Malik MUHAMMAD ASIF vs PROVINCE OF SINDH through Its Chief Secretary, and 2 others

' SYED ABDUR REHMAN, J.---This is a petition under Article 199 of the Constitution. The facts giving rise to this petition may be stated as under:-- ' Petitioner Malik Muhammad Asif was selected by Inspector General of Police, Sindh Karachi for the post of Assistant Sub-Inspector on 8-4-1990 and was required to put in usual tests before being appointed to the post. After those tests were cleared by the petitioner, the Inspector General of Police directed that his character antecedents be verified. Accordingly his character antecedents were verified, whereon it was found that he was involved in as many as 16 cases of thefts of different Police Stations in the year, 1980, but was acquitted by the Court of A.C.M.-XIII (Juvenile Court), Karachi on 20-12-1981. Thereafter there was nothing adverse against him. In spite of the selection of the petitioner by Respondent No,2 and only on the verification of his character as shown above, the Inspector General of Police, Sindh refused to issue his appointment order. Hence this petition praying that direction be issued to the Inspector General of Police, respondent No,2 to issue letter of appointment of the petitioner as Assistant Sub-Inspector (A.S.I.).

2. The petition was admitted to regular hearing. In parawise comments filed by the Respondents it was alleged that the petitioner was not recommended for appointment in the rank of A.S.I. The reason was that on verification of his character antecedents it was found that there were a number of theft cases registered against him at different police stations. He was sent up in all those cases in the Court of A.C.M.-XIII (South), Karachi. Although he was acquitted from those cases, but this previous record of the petitioner was taken into consideration and therefore, his case was not recommended for appointment as A.S.I.

3. It is submitted by the counsel for the petitioner that the petitioner was not only recommended for the post of A.S.I., but his appointment as such was approved by the Inspector General of Police vide letter, dated 8-4-1990. In support of the appointment as having been made according to the procedure, reliance was placed on Rule 12.6 and 12.7 of the Police Rules, 1934.

4. We have gone through the common order whereby the petitioner was acquitted from all those 16 cases. The order states that two witnesses, who were examined in all those 16 cases, were Tayyab Hussain Shah and Muhammad Aslam. These witnesses were declared hostile by the prosecution in one of these 16 cases. Complainant Ayub Mirza was also examined, who denied any knowledge about the theft. P.Ws. Muhammad Waked and Muhammad Jamal were formal witnesses. Similarly some other witnesses were examined in some of these crimes, but no witness had supported the prosecution story. The learned Magistrate, therefore, came to the conclusion that the prosecution had failed to prove its case. Remaining witnesses could not be examined, but as two years had passed and more than 30 hearings were given, yet the prosecution failed to produce those witnesses, the petitioner as well as other offenders were juvenile and keeping them in custody or lingering on their cases would have a had effect on those young boys, who were sons of Police Officers and therefore, belong to respectable families, hence the learned Magistrate acquitted the petitioner along with other accused.

5.From the perusal of this order it is quite clear that the acquittal was not an honorable acquittal and that the petitioner was acquitted because the prosecution had failed to produce all the witnesses before the Magistrate and the witnesses, who were produced, did not support the prosecution case and two of them were declared hostile. The petitioner and his comrades were sons of Police Officers and we can understand that they were in a position to see to it that the witnesses were not served and were prevented from appearing before the Court and that those who appeared, were tampered with. The learned Magistrate did not come to the conclusion that the cases against the petitioner were false, frivolous or vexatious or that he was implicated in those cases due to enmity. The Police Officers of the day are already being accused of participating in the crimes themselves and it will not be conducive to the interest of the law and order in the country to appoint a person with such a record as an Assistant Sub-Inspector (A.S.I.) in the Police Department, hence the refusal of Inspector General of Police to issue the appointment order was perfectly justified. We do not propose to comment on the legal contentions raised by the counsel for the petitioner and therefore, we desist from expressing our views on the same one way or the other. We would only like to impress that the writ jurisdiction is an equitable jurisdiction. Whoever comes to this Court to seek relief has to satisfy the conscience of the Court that he has clean hands. An impugned order even if it is legally somewhat doubtful, then also the Court is not bound to quash it if it is in accord with the equity of the case. In Muhammad Iqbal v. Chief Settlement Commissioner reported in PLD 1965 SC 404, it was held as under:- "The reasons given by the learned Member, Board of Revenue, in support of his order in revision, appear to fall fully within this extract from the Standing Order. If the arguments raised that the appellants' personal status, should have been distinguished from that of their father, who was acting as their next friend during their minority, be given effect to, it would virtually mean that the Pir Sahib, their father, could get lands in the names of his minor sons, whereas he would not have been entitled to do so, in competition with a hari such as the respondent was, in view of his own affluent condition. The impugned order, therefore, appears to us to be in accord with the equities of the case and no ground has been made out which would justify interference, by this Court."

' The writ jurisdiction of this Court can be invoked only in aid of justice and not to perpetuate injustice. In Wali Muhammad v. Sakhi Muhammad reported in PLD 1974 SC 106, it was held that the grant of relief in writs was entirely discretionary, the High Court would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case even if because of any technical reason the impugned order was not strictly proved justifiable. It is well settled principle that High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill gotten gains. This view was taken by a Division Bench of this Court in the case of Zonal Chief, Muslim Commercial Bank Ltd. v. Abdullah reported in 1987 PLC 462 (D.B.), of which one of us (Syed Abdur Rehman, J.) was a member. Similar view was taken in another Division Bench decision of this Court in Abdur Rehman v. Province of Sindh reported in 1986 CLC 2635 comprising of Abdul Hayee Qureshi, C.J. And Syed Abdur Rehman, J. (one of us).

We are, therefore, of the clear view that the Court is not bound to grant a relief to a petitioner simply because he is legally entitled, to it, if the grant of IC such relief is immoral, unfair or against the dictates of good conscience and fairplay.

' These are the reasons for which we dismissed this petition today.