2004 PLP 1753 (YLR)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the High Court dated 20‑1‑2000, whereby the writ of quo warranto filed against respondent No. 1 was dismissed by the High Court.

2. The brief facts of the case are that a writ petition was filed by the appellant, herein, challenging the appointment of respondent No.1 as Deputy Inspector General of Prisons on the ground that same was made without the recommendations of Public Service Commission and, thus, being violative of the rules for filling in the said post, the same should be declared as vacant. The High Court observed that previously a similar writ petition was filed by one Raja Muhammad Razzaq which was dismissed by the High Court; it was observed that the present petitioner (appellant, herein) is close relative of said Raja Muhammad Razzaq and, thus, in fact the present writ petition was filed by him at A his behest after the dismissal of the earlier writ petition. The High Court has observed that the copy of the relevant order attached with the writ petition was obtained by Raja Muhammad Razzaq, which supports the contention of the respondent that the writ petition was filed at the instance of Raja Muhammad Razzaq. Thus, the High Court dismissed the writ petition as being mala fide.

3. It has been contended by Raja Ishfaque Hussain Kiani, Advocate, the learned counsel for the appellant, that the judgment of the High Court is based on flimsy grounds. He has argued that .any citizen of Azad Jammu and Kashmir could come up with a writ of quo warranto. The facts that the appellant is related to Raja Muhammad Razzaq or had been his driver were no grounds to dismiss the writ petition dubbing it as a mala fide or to infer that the same was filed at the instance of said Raja Muhammad Razzaq. He has also argued that it is factually incorrect that the appellant was related to Raja Muhammad Razzaq, and was his driver or the writ was filed at his behest. The learned counsel has further submitted that even if it is assumed that the appellant was related to Raja Muhammad Razzaq or had served as his driver were no valid grounds for dismissing the writ of quo warranto. He has cited following cases in support of his contentions:‑‑ The case reported as Azad Jammu and Kashmir Government v. Javed Iqbal Khawaja 1996 PLC (CS) 155, has no relevancy to the case in hand because in the said case an amendment in a Government notification was challenged on the ground that same being violative of law was void. The writ petition was accepted by the High Court. The judgment of the High Court was challenged by the Government by filing an appeal to this Court which was partly accepted and the findings of the High Court were amended. In a case reported as Miss Azra Hafiz v. Israr Hussain Mughal 1997 PLC (CS) 297, it has been observed that it is not necessary for the petitioner to be an aggrieved person for filing a writ of quo warranto.

4. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for respondent No.1, has contended that it is well settled principle of law that while issuing a writ of quo warranto the Court should be very cautious and should not issue the same as a matter of routine. He has further submitted that if it is found that the writ petition filed by the appellant, herein, was mala fide, that is liable to be dismissed. He has contended that the High Court has rightly come to the conclusion that in fact the present writ petition was filed at the instance of Raja Muhammad Razzaq after the dismissal of his writ petition. It was not filed in the public interest but only to misuse the process of the Court at the behest of Raja Muhammad Razzaq to wreak vengeance on the respondent. The learned counsel has further argued that the copy of the relevant Government order which was filed alongwith the writ petition was obtained by Raja Muhammad Razzaq, the previous petitioner; an affidavit was also filed in the High Court to the effect that the present writ petition was filed at the instance of Raja Muhammad Razzaq who was related to the appellant, herein, and that he had also served as his driver, but no counter affidavit was filed by the appellant, herein, in rebuttal. The learned counsel has argued that as no counter‑affidavit had been filed by the appellant, the contents of the affidavit filed by the respondent would be deemed to be correct. He has further argued that the delay in filing the writ of quo warranto coupled with the facts deposed in the affidavit amply proves the allegation that the present writ petition was actuated by malice. He has cited following authorities in support of his contentions:‑‑ In a case reported as Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate PLD 1993 SC (AJ&K) 12, it has been held that in case of writ of quo warranto, the question of laches is not strictly applicable but the same is an important factor to ascertain the mala fides of the concerned petitioner. It was observed that the plea of mala fides of relator is a relevant consideration while granting relief in a writ of quo warranto. In a case reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42; it was observed that although in a writ of quo warranto it is not necessary to prove that the relator was an aggrieved person but all the same, the same should not be issued as a matter of routine and the Court is competent to go into the question of bona fide of the relator to see as to whether he has approached the Court with clear hands. In a case reported as Azizur Rehman Chowdhury v. M. Nasiruddin PLD 1965 SC 236, it has been observed that the Court is entitled to inquire into the conduct and motives of the applicant and to refuse the writ if it comes to the conclusion that the information laid before it is of vexatious nature. In a case reported as Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan PLD 1991 Lahore 420, it has been held that the question of laches in filing a writ of quo warranto is not applicable to the same but it is relevant where the question of bona fide of the relator is challenged. In a case reported as Muhammad Sharif Khan v. Mirza Fazal Hussain 1993 SCR 88, it has been held that an affidavit is sufficient proof of the fact deposed in a writ petition if the same is not rebutted by cogent evidence or by filing a counter affidavit.

5. We have given due consideration to the arguments raised at the Bar. It may be observed that there is no dispute that the earlier writ petition filed by Raja Muhammad Razzaq on the same grounds on which the present writ petition has been filed was dismissed. The allegations of respondent No.1 that the appellant filed the present writ petition at the instance of Raja Muhammad Razzaq and that the appellant not only belongs to his 'Brathery' but had been his driver, have also not been rebutted by filing a counter‑affidavit. It is also on the record that it was Raja Muhammad Razzaq, the previous petitioner, who obtained the copy of the relevant order which has been filed alongwith the present writ petition. Under these circumstances, we have no hesitation in holding that the High Court has rightly dismissed the writ petition on the ground that the same was actuated by malice. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. H.B.T./40/SC(AJ&K) Appeal dismissed.