P L D 2013 Balochistan 13
Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J
ASMATULLAH KHAN ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and another ---
Respondents
Constitu tional Petition No.257 of 2012, decided on 19th December, 2012.
Constitution of Pakistan ---
----Arts. 25, 8, 4, 33 & 199 ---System of Sardari (Abolition) Act (XL of 1976), Preamble ---
Constitutional petition ---"Sardar/Sardari" system ---Petitioner sought direction to the effect
that he be declared head of Miankhail tribe and be made a member of the Local Committee in
his area ---Petitioner wanted representation of the tribe on the Local Committee and based on
his contention of being its "sardar" claimed suc h right and/or privilege for himself ---Validity -
--Constitution neither recognized nor acknowledged that any person was higher in status than
another and Art.25 of the Constitution mandated equality of all citizens, which negated
anyone from claiming superi ority, including superiority on account of being a nawab, sardar,
malik, or any other title ---System of "sardari" was abolished by the Parliament by System of
Sardari (Abolition) Act 1976 and Art.33 of the Constitution read that the State shall
discourage parochial, racial, tribal, sectarian and provincial prejudices among citizens ---
Article 8 of the Constitution stipulated that any "custom or usage", if inconsistent with any
Fundamental Right under the Constitution shall be void and therefore, "sardars" o r the
"sardari" system would be void if treated on the touchstone of Art. 25 of the Constitution ---
Petitioner, in the present case, was not being denied protection of the law nor he had been
able to show that he was not being treated in accordance with la w, therefore Art.4 of the
Constitution did not support the petitioner ---Petitioner was not an "aggrieved person"
within meaning of Art. 199 of the Constitution ---Constitutional petition was dismissed.
Saleem & Co. v. Deputy Collector of Customs PLD 2001 Lah. 5; Muhammad
Asmatullah v. D.C. Sargodha 1998 MLD 1977; Government of Balochistan v. Azizullah
Memon PLD 1993 SC 34; Saleem Raza v. State PLD 2007 Kar. 139 and Shaukat Ali v.
Secretary, Industries and Mineral Development 1995 MLD 123 ref.
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Shela Zia v. WAPDA
PLD 1994 SC 693 and Ardeshir Cowasjee v. Karachi Building Control Authority 1999
SCMR 2883 rel.
Zafar Khan Mandokhail for Petitioner.
Date of hearing: 18th September, 2012.
JUDGMENT
QAZI FAEZ ISA, C.J. ---Through this petition the petitioner seeks the following
direction: --
"the respondents may kindly be directed to insert the name of petitioner being head of
Miankhail Tribe in the Local Domicile Committee of district Z hob in order to save further
embracement [sic] and difficulties being faced by the Miankhail tribe in getting local
certificates in the interest of law and justice."
The three respondents are respectively the Chief Secretary, Secretary Home and Tribal
Affairs and the Deputy Commissioner Zhob of the Government of Balochistan.
2. Mr. Zafar Khan Mandokhail, Advocate has placed reliance upon the (photocopies of
the certificates) issued by the Assistant Commissioner, Deputy Commissioner and District
Police O fficer, Zhob, all of which are identical, and reproduced hereunder: --
"TO WHOM IT MAY CONCERN
It is certified that Sardar Asmatullah Khan Miankhel (CNIC No.56503 -1447165 -5)
Son of Sardar Sahib Jan Miakhail is permanent resident of District Zhob (Baloc histan).
He is certified Sardar (Chief) of his tribe "Miankhaii", Besides, he is the member of
Local/District Jirga Zhob.
He is always faithful and loyal to Government of Pakistan in tribal affairs. Therefore,
he may be served with requisite protocol according to his services/duties."
Reliance has also been placed upon a 'declaration' (photocopy) dated 13th July, 2012
issued by the Government of Pakistan, States and Frontier Regions Division, which reads as
under:
"DECLARATION OF MIANKHEL TRIBE AS INDIGENOUS.
I am directed to refer to the Government of Balochistan Notification No.1 -48/74 -
Cabinet (S&GAD) dated 10 -9-1974 on the subject and to state that in pursuance decision of
Council of Ministers Balochistan a bona fide non local residents of Balochistan, would
henceforth be treated as local if he: -
(a) has been residing continuously in any area of the Province of Balochistan before the
14th August, 1947; or
(b) has acquired Pakistani citizenship under the Pakistan Citizenship Act, 1951, a nd in
residing continuously any where in the Province of Balochistan since the 14th October, 1955;
or
(c) has been residing continuously in the Province of Balochistan twelve years prior to
the making of the application for being treated as local:
and shall be considered a local to all intents and purposes.
As per record available with this Division the Miankhel Tribe of District Zhob
Balochistan has been residing there from pre -independence. Hence, the Miankhel Tribe is
Indigenous/Local in all resp ect and eligible to all rights/facilities extended to indigenous/local
tribes of the Province. The applicant Sardar Asmatullah Khan son of Sardar Sahib Jan has
already been declared Sardar/Chief of Miankhel Tribe."
3. The learned counsel for the petition er stated that, a 'Local Certificate' is issued on the
recommendation of the Local Committee, therefore, if the petitioner, who is the 'sardar' of the
Miankhail tribe, is not made a member of the Local Committee of Zhob members of the
Miankhail tribe would continue to suffer difficulties in obtaining local certificates. It was next
contended that by not making the 'sardar' of the Miankhail tribe a member of the Local
Committee is discriminatory, and reference in this regard was made to Articles 4(1), 8(1) a nd
25(1) of the Constitution of Pakistan, and reliance placed on the following cases:
Saleem and Co. v. Deputy Collector of Customs, PLD 2001 Lahore 5,
Muhammad Asmatullah v. D.C. Sargodaha, 1998 MLD 1977,
Government of Balochistan v. Azizullah Me mon PLD 1993 Supreme Court 341,
Saleem Raza v. State, PLD 2007 Karachi 139,
Shaukat Ali v. Secretary, Industries and Mineral Development, 1995 MLD 123.
4. The question arises whether under Article 199 of the Constitution of Pakistan a
declaration c an be sought that a person is a 'sardar' or head of any tribe and thereafter to
direct that he be appointed as a member of the Local Committee and whether such a person is
an aggrieved party or person as envisaged under Article 199. It would therefore be
appropriate to reproduce the relevant portions from Article 199, as under:
"Article 199. Jurisdiction of High Court. --
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate
remedy is provided by law.
(a) on the application of any aggrieved party, make an order
(i) directing a person performing, within the territorial jurisdiction of the Court, functions
in connection with the affairs of the Federation, a Province or a local authority, to refrain
from doing anyt hing he is not permitted by law to do, or to do anything he is required by law
to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of
the Court by a person performing functions in connection with the affair s of the Federation, a
Province or a local authority has been done or taken without lawful authority and is of no
legal effect; or
(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".
5. The terms 'aggrieved party' and 'aggrieved person' have been considered in
innumerable precedents of the superior courts of Pakistan. An aggrieved party/person has to
show that he is not being dealt with in accordance with law or is being denied the benefit of
any one or more of the Fundamental Rights. However, in respect of matters of public interest,
where the public generally, or a portion thereof, would be adversely affected by an act of a
government or a local authority or any of the Fundamental Rights h ave or are in danger of
being violated, an individual or an organization can voice such grievance through a petition
filed before a High Court under Article 199. Reference in this regard may be made to the
following cases:
Benazir Bhutto v. Federation o f Pakistan PLD 1988 Supreme Court 416,
Shela Zia v. WAPDA, PLD 1994 Supreme Court 693 and
Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883.
6. The learned counsel for the petitioner states that by not appointing him on the Lo cal
Committee Articles 4(1), 8(1) and 25(1) of the Constitution are violated. The said Articles are
reproduced hereunder:
"4. Right of individuals to be dealt with in accordance with law, etc. ---(1) To enjoy
the protection of law and to be treated in ac cordance with law is the inalienable right of every
citizen, wherever he may be, and of every other person for the time being within Pakistan.
8. Law's inconsistent with or in derogation of Fundamental Rights to be void. ---(1)
Any law, or any custom, or usage having the force of law, in so far as it is inconsistent with
the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
25. Equality of citizens. (1) All citizens are equal before law and or entitled to equal
protection of law."
The petitioner wants representation of the Miankhail tribe on the Local Committee and being
its 'sardar' claims such right and/or privilege for himself. The Constitution of Pakistan neither
recognizes nor acknowledges that any person is h igher in status than another. On the contrary
Article 25 (1) mandates equality of all citizens, which would negate anyone from claiming
superiority, including superiority, on account of being a nawab, sardar, malik, mir, pir. Thirty
six years ago Parliamen t had also enacted System of Sardari (Abolition) Act, 1976 (PLJ 1976
Federal Statues 350), the preamble of which states, that:
"WHEREAS the system of Sardari, prevalent in certain parts of Pakistan, is the worst
remnant of the oppressive feudal and trib al system which, being derogatory to human dignity
and freedom, is repugnant to the spirit of democracy and equality as enunciated by Islam and
enshrined in the Constitution of the Islamic Republic of Pakistan and opposed to the
economic advancement of the people; "
We may also benefit from the 'Principles of Policy' stipulated in Chapter 2 of the
Constitution, which provides guidance to the kind of country which the makers of the
Constitution wanted Pakistan to be. Amongst these Principles is t he Principle, that, "The
State shall discourage parochial, racial, tribal, sectarian and provincial prejudices among the
citizens" (Article 33) [emphasis added].
7. Therefore, if Article 25(1) of the Fundamental Rights, Article 33 of the Principles
of Policy and the Sardari System (Abolition) Act, 1976 are read together Article 199 cannot
be pressed into service to claim oneself to be a 'sardar', and in such capacity claim any right
and/or privilege. To claim a right and/or privilege, purportedly ar ising from being a 'sardar',
would offend the Constitution, which envisages equality of all citizens. Article 8(1) too rather
than supporting the case of the petitioner destroys it, because it inter alia stipulates that any
'custom or usage' if inconsisten t with any Fundamental Right shall be void. Therefore, if
'sardars' or the 'sardari' system are deemed to constitute custom or usage the same would be
treated as void on the touchstone of Article 25(1). Article 4(1) also does not support the
petitioner sin ce the petitioner is not being denied 'the protection of law' nor has he been able
to show that he is not being `treated in accordance with law'. Consequently, we have no
hesitation in holding that the petitioner is not an aggrieved party/person under Arti cle 199 of
the Constitution nor any of his Fundamental Rights been violated. The mere fact that a
representative of the Miankhail tribe is not a member of the Local Committee does not mean
that persons belonging to such tribe will be denied their local sta tus, if otherwise entitled to.
And, if any local is not issued with a Local Certificate, that is his or her due, he/she could
have recourse to legal action.
8. Therefore, for the abovementioned reasons this petition is dismissed in limine.
KMZ/3/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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