P L D 2002 Supreme Court (AJ&K) 1 (PLP)

. . So, it is a prerequisite, according to the learned counsel for the respondent, that a writ petition in the High Court seeking a declaration could be filed by an aggrieved party. The learned counsel submitted that the appellant being a Member of legal fraternity has not been adversely affected by the impugned judgment passed by the High Court. The learned counsel in support of his contention relied upon Malik Khanan v Malik Baz Muhammad Khan and others PLD 1983 Quetta 30, Abdul Razzaq v. Muhammad Qasim and another 1995 CLC 1123, Muhammad Azeem Qureshi v. Hakim Syed Akhter Irshad and others 1990 CLC (Lah). 122, Javed Iqbal Khawaja and others v. Azad Government and others PLD 1994 Azad J&K 26 and Muhammad Boota and others v. The Commissioner, Sargodha Division and others PLD 1973 Lah.

580. He contended that the appellant was neither a party before the High Court nor he could prefer an appeal against the impugned judgment of the High Court as he had no locus standi to lodge the appeal.

5. Kh. Attaullah Chak, the learned counsel for respondent No.2, contended that any Member of the Bar could file an appeal by way of leave of the Court against an order which adversely affected his rights or interests. He to support of his contention placed reliance on a reported case titled H.M. Saya & Company, Karachi v. Wazir Ali, Industries Ltd., Karachi and another PLD 1969 SC 65.

6. On the other hand Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, submitted with vehemence that since the interpretation of the relevant provisions of the Azad Jammu and Kashmir Interim Constitution Act has been made by the High Court in violation of the Constitution, therefore, the appellant being a Member of the Bar Council was competent to file appeal although he was never a party before the High Court. His contention is that the interpretations made by the High Court regarding the Constitutional provisions have adversely affected the interest of public at large, therefore, the appellant had the locus standi to lodge the appeal so that the impugned judgment may be set at naught. The learned counsel in support of his contention placed reliance upon Azad Government and 3 others v. Genuine Rights Commission, Azad Jammu and Kashmir and 7 others 1999 MLD 268, Muhammad Islam v. Abdul Rashid and others 1993 SCR 37, S.P. Gupta and others v. The President of India and others AIR 1982 SC (Ind.) 149 and Mir Abdul Baqi Baloch v. The Republic of Pakistan and another PLD 1975 Kar. 639. 7 Now we may advert to the case‑law cited by the learned counsel for the respondents. In a case reported as Malik Khanan v. Malik Bay. Muhammad Khan and others PLD 1983 Quetta 30 it was observed as follows:‑‑ "From reading the petition it will be seen that the petitioner has come to invoke the Constitutional jurisdiction as Chief of the Shamamzai and Kibzai Tribe Leaving aside the question as to whether he is de facto Chief of the tribe or not, interest of the petitioner in the property has to be examined. The petitioner has not disclosed any interest of his own in the property much less interest similar to that of his tribesmen. To attract fully the provisions of Order 1, rule 8 it has to be shown that the petitioner has the same interest in the petition as his tribesmen have. The petitioner has shown from documents on record that he had been fighting throughout in this case before the F.C.R. Courts and the Shahi‑Jirgas. That may be so and Members of the Shahi‑Jirga and the Courts of the F.C.R. might have recognized him to be spokesman of the tribe but for the purpose of Order I, rule 8, C.P.C. he had to show that he had the same interest in the subject- matter or that he had suffered an injury similar to that of other tribesmen by the impugned orders. The Members of his tribesmen have got their huts, houses and grazing grounds in the said land but the petitioner himself does not claim to possess any but or grazing ground on such land. He does not have common and similar interest in the said land alongwith other tribesmen." Thus, it was finally observed as under:‑‑ "Since the petitioner has not disclosed any interest much less a personal and direct interest in the matter, no personal injury has been caused by the aforesaid impugned orders and he is not to be taken to be an aggrieved party for the purpose of Article

199. He cannot be allowed to bring provisions of Order I, rule 8 into operation as he has not the same interest as the tribesman rather has no interest at all. If any Member of the tribe has some interest which are involved then he will be competent to file a suit or a petition. In a case reported as Abdul Razzaq v. Muhammad Qasim and another 1995 CLC 1123 it was observed that it is well‑settled by now that a person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something or wrongfully affected his title to something. It was held that the petitioner has neither suffered a legal grievance nor wrongfully deprived of something nor his title was affected, as such, he could not be declared as aggrieved party and, therefore, had no locus standi to invoke the extraordinary jurisdiction of the High Court, which is to be exercised with great circumspection. In a case reported as Muhammad Azeem Qureshi v. Hakim Syed Akhter Irshad and others 1990 CLC (Lah.) 122 it was observed as follows:‑‑ ..An 'aggrieved party' as used in section 15 of the Urban Rent Restriction Ordinance means not a party to a case, but any person aggrieved by an order and claiming that the order complained against is prejudicial to him and affects his interests adversely. Even in Shehzad Ahmad's case it was observed that section 15 of the Ordinance covered all orders passed by the Rent Controller, appellate authority or the High Court and these cannot be called in question except as provided under the Ordinance itself, either by the parties to the proceedings or by any person whose interest is adversely affected, although he may not be a party to the proceedings. In a case reported as Javed Iqbal Khawaja and others v. Azad Government and others PLD 1994 Azad J&K 26 it was observed as follows:‑‑ The term 'aggrieved person' has not been defined specifically. In ordinary meanings, it signifies a person as an aggrieved when his interest or right is injured by an order or legislation and he suffers an illegal grievance. The term 'aggrieved person' was construed in Tehrik‑e‑Ammal Party's case PLD 1985 Azad J&K

95. The scope of meaning of the term 'aggrieved person' was construed exhaustively. The case of the petitioners squarely falls within the purview of definition of term 'aggrieved person'. In a case reported as Muhammad Boota and others v. The Commissioner, Sargodha Division and others PLD 1973 Lah. 580 it was observed that only an aggrieved person can maintain a petition under Article

98. The petitioner cannot move the Court pro bono publico nor can the Court pronounce upon the validity of laws or notification suo motu. The memorandum was issued by the Commissioner introducing uniform procedure for grant and renewal of beef licenses. No action was, however, taken under the memorandum. The petitioners apprehending some adverse order being passed against them challenged the vires of the memorandum. It was held that the petitioners were not aggrieved persons and the Court's function is not to decide abstract, hypothetical or contingent questions. The writ petition was held to be incompetent. It was also observed that the sole function of the Court is to, pronounce for or against the litigated right or liability by determination of the law applicable to the facts. Anyone who challenges the vires of a law or the validity of an order must raise a case to show that an action taken in pursuance of the said law or order had adversely affected his rights or interests, or that it would result in the loss of some personal benefit to the curtailment or a privilege to him.

8. In a case cited by Kh. Attaullah Chak, the learned counsel for respondent No.2, titled H.M. Saya & Company, Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 it was observed that a stranger to a suit or proceedings is competent to file appeal if he is adversely affected by the order passed in such a suit or proceedings.

9. Now we may advert to the authorities cited by the learned counsel for the appellant. In a case reported as Azad Government and 3 others v. Genuine Rights Commission, Azad Jammu and Kashmir and 7 others 1999 MLD 268, it was observed as follows:‑‑ It is correct that none of the writ petitions which culminated in the impugned judgment has been couched as a writ of quo warranto but all the same it cannot be said that petitioners‑respondents were not aggrieved persons, especially so when apart from being leading members of the society, they are practicing lawyers and are directly interested in constitutionality of Courts in view of their day to day professional duties. The view of Supreme Court on question of locus standi in maintaining a writ petition under section 44 of the. Azad Jammu and Kashmir Interim Constitution Act has been liberal one; if a person shows an injury to his right which may not be injury to a jurist right, he is entitled to invoke the writ jurisdiction of the High Court under the aforesaid provision of law. Therefore the Supreme Court is of the view that the writ petitions filed by the petitioners‑respondents could not be thrown out without going into merits of the same on the ground that the petitioners‑respondents were not aggrieved persons within the meaning of relevant Constitutional provisions." In the aforesaid case the appointment of learned Judges of the. Shariat Court was challenged by the Government as well as by the Members of the legal fraternity. It was held that although the writ petition filed by the members of legal fraternity is not couched as a writ of quo warranto but ail the same the interests of members of legal fraternity are adversely affected because they have their day to day business by appearing in the Shariat Court and other Courts. Thus, it was held that as the interests of members of legal fraternity were adversely affected, they were aggrieved persons within the meaning of section ‑44 of the Azad Jammu and Kashmir Interim Constitution Act. In a case reported as Muhammad Islam v. Abdul Rashid and others 1993 SCR 37 it was held that it is not necessary that the petitioner seeking remedy by way of a. writ must possess a juristic right so as to be an aggrieved party. It is sufficient if he shows that he has some tangible interest in the matter. In a case reported as S.P. Gupta and others v. The President 'of India and others AIR 1982 SC (Ind.) 149 it was observed as follows:‑‑ "It may, therefore, now be taken as well‑established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in contravention of any Constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain any application in a appropriate direction, order or writ in the High Court under Article 226 and to case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under trial, prisoners anguishing in jails without a trial, inmates of the Protective Home in Agra or Harijan Workers engaged in road construction in the Ajmer District, who are living in poverty and destitution who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be fled by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 arid they require various formalities to be gone through by a person seeking to approach this Court, but it must not be forgotten that procedure is, but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would, therefore, unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public‑minded in ' id al 'z as a writ petition and act upon it." The aforesaid authority is distinguishable as the powers vested in the Supreme Court of India under Article 226 of the Constitution are wider enough to entertain any application or writ petition by any person or to act upon suo motu on any application without observing the prescribed proced2urc but such powers arc not vested in this Court or the High Court of Azad Jammu and Kashmir. In a case reported as‑Mir Abdul Baqi Baloch v. The Republic of Pakistan and ''another PLD 1975 Kar. 639 it was observed in a following manner: ‑‑ ...I am not impressed by the plea that the petitioner was a member of the Provincial Assembly for the area concerned, but the more important question is whether the petitioner, as a citizen, is entitled to file the petition, The question can only be decided by reference to the averments in the petition, and, as according to the petition, the territories of the country were being illegally transferred. I would accept Mr. Iqbal Haider's submission that every citizen of the country has the locus standi to file such a petition."

10. In another case titled Kh. Ghulam Muhammad v. Azad Government and another 2001 PLC (C.S.) 321, although the same relates to a service matter, however, it was observed as follows:‑‑ It is evident from the case‑law cited by the learned counsel for the parties that vies of departmental rules can be gone into by the Service Tribunal only if the rules Have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service.

11. Except the above‑referred authority from Karachi jurisdiction, the High Court of Pakistan, the Supreme Court of Pakistan, the High Court and Supreme Court of Azad Jammu and Kasmir are unanimously of the opinion' that a writ petition can be entertained only on the application of an aggrieved person and not by a pro bono publico litigant. In other words a person whose interests have been adversely affected by the impugned legislation or order under challenge, he can competently file a writ petition and then file an appeal before the Supreme Court against the judgment of the High Court as required by law.

12. In the instant case the appellant, as stated earlier, was not a party) before; the High Court nor he was a candidate to be appointed as Chef Election Commissioner nor his personal interest, if any, was adversely affected, therefore, he could not lodge the appeal against the impugned judgment passed by the High Court.

13. None of the learned counsel for the parties have cited any authority', that any private person who though belongs to legal fraternity could either lodge a writ petition or could lodge an appeal in this Court particularly when he was not a party before the High Court when his personal interests were not adversely affected. Therefore, the preliminary objection raised by Mr. Umar Mehmood Kasuri, the learned counsel for respondent No. f has a substance that the appellant had no locus standi or any cause of action to file the appeal against the impugned judgment of the High Court.

14. It may also be pointed out that there is a wide difference between a writ of certiorari and a writ of habeas corpus or a writ of quo warranto. Except the writ of habeas corpus and the writ of quo warranto which can be invoked by any person, the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is one in a writ of prohibition whose rights arc threatened, in writ of mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result to the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non‑observance of law is an aggrieved party. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived hips of something, or wrongly refused him something or wrongfully affected his title try something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petition or an appeal in this Court against the impugned judgment of the High Court.

15. In the h‑ht of what has been stated above, without entering into the F merits of the case, the appeal is liable to be dismissed on the preliminary objection raised by the learned counsel for respondent No.1 and we: accordingly dismiss the same with no order as to costs. S. A,K.250/SC(AJ&K) Appeal dismissed.