GHULAM ALI KHAN Versus GOVERNMENT OF PAKISTAN through Ministry of Interior Pak Secretariat, Constitutional Avenue Islamabad

MUHAMMAD HASHIM KHAN KAKAR, CJ.--- The instant constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") , carries the following prayer clause: "a) To declare that the petitioner is head of his tribe i.e. Kharoti (Adi Khail Marzak), however, the impugned act of the respondent No.03 by not registering the petitioner in his official record of genealogical table is contrary to law and facts.

To further declare that since the tribesmen of the petitioner are settled in most parts of the country, and despite they possess all the relevant documents for issuance of CNICs or local and domicile certificates, the impugned act of requiring documents from the tribesmen of the petitioner originating from their native areas pertaining to the 1950s and 60s, is also contrary to law and facts. c) To also declare that the impugned act of the respondents by causing inconveniences to the tribesmen of the petitioner, particularly in province of Punjab, in issuance of CNICs. passports, local or domicile certificates, is discrimination with the tribesmen of the petitioner since they are not being treated at par with the other citizens of the country. d) To also declare that the impugned act of the respondents by not considering the attestation and verification of the petitioner in capacity of Chieftain/ head of Kharoti (Adi Khail Marzak) tribe in the process of issuance of CNICs, passports, local or domicile certificates is also contrary to law and facts. e) To direct the respondent No.03 to register the tribe of the petitioner i.e. Kharoti (Adi Khail Marzak) recording/ mentioning therein the petitioner as the Chieftain/ head of his tribe. f) To direct the respondents treat the tribesmen of the petitioner i.e. Kharoti (Adi Khail Marzak) at par with the other citizens, without any discrimination of caste, creed, culture, etc. g) To also direct the respondents to dispense the tribesmen of the petitioner i.e. Kharoti (Adi Khail Marzak) from demanding requiring long early documents prior to the 1970s, and consider/ allow the attestation/ verification of the petitioner being the tribe head/ chieftain of Kharoti (Adi Khail Marzak) for any such demands/ requirements. h) Any other better relief deems fit and better by this Hon'ble Court, in the interest of equity, fair play and justice."

2. It is case of the petitioner, Ghulam Ali son of Baz Mir that he belongs to a notable and ancient tribe of ' Kharoti ' and is 'Turban Holder' (Chieftain) of his tribe. The petitioner further states that his caste fellows are facing inconvenience while obtaining Local Certificates, National Identity Cards, Domicile Certificates or National Passports and they are subjected to a series of questions besides demanding historical record. As per the petitioner, being head of his tribe, he approached the respondents with request to dispense the tribesmen of the petitioner from rough and tough requirements, and for this purpose, the verification, attestation of the Chieftain/the petitioner be considered sufficient but the same was declined.

3. Mr. Siraj Munir Malghani, learned counsel appearing on behalf of the petitioner, has contended that the petitioner is required to be declared as Chieftain Sardar of his tribe, as per custom and the respondents are required to consider his attestation in respect of his tribe fellows at the time of issuance of CNICS, Local Certificates and Domiciles.

4. The moot questions arise that whether under Article 199 of the Constitution, a declaration can be sought that a person is a 'Sardar'/ 'Chieftain or head of any tribe and thereafter to direct that local/domicile certificates or CNICs be issued on his recommendations. Second, whether such a person is an aggrieved party or person as envisaged under Article 199 of the Constitution. In order to appreciate the arguments of the learned counsel for the petitioner, it would be appropriate and advantageous to reproduce Article 28 of the Constitution of Pakistan, 1973 which reads as under:

"Preservation of language, script and culture

28. Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose.

5. Undoubtedly, the above Article of the Constitution provides that if there is a section of the citizens, who have a distinct language and culture of their Down and want to preserve the same, they have the constitutional right to preserve and promote these attributes. It is worth mentioning that the petitioner's stance that he is entitled to be declared as the Chieftain of his tribe keeping in view the persisting de facto feudal/ Sardari system, which is claimed to be the part and parcel of customs and usages of his tribe. In fact, such customary rule of selection/appointment of a feudal lord is repugnant to the fundamental rights of equality before law and equal treatment of law enshrined under Articles 25 and 4 respectively of the Constitution. Furthermore, the Objectives Resolution, magna carta in the Constitutional history of Pakistan, is the preamble of the Constitution and it is also incorporated as the integral part of the Constitution under Article 2-A. The Article 2-A also unequivocally states for equality as enunciated in Islam. The Holy Prophet (PBUH) in his landmark, Last Sermon, emphasized on equality. Selection of one person amongst other of the same clan and tribe foster inequality thereby bringing inferiority and superiority in between the persons from same ancestry. Thus, allowing the claim of the petitioner would result in the replacement of constitutionalism by feudalism.

6. It is well-settled that a provision of law cannot be read in isolation; rather, a law is to be read as a whole. Same principle applies to the facts of the instant petition too. Article 8 (1) of the Constitution has a direct nexus with the claim of declaration as Chieftain/Sardar. The Article ibid declares all laws, customs and usages as void to the extent of their repugnancy and inconsistency with the fundamental rights. For the sake of convenience, the relevant clause of the Article 8 (1) of the Constitution is replicated as below:

"Laws inconsistent with or in derogation of Fundamental Rights to be void

8. (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."

7. Hence, from the above quoted provisions, it is crystal clear that the usage or custom of selection of a feudal lord/ Sardar or Chieftain, being repugnant to the fundamental rights i.e., equality before law (Article 25) and equal treatment of law (Article 4) and Islamic equality (Article 2-A) of the Constitution, stands void in view of the Article 8 (1) of the Constitution. Thus, no one can be declared as Chieftain or Sardar of such section of citizens in purview of Article 28 of the Constitution under the garb of any such custom/culture at the cost of above quoted fundamental rights.

8. It is also pertinent to mention here that under Article 28, one may establish an institution for the purposes of promotion and preservation of a language, script and culture subject to law. The words, 'subject to law' carry paramount importance. It is worthwhile to mention here that the 'Institution' of, ' Sardari ', feudalism has been abolished under law, by promulgation of the Ordinance XXXV of 1976 published on 8th April, 1976 by System of Sardari (Abolition) Ordinance, 1976 ("the Ordinance") . Hence, the petitioner's claim to extend him the benefit of Article 28 of the Constitution is erroneous as its applicability has been made subject to law and the law in this regard is the Ordinance XXXV of 1976, which has abolished the Sardari System under Section 3. The Section 3 of the Ordinance ibid is reproduced as below:

"3. Abolition of system of Sardari.--- Notwithstanding any custom or usage, as from the commencement of this Ordinance, the system of Sardari shall stand abolished and no person shall---

(a) exercise any judicial powers not expressly conferred on him by or under any law for the time being in force; or

(b) maintain any private jail; or c) save as provided in the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force, arrest or keep in custody any person; or

(d) take free labour from any person or compel any person to labour, against his will; or

(e) demand or receive, by reason of being or having been a Sardar, any tribute or any other payment, whether in cash or in kind."

9. This Court has already rendered its view regarding abolishing of Sardari system in the case of Sardar Haji Muhammad Yousaf , reported as PLD 2006 Quetta 1 . The relevant excerpt therefrom is reproduced as under:

"Above fundamental right clearly provides that the citizens having a distinct language, culture and script have rights to preserve, all these subject to law framed in this behalf. The custom of language, script and culture does not include appointment of 'Sardar' which institution A under Ordinance, 1976, stood abolished and all those cultural customs to that extent have been declared to be against the provisions of law relating to Sardari System."

10. Similar view was also taken by this Court in the case of Asmatullah Khan , reported as PLD 2013 (Balochistan) 13 . The relevant para is reproduced as infra:

"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 arising 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 inconsistent 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)."

11. Coming to the second query whether the petitioner is an aggrieved person in view of Article 199 of the Constitution, it is worth mentioning that Kharoti tribe is an indigenous tribe of Balochistan and local certificates have been issued in favour of the petitioner and his father, which also does not support the petitioner since the petitioner is not being denied the protection of law' nor he has been able to show that he is not being 'treated in accordance with law'. As for as the allegations of denial of certain rights and privileges or unequal treatment of petitioner's tribe fellows is concerned, they are general in nature and no specific tribe man or case has been quoted to make out any discrimination whatsoever alleged in the contents of the petition with regard to violation of any fundamental rights. Consequently, we have no hesitation in holding that the petitioner is not an aggrieved party/person under Article 199 of the Constitution nor any of his or his tribe men's fundamental rights have been violated.

In the light of the aforementioned legal provisions, we find that while the petitioner has the right to preserve his language, script and culture, the recognition of a ' Sardar ' or 'Chieftain' is not permissible under the current legal framework. The system of Sardari has been unequivocally abolished, and no exception can be made to this legal position. Therefore, the relief sought by the petitioner cannot be granted, as such, the petition is hereby dismissed in limine .

MH/121/Bal. Petition dismissed.