SHER BROTHERS TRANSPORT Co. Ltd., LYALLPUR vs DISTRICT MAGISTRATE/

ORDER

1. DORAB PATEL, J.--The petitioner is a private limited company. That is very relevant to the order we are passing. In the events that happened, two Directors of the petitioner (Chaudhry Sher Muhammad and Ch. Muhammad Ali) and its Managers (Ch. Mohammad Bashir and one Ch. Rehmat Ali) were tried and convicted by a summary Military Court under M.L.R. 16-A, because they had failed to submit returns of income on behalf of the petitioner. The order of the Summary Military Court has not been supplied to us. Be that as it may, the aforesaid four persons were convicted on 8-7-1969 and for the purpose of this petition it is sufficient to state that heavy fines were imposed on each of them. Thereafter they filed mercy petitions and the fines were reduced substantially. However, the petitioner's grievance is that although the fines were imposed on the aforesaid four persons, a sum of Rs. Four lacs out of the fines due from these four persons had been illegally recovered from it in 1970. Therefore, the petitioner made mercy petitions to the Government, but as they were unsuccessful in 1975 it filed a writ petition in the Lahore High Court for the re-imbursement of the amount which it claimed had been illegally recovered from it. This writ petition was dismissed in limine on 30-1-1975. On the short ground that it was "extremely belated". Hence this petition for leave.

2. Learned counsel sought to justify the gross delay by the petitioner in filing its writ petition on the ground that it was prosecuting its remedies by way of mercy petitions. But we observed that we agreed 'with the view of the learned Judge, that the mercy petitions filed by the petitioner were no grounds to justify its delay in filing its writ petition. Therefore, learned counsel referred us to judgments reported in Abdul Qadir v. Government of West Pakistan PLD 1967 SC 506 and in Dr. Salahuddin and 3 others v. Revenue Commissioner, Baluchistan and 2 others PLD 1978 Quetta 61.

3. We have examined both these judgments and the view taken in them was that a delay of two or three years was not by itself fatal to a writ petition. But, apart from the fact that the view thus taken had reference to the peculiar facts of the cases before the Courts, the proposition that a delay of two or three years is not fatal to a writ petition is no authority whatever for the proposition that a delay of five years is not fatal to the discretionary remedy of a writ petition.

4. That is obvious, therefore learned counsel relied on the observations in Dr. Salahuddin's case. As the observations in this case are very wide, we would only observe that the correct law has been declared by us in S. Sharif Ahmad Hashmi v. Chhirman, Screening Committee Lahore and another 1978 SCMR 367.

5. In the result, as we agree with the view of the learned Judge, the petition is dismissed.