2011 M L D 1208
[Quetta]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
ABDUL WAHID and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No.50 o f 2008, decided on 23rd May, 2011.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(b)(c) ---Possessing and trafficking of narcotics ---Appreciation of evidence ---Benefit
of doubt ---Recovered contraband weighing 600 Kgs was in the shape of ro ds in 500 packets,
each packet weighing 1.2 Kgs ---From the recovered contraband 12 parcels weighing 10
grams each were prepared as samples for chemical examination, but the Mashirnama was
silent about the fact as to from how many rods said 12 samples we re drawn ---Prosecution
witness had also failed to show as to from how many packets or from how many rods the 12
parcels weighing 10 grams each were prepared for chemical examination ---As all the packets
were not opened, presumption would be that the sample s were not drawn from each packet
and each rod ---Provisions of Control of Narcotic Substances Act, 1997, had to be construed
strictly to furnish the proof like the report of the expert with regard to the recovered
contraband ---In the present case, the samp les had not been drawn from each rod of the
contraband ---Held, for the safe administration of justice, it would be presumed that 12
samples weighing 10 grams each total (120 grams) were only drawn from 12 rods; and for
remaining rods in absence of any samp le taken out from them, it would not be possible to
hold that the same were rods of charas or otherwise ---Said circumstance created a reasonable
doubt, which could not be ignored in dispensing justice ---Rule of benefit of doubt described
as a golden rule, was essentially a rule of prudence and a circumstance creating reasonable
doubt in a prudent mind could not be ignored; and benefit of same was to be extended to
accused ---Prosecution had established its case against accused to the extent of recovery of
120 grams charas ---Charge from S.9(c) of Control of Narcotic Substances Act, 1997, was
altered to S.9(b) of the said Act ---Accused were convicted for the period already undergone,
in circumstances.
Muhammad Hashim v. The State PLD 2004 SC 856; Tariq Perva iz v. The State 1995
SCMR 1345 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.
Muhammad Qahir Shah and Najamuddin Mengal for Appellants.
Rauf Atta, Standing Counsel for Respondent.
Date of hearing: 17th May, 2011.
JUDGMENT
NAEEM AKHTAR AFGHA N, J.---This appeal has been filed by the appellants against the
judgement dated 29 -3-2008 passed by Court of learned Special Judge Control of Narcotic
Substances, Lasbella at Hub in C.N.S. Case No.6 of 2007 in F.I.R. No.38 of 2007, whereby
the appellants have been awarded conviction under section 9 -C of C.N.S. Act, 1997
(hereinafter referred as Act of 1997) and sentenced for life imprisonment each with fine of
Rs.100,000 (One Hundred Thousand each) and in default of payment of fine to undergo
further six m onths' S.I. The Mazda Truck having Registration No.TKJ -924 has also been
ordered to be confiscated in favour of the State along with the recovered contraband.
2. Relevant facts as reflected in F.I.R. in brief are that on 3 -8-2007 the informer
informed that some smugglers are bringing narcotics from Ormara to Karachi via Coastal
Highway. Upon this information the Commandant One Battalion (Quaid) Pakistan Coast
Guards Uthal issued order for checking the vehicles on the roads. Naib Sobedar Muhammad
Arif furt her conveyed the directions to all the concerned staff. It has been reported that on 4 -
8-2007 one Mazda Truck was seen coming from Ormara bearing Registration No.TKJ -924,
which was signaled to stop. Since at the relevant time no civilian person was ready t o
become a recovery witness, as such, Naib Sobedar Muhammad Arif made Naik Muhammad
Riaz and Lance Naik Shakil Ahmed the recovery witnesses. The truck was searched in the
presence of witnesses and from the secret cavities prepared in the petrol tank of Maz da Truck
500 packets of Charas were recovered, which was weighing 600 Kgs. It has further
mentioned that the Charas was in the shape of rods and each packet was weighing 1.2 Kgs. It
has further been mentioned in the F.I.R. that from the recovered Charas, 1 2 parcels weighing
10 grams each were prepared as sample for analysis and same were sent to Sindh Chemical
Laboratory. It has further been mentioned that inventory and Mashir Nama were also
prepared at the spot and the driver of truck namely Abdul Wahid so n of Azim Khan
(appellant No.1) and the cleaner Irshad son of Muhammad (appellant No.2) were arrested
and recovered Charas along with Mazda Truck bearing Registration No.TKJ -924 was taken
into possession and F.I.R. was registered at the Battalion Headquar ter. After receiving report
of Chemical Examination and completion of investigation, the appellants were challaned and
were put on trial before the Special Judge C.N.S. Lasbella at Hub.
3. At the trial the charge was read over to the appellants on 6 -8-2007, which was
denied, Naib Sobedar Muhammad Arif appeared as P.W.1, who produced notice under
section 23 of the C.N.S. Act, 1997 as Exh.P/1 -A, Mashir Nama as Exh.P/1 -B, Inventory of
seized goods as Exh.P/1 -C, Notice under section 22 of the C.N.S . Act 1997 as Ex.P/1 -D
Exh.P/1 -E and F.I.R. as Exh.P/1 -F. Shakil Ahmed Naik Coast Guard appeared as P.W.2 and
produced the recovered contraband articles with bags and packets as Art.P -1, P/7 and P/8 and
also produced the vehicle Mazda Truck Art.P/9. The wi tness identified his signatures on
Mashir Nama Exh.P/1 -B and Inventory Exh.P/1 -C. Naib Sobedar Salim Akhtar appeared as
P.W.3., who is Investigating Officer of the case and produced interim challan as Exh.P/3 -A,
Chemical Examiner Report as Exh.P/3 -B and Su pplementary Challan as Exh.P/3 -C.
4. After completion of prosecution evidence the appellants were examined under section
342 Cr.P.C. appellants also recorded their statements on oath under section 340(2), Cr.P.C.
and in defence produced DW -1 Tariq son of H aji Khaliq, DW -2 Abdullah son of Haji
Chakkar and DW -3 Atta Ullah son of Saeed Ullah.
5. The learned counsel for the appellant Mr. Qahir Shah Advocate at the very outset
argued that the alleged contraband is in the shape of rods and the samples for analys is have
not been taken from each rod. He further argued that the prosecution has not been able to
show as to from how many rods the samples were drawn for chemical examination. He
further agitated that the 12 pieces taken for analysis in 12 parcels of 10 g rams each are also
in the shape of pieces of rods as per report of chemical examination, but it is also not
available on record as to what was the weight of rods from which 10 grams of samples were
drawn. He argued that these circumstances have created a s erious doubt in the case of the
prosecution and while extending the benefit of doubt, conviction awarded to the appellants
be set aside. In this regard the learned counsel has placed reliance on the judgment of
Muhammad Hashim v. The State, reported in PLD 2004 SC 856, Tariq Pervaiz v. The State,
reported in 1995 SCMR 1345. Mr. Rauf Atta, learned Standing Counsel appearing on behalf
of respondent/State when confronted with the above situation, failed to controvert the same.
6. With the assistance of the cou nsel for the parties the record was perused. Mashir
Nama Exh.P/1 -B reveals that the recovered contraband weighing 600 Kgs was in the shape of
rods in 500 packets, each packet weighing 1.2. Kgs. It further reflects that from the recovered
contraband 12 parc els weighing 10 grams each were prepared as samples for chemical
examination, but the Mashir Nama is silent about the fact as to from how many rods 12
samples were drawn. The statement of P.W.1 is silent in this regard. P.W.1 has also failed to
show as to from how many packets or from how many rods the 12 parcels weighing 10 gram
each were prepared for chemical examination. In cross -examination P.W.1 further admitted
that all the packets were not opened, (meaning thereby that the samples were not drawn from
each packet and each rod). Similarly P.W.2 is also silent in this regard and has stated that
from the recovered contraband 12 samples were taken weighing 10 grams each. P.W.2 in
cross -examination admitted that in each packet there are many rods and he can not say as to
each packet contains how many rods. P.W.2 also failed to show that samples were drawn for
analysis from each rod.
7. It has been established on record that the recovered contraband was in the shape of
rods and samples have not been drawn for chemical examination from each rod to ascertain
that same was Charas or some other commodity and there is nothing available on record to
even show the weight of those rods from which 12 samples of 10 grams each were taken for
chemical examination. The prov isions of Act of 1997 have to be constructed strictly to
furnish the proof like the report of the Expert with regard to the recovered contraband and in
the instant case admittedly the samples have not been drawn from each rod of the contraband
and in such circumstances for the safe administration of justice it would be presumed that 12
samples weighing 10 grams each total (120 grams) were only drawn from 12 rods (weight
whereof is not available on record) and for remaining rods in absence of any sample take n
out from them it would not be possible to hold that the same were rods of Charas or
otherwise. Hence, this circumstance in our view is creating a reasonable doubt, which cannot
be ignored in dispensing justice. The rule of benefit of doubt described as a golden rule is
essentially a rule of prudence and a circumstance creating reasonable doubt in a prudent
mind cannot be ignored and benefit of same is to be extended to the accused/convicts. In a
similar case the Hon'ble Apex Court in the reported judgment PLD 2004 SC 856 Muhammad
Hashim v. The State, held as follows: --
"It emerges therefrom that vide recovery memo Exh.P/1 -A, 4 grams of Charas was
taken out from total 288 rods. Nothing is available on record to show whether sample
for examination by Chemic al Examiner was taken out from each rod to ascertain that
288 rods were of Charas or some other commodity, having resemblance with the
colour of Charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997,
stringent sentences have been provided if offence charged against the accused within
any component of section 9 is proved. Therefore, for such reason, Act, 1997 has to be
construed strictly and the relevant provisions of law dealing with the procedure as
well as furnishing the proof like the r eport of Expert, etc. are to be followed strictly in
the interest of justice, otherwise in such -like cases it would be impossible to hold that
total commodity recovered from his possession was Charas. However, in given facts
and circumstances of the case, it would be presumed that sample was taken out from
only one rod. As far as remaining rods are concerned, in absence of any sample taken
out from them, it would not be possible to hold that they were the rods of Charas or
otherwise. Therefore, taking into consideration this aspect to the case, we are of the
opinion that for such reason, the case of the prosecution has become doubtful, as
such, sentence awarded to appellant by the trial Court and maintained by the High
Court is not sustainable."
8. In view of what has been discussed above, we are of the considered opinion that
prosecution has established its case against the appellants to the extent of recovery of 120
grams charas, so we alter the charge from 9 -(c) of C.N.S., Act 1997 to 9(b) of C.N.S., Act,
1997. The appellants are convicted for the period already undergone with fine of Rs.10,000
each in case of default of payment of fine the appellants shall further suffer two months S.I.
each.
With above modification in the quantum of sentence, appeal is dismissed on merits.
H.B.T./44/Q Order accordingly.
2011 P L C (C.S.) 1387
[Quetta High Court]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
QAISAR KHAN and 4 others
Versus
CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT,
QUE TTA and another
Constitutional Petition No.519 of 2010, decided on 21st June, 2011.
(a) Constitution of Pakistan ---
----Arts. 25, 121(b) & 199 ---Constitutional petition ---Discrimination ---Provincial
Consolidated Fund ---Petitioners were members of est ablishment of Balochistan High Court
and their grievance was that they should also be granted Special Judicial Allowance with
effect from 1 -7-2009 ---Validity ---All members of establishment of Supreme Court, Federal
Shariat Court and High Courts of other pr ovinces had been granted Special Judicial
Allowance with effect from 1 -7-2009 and refusal of same to members of establishment of
High Court of Balochistan with effect from 1 -7-2009, would amount to discriminatory
treatment in violation of Art.25 of the Con stitution ---Different treatment for persons
similarly circumstanced would be unjustified and such discrimination was unjustified,
without rational and reasonable classification ---Such unreasonable or arbitrary classification
was contrary to the spirit of A rt.25 of the Constitution ---High Court directed the authorities
to pay Special Judicial Allowance equal to three times of initial of the substantive pay scale
to the members of High Court of Balochistan with effect from 1 -7-2009 and notification
should be issued ---Petition was allowed accordingly.
PLD 1957 SC 9; AIR 1985 SC 1124; AIR 1979 SC 478; Government of Punjab v.
Mubarak Ali Khan PLD 1993 SC 375 and Mubarak Ali Khan v. Government of Punjab 1990
CLC 136 ref.
(b) Constitution of Pakistan ---
----Art. 25 ---Equal protection of law ---Principle ---Equal protection of law does not envisage
that every citizen is to be treated alike in all circumstances but it contemplates that persons
similarly situated or similarly placed are to be treated alike ---Though reasonable
classification is permissible but it must be founded on reasonable distinction or reasonable
basis.
Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and I.A. Sharwani
v. Government of Pakistan 1991 SCMR 1041 rel.
(c) Con stitution of Pakistan ---
----Part II, Chapter 1 ---Fundamental rights ---Financial constraints and inconvenience ---
Question of financial constraints is irrelevant when High Court adjudicates on the effects of
fundamental rights guaranteed by the Constituti on, nor inconvenience can be allowed to
override the Constitutional provisions guaranteeing fundamental rights to all citizens of
Pakistan.
PLD 1957 Quetta 1 and Accountant -General Punjab and another v. Ch. Qadir Bakhsh
and another PLD 1983 Lah. 246 rel.
Syed Athar Aftab, Syed Ayaz Zahoor, Ali Ahmed Kurd and Nadir Ali Chhalgari for
Petitioners.
Naseer Ahmed Bangulzai, Asstt. A. -G. for Respondents.
JUDGMENT
NAEEM AKHTAR AFGHAN, J .--- Petitioners who are working as Private
Secretaries and Readers in this Court have filed instant petition on behalf of Members of
Establishment of this Court seeking the following relief: ---
(a) That the action of respondents in refusing Special Judicial Allowance Equal to three
times of initial of the substantive Pay Sc ale w.e.f. lst July, 2009, is illegal and
discriminatory.
(b) By issuing Writ the respondents may be directed to grant Special Judicial Allowance
Equal to three times of initial of the substantive Pay Scale w.e.f. 1st July, 2009, to the
Establishment of Hi gh Court.
(c) Any other relief, deemed fit and proper in the circumstances of the case may also be
awarded in the interest of justice."
2. Facts of the case are that the Members of Establishment of Hon'ble Supreme Court
and Lahore High Court were granted S pecial Judicial Allowance equal to three times of the
initial of the substantive pay scale with effect from 1st July, 2009 where -after Government of
Sindh vide Office Memorandum No.FD(SR -III)5/4 -209(A) dated 20th May, 2010 allowed
said allowance with immed iate effect, but the Sindh High Court vide order dated 21st May,
2010 allowed said allowance to the Members of Establishment of Sindh High Court with
effect from 3rd August, 2009. The Judicial Officers and employees of Peshawar High Court
also filed Writ P etition No.1098, wherein the matter was amicably settled resulting in issuing
directions to Government of Khyber Pakhtunkhwa to pay Special Judicial Allowance on the
basis of one initial basic pay plus 50 percent of running basic pay with arrears of one in itial
pay but from 1st July, 2009.
In view of above situation, to keep harmony and equality in the pay and allowances of
the Establishment of the High Court of Balochistan, the respondent No.2 was approached by
the Registrar High Court of Balochistan, Que tta vide letter dated 22 -4-2010 mentioning
therein that it has become imperative that employees of the High Court Establishment are
extended the benefit of the Special Judicial Allowance and in this regard request was made to
accord approval/allocate funds for the grant of Special Judicial Allowance equal to three
times of the initial substantive pay scale in favour of the staff of the Establishment of High
Court of Balochistan by issuing necessary Notification. The respondent No.2 vide letter
dated 11 -5-2010 stated that the department has already conveyed the financial position of the
province and decision of the government on the subject vide its letter dated 15 -4-2009
wherein it was stated that Balochistan Provincial Government has been facing financial
crises for the last many years and its account with the State Bank of Pakistan is running
under debit, therefore, financial position does not allow to raise the non -development
expenditures. It was further mentioned in the referred letter dated 15 -4-2009 th at in view of
the circumstances explained above, the competent authority has not agreed with the proposal
for grant of three times basic pay in the form of allowance, however, the subject proposal
shall be considered as and when financial position of the p rovince is improved.
Subsequently on 10 -6-2010 again a letter was addressed by the Registrar High Court
of Balochistan to respondent No.2 with reference to earlier correspondence for allocation of
funds for the grant of Special Judicial Allowance to the E stablishment of the High Court of
Balochistan w.e.f. 1 -7-2009 and it was again requested to allocate the required funds for the
next year budget of this court so that the disparity in allowances amongst the High Court
Establishment is removed . No response was made by the respondents to the request/letter
dated 10 -6-2010, however; on 2 -8-2010 a summary was moved by respondent No.2 to
worthy Chief Minister Balochistan to " pend the proposal/request till the Provincial
Government is financially stable ". The wo rthy Chief Minister Balochistan passed following
remarks on the summary: ---
"We may pend the matter till we get information from other federating units."
The record reveals that in light of worthy Chief Minister's remarks respondent No.2
addressed letter s to Secretary, Government of Pakistan, Finance Division, Islamabad and
Secretaries Finance of the other provinces seeking information about prevailing position of
the subject allowance. Subsequently despite getting information from all the federating unit s
about grant of Special Judicial Allowance to the Members of Establishment of Hon'ble
Supreme Court of Pakistan, Federal Shariat Court and High Courts of other provinces, the
respondents did not grant the said allowance to the Members of Establishment of High Court
of Balochistan and in the circumstances the instant petition was filed seeking above relief for
the Members of Establishment of High Court of Balochistan.
No counter -affidavit was filed to the petition by respondents Nos.1 and 2, however,
respo ndent No.2 filed para wise comments on 2nd September 2010, which were
adopted/relied upon by respondent No.l. On merits entitlement of the Members of
Establishment of High Court for grant of Special Judicial Allowance with effect from 1st
July, 2009 was no t denied/contested, however, it was pleaded that the Provincial Government
is financially hard pressed and the present rains and flood have collapsed the Agriculture
infrastructure and has badly affected the economical and financial position of the Provinc e
and it was prayed that since the financial position of the Province of Balochistan is not good,
as such, the proposal for grant of Special Judicial Allowance may be kept pending till better
time.
3. During pendency of petition vide order dated 3rd Januar y, 2011 a Committee
comprising of Mr. Dostain Jamaldini, Secretary Finance, Mr. Nasrullah Achakzai, Additional
Advocate -General, Registrar of this Court and Mr. Ali Ahmed Kurd counsel for petitioners
was constituted to consider the modality and also to tak e into consideration the steps taken
by the Hon'ble Supreme Court of Pakistan and other Provinces in this behalf. The Committee
held its meeting on 7th and 10th January, 2011. The issue with regard to payment of Special
Judicial Allowance to the Members of Establishment of High Court and Judicial Officers was
unanimously resolved and mode of payment with effect from 1st January, 2011 was agreed
as follows: ---
(i) 1st Instalment at the rate of one initial basic with effect from 1st January, 2011.
(ii) 2nd In stalment at the rate of one initial basic with effect from 1st July, 2011, with six
months arrears of one basic pay commencing from 1st January to 30th June, 2011.
(iii) 3rd Instalment at the rate of one initial basic with effect from 1st January, 2012, wi th
six months arrears one basic pay commencing from 1st July, 2011 to 31st December,
2011.
(iv) Ad hoc Allowance 2010 may be discontinued from the salaries of the Members of
District Judiciary/Establishment of High Court of Balochistan from the date of 2nd
Instalment i.e. w.e.f. 1st July, 2011.
However, issue with regard to arrears of 18 months i.e. the payment of the said
allowance with effect from 1st July, 2009 up to 31st December, 2010 could not be decided
due to deadlock created in view of the stand t aken by Secretary Finance, that the Government
is not in a financial position to pay the same. Report with regard to the minutes of meeting
was submitted to this Court, in pursuance whereof this Court passed order on 20th January,
2011 and the petition to the extent of above agreed terms stood decided, however; with
regard to the arrears w.e.f. 1st July, 2009, since there was no consensus, therefore, to such
extent the petition was deemed pending.
4. Syed Ayaz Zahoor, Advocate for petitioners argued that as per Article 25 of the
Constitution of Islamic Republic of Pakistan, 1973 all citizens are to be treated equally
without any discrimination and are entitled to claim equal protection of law without any
distinction. He further argued that the above Article though permits reasonable classification
but prohibits discrimination. He stressed that the Members of Establishment of High Court of
Balochistan are in similarly situated circumstances with that of the Members of
Establishment of Hon'ble Supreme Court of Pakistan, Hon'ble Federal Shariat Court as well
as High Courts of other Provinces who have been granted the said allowance with effect from
1st July, 2009, thus; Members of Establishment of this Court are also entitled to be treated
alike without any discr imination with regard to the payment of the arrears with effect from
1st July, 2009. He emphasized that the respondents cannot refuse payment of arrears of the
Special Judicial Allowance to the Members of the Establishment of High Court of
Balochistan on t he ground of financial constraint in view of Article 121 of the Constitution
of Islamic Republic of Pakistan, 1973 which inter -alia provides that the administrative
expenses, including the remuneration payable to the officers and servants of the High Court
shall be expenditure charged upon the Provincial Consolidated Fund. He further argued that
the contest of the respondents rests only on financial constraint but they have failed to file a
single document in support of their such plea. Learned counsel plac ed reliance on Budget
Speech by Minister Finance on Annual Budget, 2010 -2011, revealing that the Federal
Government has waived off the liability worth Rs.17 billion of the Province of Balochistan
and further according to new formula of NFC Award, 2009 reso urces of the Balochistan
Province have been enhanced from 30 billion to 83 billion. The Federal Government has
agreed to provide arrears of Gas Development Surcharge since 1954 worth Rs.120 billion
and to provide Rs.10 billion under Aghaz -e- Haqooq -e-Baloc histan Package.
On the other hand, learned Assistant Advocate -General appearing on behalf of
respondents did not contest/oppose the petition on merits rather with vehemence pleaded the
financial constraint of the Province of Balochistan in making the paym ent of arrears of
Special Judicial Allowance for 18 months with effect from 1st July, 2009 up to 31st
December, 2010.
5. We have considered the arguments put forth by the learned counsel for the parties and
have gone through the record as well.
Perusal of record reveals that vide letter dated 3rd March, 2010 the Prime Minster of
Pakistan was pleased to sanction/enhance allowances and perks for the Members of
Establishment of Supreme Court of Pakistan with effect from 1st July, 2009 including
Special Judici al Allowance equal to three times of initial of the Substantive Pay Scale.
Similarly the said allowance was sanctioned in favour of Members of Establishment of
Federal Shariat Court of Pakistan. For the Members of Establishment of Lahore High Court,
the sa id allowance was sanctioned with effect from 1st July, 2009 vide letter dated 4th
August, 2009. As far as Members of Establishment of Sindh High Court is concerned they
too were allowed said allowance with effect from 3rd August, 2009 vide office memorandu m
dated 24th May, 2010. The Members of Establishment of Peshawar High Court were also
allowed Special Judicial Allowance with effect from 1st July, 2009 vide Notification dated
27th July, 2010 issued pursuant to judgment passed by Peshawar High Court in Wr it Petition
No.1098 of 2010 decided on 6th July, 2010.
6. Since the Members of Establishment of High Court of Balochistan compared to the
employees of the Establishment of Hon'ble Supreme Court of Pakistan, Federal Shariat Court
and the High Courts of the other Provinces are working under the same set of circumstances
and according to principle of equality all persons similarly circumstanced shall be treated
alike both in privileges conferred and liabilities imposed, hence they too deserve for equal
treatme nt and protection of law. In this regard Article 25 of the Constitution of Islamic
Republic of Pakistan, 1973 is very clear which lays down that: ---
25. Equality of citizens .--- (1) All citizens are equal before law and are entitled to equal
protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for
the protection of women and children."
In view of the principle embodied in Article 25 of the Constitu tion when all relevant
considerations are the same, the persons who are holding identical posts and are discharging
similar duties, shall not be treated differently. In this regard reliance is placed on the
judgments reported in PLD 1957 SC 9, AIR 1985 SC 1124 and AIR 1979 SC 478.
The Hon'ble Supreme Court in case of Govt. of Punjab v. Mubarak Ali Khan PLD
1993 SC 375 has already held that since employees of High Courts perform almost identical
functions as do the employees of Hon'ble Supreme Court and Fed eral Shariat Court, as such;
they cannot be discriminated against in respect of an allowance which has been allowed to
the employees of these two Courts. Relevant observations there from are reproduced
hereinbelow: --
"The employees of the Federal Shariat Court and the Supreme Court of Pakistan have
been allowed such an Allowance. The High Court employees perform almost identical
functions as do the employees of these two other Courts perform. The employees of
all the three Courts have been dealt with const itutionally by the same provision
reproduced above. In the circumstances, the High Courts employees cannot be
discriminated against. The necessary provision of Secretariat/Personal Allowance had
to be made in respect of such employees as was made in the ca se of the Federal
Shariat Court and the Supreme Court employees."
The petitioners are claiming grant of Special Judicial Allowance with effect from 1st
July, 2009 to the Members of the Establishment of High Court of Balochistan. No counter -
affidavit was f iled by the respondents and the entitlement and locus standi of Establishment
of High Court of Balochistan was not denied on merits. The grounds for refusal to grant
Special Judicial Allowance equal to three times of initial substantive pay scale appears t o be
(i) lack of prior approval of Chief Justice and (ii) financial constraints.
Though in para wise comments respondents did not assert the first ground but minutes
of meeting dated 7 -1-2011 reflect that prior approval by the Chief Justice was treated a
condition precedent for the allocation of funds. Relevant contents from minutes of
meeting dated 7 -1-2011 reads as under: ---
"At the onset, Mr. Dostain Jamaldini, emphatically stated that in view of the
Notification dated 16th October, 1995, the Ho n'ble Chief Justice has full powers in
financial matter, thus, without first approval of the Hon'ble Chief Justice, the Finance
Department cannot consider the request of petitioners and Judicial Officers, to grant
then(them) three times initial basic pay a s Special Judicial allowance. Earlier to this
also, the Hon'ble Chief Justice had been granting the Judicial Allowance, Utility
Allowance etc. by exercising such powers"….
Now it has to be seen as to whether the Chief Justice has granted approval for gra nt of
said allowance to the Establishment of High Court of Balochistan or otherwise? In this
regard Letter No.359/ACCOUNT, 2010 dated 22 -4-2010 addressed by Registrar, High Court
of Balochistan to Secretary, Government of Balochistan, Finance Department is very much
relevant and would unearth the position: ---
Subject: - GRANT OF SPECIAL JUDICIAL ALLOWANCE EQUAL TO THREE
TIMES OF THE INITIAL OF SUBSTANTIVE PAY SCALE TO THE
MEMBERS OF ESTABLISHMENT OF HIGH COURT OF
BALOCHISTAN, QUETTA.
I am directed to r efer to letter No.F.4(1)/2008 -A-II dated 3 -3-2010 of
Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs,
Islamabad and Letter No.F.D.SR -1-9-1/99 dated 4 -8-2009 of Government of the
Punjab, Finance Department (Copy enclosed) on the subject noted above and to say
that the Hon'ble Supreme Court and Lahore High Court were sanctioned/enhanced/
approved the Special Judicial Allowance equal to three times of the initial of the
substantive pay w.e.f. 1st July, 2009. In order to keep harmony and equality in the pay
and allowances of the Establishment of the Supreme Court of Pakistan and
Establishment of Lahore High Court, Lahore, it has become imperative that the
employees of the High Court Establishment are extended the same benefit of this
Special allowance. Detail of Staff working in the High Court of Balochistan along
with the expenditure involved, is as under: ---
Particulars of posts No.
of
Post 3 times of
Initial of
Substantive
Pay Scale Total
Involvement
of Budget
Registrar 1 27,680 996,480
District and
Sessions Judge,
Inspection 1 25,880 931,680
Director -General
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