P L D 2013 Balochistan 10
Before Qazi Faez Isa C.J. and Naeem Akhtar Afghan, J
MUHAMMAD SALEEM KHAN ---Petitioner
Versus
GOVERNMENT OF PAKISTAN, MINISTRY OF RELIGIOUS AFFAIRS ZAKAT
AND USHER through Secretary and 2 others ---Respondents
Constitutional Petition No.668 of 2012, decided on 19th December, 2012.
(a) Constitution of Pakistan ---
----Arts. 199 & 189 ---Hajj Policy, 2012 ---Constitutional petition ---Performance of Hajj on
Government expense/public exchequer ---Legality---Petitioner was amongst the candidates
who had been selected by the respondent -Department for performance of Hajj on
Government expense ---Provincial Government sent a cheque to the Ministry of Religious
Affairs to bear the Hajj expenses for said can didates ---Ministry of Religious Affairs declined
to receive such payment on the basis that Hajj Policy, 2012 did not contain any provision for
performance of Hajj on Government expense, and that Supreme Court in its order dated 8th
April, 2012, passed in S uo Motu Case No. 24 of 2010 had observed that no one was
authorized under any law to utilize the Government money without any legal justification ---
Petitioner contended that order of Supreme Court relied upon by the Ministry of Religious
Affairs was only an interim order, and even otherwise said judgment did not prohibit the
performance of Hajj on Government expense ---Validity ---Petitioner was seeking permission
to perform Hajj at the expense of the people of the province/country, as it was they who
genera ted all revenues that were spent by the Government ---No law existed which required
that Government could send anyone to perform Hajj at the Government's expense ---Money
with the Government was the wealth of the people, and the Government was trustee of thi s
trust or "amanat" ---Although order relied upon by Ministry of Religious Affairs was only an
interim order but it did not mean that same could be disregarded ---Article 189 of the
Constitution stipulated that any decision of the Supreme Court shall, to the extent that it
decided a question of law or was based upon or enunciated a principle of law, be binding on
all other courts in the country ---Petitioner had also not identified as to which particular
Fundamental right of his was being violated, therefore, he was not an aggrieved party/person
under Art.199 of the Constitution ---Constitutional petition was dismissed in circumstances
with the observation that Hajj was a duty on those who were able and could afford the
expenses, and that someone who was not abl e or could not afford the expenses, did not sin if
he did not perform Hajj.
(b) Constitution of Pakistan ---
----Art. 189 ---Interim order of Supreme Court ---Binding effect ---Scope ---Interim order of
the Supreme Court could not be disregarded ---Article 189 of the Constitution stipulated that
any decision of the Supreme Court shall, to the extent that it decided a question of law or was
based upon or enunciated a principle of law, would be binding on all other courts in the
country.
Surah Al -Imran of the Holy Quran, Verse 97 and Surah Hud, 11:85 rel.
Tahir Ali Balochi and Noor Khan Achakzai and Zahoor Mengal for Petitioners.
Date of hearing: 3rd October, 2012.
JUDGMENT
QAZI FAEZ ISA, C J. ---A meeting was held under the Chairmanship of S ecretary,
Services and General Administration (respondent No.2) on 14th June, 2012, in which
meeting six 'principal candidates' and six 'alternate candidates' were nominated for seasonal
Hajj duty staff for 2012'. The petitioner was one of the 'principal candidates'.
2. To bear the expenses of the candidates an amount of Rs.1,916,850/ - (Rupees one
million, nine hundred sixteen thousand, eight hundred and fifty) was paid by the Government
of Balochistan to the Ministry of Religious Affairs of the Governme nt of Pakistan
(respondent No.1) through a cheque, which was not encashed, and vide letter dated 30th July,
2012 the Ministry of Religious Affairs decline to received such payment for the following
reasons, contained in its said letter.
"It may also be stated that as per Hajj Policy -2012, there is no provision to perform
Hajj on government expense. The Supreme Court of Pakistan, in its judgment dated 8th
April, 2012, passed in Suo Motu Case No.24 of 2010, inter alia, observed that "it may prima
facie be noted that it can conveniently be held that no one is authorized under any law to
utilize the Government money without any legal justification and if the Ministry of Interior or
Ministry of Religious Affairs or any person whosoever he may be, has done that he is equally
responsible and is liable for the criminal action".
3. Mr. Kamran Murtaza, the learned counsel for the petitioner, stated that the Ministry
of Religious Affairs misconstrued the referred to order of the Hon'ble Supreme Court, as it
did no t forbid sending anyone to perform Hajj on government expense. The petitioner
therefore seeks a direction against the respondents, "to do the needful for sending the
petitioner and other nominees to perform their duties as seasonal Hajj Staff 2012,"
4. That what in effect the petitioner is seeking is that he and five other government
servants be permitted to perform Hajj at the expense of the Government of Balochistan,
which actually means that the people of this province/country bear the cost because it is they
who generate all revenue that are spent by the government/s. The respondent No.1 did not
permit petitioner and his colleagues to do so for the reasons that, "there is no provision to
perform Hajj on Government expense" in the "Hajj Policy, 2012." The respondent No.1 also
referred to 'judgment dated 8th April, 2012' of the Hon'able Supreme Court, which
Mr.Kamran Murtaza, Advocate, stated is not a judgment but an interim order, and further that
the same did not prohibit the performance of Hajj at gov ernment expense. The learned
counsel however, failed to point out any illegality in the respondent No.1 declining to permit
the performance of Hajj on government expense. He also did not identify which particular
Fundamental Right of the petitioner was bei ng violated. Incidentally, the petition also does
not contain any grounds.
5. That the learned counsel for the petitioner's contention that the referred to 'judgment
dated 8th April, 2012' is not a judgment but an interim order is correct; however, it d oes not
follow that the same can be disregarded. Article 189 of Constitution stipulates that, "Any
decision of the Supreme Court shall, to the extent that it decides a question of law or is based
upon or enunciates a principle of law, be binding on all oth er Courts in Pakistan." This does
not mean that all other orders of the Hon'ble Supreme Court may be disregarded. We can also
not bring ourselves to agree with learned counsel that the respondent No.1 has misconstrued
the order of the Hon'ble Supreme Court as respondent No.1 had correctly reproduced a
portion therefrom. There cannot possibly be any disagreement with the principle enunciated
by the Hon'ble Supreme Court, "that no one is authorized under any law to utilize the
Government money without any le gal justification", which was reproduced in the impugned
letter, nor has the learned counsel placed before us any judgment of the Hon'ble Supreme
Court which states otherwise. There is also no law requiring that the Government at its
expense send anyone to perform the Hajj.
6. That in verse 97 of the Surah Al -Imran of the Holy Qur'an Almighty Allah states that,
"Hajj to the House (Kabah) is a duty that mankind owes to Allah, those who can afford the
expenses." The magnificence of Islam is that Almighty Al lah does not place a burden on a
person that he cannot bear. Hajj is a duty on those who are able and can afford the expenses
('Istetaa'). If someone who is not able or cannot afford the expenses then he does not sin if he
does not perform the Hajj. Ther e are a number of duties imposed on Islamic societies, such
as, providing and caring for the destitute (fuqara) and orphans and widows (yatama) who do
not have requisite support, to protect the people's lives and properties et cetera, but no where
is it p rescribed to bear the expenses of anyone wanting to perform the Hajj. The money with
the Government is the wealth of the people; the Government is the trustee of this trust or
amanat, "and defraud not people of their things" is what Almighty Allah direct s (Surah Hud,
11:85).
7. We thus conclude that the petitioner is not an aggrieved party/person under Article
199 of the Constitution nor have any of his Fundamental Rights been violated in not letting
him perform the Hajj at Government expense. The petit ion is therefore dismissed in limine.
MWA/14/Q Petition dismissed.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,
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