P L D 2013 Balochistan 10 (PLP)

QAZI FAEZ ISA, C J.

A meeting was held under the Chairmanship of Secretary, Services and General Administration (respondent No.2) on 14th June, 2012, in which meeting six 'principal candidates' and six 'alternate candidates' were nominated for seasonal Hajj duty staff for 2012'. The petitioner was one of the 'principal candidates'.

2. To bear the expenses of the candidates an amount of Rs.1,916,850/- (Rupees one million, nine hundred sixteen thousand, eight hundred and fifty) was paid by the Government of Balochistan to the Ministry of Religious Affairs of the Government of Pakistan (respondent No.1) through a cheque, which was not encashed, and vide letter dated 30th July, 2012 the Ministry of Religious Affairs decline to received such payment for the following reasons, contained in its said letter. "It may also be stated that as per Hajj Policy-2012, there is no provision to perform Hajj on government expense. The Supreme Court of Pakistan, in its judgment dated 8th April, 2012, passed in Suo Motu Case No.24 of 2010, inter alia, observed that "it may prima facie be noted that it can conveniently be held that no one is authorized under any law to utilize the Government money without any legal justification and if the Ministry of Interior or Ministry of Religious Affairs or any person whosoever he may be, has done that he is equally responsible and is liable for the criminal action".

3. Mr. Kamran Murtaza, the learned counsel for the petitioner, stated that the Ministry of Religious Affairs misconstrued the referred to order of the Hon'ble Supreme Court, as it did not forbid sending anyone to perform Hajj on government expense. The petitioner therefore seeks a direction against the respondents, "to do the needful for sending the petitioner and other nominees to perform their duties as seasonal Hajj Staff 2012,"

4. That what in effect the petitioner is seeking is that he and five other government servants be permitted to perform Hajj at the expense of the Government of Balochistan, which actually means that the people of this province/country bear the cost because it is they who generate all revenue that are spent by the government/s. The respondent No.1 did not permit petitioner and his colleagues to do so for the reasons that, "there is no provision to perform Hajj on Government expense" in the "Hajj Policy, 2012." The respondent No.1 also referred to 'judgment dated 8th April, 2012' of the Hon'able Supreme Court, which Mr.Kamran Murtaza, Advocate, stated is not a judgment but an interim order, and further that the same did not prohibit the performance of Hajj at government expense. The learned counsel however, failed to point out any illegality in the respondent No.1 declining to permit the performance of Hajj on government expense. He also did not identify which particular Fundamental Right of the petitioner was being violated. Incidentally, the petition also does not contain any grounds.

5. That the learned counsel for the petitioner's contention that the referred to 'judgment dated 8th April, 2012' is not a judgment but an interim order is correct; however, it does not follow that the same can be disregarded. Article 189 of Constitution stipulates that, "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." This does not mean that all other orders of the Hon'ble Supreme Court may be disregarded. We can also not bring ourselves to agree with learned counsel that the respondent No.1 has misconstrued the order of the Hon'ble Supreme Court as respondent No.1 had correctly reproduced a portion therefrom. There cannot possibly be any disagreement with the principle enunciated by the Hon'ble Supreme Court, "that no one is authorized under any law to utilize the Government money without any legal justification", which was reproduced in the impugned letter, nor has the learned counsel placed before us any judgment of the Hon'ble Supreme Court which states otherwise. There is also no law requiring that the Government at its expense send anyone to perform the Hajj.

6. That in verse 97 of the Surah Al-Imran of the Holy Qur'an Almighty Allah states that, "Hajj to the House (Kabah) is a duty that mankind owes to Allah, those who can afford the expenses." The magnificence of Islam is that Almighty Allah does not place a burden on a person that he cannot bear. Hajj is a duty on those who are able and can afford the expenses ('Istetaa'). If someone who is not able or cannot afford the expenses then he does not sin if he does not perform the Hajj. There are a number of duties imposed on Islamic societies, such as, providing and caring for the destitute (fuqara) and orphans and widows (yatama) who do not have requisite support, to protect the people's lives and properties et cetera, but no where is it prescribed to bear the expenses of anyone wanting to perform the Hajj. The money with the Government is the wealth of the people; the Government is the trustee of this trust or amanat, "and defraud not people of their things" is what Almighty Allah directs (Surah Hud, 11:85).

7. We thus conclude that the petitioner is not an aggrieved party/person under Article 199 of the Constitution nor have any of his Fundamental Rights been violated in not letting him perform the Hajj at Government expense. The petition is therefore dismissed in limine. MWA/14/Q Petition dismissed.