2022 PLP 576 (SCMR)
IKRAM ULLAH KHAN YOUSAFZAI, EXCISE AND TAXATION OFFICER, PESHAWAR and others — Petitioners Versus Dr. RIZWAN ULLAH and others — Respondents
| Citation | 2022 PLP 576 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Mazhar Alam Khan Miankhel, Qazi Muhammad Amin Ahmed |
| Parties | IKRAM ULLAH KHAN YOUSAFZAI, EXCISE AND TAXATION OFFICER, PESHAWAR and others — Petitioners Versus Dr. RIZWAN ULLAH and others — Respondents |
| Primary Law | (a) Public functionary, (b) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2022 PLP 576 (SCMR)?
This judgment primarily cites: (a) Public functionary, (b) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2022 PLP 576 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Mazhar Alam Khan Miankhel, Qazi Muhammad Amin Ahmed.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2022 PLP 576 (SCMR) (IKRAM ULLAH KHAN YOUSAFZAI, EXCISE AND TAXATION OFFICER, PESHAWAR and others — Petitioners Versus Dr. RIZWAN ULLAH and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Syed Hammad Ali Shah, Advocate Supreme Court for Petitioners.
- Abdul Samad Khan, Senior Advocate Supreme Court and Muhammad Arif, SI for Respondents Nos. 1-2.
- ----Ss. 22-A & 154---Constitution of Pakistan, Art. 199---High Court issuing directions for registration of FIR in its Constitutional jurisdiction against officials of Excise and Taxation department---Legality---Petitioners (officials of Excise and Taxation department) while executing a non-bailable warrant of arrest purportedly issued by the competent authority took the respondent in custody, who was alleged to have been a defaulter of property tax---Allegedly the respondent claimed he was not in default but the raiding party kept him in confinement till the evening, when some advocates got him released---Respondent approached the police for registration of a criminal case against the excise officials and upon refusal filed a petition under S. 22-A, Cr.P.C, which was declined by a Justice of Peace---However Judge-in-Chamber of the High Court vide impugned order directed registration of a criminal case---Held, that record showed issuance of multiple notices for the recovery of outstanding assessment of property tax, predating the incident---Warrant issued by an Assistant Collector, though disputed as fake was, nonetheless, mainstay of the petitioners' case who in their official capacity were tasked to collect the assessed amount and, thus, prima facie, within the bounds of law to execute the impugned warrant---Rowdy behavior and inappropriate selection of time and venue for the execution of the warrant as alleged by the respondent though despicable, nonetheless, by itself did not expose the petitioners to criminal consequences---Nothing was available on the record to view the purported non-bailable warrant as a fake instrument---Similarly, it was not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly stalled till date---Furthermore it was not understandable under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, which was a criminal offence in itself---Issues highlighted in the present case hinged upon factual controversies and as such could not have been attended to by the High Court in exercise of its Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent---Petition for leave to appeal was converted into appeal and allowed; impugned direction/order of High Court was set aside, with the observation that the respondent was at liberty to dispute the vires of impugned assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits.
- QAZI MUHAMMAD AMIN AHMED, J.---Ikram Ullah Khan Yousafzai, Sahibzada Daud Jan and Syed Naveed Jamal, petitioners herein, were, respectively, posted as Excise and Taxation Officer, Assistant Excise and Taxation Officer and Inspector Excise and Taxation at Peshawar. Dr. Rizwan Ullah, respondent, a medical officer, is an assessee of property tax relating to 132 shops located within the remit of Excise and Taxation Office Peshawar, allegedly in default; the assessed amount was Rs.182,365/- seemingly till the assessment year 2008 and it was for the recovery of said amount that the petitioners while executing a non-bailable warrant of arrest purportedly issued by the competent authority took him in custody on 16.6.2008 at 10:30 a.m. while he was present at Services Hospital. It is alleged that the respondent was not in default and he asked the raiding party to allow him an opportunity to clarify his position, however, he was meted out a treatment rude and uncalled for whereafter forcibly shifted to the Excise and Taxation Office; he was kept in wrongful confinement till 5:00 p.m. when some advocates got him released. It is in this backdrop that the respondent approached Station House Officer Bhana Marree Peshawar for registration of a criminal case against the excise officials and upon refusal filed a petition under section 22-A of the Code of Criminal Procedure, 1898, declined by a Justice of Peace vide order dated 10.11.2008; a learned Judge-in-Chamber of the Peshawar High Court Peshawar vide impugned order dated 24.6.2015 directed registration of a criminal case, vires whereof, are being assailed through the present petition.
Headnotes / Summary
(Against the judgment dated 24.06.2015 passed by the Peshawar High Court Peshawar in W.P. No. 2052/2008)
Scope
State authority is a sacred trust; it vests in its functionaries (the authority) to accomplish purposes designated by law and no doubt while exercising such authority within remit thereof, the functionaries must act in a manner most benign with a degree of restraint, expedient to avoid transgression
At the same time, a reasonable freedom for the functionaries is most essential to effectively perform the duties they are tasked with
Any obstruction with the performance of State business is interference with the writ thereof and cannot be countenanced without grievously undermining its authority.
Ss. 22-A & 154
Constitution of Pakistan, Art. 199
High Court issuing directions for registration of FIR in its Constitutional jurisdiction against officials of Excise and Taxation department
Petitioners (officials of Excise and Taxation department) while executing a non-bailable warrant of arrest purportedly issued by the competent authority took the respondent in custody, who was alleged to have been a defaulter of property tax
Allegedly the respondent claimed he was not in default but the raiding party kept him in confinement till the evening, when some advocates got him released
Respondent approached the police for registration of a criminal case against the excise officials and upon refusal filed a petition under S. 22-A, Cr.P.C, which was declined by a Justice of Peace
However Judge-in-Chamber of the High Court vide impugned order directed registration of a criminal case
Held, that record showed issuance of multiple notices for the recovery of outstanding assessment of property tax, predating the incident
Warrant issued by an Assistant Collector, though disputed as fake was, nonetheless, mainstay of the petitioners' case who in their official capacity were tasked to collect the assessed amount and, thus, prima facie, within the bounds of law to execute the impugned warrant
Rowdy behavior and inappropriate selection of time and venue for the execution of the warrant as alleged by the respondent though despicable, nonetheless, by itself did not expose the petitioners to criminal consequences
Nothing was available on the record to view the purported non-bailable warrant as a fake instrument
Similarly, it was not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly stalled till date
Furthermore it was not understandable under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, which was a criminal offence in itself
Issues highlighted in the present case hinged upon factual controversies and as such could not have been attended to by the High Court in exercise of its Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent
Petition for leave to appeal was converted into appeal and allowed; impugned direction/order of High Court was set aside, with the observation that the respondent was at liberty to dispute the vires of impugned assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits.
Judgment & Decree
QAZI MUHAMMAD AMIN AHMED, J.
Ikram Ullah Khan Yousafzai, Sahibzada Daud Jan and Syed Naveed Jamal, petitioners herein, were, respectively, posted as Excise and Taxation Officer, Assistant Excise and Taxation Officer and Inspector Excise and Taxation at Peshawar. Dr. Rizwan Ullah, respondent, a medical officer, is an assessee of property tax relating to 132 shops located within the remit of Excise and Taxation Office Peshawar, allegedly in default; the assessed amount was Rs.182,365/- seemingly till the assessment year 2008 and it was for the recovery of said amount that the petitioners while executing a non-bailable warrant of arrest purportedly issued by the competent authority took him in custody on 16.6.2008 at 10:30 a.m. while he was present at Services Hospital. It is alleged that the respondent was not in default and he asked the raiding party to allow him an opportunity to clarify his position, however, he was meted out a treatment rude and uncalled for whereafter forcibly shifted to the Excise and Taxation Office; he was kept in wrongful confinement till 5:00 p.m. when some advocates got him released. It is in this backdrop that the respondent approached Station House Officer Bhana Marree Peshawar for registration of a criminal case against the excise officials and upon refusal filed a petition under section 22-A of the Code of Criminal Procedure, 1898, declined by a Justice of Peace vide order dated 10.11.2008; a learned Judge-in-Chamber of the Peshawar High Court Peshawar vide impugned order dated 24.6.2015 directed registration of a criminal case, vires whereof, are being assailed through the present petition. The case came up for hearing on 14.10.2015 when after issuance of notice, the apprehended arrest of the officials was ordered to be held in abeyance followed by order dated 6.11.2015 maintaining "a meantime status quo".
2. Learned counsel for the petitioners contends that there was no occasion for the learned High Court to issue the impugned direction inasmuch as the State functionaries tasked with the collection of public revenue were executing a command of law issued by the competent authority and as such respondent's arrest was an action taken under due process of law, admittedly interrupted by some lawyers through gross interference therewith. It is next argued that execution of warrant was in pursuance of an order within the contemplation of section 78 of the Pakistan Penal Code, 1860 and as such was covered by the statutory immunity under general exceptions enumerated Chapter-IV thereof; it is next argued that till date the respondent has not paid a single penny and, thus, interference by this Court would be most called for both in order to ensure realization of defaulted amount as well as restoration of bureaucratic independence and efficiency. The learned counsel for the respondent while defending the impugned direction argued that the petitioners with intentions, sinister and oblique, in gross abuse of official authority, hounded the respondent, practitioner of a most noble profession, while he was performing his official duties and, thus, committed a series of cognizable offences that statutorily required registration of a criminal case inasmuch as no one is above the law and the Constitution guarantees dignity of man; he has vehemently denied any default in payment of property tax.
3. Heard. Record perused.
4. State authority is a sacred trust; it vests in its functionaries to accomplish purposes designated by law and no doubt while exercising such authority within remit thereof, the functionaries must act in a manner most benign with a degree of restraint, expedient to avoid transgression. At the same time, a reasonable freedom for the functionaries is most essential to effectively perform the duties they are tasked with. Any obstruction with the performance of State business is interference with the writ thereof and cannot be countenanced without grievously undermining its authority. Independence is not sole prerogative or attribute of any particular limb of the State as within the defined limits of law, each department, must be sovereign to effectively ensure its functionality so as to achieve statutory purpose, there being no sword of demolces hanging over the head. It is even more important for those who are assigned with the responsibility of enforcement of law or for collection of State revenue and, thus, while there must be an unblinking judicial vigil over alleged transgressions, the Court must simultaneously give effect to statutory presumption attached to official acts as contemplated by Article 129(e) of the Qanun-e-Shahadat Order, 1984 as well as Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973. Diametrically different positions, notwithstanding, what is evident on the record is issuance of multiple notices for the recovery of outstanding assessment of property tax, predating the incident; a warrant issued by an Assistant Collector 1st Class, though disputed as fake is, nonetheless, mainstay of the petitioners' case who in their official capacity were tasked to collect the assessed amount and, thus, prima facie, within the bounds of law to execute the impugned warrant; their rowdy behavior and inappropriate selection of time and venue for the execution of the warrant as alleged by the respondent though despicable, nonetheless, by itself does not expose them to criminal consequences. There is nothing on the record to view the purported non-bailable warrant as a fake instrument; similarly, it is not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly stalled till date. We are also at loss to understand under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, a criminal offence in itself. These are the issues that hinged upon factual controversies and as such could not have been attended in exercise of Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent. For the foregoing reasons, the petition is converted into appeal and allowed; impugned direction/order dated 24.06.2015 is set aside, however, the respondent is certainly at liberty to dispute the vires of impugned assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits, if so advised. MWA/I-1/SC Appeal allowed.