Ghulam Rabbani, J RAHAT HUSSAIN vs COLLECTOR OF CUSTOMS (PREV.), CUSTOMS HOUSE, KARACHI and 2 others

1. ' SAYID SAEED ASHHAD. C.J.--- In this petition, petitioner has sought the following reliefs:-- ' It is, therefore, prayed in the interest of justice that this Honourable Court may be pleased to:--

(a) accept this petition and declare that review order, dated 5-8-1993 No,K/30/93(R) "1458" A in K/4242/92 (A 1156) as ultra vires of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983" as there is no provision of review by Mohtasib himself in the order;

(b) restore the Original Order No,K/4242 "1156" A passed by the Honourable Wafaqi Mohtasib as the Review of the Original Order has no legal foundation and it is not based on any provision of the Order, hence the review and amendment in the Original Order is of no legal significance and is misconceived;

(c) direct the Agency to refund Rs,2,04,000 personal penalty wrongly, illegally and unjustifiably imposed on the petitioner;

(d) grant cost of this petition;

(e) any other relief which this Honourable Court may deem just and proper in the circumstances of the case.

2. ' The petitioner has challenged the order, dated 5-8-1993 passed under Article 32, Establishment of Wafaqi (Ombudsman) Order, 1983 (hereinafter referred as Order) by Wafaqi Mohtasib (Ombudsman) on a review petition.

3. ' The contentions raised by learned counsel on behalf of the petitioners is that the order has not conferred on the Wafaqi Mohtasib the power of review of his orders which could not be exercised in the absence of specific conferment of the power in view of the pronouncement made by the Honourable Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1.

4. ' Contentions raised by Mr. Attaur Rahman is correct but the impugned order ought to have been challenged by the petitioner by way of representation to the President of Pakistan as requirement of Article 32 of Order. Petitioner did not resort to the remedy made available to him by Legislature.

5. Invocation of the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan in the circumstances was not permitted on the established principle that in the presence of alternate, adequate and efficacious remedy available to an aggrieved party he would not be permitted to invoke the Constitutional jurisdiction of this Court but should resort to the remedy available to him.

6. ' Apart from the above defect, this Constitutional petition is also defective on another ground. The petitioner has challenged the order of Wafaqi Mohtasib which required joining Federation of Pakistan as one of the respondents in the petitioner. Failure of the respondent to join Federation of Pakistan as a respondent had rendered the petition as defective liable to be dismissed. If any, authority is required in support of the above proposition the same is available in the judgment of Supreme Court in the case of Haji Abdul Aziz v. Government Balochistan 1999 SCM R 16.

7. ' Upon the above discussion we find that this Constitutional petition is misconceived and is not maintainable accordingly it stands dismissed.