P L D 2004 Lahore 83 (PLP)

3. Against the above order, the respondents filed representation before Hon'ble the President of Pakistan under Article 32 of the Establishment of Office of Wafaqi Mohstasib (Ombudsman) Order, 1983. The same was accepted by Hon'ble the President of Pakistan on the "round that the Hon'ble Wafaqi Mohtasib appointed under the Order of 1983, was divested of the jurisdiction to hear the petitioner's complaint dated 13-7-2000 upon promulgation of Federal Tax Ombudsman Ordnance 2000 with effect from 11-8-2000 as provisions of the said Ordinance were applicable retrospectively and thus effected proceedings pendin2 before the Hon'ble Wafaqi Mohtasib qua Federal taxes. The findings and, recommendations dated 10-2-2001 were thus set aside and petitioner was intimates of the above decision through Memo. No.574/2001/Law (WM) dated 17-1-2002 by a Section Officer. Hence the present Constitutional petition '

4. On pre-admission notice, report and parawise comments were filed on behalf of the respondents.

5. Upon joint request of the learned counsel for the parties, this case is decided as an admitted/Pacca case.

6. The case came up for hearing before this Court today. The learned counsel for the petitioner drew my attention to the impugned order conveyed to the petitioner through the above-referred memo. dated 17-1-2002 and stated that the order was void ab initio for having beer, passed with with notice and without opportunity of hearing to the petitioner. Reliance was placed upon a number of judgments to contend that the impugned order of Hon'ble the President of Pakistan was unsustainable for having been passed in absence of the petitioner.

7. Learned counsel for the respondents faced with the above situation, had no answer to offer. He however tried to build his defence on merits.

8. Having heard the learned counsel for the parties, this Court has no option but to accept this Constitutional petition. Petitioner has admittedly been denied notice and the right of hearing on the respondents' representation against it. The petitioner has been condemned unheard. The impugned order adversely affects the petitioner but has been passed without an opportunity of hearing to the petitioner who was vested with a right of participation, in the proceedings against it as a party thereto. Question of ansence of proper hearing on a representation to the Hon'ble A the President of Pakistan was settled by the august Supreme Court of Pakistan in the cases of Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2189. In the case reported as 1999 SCMR 2189, the Hon'ble Supreme Court of Pakistan was pleased to settle the law on the nature of the jurisdiction vesting in the' President under Article 32 of the above-referred Order of 1983. It was held that:-- ."the jurisdiction vested in the President under Article 32 partakes of appellate jurisdiction..." And that:-- "Under the scheme of the Order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus visualized, the President while performing his functions under Article 32 of the Order acts in quasi judicial and not in administrative capacity, which is totally distinguishable from administrative actions."

9. Cumulative reading of the above-referred two judgments of the august Supreme Court of Pakistan reveals that the law and the principles of natural justice oblige the Hon'ble President to decide a representation before him after an opportunity of hearing to the parties before him.

10. The law as above pronounced was followed by this Court in the cases of Muhammad Saleem. v. Federal Tax Ombudsman etc. (Writ Petition No.16946 of 2002) and Muhammad Hussain and another v. Federation of Pakistan 2003 YLR 2793 to set aside orders passed on representations without hearing the party represented against.

11. Under the above explained circumstances, the impugned order conveyed to the petitioner through Memo. No.257 of 2001-Law(WM) dated 17-1-2002 is declared to be without lawful authority and of no legal effect.

12. This Constitutional petition has been decided on the ground of absence of hearing to the petitioner therefore, the questions of law and facts involved in the present Constitutional petition have not been dealt with and decided. These questions are left to be re-decided in the representation tiled by the respondents before Hon'ble the President of Pakistan. The representation shall be deemed to be pending and shall be re-decided in accordance with law after due notice and opportunity of hearing to the parties. H.B.T./E-40/L Petition allowed.