P L D 1970 Karachi 241 (PLP)

ANWARUL HAQ, J.

‑I entirely agree with the judgment proposed to be delivered in this case by my learned brother Abdul Kadir Shaikh, J. but would like to add a few words of my own to reinforce to conclusions reached by him. It is clear that the defendant Mubarak Ali Ahmed did not state true facts regarding the execution of the contract dated the 8th of April 1959, but his dishonest stand does not, in any manner, alter its true nature. From the statement of the plaintiff as well as from the facts proved or admitted on the record, it is abundantly clear that the material assistance mentioned in the contract, on which the plaintiff has based his claim, was nothing but the use of his influence and contacts with persons in high authority, particularly the then Foreign Secretary to the Government of Pakistan. The exercise of such influence, or the use of such contacts, for monetary considerations must clearly be held to be against public policy in all systems of civilized and clean administration. The need for emphasizing and reiterating this principle was never greater in Pakistan than during recent years when unfortunately corruption in its various forms assumed ugly proportions. No Court should be a party to the enforce ment of a contract which seeks to exploit such contacts and influence in official quarters for personal gain. Such a contract is clearly illegal, in terms of section 23 of the Contract Act, as being opposed to public policy.

2. Mr. Gindu Mal, the learned counsel for the plaintiff, took pains to elaborate the point that the term "public policy" is hardly amenable to a precise definition by the Courts and, therefore, it would be highly unsafe for us to declare the contract void on grounds of public policy, as requirements of such policy change from time to time, and many transactions would be upheld today which in a former generation would have been avoided as contrary to the supposed policy of the law. While there can be no quarrel with the general proposition advanced by the learned counsel, yet it is clear that whatever the change in the concept of public morals the hiring of a person for money or valuable consideration so as to use his position and influence in official quarters for procuring monetary benefit for a third party, must continue to be regarded as being against public policy. We have all witnessed the immense public injury caused in this country by such influence‑pedaling.

3. It is true that this plea was not specifically raised on behalf of the defendants in the pleadings or at any stage during the trial, and it has accordingly been vehemently contended on behalf of the plaintiff that it should not now be permitted to be raised. Mr. Dingu Mal referred us to Ha/1 Abdullah Khan v. Nisar Muhammad Khan and others (P L D 1959 Pesh. 81) and Masud Jilani v. Muhammad Ibrahim Miraj‑ud‑Din (P L D 1962 Lab. 281) in support of his sub missions in this behalf. In the first‑mentioned case a Division Bench observed that to allow questions of law or fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice. It went on to add that "the objection to the maintainability of the suit or whether a contract is void or voidable, must be raised in the written statement, and if it is not so raised, it could not be allowed to be raised for the first time in appeal". In the second case it was similarly held that a defendant could not be allowed to take up the plea of the illegality of the contract at the appellate stage, as section 23 of the Contract Act raised a presumption of legality about every consideration, and the burden lay on the defendant to establish the illegality of the contract by placing the relevant material on the record during the trial.

4. The rule laid down in these two cases cannot be regarded as exhaustive or conclusive, for the reason that where the new point raised is a pure question of law, not involving any fresh factual investigation, the Courts have been generally inclined to the view that such a question should be permitted to be argued in appeal even though it was not agitated during the trial (See A I R 1947 Lah. 185, P L D 1957 Lah. 538, P L D 1958 Dacca 26, P L D 1961 Lah. 293, P L D 1961 Dacca 79, P L D 1964 Kar. 61, P L D 1967 Dacca 216 and P L D 1965 S C 690). Apart from this general proposition, I find that on the specific question of the illegality of the contract on account of its being opposed to public policy the weight of authority appears to be in favour of permitting such a question to be raised for the first time even at the appellate stage, the reason being that no Court should enforce an illegal contract, if the illegality can be deduced from the evidence brought on the record See A I R 1923 Mad. 626, (1918) 2 K B D 41 and 8 1 C 1117.

5. I consider, therefore, that on the facts and circumstances of this case we are justified in permitting the defendants to raise the question of the legality of the contract during the appellate stage and we must hold that on the evidence already on the record the contract has to be declared to be void as being opposed to public policy and, therefore, unenforceable through a Court of law. A. E./S. A. H. Appeal allowed.