2019 PLP 1750 (CLC)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through this Constitutional Petition filed in terms of Article 199 of The Constitution of the Islamic Republic of Pakistan, 1973, voicing his grievances qua a declaration resulting into disqualification of the petitioner to contest election being a public servant vide judgment dated 13.05.2019 and as a consequence issuance of notification dated 06.05.2019, which has been impugned before this court with the following prayer:- " In view of the above it is humbly prayed that impugned order dated 06.05.2019 may kindly be set aside being illegal, void and unconstitutional. Subsequent letter dated 07.05.2019 wherein respondent No.4 has de-notified the petitioner and announced fresh election, schedule for Regional Cricket Association (Quetta) election may also be set aside. It is also prayed that during the pendency of the instant writ petition impugned order dated 06.05.2019 may kindly be suspended and election schedule of Regional Cricket Association (Quetta) may also kindly be suspended. Any other relief which this Honorable Court deems fit and appropriate may also be granted ."

2. Perusal of the record reveals that the petitioner was President Regional Cricket Board Association Quetta and respondent No.3 while adjudicating his candidature declared, him to be disqualified being a public servant at the time when he contested the election as President Cricket Association Turbat. Subsequent superstructure raised on the basis of an act which is void, ab-initio cannot be made basis of subsequent qualification. Hence, the instant constitutional petition. Challenging the aforesaid order arising out of Proceedings before respondent No.3 which is subject matter.

3. At the very outset, it has been contended by the learned counsel for the petitioner that Pakistan Cricket Board is a statutory body established in pursuance of Section 3 of the Sports (Development and Control) Ordinance, XVI of 1962 vide Notification No.SRO.43 (KE/2014) dated 10th July, 2014. Adds that the petitioner contested the election for the Office of President, District Cricket Association, Turbat, in September, 2017, however during the proceedings the candidate of the petitioner was agitated by one Abdul Ghani, who raised an objection qua the qualification of the petitioner on the ground that he is not competent to contest the election being a public servant. It is submitted that the objection raised was repelled by the then Deputy Election Commissioner, Pakistan Cricket Board and as the rejection of the objection petition was not assailed before any forum, hence the same has attained finality. It is argued that subsequent to that the petitioner further contested the election as President Regional Cricket Association, which was also objected by respondent No.5, which too met the same fate and as a result, he was declared President Regional Cricket Association, Quetta. Learned counsel Submits that the rejection of the objection petition before the Deputy Election Commissioner, Pakistan Cricket Board, was assailed through an appeal which was adjudicated by (respondent No.3) / Independent Adjudicator Pakistan Cricket Board who vide judgment dated 06.05.2019 allowed the appeal filed by respondent-No.5, resulting into issuance of de-notification by respondent No.4 while announcing afresh election schedule for the contest of Regional Cricket Association Quetta. The main crux of the arguments advanced by learned counsel for the petitioner is that the proceedings carried out before the Adjudicator are ex-parte proceedings and the petitioner was not afforded an opportunity of hearing. It is submitted that prior to this, the same objection has attained finality, hence at a subsequent stage raising of such an objection and its adjudication without associating the petitioner is against the dictates of justice. Further submits that though it is claim of the respondent/authority that the petitioner was duly served, but that is not in accordance with law and as such the judgment impugned before this Court is without legal sanctity and requires interference by this Court.

4. On the other hand, learned counsel representing respondents Nos.2 to 4 and 5 vehemently opposed this petition. While advancing their case, a preliminary objection was raised regarding the maintainability of the instant petition on the ground that the petitioner is not entitled to equitable relief because he was declared disqualified while adjudicating a statutory remedy and the respondent No.3 has decided the lis squarely in accordance with law. Contends that this Court can even adversely evaluate the document which is subject matter of the litigation between the parties and decide this issue with independent application of mind. Contends that as the petitioner has already been disqualified for a period of three years to contest the election, therefore, this petition cannot be entertained.

5. Arguments advanced pro and contra have been heard and record available on file perused carefully.

6. There is no cavil to this proposition that earlier the petitioner contested the election of President, District Cricket Association Turbat in September 2017 and at that time an objection to the candidature of petitioner was in-competent to contest election was contested being a public servant, said objections were dismissed by respondent No.4 against, which no appeal was filed. Moreover, when the petitioner again contested the election of President of Regional Cricket Association Quetta, respondent No.5 filed objections which were rejected by respondent No.4. It is noticed that the appeal filed by respondent No.5 before (respondent No.3)/Independent Adjudicator, Pakistan Cricket Board, under Article 37 of the Constitution of Pakistan Cricket Board against the notification dated 28.01.2019 whereby the petitioner was elected as President, Regional Cricket Association, Quetta, has been accepted without providing an opportunity of hearing to the petitioner and neither the petitioner was served properly as the proof of service of notice issued by Independent Adjudicator was not sent on his "residential address" nor he was afforded proper opportunity of hearing before passing the impugned judgment, which is against the universally recognized principle of "audi alteram partem", which is considered as part and parcel of every statute irrespective of the fact whether embodied therein or not. The august Supreme Court of Pakistan in the case "Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak" (PLD 1959 SC (Pak) 45), observed as under:- "The rule of justice embodied in the maxim" audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute." With, reference to the principle "audi alteram partem", the same view was reiterated by the august Supreme Court of Pakistan in the case "Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others" (2005 SCMR 678), wherein it is observed as under:- "The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Where adverse action contemplated to be taken against the person/persons, he/they would have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principles of natural justice and even in absence thereof, it is to be read considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts. This principle originates from Islamic system of justice as evidenced from historical episode when Iblees was scolded for having mislead Hazrat Adam (P.B.H.) into disobedience of Allah's command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him, which was found untenable, he was condemned and punished for all times to come. The principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eyes of law". It is an admitted fact that the petitioner while assuming the office as President Regional Cricket Association was representing a Province of the country to safeguard the interests of a section society living over there in sports and also agitate their grievances if any. So being a representative, he was enjoying honour and reputation as a representative and the same cannot be denied to him with a stroke of pen without adopting the due process of law. Even after the insertion of Article 2-A of the Constitution; the scope of protection against any illegal action has been widened because the same is also against the spirit of injunctions of Islam. In such like situation, a landmark judgment of august Supreme Court of Pakistan in the case of Pakistan and others v. Public at Large and others (PLD 1987 SC 304), has provided guidance to this Court, wherein it has been held as follows:- "The narration of the Injunctions of the Qur'an and the Sunnah do establish beyond any shadow of doubt the right to honour and reputation is one of the inviolable rights of man in addition to other valuable rights. Can this be taken away without due process as enjoined by the Qur'an and Sunnah? It was further held as under:- "When a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing. It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and/or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognized as a basic right." At another stage it was held that: "And notwithstanding the reality it being question of principle, Allah Almighty has bestowed the right on man to be aware of what he is being punished for. Something can be said about the fact that when made aware, man would have an opportunity of offering an explanation or making a plea of guilty or denial. In other words, there would be an opportunity of making a plea regarding accusation. But mostly the opportunity when availed of would result in the plea of admission as the evidence would be strong and overwhelming."

7. In this case the service of the petitioner in appeal filed by respondent No.5 has only been made through Express Post Service on his official address by learned Independent Adjudicator, Pakistan Cricket Board but the same has not been sent on his residential address and the petitioner was neither served personally nor through any male member. This Court is restraining itself to observe regarding the choice of the authority to send the notice as it may prejudice the case of either of the party. However, it is not a case of either of the party that the process of issuance of summons was delivered at the residence of the petitioner, but it is claim of the respondent that it was delivered to him in Quetta Cricket Stadium which is not the business place of the petitioner as it is totally against the spirit of the Law with reference to issuance and service of the summons. As per Order V, Rule 10-A and (2), C.P.C. where simultaneously with the issue of summons under Rule 9, there shall be sent, unless otherwise ordered by the Court to the defendant, by registered post, acknowledgement due, another copy of the summons signed and sealed in the manner provided in Rule 10, C.P.C. Furthermore, the service of the petitioner was also not effected as per Order V, Rules 21 and 22, C.P.C., as the summons would not be issued to such defendant directly rather the same would be issued to court in whose jurisdiction he was residing and would be served on him by such court. Furthermore, the service of the petitioner was not personally effected on the address given by the respondent No.5 in the appeal rather the same was received by security guard of the Stadium. It is further noticed that as per Order XIV, Rule 17 of C.P.C., 1908, when the defendant refuses to accept service, or cannot be found, then in such circumstances, the serving officer shall affix a copy of the summons on the outer door or some conspicuous part of the house in which the defendant ordinary resides or carries on business or personally works for gain. Reliance in this regard is placed on case "Abdul Rehman Wahla v. Dr. Sher Dil Batra" (PLD 1986 Supreme Court 234). It is settled principle of law that where law provided a particular mode for a particular thing to be done in a particular manner, then same should be done in such manner or should not be done at all. Even otherwise the scope of adjudication on merits with rights and civil liabilities has squarely been widened after the insertion of Article 10-A through 18th Amendment, 2010.

8. For the foregoing reasons as well as seeking guidance from the dictums of law laid down by the august Supreme Court of Pakistan in the cases supra, this Court is of the firm view that the impugned judgment dated 06.05.2019, whereby the learned Independent Adjudicator, Pakistan Cricket Board has accepted the appeal under Article 37 of Pakistan Cricket Board filed by respondent No.5, not sustainable in the eyes of law. Hence, the same is set aside. Learned Independent Adjudicator, Pakistan Cricket Board is directed to decide the appeal filed by respondent No.5 afresh after providing proper opportunity of hearing to the petitioner quite in accordance with law. The petition in hand stands disposed-off.

9. Case remanded. MH/S-57/L Case remanded.