GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and Ombudsperson, Khyber Pakhtunkhwa Versus SHABEER KHAN

MUSARRAT HILALI, J.--- This Civil Petition for Leave to Appeal is directed against the judgment passed by the Peshawar High Court in F.A.O. No.20-P of 2025, wherein the writ petition instituted by respondent No.1, Shabeer Khan, was converted into an F.A.O., and upon allowing the same, the order of the Ombudsperson, Khyber Pakhtunkhwa was set aside. The present civil petition has been filed by the Government of Khyber Pakhtunkhwa through the Chief Secretary and the Ombudsperson, Khyber Pakhtunkhwa.

2. At the very outset, it is noted that the controversy before us is confined to a narrow and determinative question; whether the present petitioners possess the necessary locus standi for the instant civil petition to be maintainable. No issue relating to the merits of the case or factual appreciation arises for consideration herein, as such matters can appropriately be examined in the civil petitions filed by the private parties.

3. A perusal of the consolidated impugned judgment reveals that the High Court, while deciding F.A.O. No. 20-P of 2025 along with other connected appeals, examined the legality and jurisdiction of the orders passed by the Ombudsperson and set the same aside. Significantly, the High Court has not adjudicated upon any question of vires of the governing statute i.e., the Khyber Pakhtunkhwa Enforcement of Women Property Act, 2019 ( hereinafter referred to as the Act ), rather it has expressly observed that matters relating to the legislative framework fall within the exclusive domain of the legislature. Thus, the impugned judgment merely interprets and explains the jurisdiction exercised by the Ombudsperson in the facts of the connected appeals.

4. It is also pertinent to note that while deciding the appeals, the High Court confined itself to an interpretation of jurisdiction of the Ombudsperson under Sections 4 to 7 of the Act. The High Court delineated the categories of cases amenable to the Ombudsperson's jurisdiction and held that matters involving disputed questions of title, partition, competing civil claims, or issues requiring a detailed probe and adjudication fall outside its domain, particularly where such disputes are pending before competent courts. These findings are essentially jurisdictional and factual in nature, arising out of the private disputes between the parties, and do not impinge upon any legal right, interest, or statutory function of the Government or the Ombudsperson so as to render them aggrieved persons. The High Court merely explained the limits of jurisdiction as ordained under the Act, which, by itself, does not confer locus standi upon the petitioners to challenge the impugned judgment.

5. In this backdrop, the maintainability of the instant civil petition and locus standi of the petitioners require examination. The question of locus standi of an Ombudsman or its Secretariat to challenge an adverse judicial determination is no longer res integra. In Wafaqi Mohtasib Secretariat, Islamabad v. SNGPL and others (PLD 2020 Supreme Court 586) , this Court has held that the Ombudsman and its Secretariat, being creatures of statute and performing a neutral, quasi-judicial role, do not possess legal standing to challenge an order passed by a constitutional court interpreting or curtailing their jurisdiction or powers. It was held that such institutions cannot assume the role of an aggrieved party, nor can they defend their decisions before a higher forum, as doing so would compromise their statutory neutrality.

6. The ratio laid down in the aforesaid judgment squarely applies to the instant case. The Ombudsperson, Khyber Pakhtunkhwa, while discharging statutory functions, acts as a neutral adjudicatory authority. Once its order is subjected to judicial scrutiny and set aside by the High Court, the Ombudsperson cannot claim to be an aggrieved person so as to invoke the appellate jurisdiction of this Court. Equally, the Government of Khyber Pakhtunkhwa, which was neither the beneficiary of the Ombudsperson's orders nor directly prejudiced by the consolidated impugned judgment, cannot assume locus standi merely to support or revive an order passed by a statutory forum.

7. It is also pertinent to note that the High Court has not invalidated any statutory provision nor questioned the legislative competence underlying the establishment or functioning of the Ombudsperson. In the absence of any adjudication on vires, the Government likewise cannot claim any injury warranting invocation of this Court's jurisdiction.

8. In view of the above, we are persuaded that the present civil petition suffers from a fundamental defect of maintainability. The petitioners lack locus standi to assail the impugned judgment, which merely interprets the jurisdiction of the Ombudsperson and sets aside its order based on facts of the cases. Therefore, the present matter does not involve enforcement of fundamental rights, challenge to legislative action, or issues affecting the public at large so as to attract a relaxed or expanded concept of locus standi . It arises out of adjudication of jurisdictional limits in a private dispute between individuals under a statutory framework, where the ordinary and settled principles of locus standi continue to apply with full force; thus, the petitioners were obligated to establish in what manner they stood aggrieved or adversely affected by the impugned judgment.

9. Before parting, it is clarified that the findings recorded herein are strictly confined to the question of locus standi in the present civil petition. Any proceedings or disputes pending or arising between private parties shall remain unaffected.

10. For the foregoing reasons, this Civil Petition for Leave to Appeal is dismissed on the ground of locus standi alone, with no order as to costs. Consequently, all pending applications, including the listed CMAs filed by the petitioners, stand dismissed.

Sd/-

I concur with the findings recorded in the judgments, however, I will add my additional note.

SHAKEEL AHMAD, J.--- I have had the advantage of going through the judgment authored by my learned colleague, Musarrat Hilali, J. I am in respectful agreement with the conclusion arrived at therein and the reasons recorded in support thereof. I would, however, like to add a few observations in support of the view taken.

2. The impugned judgment arises out of proceedings originally instituted under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, wherein an order passed by the Khyber Pakhtunkhwa Ombudsperson under the Enforcement of Women's Property Rights Act, 2019 (the "Act" ) was called in question. The Peshawar High Court, Peshawar (the "High Court" ), upon noticing the availability of an alternate statutory remedy under Section 8 of the Act, converted the Constitution Petition into a statutory appeal and proceeded to decide the same on merits. For the sake of brevity, and since the present petition turns purely on a question of maintainability, the facts of the controversy need not be recounted.

3. The determinative issue, therefore, is whether the petitioners qualify as persons aggrieved so as to possess the requisite locus standi to invoke the appellate jurisdiction of this Court. A party is said to be aggrieved by a judgment or decree where it operates upon its rights of property or bears directly upon its legally protected interests. In this context, Black's Law Dictionary 1 describes an "aggrieved person" as one who has suffered a substantial grievance, involving the denial of a personal or proprietary right, or the imposition of a legal burden obligation. The expression "aggrieved" is thus not synonymous with mere dissatisfaction with the outcome of judicial proceedings. It is founded upon the existence of a legal injury, namely an adverse alteration of legal status or an infringement of a right recognised and enforceable in law. Consequently, the test for determining whether a person is aggrieved is objective and legal, rather than subjective or emotional.

4. Tested on the touchstone of the above, it is an admitted position that the present petition has not been filed by the party whose rights were adjudicated adversely by the High Court. Instead, the Ombudsperson and the Government of Khyber Pakhtunkhwa, who were impleaded as pro forma respondents in the Constitution Petition and were not deleted upon conversion of the proceedings, seek to maintain the present petition. The mere presence of a party in the array of respondents, however, does not, by itself, clothe such party with a substantive right to challenge the order or judgment of the High Court. Long ago, the Privy Council in Bhupendra Narayan 2 observed that pro forma parties should only be added for the purpose of complete adjudication and to avoid multiplicity of proceedings. Therefore, such joinder does not confer upon them an independent cause of action. Furthermore, this Court has consistently maintained the view that a pro forma respondent, against whom no relief is claimed and to whom no adverse direction is issued, cannot be regarded as an aggrieved person. In Mian Muhammad Shahbaz Sharif 3 , it was categorically held that where neither any relief is granted nor any direction is issued against a pro forma respondent, such a party lacks locus standi to challenge the judgment, and that in the absence of legal prejudice, no cause of action can be said to arise. Viewed in this legal context, the entitlement of a party whose role before the High Court remained purely formal and non-adversarial to invoke the appellate jurisdiction of this Court necessarily requires to be examined with circumspection.

5. Even assuming, for the sake of argument, that a party was dissatisfied with the High Court's judgment, the law is well settled that the right of appeal is neither inherent nor automatic but is purely derivative of statutory authority. As held in the case of Ibrahim 4 , the right of appeal is wholly statutory and cannot be presumed in the absence of an express legislative provision. The requirement of aggrievement is thus grounded in the statutory nature of appellate jurisdiction; it is a remedial mechanism created by law and available only to those whom the statute recognises as having a right to challenge the decision. Where a statute does not confer such a right, aggrievement cannot be expanded by implication to include persons who have no legal stake in the outcome, for to do so would convert a remedial privilege into a general entitlement and would undermine the statutory framework and the separation of roles between parties and adjudicators. Accordingly, a party whose status before the High Court was purely formal, against whom no relief was claimed and no adverse direction issued, cannot be regarded as a person aggrieved. By necessary implication, the Ombudsperson, whose order was under challenge and who had no personal or legal interest adverse to the proceedings, falls within this category. Therefore, any attempt by the Ombudsperson to invoke the appellate jurisdiction of this Court must be rejected, the statutory and jurisprudential prerequisites for maintainability, including the existence of a legal grievance, are absent.

6. Proceedings under Section 8 of the Act are essentially inter parties, involving adjudication of civil rights between private litigants. While exercising its jurisdiction under this authority, the Ombudsperson functions as a quasi-judicial authority. It is well settled that once such an authority has rendered a final determination, it becomes functus officio , and its role in the lis comes to an end. Thereafter, it ceases to retain any personal or legal stake in the outcome and cannot assume the position of an aggrieved party so as to defend or challenge its own decision before a superior forum. The rationale for this principle lies in the need to ensure finality of adjudication and to preserve the neutrality of adjudicatory bodies. In the case of the Wafaqi Mohtasib 5 , it was held that the Ombudsman, by law and design, is not empowered to defend its decisions before a higher forum, as doing so would compromise the institutional impartiality of the office. This Court has echoed the same position in the case of East West Insurance Company 6 , holding that it is for the aggrieved party, and not the adjudicating authority, to pursue further remedies in accordance with law. In the present case, the impugned judgment neither imposes any liability upon the Ombudsperson nor curtails its statutory powers or jurisdiction. It merely corrects or sets aside an adjudicatory determination in an individual dispute, which does not give rise to any enforceable legal grievance. Comparative jurisprudence is also aligned with this view. The Supreme Court of India in Syed Yakoob 7 has held that Tribunals are not expected to defend their own orders before higher courts, save in exceptional cases where allegations are made against such bodies.

7. The contention of the Ombudsperson and the Government that they were not deleted from the array of parties upon conversion of the Constitution Petition into a statutory appeal appears to be of no consequence. Procedural continuance cannot confer substantive rights, nor can it create locus standi where none exists in law. Furthermore, accepting the proposition advanced by the petitioners would have serious institutional ramifications. If every Tribunal or quasi-judicial authority were permitted to challenge adverse judgments merely to vindicate its reasoning, it would open the floodgates to avoidable litigation, erode the hierarchy of judicial review, and undermine public confidence in the impartiality of adjudicatory bodies.

8. In the absence of any appeal by the party against whom the judgment of the High Court operates, the impugned judgment has attained finality between the contesting parties. Consequently, neither the Ombudsperson, whose order was under challenge before the High Court, nor the Government, which has failed to establish any independent legal grievance, can be held to possess the requisite locus standi to maintain the present civil petition for leave to appeal. Therefore, the petition is dismissed and leave declined. No order as to costs.

MH/G-3/SC Petition dismissed.

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1 Black's Law Dictionary (5th edn, West Publishing Co 1979).

2 Bhupendra Narayan Sinha Bahader v. Rajeswar Prasad Ithagat (AIR 1931 PC 162) .

3 Federation of Pakistan and others v. Mian Muhammad Shahbaz Sharif and others (PLD 2009 Supreme Court 237) .

4 Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) .

5 Wafaqi Mohtasib Secretariat, Islamabad and others v. SNGPL, Lahore and others (PLD 2020 Supreme Court 586) .

6 S.E.C.P, Karachi v. East West Insurance Company (2019 SCMR 532). .

7 Syed Yakoob v. K.S. Radhakrishnan and others, (AIR 1964 SC 477) .