2018 C L C 841
[Balochistan]
Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ
NASEEBULLAH KHAN BAZAI ----Applicant
Versus
Dr. UMMAR KHAN BABAR and 2 others ----Respondents
Review Application No.25 of 2017 in C.P. No.361 of 2016, decided on 23rd November, 2017.
Civil Procedure Code (V of 1908) ---
----O. XLVII, Rr.1 & 2, Ss. 151 & 152 ---Constitution of Pakistan, Art.199---Constitutional
petition ---Review of judgment ---Suppression of facts ---Promotion---Judgment passed by High
Court under Constitutional jurisdiction in favour of respondent was sought to be reviewed on the
plea that respondent concealed the fact of his facing trial under National Accountability
Ordinance, 1999---Validity ---Constitutional jurisdiction under Art.199 of the Constitution was
discretionary jurisdiction meant to foster justice and to remedy wrong ---Discretionary relief
under extraordinary Constitutional jurisdiction could only be claimed by a person having a bona fide claim and coming to Court with clean han ds---Such jurisdiction could not be invoked by a
person who had come to Court with un- cleaned hands and likewise no one could be allowed to
take advantage of his wrong act ---High Court in its inherent jurisdiction had power under Civil
Procedure Code, 1908, to review its own order passed in exercise of Constitutional jurisdiction ---
Respondent obtained judgment in his favour by concealment of material, relevant and important facts ---High Court reviewed/recalled its judgment as the same was not implemented till then and
dismissed Constitutional petition ---Application was allowed in circumstances.
Justice Khursheed Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483 ref.
Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Desmond Vaz v. Karachi
Building Control Authority PLD 2005 Kar.164 and Manzoor Ahmed v. Muhammad Nawaz PLD
2013 Lah. 123 rel.
Mehmood Sadiq Khokar for Applicant.
Raja Abdul Rehman for Respondent No.1.
Zahoor Ahmed Baloch, Assistant Advocate General ("AAG") for Respondent Nos.2 and
3.
Date of hearing: 13th November, 2017.
ORDER
NAEEM AKHTAR AFGHAN, J. --- This order disposes of Review Application
No.25/2017 filed by the applicant (Naseebullah Khan Bazai BCS/B -20/OSD Government of
Balochistan) on 25.9.2017 under Order XLVII, Rules 1 and 2, C.P.C. read with sections 151 and
152, C.P.C. to review the judgment dated 30.8.2017 passed in favour of respondent No.1 (Dr. Umar Khan Babar BS -20 officer Government of Balochistan) in CP No.361/2016 filed by
respondent No.1 and to dismiss the Constitution Petition No.361/2016. The following grounds have been urged by the applicant in the review application:
2. That while filing the petition the petitioner has not placed the true facts before this Hon'ble court in fact the applicant is the senior most qualifying officer in BS 20 for promotion to B -2I, where, as the petitioner is two years and eight 8 steps
junior to the applicant, as such the applicant has preferential right for promotion to B 21 but he has never been asked for his option for induc tion in the federal
Secretariat group.
3. That neither the petitioner has impleaded the applicant as necessary party in the case nor the Services and General Administration Department has informed the applicant about the instant petition filed by the petitioner having direct negative
implication for the carrier progression of the applicant, as such the applicant is
being condemned unheard.
4. That furthermore the Ordinance VII of 2012 lay down a detail criteria for induction of the officer of the provincial Government by transfer to the post of
senior joint secretary or Additional Secretary in B21 in secretariat group which is to be strictly and invariably adhered to/followed. The term 8 of the selection criteria is reproduced as under: ---
No disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973 or criminal proceedings on criminal charges in the court of law is pending against the officer:
5. That unfortunately the petitioner while processing his case/filing petition before this Honorable court has concealed the fact that a criminal case under NAB reference No.04 of 2011 on account of embezzlement of an amount of Rs.40,116,738/ - is pending before the Accountability Court -II, Quetta, as such,
the provincial aut horities have deviated/violated while recommending an officer
against whom criminal proceedings are already underway, besides the petitioner has also not approached this Court Honorable Court with clean hands but has concealed facts from this Honorable cou rt in contravention to Rule 8 of the
criteria laid down in Ordinance VII of 2012 for induction of provincial Civil Servants in the Federal Government.
6. That it is further added that the petitioner being senior civil servant has encroached sizeable state land in the area of Hazargangi Tehsil Quetta which is publicly being agitated by the concerned Zamindars of the area and contested in
the Honorable High court of Balochistan and the Honorable High court of
Balochistan has directed for disciplinary proceedi ngs against the petitioner on
account of encroachment over the state land, and the matter is presently subjudice before the Honorable Supreme Court of Pakistan.
7. That as far as summary moved by the S&GAD and recommendations of the
erstwhile chief secreta ry for creation of special post for his promotion is
concerned the same has been availed through political patronage otherwise, is
absolutely unlawful, biased contrary to the promotion rules and policy, highly prejudice to the officers senior to the petiti oner and in contravention with the
judgments of the Honorable High court and Supreme Court wherein out of turn promotions are seriously denounced and consequently hundreds of out of turn promotion have been withdrawn.
8. That the judgment under review pass ed by this Honorable court is seriously
prejudicing to the service rights and carrier progression of the applicant and other senior officers as there are just 3 three vacancies in the share of the BCS (EB) in B21 and all the present incumbent officers in B 21 are senior to the applicant by
seniority but junior by age as such the applicant will retire before the present incumbent officers in B21 having no chance of his promotion/carrier progression in the province except again the available post in the Federal Government, as such by passing the applicant who happens to be eight steps senior to the petitioner will be highly detrimental to the service carrier of the applicant and other senior officers
9. That the subject matter relates to the seniority and promo tion of civil servant
which is pin variably part and parcel of the terms and condition of the service as such the services Tribunal under Article 212 of the constitution has the exclusive jurisdiction to attend and dispose of the subject matter.
2. The fol lowing prayer has been made by the applicant in the review application:
"It is, therefore, respectfully prayed that judgment dated 30th August, 2017 passed by this Hon'ble Court in C.P. No.361/2016 may kindly be reviewed besides dismissing the petition filed by petitioner on the face of facts of the case in the greater interest of justice
and fair play to secure the applicant from irreparable loss, and further direction may be
passed to the provincial Government that the promotion cases of BCS B -20 officers to B-
21 against any provincial or Federal vacancy may be processed on the basis of
seniority/qualifying of mandatory NMC course with any other relief in the interest of justice."
3. The review application was accompanied with C.M.A. No.2521/2017 under sec tion 151,
C.P.C. for stay/suspension of the judgment dated 30.8.2017 passed by this Court in C.P. No.361/2016. It was also accompanied by C.M.A. No.2519/2017 under section 5 of the Limitation Act for condonation of delay in filing the review application.
4. On 03.10.2017, the respondent No.1 filed CMA No.2596/2017 in C.P. No.361/2016
under section 151, C.P.C. read with Articles 201, 204 of the Constitution of Islamic Republic of
Pakistan, 1973 in the office of this Court for implementation of the judgment dated 30.8.2017 passed by this Court in C.P. No.361/2016.
5. On 03.10.2017, while issuing notice of the instant review application to the respondent
No.1, to the official respondents and learned Advocate General Balochistan, the operation of the
judgment da ted 30.8.2017 passed by this Court in Constitution Petition No.361/2016 in favour of
respondent No.1 was suspended till decision of the instant review application.
6. After receiving notice of the review application, the respondent No.1 submitted reply to
the review application challenging the maintainability of the review application and locus standi
of the applicant with the contention that the right of respondent No.1 had accrued vide letter dated 22.1.2013 issued by the then Chief Secretary Government of Balochistan, but due to technical reasons, the matter was not taken by the Federal Government; that eligibility of the respondent No.1 was never objected by either party, rather it was confirmed by the competent authority in the letter dated 22.1.2013; t hat this Court has not passed any order in favour of the
respondent No.1, rather it has enforced the approval accorded by the competent authority i.e. the Chief Secretary Government of Balochistan and the Chief Minister Balochistan which was not questioned by either one including the applicant; that the observations made against the
respondent No.1 by this Court were set aside/expunged by the Hon'ble Supreme Court of Pakistan in Criminal Petition No.39 -Q of 2013; that pendency of NAB case against the
respondent No.1 is not legal prohibition; that mere pendency of criminal case does not debar promotion of any employee; that no concealment was made by the respondent No.1 from this court in CP No.361/2016; that the applicant has failed to point out any miss representation or fraudulently obtaining judgment in his favour by the respondent No.1.
7. The respondent No.1 submitted additional grounds on 16.10.2017 that the review
application is not competent as the applicant was not party before the Hon'ble Supreme court as well as before this court and he is stranger to the proceedings; that the respondent No.1 was considered to be eligible in terms of repealed law i.e. the Services of Pakistan (Redressal of Un -
representation) Ordinance, 2012 (hereinafter "the Ordinance") in terms of Article 264 of the Constitution and the applicant was not eligible to be considered for transfer to the Federal Government under the Ordinance and he remained ineligible till August, 2017; that the Chief Secretary Government of Balochistan as well as Secretary S&GAD have not filed any appeal or
review against the judgment dated 30.8.2017 passed by this Court in CP No.361/2016; that none of the officer from the Province of Balochistan is aggrieved from the above order; that the applicant has approached this Court by filing review application with evil designs and mala fide
to defeat the contempt proceedings initiated by the respondent No.1 for non- compliance of the
judgment dated 30.8.2017 passed by this Court; that the applicant has filed the review application due to personal grudge with the respondent No.1; that case of the applicant does not fall within the purview of section 114 of C.P.C. read with Order XLVII, Rule 1 of C.P.C.; that neither there is discovery of new facts nor any mistake or error has been pointed out; that no
sufficient reasoning has been advanced in view of principle enunciated under Order XLVII, Rule 1, C.P.C.; that remedy of review can be availed by a person who is party to the proceedings; that the applicant does not fall within the definition of an aggrieved person; that the respondent No.1
is presumed innocent unless proved guilty in the NAB reference.
8. The official respondents have not contested the review application. In the parawise
comments submitted on behalf of the official respondents bearing signature of respondent No.2,
it has been contended that CP No.361/2016 filed by the respondent No.1 was strongly contested on the ground that respondent No.1 cannot be promoted at the expenses of his seniors; that the pendency of NAB Reference No.4/2011 before Accountability Court Balochistan against
respondent No.1 was never brought to the notice of Government of Balochistan by the NAB
authorities otherwise the respondent No.1 would have not been nominated for the "appointment
by transfer initiative".
With regard to the observations made by this Court in Criminal Revision No.129/2010
titled as "Abdul Rehman and others v. Umar Babar and State", it has been stated that the matter has been disposed by the Hon'ble Supreme C ourt of Pakistan vide order dated 19.4.2016 passed
in Criminal Appeal No.553/2014 titled as "Umar Babar v. Haji Abdul Rehman and others"; that the Government of Balochistan has been granted discretion to take any appropriate action in the matter irrespective of the judgment dated 30.6.2013 passed by SB of this Court in Criminal Revision No.129/2010.
9. Learned counsel for the applicant stated that according to condition/criteria No.8 of the
schedule to the Ordinance, the respondent No.1 was not eligible for his
recommendation/appointment by transfer in the Service of Pakistan in BS -21 as he is facing trial
before the Accountability Court on criminal charges under the provisions of NAB Ordinance in
NAB Reference No.4/2011 dated 03.2.2011; that due to pendency of proceedings on criminal
charges before the Accountability Court Balochistan in NAB reference No.04/2011, the respondent No.1 was not entitled for the relief granted to him by this Court vide judgment dated 30.8.2017 in CP No.361/2016 in pursuance of the Ordinance.
Learned counsel for the applicant stated that with ulterior motives, the respondent No.1
had deliberately concealed/suppressed the above material and relevant fact of his disqualification in view of condition/criteria No.8 of the schedule to the Ordinance from the concerned authorities, from the Hon'ble Supreme Court as well as from this Court which has resulted into judgment dated 30.8.2017 in C.P. No.361/2016 in his favour.
10. Learned counsel for respondent No.1 strongly contested the maint ainability of the review
application filed by the applicant on the ground that the applicant is not an aggrieved person: that he was not party to the proceedings in C.P. No.361/2016 and he being stranger to the proceedings has no locus standi to file a rev iew application. In this regard. learned counsel for
respondent No.1 relied upon the case of Justice Khursheed Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483.
Learned counsel for respondent No.1 stated that much water has flowed under the bridge
and there is no occasion to review the judgment dated 30.8.2017 passed in favour of respondent
No.1 in CP No.361/2016 and that if aggrieved, the applicant should approach the Hon'ble Supreme Court.
11. While relying upon the parawise comments filed by the official respondents, learned
AAG stated that the relevant and important fact of facing criminal charges under the provisions
of NAB Ordinance in NAB Reference No.4/2011 before the Accountability Court Balochistan
was not brought to the notice of the official respondents by the respondent No.1 as well as by the NAB Balochistan which resulted in recommendation of respondent No.1 for his appointment by transfer to BS -21 in the Federal Government to represent the Province of Balochistan.
According to l earned AAG, had the above fact been brought to the notice of the official
respondents, the respondent No.1 would have not been recommended.
Learned AAG did not oppose review of judgment dated 30.8.2017 in CP No.361/2016 on
the ground that the same has bee n obtained by the respondent No.1 from this Court by
misrepresentation as well as by concealing/ suppressing relevant, important and material fact of his ineligibility.
12. On query by the Court about proceedings pending against respondent No.1 before
Acco untability Court Balochistan on criminal charges under the provisions of NAB Ordinance in
NAB reference No.4/2011 and disqualification of respondent No.1 within the purview of condition/criteria No.8 of the schedule to the Ordinance for his appointment by transfer in the Service of Pakistan in BS -21, learned counsel for respondent No.1 conceded that NAB reference
No.4/2011 is pending against respondent No.1 before Accountability Court Balochistan and further stated that according to settled principles of la w, the respondent No.1 is presumed to be
innocent unless proved guilty.
13. On query by the Court as to why the respondent No.1 concealed the important and
relevant fact of his facing proceedings on criminal charges before the Accountability Court Balochis tan in NAB reference No.4/2011 in his representation made to the official respondents,
in his Service appeal filed before the Service Tribunal, in his petitions filed before the Hon'ble Supreme Court and in the constitutional petitions filed before this Court, the learned counsel for respondent No.1 had no answer.
14. Heard the learned counsel for the applicant, learned counsel for respondent No.1, learned
AAG and perused the available record.
While granting relief to respondent No.1 in CP No.361/2016 vide judgment dated
30.8.2017 in pursuance of the Ordinance, the following order was passed by this Court in favour of respondent No.1:
"38. It reveals that despite eligibility of the petitioner for promotion to BS -21, despite
approval in principle of the Prim e Minister of Pakistan for appointment of petitioner in
BS-2I Secretariat Group in Federal Government still in the field, despite observations
made by the Hon'ble Supreme Court in its order dated 05.11.2013 in Civil Petition No.1687/2013, despite placing t he case of the petitioner for his promotion to BS -21 in all
the meetings/working papers of the Provincial Selection Board and despite approval of summary by the Chief Minister Balochistan for promotion of the petitioner in BS -21, the
petitioner has not bee n promoted to BS -21 by the respondents, due to which, he has not
been appointed by transfer to the post of Senior Joint Secretary (BS -21) or Additional
Secretary (BS -21) in the Federal Government depriving the Province of Balochistan of its
representation in the Federal Government.
In the circumstances of the case, in order to represent the Province of Balochistan in the
Federal Government, the petitioner being eligible should have been promoted to BS -21
by the respondents to fulfill the condition for his a ppointment by transfer in BS -21 in
Secretariat Group of the Federal Government.
For the above reasons, the petition is accepted with no orders as to cost. The respondents
are directed to issue notification of promotion of the petitioner to BS -21 to fulfill the
condition for his appointment by transfer to the post of Senior Joint Secretary (BS -21) or
Additional Secretary (BS -21) in the Federal Government in pursuance of Ordinance No.
VII of 2012".
15. The above relief was granted to respondent No.1 by this C ourt in its extra ordinary
constitutional jurisdiction in pursuance of Ordinance as the respondent No.1 was found eligible
by the official respondents as per criteria laid down in the schedule to the Ordinance.
16. The criteria laid down in the schedule to the Ordinance for appointment by transfer of an
officer of the Provincial Government to the post of Senior Joint Secretary (BS -21) and
Additional Secretary (BS -21) in Secretariat Group Islamabad reads as follows:
"1. The officer concerned is a regular BS -21 officer of Provincial Civil Service and
recommended by the respective Provincial Government or Administration of the arrears, as the case may be.
2. The officer opts for appointment by transfer in (BS -21) in Secretariat Group in the
Federal Government.
3. The officer has rendered at least twenty two years service in BS -17 and above in
terms of instructions issued by the Federal Government from time to time.
4. Performance Evaluation Reports (PERs) for previous two grades (i.e. BS -20 or
Bs-21) or fifteen years actual service rendered in BS -17 and above, whichever is
more, as the case may be, will be quantified and one hundred marks will be assigned for PERs quantification and the officers will only be eligible if they have earned grading "Good" or equivale nt and above in their PERs in grade 17 and
above and attain minimum score of seventy five marks in PERs.
5. The officer has successfully completed a regular course at the National Management College or National Defence University and officer of the age of fifty eight years and above will be exempted from this requirement.
6. The selection shall be on the basis of respective Province or area's merit in PERs.
7. The officers will be considered in order of seniority against seats as may be reserved or allotted to each Province or area.
8. No disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973, or proceedings on criminal charges in the Court of Law is pending against the officer.
9. No punishment has been awarded under any criminal law including the National
Accountability Ordinance, 1999 (XVIII of 1999) to the officer concerned in the entire career (BS -17 and above).
10. On induction in (BS -21) in Federal Government, the officer concerned will be
placed junior to all th e existing Senior Joint Secretaries or Additional Secretaries
(BS-21), as the case may be.
11. For the purpose of consideration of promotion to BS -22 in terms of Civil Servants
(Promotion to the post of Secretary, BS -22 and equivalent) Rules, 2010, the two
years service in (BS -21) shall count from the date of appointment as Senior Joint
Secretary or Additional Secretary (BS -21), as the case may be, in the Federal
Government".
17. While responding to the offer letter issued by Secretary S&GAD Government of
Balochistan, in pursuance of the Ordinance, the respondent No.1 being a serving BS -20 officer
of Government of Balochistan exercised his option to represent the Province of Balochistan in the Service of Pakistan in BS -21. The respondent No.1 was recommended by the concerned
Departments for appointment by transfer to the Federal Government in BS -21 as he was found
eligible according to the criteria laid down in the schedule to the Ordinance, but he was not
appointed by transfer in the Service of Pakistan in B S-21 for the reason that he being a BS -20
officer of Government of Balochistan was not promoted by the Government of Balochistan to
BS-21. In this regard the respondent No.1 approached Balochistan Service Tribunal by filing
Service Appeal No.21/2013 which was withdrawn by him on 17.4.2013. The respondent No.1 filed petition before the Hon'ble Supreme Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, but the same was returned to respondent No.1 by the Assistant
Registrar (Ci vil-II) Supreme Court of vide letter dated 08.5.2013. The respondent No.1 filed CP
No.444/2013 before this Court on 10.6.2013 soliciting directions for the Chairman Promotion Committee/Chief Secretary Government of Balochistan to issue promotion order of r espondent
No.1 and to relieve him for assuming charge in Federal Secretariat Group in BS -21. The said
petition was dismissed by this Court vide judgment dated 16.9.2013, against which the respondent No.1 filed Civil Petition No.1687/2013 before the Supreme Court which was
disposed of vide order dated 05.11.2013 with following observations in favour of respondent
No.1:
"Petitioner is a member of Provincial Service of Balochistan in BS -20. In terms of
Ordinance VII of 2012, the Federal Government decided to g ive adequate representation
to "persons belonging to any class or area to secure their adequate representation in the
service of Pakistan" by way of transfer. On 27.11.2012 seven officers in BS -20 from the
Provincial Service in Balochistan were offered to be appointed as Senior Joint Secretaries
in BS -21 by way of transfer including the petitioner but none except the petitioner opted
for the said transfer. Vide letter dated 22.1.2013, Chief Secretary, Government of Balochistan recommended petitioner and Mr. Haider Ali Shikoh for appointment by
transfer in Secretariat Group as Senior Joint Secretary (BS -21) or Additional Secretary
(BS-21). However, the Cabinet Secretariat in terms of the letter dated 28.1.2013 taking
note of the afore referred recommendations intimated to the Chief Secretary, Balochistan
that approval in principle of the Prime Minister had been obtained for the appointment of
afore -referred officers by transfer in BS -21 subject to the following conditions: -
"a. they will be promoted by Governm ent of Balochistan in BS -21 after which
induction will take place in Secretariat Group.
b. conditions laid down in the Schedule of the Ordinance are met."
2. The grievance being voiced by the petitioner is that despite the afore- referred
letter of the Cabi net Secretariat meeting of the Departmental Promotion
Committee has not been convened in Balochistan and the relief provided in terms
of the afore -mentioned Ordinance has been denied to him and even the said
Ordinance lapsed on 28.1.2013. In the afore -referred circumstances, the petitioner
contends that by invoking the spirit of the Ordinance in question the Cabinet Secretariat may consider his appointment by transfer after he is duly promoted.
The letter dated 28.1.2013 whereby the approval in principle of the Prime Minister was
conveyed to the Chief Secretary subject to two conditions mentioned therein still remains in the field. Let the question of petitioner's promotion be decided by the Departmental Promotion Committee and thereafter petitioner may claim the relief which is being sought through this petition by moving the Competent Authority in the Department. With this observation, this petition is deposed of."
18. Thereafter, in the meetings held in the months of January, 2013, June, 2013, December,
2013, April, 2014, July 2014, November, 2014, February, 2015 and October, 2015, the Provincial Selection Board (hereinafter "the Board") did not promote respondent No.1 to BS -21
and the senior eligible officers of BS -20 were promoted to BS -21 as per availabl e vacant posts of
BS-21.
19. The respondent No.1 filed a representation to the Chief Secretary Government of
Balochistan whereafter he filed CP No.1013/2015 before this Court on 04.11.2015 which was dismissed as withdrawn vide order dated 16.12.2015 with f ollowing directions to the official
respondents:
"4. Learned counsel for the petitioner stated that he will not press the petition for the time being, if directions are issued to the Chief Secretary, Government of Balochistan to convene the meeting of the Departmental Promotion Committee for promotion of the officers of Government of Balochistan from BPS -20 to BPS -
21 and the case of the petitioner for promotion from BPS -20 to BPS -21 is decided
within a week.
5. Learned AAG raised no objection to the above.
The petition having not been pressed for the time being, is dismissed as withdrawn. However, Chief Secretary is directed to convene meeting of the Departmental Promotion Committee for promotion of the officers of Government of Balochistan from BPS -20 to
BPS-21 including the petitioner and to decide the same on merits in accordance with law
within 15 days.
Office to transmit copy of this order to the Chief Secretary, Government of Balochistan
for compliance. Chief Secretary Government of Balochistan to submi t compliance report
through Registrar of this Court for our perusal in chambers".
20. Subsequently, the meeting of the Board scheduled in February, 2016 for promotion of
BS-20 officers to BS -21 was postponed. The respondent No.1 filed CP No.361/2016 which was
accepted by this Court vide judgment dated 30.08.2017 and respondent No.1 was granted relief as reproduced in para 14.
21. Through the instant review application, for the first time, a very important and relevant
fact has come to the notice of this Court which was deliberately concealed by respondent No.1 throughout and same cannot be ignored by this Court.
It reveals that on 03.2.2011 NAB Reference No.04/2011 under section 18(g) read with
section 24(b) of National Accountability Ordinance, 1999 was fi led by Chairman NAB against
respondent No.1 (the then District Administrative Officer Khuzdar) and four other officials with
the allegation that the District Administrative Officer Khuzdar and others processed and passed extra and illegal salary bills of levies employees by misusing their powers and caused loss of Rs.3.5 Million per month to the Government exchequer. The relevant para of the NAB reference with regard to respondent No.1 reads as follows:
"b. Umar Babar (10 -11-2003 to 29- 12-2004):
The signatures of DAO Umar Babar have been identified on all the fake/extra salary bills
and initiated cheques (sic) as DDO. When the fake initiated cheqeus (sic) were presented to him, he initially identified his signature on most of the fake/extra cheques, however, he also denied on few cheques. He was also given an opportunity for FSL, initially he agreed to give specimen signatures but later on he failed to provide the specimen before magistrate. Details of extra cheques issued by DAO/Cashier during his ten ure are as
under:
2004 Amount Chq No Chq
Amount Date
Jan 3894558 B-492029 3894558 06-01-2004
Feb 3894558 B-515443 3894558 27-01-2004
Mar 3894558 B-515710 3894558 08-03-2004
Apr 3500593 B-515990 3500593 10-04-2004
May 3500093 B-516229 3500090 08-05-2004
Jun 3500090 B-516595 3500090 04-06-2004
Jul 3500090 B-517047 3500090 07-07-2004
Aug 3500089 B-517237 3500089 07-08-2004
Sep 349999 B-550186 1222058 03-09-2004
B-550185 2278032 02-09-2004
Oct 3500390 B-550386 2278332 05-10-2004
B-550383 1222058 05-10-2004
Nov 3516918 B-561189 2515470 02-11-2004
B-561198 1001448 03-11-2004
Dec 3565168 B-561451 3506918 03-12-2004
4,01,16,738/ -
The respondent No.1 along with four other co -accused is still facing trial in NAB
Reference No.04/2011 before the Accountability Court Balochistan.
22. In view of the above, the respondent No.1 is not entitled/eligible for appointment by
transfer in the Service of Pakistan in BS -21 to represent the Province of Balochistan in pursuance
of the Ordinance as according to the criteria No.8 of the schedule to the Ordinance reproduced in
para 16, it was condition precedent that no proceedings on criminal charges i n the Court of law is
pending against the officer. (Underlining is ours to lay emphasis).
23. No doubt the respondent No.1 has not yet been convicted and sentenced under the
provisions of NAB Ordinance by the Accountability Court Balochistan and according to settled principles of law, the respondent No.1 is presumed to be innocent unless proved guilty, but in the peculiar circumstances of the instant case, basically the respondent No.1 being a BS -20 officer of
Government of Balochistan was not eligible to b e recommended for appointment by transfer in
BS-21 in the Service of Pakistan in pursuance of Ordinance as he does not fulfill the
condition/criteria No.8 of the schedule to the Ordinance.
24. Had the respondent No.1 not concealed/suppressed the important and relevant fact of his
facing trial in NAB reference No.04/2011, he would have never been recommended by the concerned Departments for appointment by transfer to BS -21 in the Federal Government, he
would have never been granted relief by the Secretary Go vernment of Pakistan Cabinet
Secretariat Establishment Division Islamabad vide letter dated 24.12.2012, by the Hon'ble Supreme Court in Civil Petition No.1687/2013 as well as by this Court in C.P. No.1013/2015 and C.P. No.361/2016.
25. It reveals that in order to get benefit of the Ordinance and to avail his appointment by
transfer in Service of Pakistan in BS -21, with mala fide and ulterior motives, the respondent
No.1 deliberately and dishonestly concealed/ suppressed the most relevant and important fact of
his facing trial before the Accountability Court Balochistan in NAB Reference No.04/2011 from all the concerned, from the Hon'ble Supreme Court as well as from this Court.
26. The constitutional jurisdiction under Article 199 of the Constitution of Isl amic Republic
of Pakistan is a discretionary jurisdiction meant to foster justice and to remedy wrong. The
discretionary relief under the extra ordinary constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to the Court with clean hands.
Since constitutional jurisdiction is discretionary in character, therefore, it cannot be
invoked by a person who comes to the Court with un- cleaned hands and likewise no one can be
allowed to take advantage of his wrong act.
Accor ding to settled principle of law, one who seeks equity must come to the Court with
clean hands.
27. In view of the above circumstances, irrespective of the locus standi of the applicant for
filing review application being stranger to C.P. No.361/2016 and i rrespective of his entitlement
for the relief claimed for in the review application, apart from its power to correct errors apparent
on the face of record in exercise of its inherent jurisdiction, High Court has power under the Code of Civil Procedure to r eview its own order passed in exercise of constitutional jurisdiction.
Reliance in this regard is placed on the case of Hussain Bakhsh v. Settlement Commissioner, PLD 1970 SC 01, wherein it has been held as follows:
"apart from the High Court's power to co rrect errors apparent on the fact of the record in
the exercise of its inherent jurisdiction, it has power under the Code of Civil Procedure to review its own order made in writ jurisdiction in a civil matter".
Reference in this regard is also made to the case of Desmond Vaz v. Karachi Building Control Authority, PLD 2005 Karachi 164 wherein it has been held as follows:
"Review of order made by High Court in its writ jurisdiction is competent under clauses (b) of section 114 of the Code of Civil Procedure".
Reference in this regard is also made to the case of Manzoor Ahmed v. Muhammad
Nawaz PLD 2013 Lahore 123 wherein it has been held as follows:
"Besides above, this Court may exercise the powers of review with reference to Order XLVII and section 114 of the Civil Procedure Code. The general rule that power to
review does not exist unless it is expressly conferred by law, however has got two well -
established exceptions namely: (i) a court has inherent jurisdiction to set aside judgment or order which it had delivered without jurisdiction; (ii) a court or authority has the power to review an order or judgment obtained by fraud. Reliance be made upon: Chief Election Commissioner v. Muhammad Fazil, (PLD 1975 SC 331). It is, therefore, obvious that apart from its power to correct error apparent on the face of record in exercise of its
inherent jurisdiction, the High Court has power under Civil Procedure Code to review its order in exercise of its writ jurisdiction. Reliance be made upon: Hussain Bakhsh v. Settleme nt Commissioner, Rawalpindi and others, (PLD 1970 SC 1)".
For the above reasons the judgment dated 30.8.2017 passed by this Court in Constitution
Petition No.361/2016 having been obtained by respondent No.1 by concealment of material, relevant and importa nt facts and having not yet been implemented is reviewed/recalled and the
Constitution Petition No.361/2016 filed by respondent No.1 is dismissed.
The review application is disposed of accordingly.
MH/186/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.