2003 PLP 90 (MLD)

Mr. M. Ghulam Nabi Awan who is a learned Advocate of this Court, has submitted this writ petition making the following prayer:‑‑ "It is, therefore, prayed that a writ may kindly be issued to the respondents to promulgate Law, Act, Ordinance or a Gazette Notification, as the case may be, to the effect that the supreme Authority vests with the Holy Qur'an and that the supremacy of Legislature in Pakistan is negatived; as so decided by the Supreme Court in Reference No. 1 of 1975 filed .by respondent No.3 against Abdul Wali Khan, reported as PLD 1976 SC 57, at page 176, portion FFFF."

2. Initially, on 23‑1‑2002, when this writ petition came up for hearing, the following orders were passed:‑‑ "This writ petition raises an issue without proper research, documentation or reference showing the 'areas in law or our polity where admittedly and deliberately the Qur'anic Injunctions were not being followed despite what has already been enjoined by the Constitution or the case‑law handed down by the superior Courts and called for Islamization. Because without such a reference, the prayer clause of the writ petition appears more of a rhetoric. Whereas the exercise of jurisdiction in a writ petition is a serious and meaningful exercise. (2) The petitioner if he is serious should properly document his petition while attaching a genuine research paper and material showing such areas as aforementioned before expecting this court to proceed any further. (3) After the petitioner properly documents his petition, the matter be put up before this Court."

3. The learned petitioner once again came up with a C.M. and asked that the writ petition may be heard as it is.

4. A notice was issued to the learned Deputy Attorney‑General for Pakistan, who has been heard as well. According to the learned Deputy Attorney‑General, the provisions of the Constitution provided that nothing which is repugnant to Islam and Sunnah can be the law of the land. That in case the petitioner feels that there was any law or order repugnant to the provisions of Islam and Sunnah, he may point out it for curative legislation.

5. The petitioner despite opportunities has not beep able to point out any act or order of the Government or the Legislature which according to him offended the Islamic provisions of the Constitution.

6. A writ cannot be issued in vacuum. It is a discretionary relief to be given by the Courts based on grounds which are serious, solid, cogent, specific and reasonable.

7. Under Article 199 of the Constitution, only an aggrieved person can file a writ other than the writ of habeas corpus or quo warranto. If we peruse the petition, the petitioner has not stated as to how he was an aggrieved person pressing for issuance of a writ of mandamus. A person cannot be said to be an aggrieved persons unless he has a right in the performance of statutory duty by a person performing functions in respect of any right which he may have in relation to the performance of such functions. Reference may be made to the case of Ahbab Co‑operative Housing Society Ltd. v. Commissioner, Lahore Division (PLD 1978 Lahore 273). Likewise a person invoking Constitution jurisdiction of High Court must establish a direct or indirect injury to himself and substantial interest in the subject‑matter of proceedings. Reference may he made to the case of Jan Muhammad v. Government of N.‑W.F.P. 1993 CLC 1067). The petitioner at least had a duty to tell this Court beyond what was said rhetorically by him whether any of his proprietary or personal rights had been invaded and thus he had a locus stands deference may be made to the cases of Abdul Majid v. Deputy. Commissioner, Sialkot (1991 CLC 1995). Abdul Majeeb Pirzada v. Federation of the Pakistan (PLD 1990 Karachi 9).

8. In the case of Tariq Transport Co., Lahore v. The Sargohda Bhera Bus Service (PLD 1958 SC (Pak.) 437) with respect to the question of locus standi, it was observed:‑‑ "In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle that a person seeking judicial review of administrative or quasi‑judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. 'A petitioner', says Mr. Justice Frankfurt in his concurred opinion in Giant Anti‑Fascist Refugee Committee v. McGrath (341 U.S. 123, 151) 'does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature'. An application for an order of certiorari can only be made by an aggrieved party and not merely by one of the public, R. v. Nicholson (1899) 2 Q.B. 455 and in the case of an .application for an order of mandamus, it is an established rule that the applicant must show that there resides in himself ‑a legal right to the performance of a legal duty by the party against whom the mandamus is sought, R. Lewisham Union (1897) 1 QB 498."

9. In the case of Commonwealth of Massachusetts v. Andrew W. Mellon (262 US 447 : 67 Lawyers Edn. 1078), it was observed:‑‑ "It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings that Courts of justice can interpose relief."

10. There is wisdom in the use of the word 'aggrieved' appearing in Article 199 of the Constitution because it helps in checking litigation for the sake of litigation by those who may not be aggrieved. So, that the Courts are confronted with real questions which should occupy their attention and not questions which are of an academic nature involving political issues and where the issuance of a writ is mere futile exercise. Reference in this connection may be made to the case of Tasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578), where it was observed: "In order to have the locus standi to invoke. certiorari jurisdiction, the petitioner should be an 'aggrieved person'. The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him."

11. Obviously Courts are forums performing the functions of adversarial adjudication and such an adjudication is only possible on specific issues involving specific questions and challenging specific acts. It is not possible for Courts to look for the issues and causes on behalf of a party. It is for an aggrieved party to put forth causes, issues and grievances in a specific and straightforward manner for enabling the Courts in taking a decision which is pragmatic practical and executable. Courts cannot be expected to act as is proverbially said in the literature "Don‑Quixts charging at the wind mills". Nor can the Courts be expected to decide metaphysical question of law or, intricate political questions or ideas academically perceived without there being a justification shown for their resolution in legal realism. That is why, intricate political questions are not resolved through writ petitions but politically in the political forums. Reference in this connection may be made to the case of Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan (PLD 1964 (W.P.) Lahore 138). 12(1). In the case of Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), the question which came up for determination was whether writ of mandamus could be issued for enforcing performance of duties by Government or its officials which are not of purely ministerial nature. The Full Court while referring to the case‑law of England/America, made the following observation:‑‑ "Courts in England or America have never sought to compel by mandamus the performance of duties which were not of purely ministerial nature not involving the exercise of any discretion or judgment. They have never arrogated to themselves the authority to control legislative departments, in the exercise of their legislative powers, by mandamus. In this country, too, the functions of Government are divided into three distinct branches‑‑Legislative, Executive and Judicial‑‑each independent of the other whilst acting within its own sphere. For the harmonious working of such a system it is incumbent on each to know the limits of its own jurisdiction and not to seek trespass into the field of the other. The writ of mandamus cannot, kind of duty by Government or its officials. They night be compelled only when they are under a legal obligation towards a subject to carry out specific ministerial duties, 'in relation to that subject, clearly imposed upon them by law. The duty to make rules in exercise of statutory powers can hardly be conceived to fall within the ambit of such ministerial duties as might be commanded to be performed by mandamus. " 12(2). On the question as to who can file such a writ the answer was: "The Courts have never claimed to exercise a general power to enforce the performance of statutory duties by public bodies on the application of anybody who chooses to apply but have always required that an applicant should have a legal and specific right in him to enforce the performance of such duties. In order to entitle a person to ask for the performance of any public duty by a mandamus, it is necessary for him to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of a class of persons, all of whom are equally interested therein. "

13. A Constitution reflects the legal framework of a State. It shows how the higher institutions of the State are to function. It establishes the framework, organization and system of Government; lays down the organic and basic rules which must regulate the composition and functions of the principal organs of State, the Government and its agencies. All authorities and instrumentalities consisting of the three broad branches i.e. the Executive, the Legislature and the Judiciary in the scheme of trichotomy of power. It maps down their powers and spheres of their activities. Our Constitution also declares the principles, procedures and forms deemed fundamental for the governance of the country. Part‑II of the Constitution relates to Fundamental Rights and Principles of Policy. In Part‑I of the Constitution, the Objectives Resolution which has always been accepted as our grund norm is reflected as its substantive part and a relevant excerpt from the same may be reproduced below for a ready reference:‑‑ "Where in the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah. This and the other provisions of the Constitution as reflected in Article 31 relating to principles of policy provide sufficient safeguards for the observation of Islamic way of life according to Qur'an and Sunnah.

14. Besides Chapter 3‑A of the Constitution relates to the functioning and creation of the Federal Shariat Court whose powers as reflected in Article 203‑D enable it to examine and decide whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and may, issue a declaration to that effect while specifying a date when its decision is to take effect. Part‑IX of the Constitution also deals with Islamic provisions of the Constitution. All these provisions of the Constitution provide sufficient safeguard against any law, authority or individual acting against the Injunctions of Qur'an and Sunnah.

15. After all these guarantees, is there a. necessity of issuing a writ in general term and in all its vagueness as has been prayed by the petitioner who has not even bothered to be specific or to show me, a .law which needs reference to the Federal Shariat Court for examination under Article 203‑D. The answer is 'No'. It is, however, unfortunate if such questions are raised without proper appreciation of the Constitutional provisions and the law. And it is painful if questions raised even otherwise destitute of proper research on the subject as is the case in hand.

16. It is also strange that while relying on decided case of the apex Court which pertains to the year 1976, the petitioner has come now seeking implementation of what may have been observed in that case in obiter. There is no explanation, why he is raising such issues now after 26 years and that too before this Court.

17. People who come to Courts with a non‑serious approach and without doing their homework while they endeavor to point out r impressive issues, do not add anything in the positive sense for the benefit of the society and thus they did not come with clean hands and deserve to be discouraged.

18. After these observations, this Court feels that this writ petition is not maintainable. which is being disposed of at the limine stage. S.A.K./M‑1239/L Petition dismissed.