P L D 1953 Peshawar 45 (PLP)

MUHAMMAD SHAFI, J.‑On 23rd January 1950, Ghulam Sarwar Khan, son of Haji Abdul Akbar Khan, of Shah Dhand village, in Tahsil Charsadda, made an application under section 5 of the North‑West Frontier Province Charitable Institutions Act VIII of 1949, alleging that the Provincial Government had by a special order published in the Official Gazette of 23rd January 1950, taken over and assumed the administration, control, manage ment a.: d maintenance of a mosque and a hujra and some landed property, situated in Shah Dhand, and that this property was neither a charitable institution nor a property as defined by the above Act. The application in the normal course was handed over to Mr. Pir Muhammad, discharging the functions of an Adminis trator under the Act. After recording the evidence, the adminis trator dismissed the application with costs, holding that the mosque and the hujra were charitable institutions, and the landed property was held and applied in trust for a charitable purpose, and as such were rightly taken over by the Provincial Government. Ghulam Sarwar Khan has come up on appeal to this Court against the above order. Inter alia an objection has been raised that Mr. Pir Muhammad had disqualified himself to act in this case as a judge, and consequently all proceedings which he has taken, being against law and natural justice, reliable to be quashed. After hearing the arguments of the learned counsel, appearing for the appellant and the Government, we have come to the ''irresistible conclusion, that the appellant's contention must prevail, the order of the Administrator set aside, and the case remanded for a de novo trial to some person other than Mr. Pir Muhammad for decision according to law. The facts which led to the promulgation of the notification in the Official Gazette were that on 5th November 1949, Mr. Pir Muhammad sent a copy of a deed, which he called a waqf deed for the perusal of the Advocate‑General, North‑West Frontier Province, with a request that he should give him his opinion "whether it is a fit case for action under section 3, Charitable Institutions Act or not"? While inviting the opinion Mr, Pir Muhammad wrote the following in the letter addressed to the Advocate‑General. "One Atta Muhammad of Shah Dhand, Tahsil Charsadda, dedicated 1221 kanals 5 rnarlas of land at Shah Dhand as waqf in favour of his mosque and hujra situated in the same village. It is given in the waqf deed that his descendant who is a lambardar in the family will manage the estate, the income whereof will be spent on wayfarers in the mosque and hujra, and the residue of the income is to be spent on the repairs of the mosque and hujra. At present Ghulam Sarwar grandsons of Atta Muhammad is in possession of this land for the last ten years. He has not got an up‑to‑date account of the income and expenditur,:. This property has been entered on the waqf register, and Ghulam Sarwar has been paying the requisite fee to the Waqf On 14th November 1949, the Advocate-General wrote the following:- "I have seen the will dated the 15th of February 1859 (1909) in which the attestor ear‑marked some landed property for the upkeep of the mosque and maintenance of the hujra. I understand this property has been duly entered in the waqf register. The purpose mentioned in the will in question is covered in the definition of "charitable purpose" as given in section 2 (b) of the North‑West Frontier Province Charitable Institutions Act, 1949. Therefore, in my opinion action can be taken under section 3 of this Act." After the receipt of the Advocate‑General's opinion Mr. Pir Muhammad wrote the following :‑ "Prepare a case for notification under section 3, Charitable Institutions Act, 1949." Then there is a note of some clerk in the office of Mr. Pir Muhammad to the following effect : ‑ "Necessary notification submitted for favour of approval." On the margin then the same gentleman who wrote the above words stated that the notification had been submitted to the Revenue and Divisional Commissioner for signatures. From the above it will be obvious that tie Provincial Government issued the notification, taking over and assuming the control, management and administration of the property it, dispute at the instance of Mr. Pir Muhammad, Administrator. It is further clear that Mr. Pir Muhammad prepared the notification and sent it on just formally the Revenue and Divisional Commissioner, who is one of the Secretaries to the North‑West Frontier Province Government for signature and publication is the Official Gazette. It is also apparent from the perusal of Mr. Pir Muhammad's note that before he submitted the papers t for opinion to the Advocate‑General, he had formed his opinion about the property that the mosque and the hujra were charitable institutions and that the lanJed property was dedicated as waqf. He had further stated in the same note that the property had been entered on the waqjregister, and that Ghulam Sarwar Khan was paying the requisite‑fee. He according to Mr. Pir Muhammad had not kept an up‑to‑date account of the income and expenditure of the property. Mr. Pir Muhammad consequently had, before the application under section 5 of the North‑West Frontier Province Charitable Institutions Act was made to him, not only formed a definite opinion that the mosque and the hujra were charitable institutions and the landed property as attached thereto, but was actually solely responsible for the Provincial Government taking over and assuming its administration, control, management and maintenance. After Mr. Pir Muhammad had done all what has been mentioned above, it was well nigh impossible to expect him to undo, even if the facts warranted it, on the application made under section 5 of the North‑West Frontier Province Charitable Institutions Act what he had already done. The conduct of Mr. Pir Muhammad in fact shows that the trial of the case by him was a complete farce, and an example of the flagrant violation of natural justice. B No doubt, under the Charitable Institutions Act a person appointed as an Administrator has got dual duty to perform i.e., of an executive and a judicial officer, yet the Act empowers the Provincial Government to appoint any person other than the Administrator to discharge the judicial functions as defined in section

5. By giving these powers to the Provincial Government, the obvious intention of the legislators was that where the Adminis trator appointed under the Act, had disqualified himself to take up the case on the judicial side, some other person should be appointed by the Provincial Government to discharge these duties. In this part of the country examples are not lacking where the executive and judicial function are united in one and the same person, but then the experience has shown that a person, who has executive duties to perform, cannot discharge the judicial functions with the same unbiased and free mind which purely a judicial officer will do. During the time of the British Rule, they perhaps considered it necessary that in order to maintain their rule the judicial officers should at the same time exercise executive functions. In a free progressive State, particularly when it claims to be an Islamic one, the sooner this abnormal state of affairs is put an end to, the better it will be for the country, the Nation, and last but not the least the Government. In any case, where an officer, in whom these two functions are united, acts on the executive side, he should not be made a Judge in the same cause. The reason is obvious that the parties arrayed in the case cannot possibly have any confidence in such an officer and it is of paramount importance that parties to a case should have a complete confidence in the impartiality of a Judge. It is the duty of the Government, the people and the Courts of a free State to promote the feelings of confidence in the administration of justice, which is so essential to social order and security as well as to uphold the judicial purity. The well‑known dictum of law "It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" must strictly be brought into practice by the Government just as much as it should be done by the Judges. The Government has no right to force a citizen to have his case decided by a Judge, who has already formed his opinion and is in fact a party to the case. In the case before us not only Mr. Pir Muhammad initiated the whole proceedings qua the property in dispute, he acted in such a manner that he was otherwise too completely disqualified to act as a Judge much less an unprejudiced and a fair one. After an application was made to him under section 5 of the N.‑W. F. P. Ch,1ritable Institutions Act, for a declaration that the charitable institution or the property in question was not the charitable institution or the property within the meaning of subsections (c) and (d) of section‑ 2 of the Act, it was the bounden duty of Mr. Pir Muhammad to give an opportunity to the petitioner as well as the Government to produce such evidence as they desired. Mr. Pir Muhammad while he called upon Ghulam Sarwar Khan to adduce evidence, did not issue any such notice to the Government. In fact the record shows that the Government was not represented before him at all. In spite of it one finds that all the witnesses, who were produced by Ghulam Sarwar Khan, were cross‑examined by somebody. That somebody could not be any one else but Mr. Pir Muhammad himself. In fact the learned counsel for the Government admitted that this was what really happened. Then there are certain witnesses produced in the case for the defence. In the absence of the Government, it is impossible for us to understand as to who could those persons be, that produced such witnesses. It was pointed out to us by the learned counsel for the appellant, and not controverted by the learned counsel for the respondent that the gentlemen who produced these witnesses were the cousins of Ghulam Sarwar Khan, who were his arch enemies and were highly interested, not as public spirited men but maliciously, in seeing that the property in dispute was taken out of his hands. Under the law the only persons who could be permitted to produce evidence were Ghulam Sarwar Khan or the Government. We are unable to understand how was Mr. Pir Muhammad authorized to permit strangers to produce evidence in the case. By taking upon himself the duties of the Government, a party to the case, viz., cross‑examining the witnesses on its behalf, and permitting the strangers to take active part in the case as a party thereto, Mr. Pir Muhammad betrayed that trust which was replaced in him as a Judge, and then as a Muslim Judge under the law dealing with purely Islamic institutions. This act of Mr. Pir Muhammad is not only objec tionable, but highly condemnable. While the case was being heard in this Court, Mr. Pir Muhammad had the audacity to enter the Court‑room, and admit that he had seen the learned counsel for the Government on the previous day and had given him instructions in the case, and that on that day he had come to give instructions to the Government's counsel in the other case, also under the Charitable Institutions Act, which was going to be heard by one of us sitting alone after the conclusion of the argument in this case. This conduct of Mr. Pir Muhammad clearly shows that he identified himself with the Government and throughout the proceedings, while acting as a Judge, he was espousing the party's cause. Apart from that, Ghulam Sarwar Khan had given a list of about fifty witnesses, whom he wished to examine in the case. Out of them Abdul Ghafoor Khan Deputy Superintendent Police, K. S. Sayed Fazal Ali Shah, Muhammad Ajab Khan anti K. S. Sardar Khan were to be examined on interrogatories., The interrogatories were actually submitted to the Administrator, and in due course sent for completion. On 6th February 1951, when the case was finally decided by Mr. Pir Muhammad the three interrogatories had been returned to his Court, while the fourth one addressed to Muhammad Ajab Khan had still not been received back. Out of the witnesses who had to be examined is Court, 32 persons were examined. There is nothing on the record to show as to what happened to the other witnesses mentioned in the lis:. They could have been abandoned by Ghulam Sarwar Khan, but then a statement to that effect should have been made on the record. If these witnesses were not abandoned, under the law Mr. Pir Muhammad was bound to examine them. His failure to do so, in our view, amounts to a clear miscarriage of justice. Again the Administrator has wasted most of his time in recording evidence on the question of Ghulam Sarwar misappropriating the income of the property under consideration, and writing major portion of his judgment on that point. He should have understood that for the Provincial Government to take over and assume the administration, control, management and maintenance of the certain charitable institution or property, it was absolutely immaterial whether the person holding it up to that period was a:; honest man or a dishonest one. In fact, such an inquiry is not within the scope of section 5 of the Act at all. Section 5 is to the following effect :‑ "(1) Any person in possession of or claiming any interest in the immovable property the control of which has been assumed the Provincial Government under section 3 or charitable institu tion, by petition to the Administrator or any other officer autho rities by the Provincial Government in this behalf, may, within one month of the publication of the order under section 3 of this Act, ask for a declaration‑ (a) that the charitable institution or the property in question is not the charitable institution or the property within the meaning of subsections (c) and (d) of section 2 of this Act ; (b) that it is a charitable institution of property within the limits stated in the petition. By entering into irrelevant discussion as regard the conduct of the appellant, the Administrator, it seems, just wanted to unnecessarily throw mud on the appellant, which a fair‑minded Judge under all circumstances avoid. In the application the appellant had said that the notification by the provincial Government, taking over and assuming the control of the property in dispute, was published in the Official Gazette dated 23rd January 1950. No Gazette of this date has been traced in the office. After some difficulty, however, we have been able to find that the notification was actually dated 28th November 1949, and was published in the North‑West Frontier Province Official Gazette of the 23rd December 1949. The Administrator while trying the case did not even make the least effort to know whether the date of the notification or the Gazette given in the application was correct or not. We have, thus, no hesitation in accepting this appeal, quashing all the proceedings taken by Mr. Pir Muhammad and sending the case back for trial de novo. The case should be heard by a person other than Mr. Pir Muhammad, to be appointed by the Government under section 5 of the North‑West Frontier Province Charitable Institutions Act. The Government shall pay the costs of these proceedings to the appellant. Pleader's fee, Rs.

150. Copy of this order will be sent to the Government for necessary action. Order announced. A. H. Appeal accepted.