Fazal Elahi vs Member (Colonies), Board Of Revenue, Punjab, Lahore & 4
This matter concerns a dispute between two brothers, the petitioner and the respondent, over the appointment to the vacant post of Lambardar following the death of their father. The core legal question was whether the appointment of the respondent as Lambardar, despite allegations of moral turpitude due to a prior conviction under the Prohibition (Enforcement of Hadd) Order, 1979, and the petitioner's alleged lack of permanent residency, was legally sustainable. The Lahore High Court had previously set aside the Member (Colonies), Board of Revenue's decision to appoint the petitioner, remanding the case for a fresh decision to consider factors including the petitioner's absence from the village and allegations of embezzlement against the respondent. The Supreme Court of Pakistan declined to grant leave to appeal against the High Court's remand order. The Court held that it would not interfere at this stage because the petitioner's new contentions, specifically regarding the respondent's involvement in a recent embezzlement case under the Pakistan Penal Code, could be effectively raised and adjudicated before the Member (Colonies), Board of Revenue during the remand proceedings.
- Can the Supreme Court interfere in a matter where the High Court has remanded the case for fresh adjudication by the relevant administrative authority?
- Does a conviction under the Prohibition (Enforcement of Hadd) Order, 1979, where the offender is placed on probation, constitute a disqualification for the post of Lambardar?
- Is it appropriate for the Supreme Court to consider new allegations of embezzlement during a petition for leave to appeal when those issues can be raised in remand proceedings?
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 409, Pakistan Penal Code 1860
FALAK SHER, J. Fazal Elahi petitioner and Ali Ahmad respondent brothers inter se consequent upon demise of their father Ali Muhammad, Lambardar Chak No. 26/SB on 25.12.1993; got entangled with each other being contemporary contenders for the vacant post of Lambardar, during the course whereof initially the respondent was appointed as Lambardar by the Deputy Commissioner/Collector Sargodha on 4.9.1994 in preference to the petitioner primarily being not permanent resident of the Chak viz. Gainfully employed and settled in Karachi, ignoring the respondents pointed out moral turpitude on account of conviction recorded under Article 4, Prohibition (Enforcement of Hadd) Order, 1979 for which he was placed under probation for one year, opining that probation is not a sentence, whose findings on appeal though were affirmed by the Commissioner Sargodha on 8.5.1995 but on revision were reversed by the learned Member (Colonies), Board of Revenue appointing the petitioner instead on 13.2.1999, which has been set aside by a learned Judge of the Lahore High Court, granting the 'respondents' Writ Petition (No. 4437 of 1999) remanding the case to the learned Member Board of Revenue for decision afresh keeping in view effect of the pointed out short-comings viz petitioner absence from the Chak, and alleged embezzlement of the Government Revenue etc. And the respondents' involvement in the prohibition case.
2. Grudging against the same leave to appeal is being sought, contending involvement of the respondent in embezzlement of the Government Revenue concerning which a case has been registered vide FIR No. 60 of 30.4.2000 under Section 409 of the PPC, Police Station, Bhagtanwala, District Sargodha.
3. Wherein, we are not inclined to interfere, since, admittedly the same plea could be urged before the learned Member Board of Revenue and taken care of in accordance with law during the course of remand proceedings. Resultantly, the same is dismissed, leave declined.