Hafiz MUHAMMAD AKRAM vs MANSOOR SARWAR KHAN, BARRISTER AT LAW
This matter arises from a review petition filed by Hafiz Muhammad Akram concerning concurrent writ petitions challenging his election qualification. The initial Writ Petition No. 14439 of 2005 was dismissed in limine, but a subsequent Writ Petition No. 14478 of 2005, filed by Mansoor Sarwar Khan, Barrister at Law (who had acted as counsel in the first petition and was contesting on the same panel), was allowed based on a Supreme Court judgment. The Lahore High Court held that any order obtained fraudulently is not a legal order. The Court emphasized that writ jurisdiction under Article 199 of the Constitution of Pakistan is discretionary, designed to foster justice and right a wrong rather than encourage injustice or overlook fraud. The key principle laid down is that discretionary constitutional jurisdiction will not be exercised to protect or maintain orders procured through concealment or fraud.
- Whether an order obtained through fraud can be considered a legal order?
- Is the constitutional jurisdiction under Article 199 of the Constitution of Pakistan discretionary?
- Can constitutional jurisdiction be exercised to encourage injustice or overlook fraud?
- Article 199, Constitution of Pakistan 1973
ORDER
1. SYED SHABBAR RAZA RIZVI, J.--- Writ Petition No. 14439 of 2005 titled as Muhammad Aslam v. Mr. Gondal, Senior Civil Judge/Returning Officer was filed in this Court which was dismissed in limine by my learned brother Hamid Ali Shah, J. On 8-8-2005. The said writ petition was filed by Mansoor Sarwar Khan, Barrister at Law and Ch. Younas Sulehria, Advocate. Another Writ Petition No. 14478 of 2005 titled Mansoor Sarwar Khan, Barrister at Law v. Mr. Rauf, District and Sessions Judge, etc. Was filed which came up for hearing before me. It may be pointed out at the very outset, that Mansoor Sarwar Khan, Barrister at Law is contesting election from the same Union Council on the seat of Nazim, from where Muhammad Aslam is contesting election on the seat of Naib Nazim. Both are contesting on one panel. Mansoor Sarwar Khan, Barrister at Law, appeared as a counsel in the Writ Petition No. 14439 of 2005, whereas, in the subsequent Writ Petition No. 14478 of 2005, he himself became a petitioner, therefore, he fully knew that the first writ petition was dismissed. Both writ petitions were filed to challenge the qualification of the same person, petitioner in this review, viz. Hafiz Muhammad Akram.
2. Writ Petition No. 14478 of 2005 was allowed in view of judgment of the Honourable Supreme Court passed in Civil Miscellaneous Application No.1157/L of 2005 in Civil Petition No. 1528/L of 2005, Mehmood Ahmed Butt and others v. R.O. However, any order obtained fraudulently is not a legal order. Moreover, the jurisdiction under Article 199 of the Constitution is conferred upon the High Court as a discretionary jurisdiction, the purpose of this jurisdiction is to foster justice and right a wrong. The purpose is not to encourage or aid injustice, or to overlook and ignore fraud and cheating. The superior Courts of Pakistan have expressed themselves sufficiently in several cases on this point. For reference, a few may be cited, as PLD 1989 SC 166, PLD 1973 SC 236, 1981 SCM R 231; PLD 1997 SC 351 and PLD 2001 SC 415.
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