P L D 2004 SC 583




Per Nazim Hussain Siddiqui, C.J.

(a) Constitution of Pakistan (1973), Articles 184(3), 199, 15 and 4

Malik Muhammad Qayyum, Advocate Supreme Court for the petitioner in both the petitions raised the following contentions :—

(1) The petitioner, being a citizen of Pakistan, has a natural and inherent right to enter and return to the country, which is guaranteed under Article 15 of the Constitution. Under Article 4 of the Constitution, he has a right to be dealt with in accordance with law and is entitled to enjoy the equal protection of law. The above fundamental rights of the petitioner are being violated by the respondents;

(2) The respondents, through the press statements cited in the petition, have made it clear that as soon as the petitioner lands at any airport in Pakistan, he will be immediately deported. In the recent past, the family of the petitioner was not allowed to stay in Pakistan and was deported. The petitioner understands that instructions have been issued to allt he airprots that if any member of the Sharif family comes to Pakistan, he/she should be sent back immediately. When the petitioner comes to Pakistan, he would be immediately sent back and he will have no occasion to invoke the jurisdiction of any Court in Pakistan; and

(3) The order passed by the Anti-Terrorism Court in Lahore declaring the petitioner a proclaimed offender is a nullity in the eye of law as held in N.M.V. Vellayappa Chettiar v. Alagappa Chettiar (AIR 1942 Madras 289) wherein it is laid down that where the Court is informed that the accused is out of country, the Court cannot declare him a proclaimed offender. Here, the petitioner is willing and ready to surrender before the Court and face the cases against him, but he is not being allowed to do so. [p. 593] A

It is significant to note that neither in the comments nor during the course of arguments the Federal Government/Government of Punjab has disputed the right of the petitioner being a citizen of Pakistan to come back to the country nor referred nor brought on record any agreement/document permitting the Government to force the petitioner to live in exile. [p. 595] B

Clause (3) of Article 184 and sub-clause (c) of clause (1) of Article 199 of the Constitution are for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II. For their proper appreciation, they are reproduced below :–

“Article 184(3) : Without prejudice to the provisions of Artilce 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

“Article 199(1) : Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,—-

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.” [p. 595] C

Articles 199 and 184(3) regulate the jurisdiction of the Superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that the grievance relates to violation of fundamental rights. Secondly, the violation is of nature of public importance, which has been interpreted to mean any invasion of individual freedom, liberty, fundamental rights, including effectiveness and safeguard for their implementation.

Therefore, having regard to the connotation of the words “public importance”, the facts and circumstances of each case would have to be scrutinized on its own merits. [p. 595, 596] D

With the assistance of learned counsel for the parties, we have surveyed the relevant case-law. In Manzoor Elahi’s case, (PLD 1975 SC 66), Benazir Bhutto’s case (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif’s case (PLD 1993 SC 473), Wasey Zafar’s case (PLD 1994 SC 621), I.A. Sharwani’s case (1991 SCMR 1041) and the Employees of Pakistan Law Commission’s v. Ministry of Works (1994 SCMR 1548), questions of general public importance, which affected the people at large, were involved. In Asad Ali’s case (PLD 1998 SC 161), the Supreme Court entertained petition directly for the reason that the issue affected the judicial system of the country. The finding and conclusion of the Supreme Court in Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) have never been deviated from. It is advantageous to quote the relevant observation occurring at page 801 of the report, which reads as under :–

“The issues arising in a cse, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective ‘public’ necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole. Threfore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance.” [p. 596] E

Same view has recently been taken in Watan Party’s case (PLD 2003 SC 74). It was a 5 – member Bench judgment to which one os us (Nazim Hussain Siddiqui, now Chief Justice) was a party, wherein reliance was placed on Manzoor Elahi’s case and the above view was endorsed. For facility of reference, the relevant observations in the latter case are reproduced below :—

“Now, what is meant by a question of public importance. The term ‘public’ is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people, relating to a nation, State or community…”

“The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of a Parliament. In order to acquire public importance, the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community”. [p. 597] G

The Learned Attorney General took us through Article 32 of the Constitution of India, which is pari materia with Article 184(3) of the Constitution of Pakistan. It is noted that the words ‘question of public importance’ are not used in Article 32 of the Constitution of India. The Constitutions of 1956 and 1962 also did not have these words. There is a conscious departure and the words ‘question of public importance’ in Article 184(3) have been used with a purpose. The parameters of the jurisdiction under Article 184(3) are that the petition must raise a question of public importance. In India, where there is no such requirement, the Supreme Court of India, has held that if the scope of Artilce 32 of the Indian Constitution were to be enlarged, it would immensely increase the dockets of the Court. Such jurisdiction remains with the High Court. [p. 597] H

Under Article 199 wider powers have been conferred upon High Court than Supreme Court and these powers cover more areas than a mere enforcement of Fundamental Rights. It is significant to note that under Article 184(3), Supreme Court only interferes in cases of violation of Fundamental Rights, which are of public importance, whereas, no such condition is provided under Article 199. Mere fact that a question of arrest or detention of an important person is involved, this by itself is not enough to invoke clause (3) of Article 184. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question. [p. 597] I and J

Learned Attorney Geneal rightly contended that the present petition, at best, raises an individual grievance and if the scope of jurisdiction under Article 184(3) were enlarged, every habeas corpus petition would be filed in the Supreme Court. However, where a fundamental right has been breached, but the breach is of such a nature that it raises a question of public importance, then a petition can be directly filed in the Supreme Court. In National Steel Rolling Mills v. Province of West Pakistan (1968 SCMR 317), it was held that the Court would not entertain a petition, which had its basis on a premature act. This has recently been followed in two judgments by the Lahore High Court, namely, Zakariya v. Agricultural Development Bank of Pakistan (2002 CLD 953) and Liaqat Ali v. City Nazim (2003 MLD 1635). Clearly, the Court can be moved only when a violation of some legal or Constitutional right actually takes place. [p. 598] K,L&M

As far as evidence value of press reprots is concerned, it is noted that one line of precedents in the jurisprudence of the country is that no evidentiary value is attached to the press reports and no reliance can be placed on a press report where a person claims a legal right on its basis. The Courts do not decide cases on press reports. In the other line of authorities, such as Wali Khan’s cse, Ms Benazir Bhutto’s case and Mian Muhammad Nawaz Sharif’s case, the press report are relied upon, but these case are distinguishable. This Court in exercise of its jurisdiction under Article 184(3) does not act as a Court of appeal, but as a Court of review. [p. 598] N & O

Basically to belive or disbelieve the press reports is a question of fact and before reaching a positive conclusion such facts need to be examined, keeping in view their intrinsic value. Many such statements are given only for political purposes, but the same cannot straight away be taken as proved nor at their own they create a legal right nor any evidentiary value can be attached to press reports, unless irregutable evidence is brought on record for establishing their correctness. [p. 598] P

The contention of learned counsel for the petitioner that already instructions have been issued to all airports that if the petitioner comes back to Pakistan he shall be immediately deported back is without any tangible evidence. No such document has been brought on record in support of this plea. It is merely an apprehension in his mind and its legal adjudication is not possible nor it can be made a basis for invoking extraordinary jurisdiction. Learned Attorney General for Pakistan, during the course of arguments, repeatedly stated tht an invitation would not be sent to him for returning to the country. As regards the plea that in the recent past his family members were deported, it is significant to note that neither full particulars regarding alleged deportation have been brought on record nor this plea is to be resolved by this Court within the scope of clause (3) of Article 184 of the Constitution. A petition cannot be entertained merely on apprehension whatever its nature may be. [p. 598] R

Adverting to the facts of this case, it is noted that the petitioner in Constitutional Petition No. 55 of 2003 has not raised any question of public importance. It appears that he left the country on his own and nothing material has been brought on record to substantiate the assertion that he was forced to live in exile. The petitioner has prayed for a relief, which, in fact, always remained available to him and he himself was solely responsible for not availing it earlier. Constitutional Petition No. 55 of 2003 is not maintainable.

As far as the plea regarding declaration of the petitioner as proclaimed offender is concerned, it is noted that earlier the petitioner had never taken concrete steps for coming back to the country in spite of the fact that there was not order prohibiting his entry in the country. As such, it would be an exercise in futility to examine the issue. Even a proclaimed offender when arrested has a right to be tried according to law and this right cannot be taken away from him. By remaining absconder one loses certain rights but not the right of trial according to law. Learned counsel for the petitioner, during the course of arguments, submitted that the petitioner is ready to face the cases registered against him and he will not mind even if he is arrested at the airport. Under the circumstances, Civil Petition No. 791 of 2004 also fails. [p. 599] T

It is not denied by learned Attorney-General for Pakistan and Advocate-General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. It is a settled proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country. [p. 599]U

Above are the reasons of the Short Order dated 7-4-2004, whereby above petitions were dismissed as under:–

“During the course of arguments, learned counsel for the petitioner submitted that the petitioner is ready to face the cases registered against him. He also stated that the petitioner will not mind even if he is arrested at the airport.

For reasons to be recorded later on, both these petition are dismissed with an observation that the petitioner may come back from abroad subject to the law of country”.

Order accordingly.

Makhdoom Ali Khan, Attorney-General for Pakistan for Respondent Nos. 1 and 6 (in Constitutional Petition No. 55 of 2003) on Notice).

Syed Shabbar Raza Rizvi, Advocate-General, Punjab, Ms. Afshan Ghazanfar, Asstt. A.-G. for Respondent No. 2 (in Constitutional Petition No. 55 of 2003 and for Respondents (in Constitutional Petition No. 791 of 2004).

Date of hearing : 7th April, 2004.

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