2004 PLP 460 (MLD)

Jahanzeb Khan Bharwana for Respondents Nos.3 and

4. I intend to decide the following Constitutional petition by one consolidated order having similar facts and law:‑‑ (1) Writ Petition No.15699 of 2003; Writ Petition No.8688 of 2003; Writ Petition No .9226 of 2003; (4) Writ Petition No.9227of 2003; (5) Writ Petition No.9230 of 2003; (6) Writ Petition No.9233 of 2003; (7) Writ Petition No.9234of 2003; (8) Writ Petition No.9763 of 2003; (9) Writ Petition No.9766 of 2003; (10) Writ Petition No.9767 of 2003; (11) Writ Petition No.9768 of 2003 and (12) Writ Petition No. 13478 of 2003.

2. The brief facts out of which the aforesaid Constitutional petitions arise are that the petitioners filed complaints before the Wafaqi Mohtasib‑e‑Aala which were accepted. Thereafter the respondents filed review applications before Wafaqi Mohtasib‑e‑Aala in which notices have been issued to the petitioners. The petitioners being aggrieved filed the aforesaid Constitutional petitions.

3. Learned counsel of the petitioners submits that review applications filed by the respondent agency are not maintainable before the Wafaqi Mohtasib‑e‑Aala as Wafaqi Mohtasib‑e‑Aala has no jurisdiction to take the cognizance of the matter in view of the contents of President Order No.1 of 1983. He further submits that power of review was conferred to the Wafaqi Mohtasib‑e‑Aala through Ordinance No.LXXII of 2002 which is also violative of mandatory provisions of the Constitution i.e. Article 25 and principle of natural justice. The power of review was only provided to the agencies whereas the complainants were not provided that right of review. Therefore, review petitions filed by the respondents under the said Ordinance are not maintainable. In Writ Petition No.15699 of 2003 he further submits that respondent agency is duty bound to implement the recommendation of Wafaqi Mohtasib‑e‑Aala. He further submits that respondent agency is duty bound to act in accordance with law and the petitioners have filed aforesaid Constitutional petitions for the enforcement of a contract which was executed between the parties under the provisions of Insurance Ordinance, 2000. Therefore, action of the respondents is without lawful authority. In support of his contentions he relied upon the following judgments:‑‑ Islamia University. Bahawalpur v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141); Messrs Huffaz Seamless Pipe v. Sui Northern Gas Pipelines (1998 CLC 1890); M.H. Abidi v. State Life Insurance Company (1990 MLD 563) and Sharif Khan Bros. v. Chief Controller (2001 YLR 2211). He further submits that Wafaqi Mohtasib‑e‑Aala has not decided the review petitions of the respondents for the last six months. Therefore, the petitioners have no other alternative except to file aforesaid Constitutional petitions.

4. Learned counsel of the respondents submits that Constitutional petitions are not maintainable as the petitioners have basically challenged the notices issued by the Wafaqi Mohtasib‑e‑Aala to the petitioners. In support of their contentions they relied upon the following judgments:‑‑ Bilqees Jaafar v. Zulfiqar Ahmad Ghumman (2002 CLC 42); Kabir Khan v. Government of Punjab (2002 MLD 672); Shagufta Begum v. The State Income Tax Officer (PLD 1989 SC 360); Mir Nabi Bakhsh Khan Khosa v. Branch Manager (2000 SCMR 1017); A.R. Niazi Advocate v. Pakistan through the Secretary (PLD 1968 SC 119); Virasat Ullah v. Bashir Ahmad (1969 SCMR 154) and Nazir Ahmad Sheikh v. Government of Sindh (1998 PLC (C.S.) 607). They further submit that impugned Ordinance was promulgated by the President as Chief Executive in pursuance of the Proclamation of Emergency dated 14th day of October, 1999 and the Provisional Constitutional Order No. 1 of 1999 read with Provisional Constitutional (Amendment) Order IX of 1999 and exercise of all powers enabling him in that behalf. They further submit that this Court has no jurisdiction to take the cognizance of the matter in view of Article 270 (AA) which was added by the Competent Authority in Legal Framework Order, 2002 which was promulgated and enforced on 21‑8‑2002 whereas the impugned Ordinance was promulgated on 9‑10‑2,002 much before the revival of the Constitution. In support of their contention they relied upon the following judgments:‑‑ "Watan Party v. Chief Executive/President and another (PLD 2003 SC 74); Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2003 Lahore 371); Pakistan lawyers Forum v. Federation of Pakistan (PLD 2003 Lahore 461) and Ch. Zulfiqar Ali v. Chairman NAB and others (PLD 2003 Lahore 593). They further urge that Wafaqi Mohtasib‑e‑Aala has no jurisdiction to review its order prior to the enforcement of impugned Ordinance and the complications have arisen qua the enforcement of the orders of the Wafaqi Mohtasib‑e‑Aala. Keeping in view the ground realities the Competent Authority, has framed the impugned Ordinance. In support of their contention they relied upon the following judgments:‑‑ Rahat Hussain v. Collector of Customs (2003 CLC 1860) and College and Physicians and Surgeons v. Wafaqi Mohtasib (PLD 2003 Karachi 667). They summed up their arguments that all the plea raised by the learned counsel of the petitioners with regard to the vires of the impugned Ordinance were noted by the superior Courts in the aforesaid judgments and were rejected. Therefore, Constitution petitions are liable to be dismissed. They further urge that petitioners want enforcement of contract through these Constitutional petitions which is not permissible in the eye of law.

5. In rebuttal learned counsel of the petitioners submits that Constitutional petitions are maintainable as the action of the public functionaries is not in accordance with mandatory provisions of Insurance Ordinance, 2000.

6. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the word.

7. The vires of law cannot be challenged on the ground of legislative incompetence or violation of any provision of the Constitution in view of various provisions of Provincial Constitution Order as‑noted by the Full Bench of this Court in Muzaffar Hussain's case (2002 PLC (C.S.) 442) and laid down following principle:‑‑ "We are unable to find either legislative incompetence of the Governor or violation of any provision of the Constitution because with the promulgation of P.C.O. 1 of 1999 and various orders issued by the Chief Executive the provisions of the Constitution shall be deemed to have been altered as even the power to amend the Constitution by the Chief Executive has been recognized by the Honourable Supreme Court as mentioned in paragraph No. 47 of the aforesaid judgment." The contentions raised by the learned counsel of the petitioners qua the vires of the impugned Ordinance were raised qua vires of National Accountability Bureau Ordinance before the Single Bench; Division Bench and Honourable Supreme Court in the following judgments, which were rejected:‑‑ Watan Party v. Chief Executive/President and another (PLD 2003 SC 74); Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2003 Lahore 371); Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2003 Lahore 461) and Ch. Zulfiqar Ali v. Chairman NAB and others (PLD 2003 Lahore 593). It is settled principle of law that the judgment of the Honourbale Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The pleas raised by the learned counsel of the petitioners as mentioned above qua the vires of the impugned Ordinance have been rejected by the superior Courts in the aforesaid judgments. Therefore, pleas raised by the learned counsel for the petitioners qua the vires, of the Ordinance have no force. It is also settled principle of law that Constitutional petitions are not maintainable against the show‑cause notice as the principle laid down by the Honourable Supreme Court in Shagufta Begum's case supra (PLD 1989 SC 360). Even otherwise it is admitted fact that respondent agency has filed review petitions before the Wafaqi Mohtasib‑e‑Aala against the petitioners. The Wafaqi Mohtasib‑e‑Aala has taken cognizance of the review petitions of the agency and issued notices to the petitioners. Therefore, during the pendency of the review petitions the Constitutional petitions are hot maintainable in view of the law laid down by the Honourable Supreme Court in Chaudhry Tanbir Ahmad Siddiki v. Province of East Pakistan (PLD 1968 SC 185). So far as the enforcement of contract issued by the respondent agency to the petitioners under the provisions of Insurance Ordinance have also no force as the petitioners themselves filed complaints before the Wafaqi Mohtasib‑e‑Aala who has decided the same and thereafter respondent agency has filed review applications before Wafaqi Mohtasib‑e‑Aala. Therefore, Constitutional petitions are not maintainable. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The facts of the cited cases by the learned counsel of the petitioners are distinguished as in the cited, cases there was no finding of Wafaqi Mohtasib‑e‑Aala as well as review applications filed by the agency which were pending before Wafaqi Mohtasib‑e‑Aala. In view of what has been discussed above, the Constitutional petitions have no merits and the same are dismissed. However, in the interest of justice and fair-play Wafaqi Mohtasib-e‑Aala is directed to decide the review petitions as expeditiously as possible. M.B.A./N‑6/L Petitions dismissed.