A division bench of the Islamabad High Court (IHC), Monday, sought a report from the secretary Cabinet Division regarding implementation of a verdict of a single bench about Naval Farms and Naval Sailing Club.
The dual bench, comprising Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb heard the Intra-Court Appeal (ICA) moved by former Naval Chief Zafar Mahmood Abbasi through Ashtar Ausaf advocate, challenging the decision of a single bench, which had declared Naval Farms and Naval Sailing Club as illegal.
During the hearing, Justice Miangul Hassan asked the additional attorney general (AAG) whether the decision of the IHC was presented to the prime minister and the cabinet. He remarked that the secretary cabinet was directed to submit its report before the court, and asked what were the updates about this matter?
The AAG replied that he would be able to inform the bench in this connection after taking instructions. At this, the court directed him to submit the report on the next hearing, or the secretary cabinet should appear before the court to answer the matter.
Earlier, Ausaf argued that the single-judge bench had given the relief in its judgment, which was not requested by the petitioner, adding the petition was not maintainable. He said the petitioner had not requested for initiation of a criminal case against his client. His client had been an officer in the Pakistan Navy for 45 years and headed it from 2017 to 2020, he said.
He further contended that the former navy chief had done no illegal act, but the federal government was directed by the single-member bench to take legal action against him.
At this, Justice Farooq remarked whether the Pakistan Navy was authorised to purchase the land on its own. The court observed that only the Defence Ministry could purchase the land for it as it was the controlling ministry.
Ashtar informed that the Sailing Centre was established a quarter-century ago under the policy directives issued expressly by the then Prime Minister of Pakistan/ Federal Government, wherein, it was directed that a facility be built at Rawal Lake, among five other locations, and that Rs20 million be disbursed vide the Prime Minister’s Secretariat.
He maintained that at the time of filing of the petition, the Centre had been in existence for over two decades, sanctioned by two prime ministers, the Finance Division, the Environment Ministry, and the Pakistan Sports Board, and all these facts were brought on record and yet they merit no mention in the impugned judgment.
He continued the petition was not competent and was in violation of the express provisions of Article 174 of the Constitution read with section 79 of the Code of Civil Procedure, 1908.
In the ICA, he stated that although the entire judgment revolves around the interpretation of various provisions of the Constitution, no notice under Order XXVII-A, Code of Civil Procedure was issued to the attorney general for Pakistan. This is in violation of the law declared by the apex court binding on the IHC chief justice in Chambers.
It mentioned that the hearing of the case concluded in 2020 and judgment in the instant matter was first reserved on 7 October 2020. That in the ensuing one year, two months, and 20 days, no meaningful or purposeful hearing took place. The impugned judgement is thus, violative of Article 10A of the Constitution.
It added, it is well-established that a writ can be granted only in the terms in which it has been applied for, and that the relief must be confined to the prayer made in it. The impugned judgment granted a relief that was not even remotely sought, nor had any bearing on the subject proceedings. The petitioner never sought the initiation of criminal proceedings or misconduct proceedings against the functionaries of the appellant. The petitioner did not pray for any relief against the appellant, nor made any reference to its working in the said relief prayed for. It is trite that the High Courts cannot while deciding a writ petition, issue a writ suo motu.
“The learned chief justice has fallen in error, it is stated with respect, by giving a restrictive interpretation of the Constitution. It is trite that a Constitution does not lay down perimeters of micromanagement of agencies. It lays down broad outlines. It is not restrictive but descriptive. It is equally trite that what is not prohibited is permissible. If the judgment is allowed to stand all activities such as establishment of schools, colleges, universities, hospitals, charitable organisations, Centres of Excellence. Sports activities being carried out by all branches of the armed forces shall be set at naught. Surely such a restrictive interpretation of the Constitution was never envisaged by the framers of the Constitution,” said the ICA.
The case was adjourned until January 19.
This report was first published in Business Recorder on Jan 18, 2022.