(1) of the Constitution the exclusive jurisdiction to decide any dispute between the two Governments vests in the Supreme Court of Pakistan, therefore, these remarks and observations made by the learned Single Judge are without jurisdiction and should not have been made. These mattes being of highly sensitive nature could not have been dealt with in such a summary manner that too when no jurisdiction was vested in this Court to determine the same. It was open to the Federal Government either to invoke jurisdiction of the Supreme Court under Article 184(1) of the Constitution for resolving these disputes or advised the President to make reference under Article 186 to the Supreme Court of Pakistan for soliciting advice. These remarks, therefore, are hereby expunged.

26. For (he foregoing reasons this I.CA. as also I.CAs. Nos.508/93, 385/93, 386/93, 660/93, 19/94, 69/94 and 137/94 are hereby accepted and the judgment dated 25‑8‑1993 passed in suo motu W.P. No.8622/93 as also judgments dated 19‑9‑1993 passed in Writ Petitions Nos.7459/93 and 8623/93 are hereby set aside and proceedings quashed. I.CAs. Nos.361/93, 363/93 and 424/93 are dismissed being not maintainable having been directed against interlocutory orders. There will be no order as to costs. M.BA./M‑1666/L Order accordingly.