PLR 2023 Supreme Court 2

“Government of Balochistan vs. Shah Muhammad”

Other citation:

PLD 2023 Supreme Court 609 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, H.C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

GOVERNMENT OF BALOCHISTAN

through Secretary Home and Tribal Affairs Department

and others—Petitioners

versus

SHAH MUHAMMAD and others—Respondents

Civil Petitions Nos. 143-Q, 144-Q and 2095 of 2020, decided on 16^th March, 2022.

(On appeal against the judgment dated 13.05.2020, passed by Balochistan High Court in C.Ps. Nos. 513 of 2017 and 299 of 2019).

HEADNOTE

Interpretation of statues —

—- Delegated legislation — Scope — Delegated (or subordinate) legislation cannot contravene the statutory principles underlying the parent legislation. [Para. No. 9]

Muhammad Amin Muhammad Bashir Ltd. v. Government of Pakistan [2015 SCMR 630] ref.

Ayaz Sawati, Addl. A.G. Balochistan for petitioners (in C.P Nos. 143-Q and 144-Q of 2020).

Shoaib Shaheen, Advocate Supreme Court for petitioners (in C.P. No. 2095 of 2020).

Syed Ifitikhar Hussain Gillani, Senior Advocate Supreme Court and Khalid Ahmed Panezai, Advocate Supreme Court for respondents.

Date of hearing: 16th March, 2022.

JUDGMENT

UMAR ATA BANDIAL, C.J.–Civil Petitions Nos. 143-Q and 144-Q of 2020 have been preferred by the petitioner Government (“P1“) against the impugned judgment of the learned High Court dated 13.05.2020 wherein Notification dated 03.05.2017, issued by P1, was void. The same judgment has also been challenged by the affected Tehsildars/Naib Tehsildars (“P2“) through C.P. No.2095 of 2020.

FACTUAL MATRIX

2.    The facts giving rise to the instant proceedings are that on 07.04.2010 the Balochistan Provincial Assembly enacted the Balochistan Levies Force Act, 2010 (“Act“) ‘to provide for the regulation of the Levies for maintenance of Public order according to the law and democratic aspiration of the people’ in B areas of Balochistan [these are areas which have been declared as such by the Provincial Government – ref: Section 2(1)(c) of the Act]. This Act establishes the Levies Force (ref: Section 3) and stipulates its duties and functions. The latter are enumerated in Section 7 of the Act and include, inter alia, the duty to:

“7. Duties and Functions of the Levies Force.—(1) Subject to law, it shall be the duty of the Levies Force to:

(a) Inquire into, investigate all offences relating to or connected with P.P.C. or any other Local or Special Law for the time being in force in the B. Area.”

3.    The Act also specifies, albeit vaguely, who a Levies Officer is:

“2. Definitions.— (1) In this Act unless there is anything repugnant in the subject or context.–

(m) “Levies Officer” means a member of Balochistan Levies Force who is subject to this Act.”

However, a clearer exposition of the term is available in the Balochistan Levies Force (Appointment and Condition of Service) Rules 2015 (B-16 and above) (“Rules“) [these Rules have now been repealed). The said Rules were promulgated by the Provincial Government on 25.11.2015 in exercise of its power under Section 23(1) of the Act:

“23. Power to make rules.–(1) The Government may make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of foregoing power such rules may provide for:

(b) regulating the classes and grades of…. members of the Balochistan Levies Force…”

(emphasis supplied)

Since Section 23(2) of the Act empowers the Provincial Government to regulate the classes of the Officers of the Levies Force, the Rules have prescribed the composition of the Levies Force in Part-A of the Appendix. For ease of reference the relevant portion of the Appendix is produced below:

“APPENDIX

PART-A                        [UNIFORMED FORCE]

4.    It may be observed that of the different classes of officers included in the uniformed force, there is no reference to either Tehsildars or Naib Tehsildars (the significance of this will become clear later in the judgment). Now the present controversy arose on 03.05.2017 when P1 vide a Notification ordered that only Tehsildars/Naib Tehsildars can register and investigate cases in B areas. The said Notification (only the pertinent paras are produced):

“No.SO(Judl-1)9(4)/2017/395-431

Government of Balochistan

Home and Tribal Affairs Department

Dated Quetta, the 3rd May, 2017

Subject:- ANOMALIES IN REGISTRATION OF CASES IN “B” AREAS

I am directed to refer subject cited above and to say that anomalies are observed in registration of criminal cases in “B” areas, wherein the Levies officials i.e Risaldars and Naib Risaldars are empower[ed] by Deputy Commissioners in some Districts for registration and investigation of criminal cases which is against the standing order.

2.     The Government of Balochistan vide Notification No.SO(Judi)4(5)/94/vol-v/456-93 dated 9th January 1997 vested the powers in Tehsildar/Naib Tehsildar for registration and investigation of cases…

3.     It is therefor[e], imperative to clarify once again that as per Notification referred above, only Tehsildar and Naib-Tehsildar can register and investigate the cases in “B” areas…”

(emphasis supplied)

However, on 12.05.2017 the Director General of Levies Force wrote to the Secretary of the Home and Tribal Affairs Department asking him to withdraw the Notification dated 03.05.2017 as the same was violative of the Act which empowered the Officers of Levies Force to register and investigate cases in B areas. P1 acquiesced and on 22.10.2018 the Notification of 03.05.2017 was withdrawn with immediate effect. Nevertheless, on 06.12.2018 P.1 again issued a Notification that was similar to the earlier Notification of 03.05.2017. The relevant passages from this latter Notification are produced below:

“No.S.O(Judl-1)4(1)C.P.No.513/2017/1721-1740

Government of Balochistan

Home and Tribal Affairs Department (Judicial Section-1)

Dated Quetta the 06th December 2018

Subject:-          ANOMALIES IN REGISTERATION OF FIRs/CASES IN “B” AREAS

The undersigned is directed to refer to the subject noted above and to state that it has been noticed/observed the pursuant to this Department’s letter… dated 22nd October 2018 the Deputy Commissioner(s) of District(s)… have empowered levies officials of the rank of Risaldar, Naib Risaldar and Hawaldars to register FIRs and investigate criminal cases in ‘B’ areas.

3. …All the levies Thanas headquartered at Tehsil/Sub-Tehsil have since been declared as police stations under section 4(1)(s) of Code of Criminal Procedure, 1898 for the purposes of registration and investigation of cases vide this Department’s Notification… dated 9th January 1997, wherein, Tehsildar/Naib Tehsildar were declared as officer incharge of such police stations (levies thanas) within the limits of their territorial jurisdiction. Therefore, orders issued by respective Deputy Commissioners empowering levies officials of the rank of Risaldars, Naib Risaldars and Hawaldar for registration of FIR and investigation of criminal cases are defective and contrary to the provisions of Code of Criminal Procedure, 1898.

4. Therefore, till the time Balochistan Levies Force Act 2010 is amended and fresh directions of Hon’ble High Court of Balochistan are received all concerned are directed to adhere to contents of Notification… dated 9th January 1997 regarding registration and investigation of criminal cases in ‘B’ areas. No levies official from the rank of Sepoy to Risaldar is authorized to register FIR. The correspondence previously made in this behalf stands modified.”

(emphasis supplied)

5.    Thereafter, the respondents, all of whom are Risaldars in the Levies and have been appointed as Investigating Officers, filed writ petitions before the Balochistan High Court challenging the Notifications of 03.05.2017 and 06.12.2018 (“impugned notifications“). Balochistan High Court through the impugned judgment dated 13.05.2020 accepted the writ petitions of the respondents and set aside the Notification dated 03.05.2017. However, it made no specific direction regarding the legal validity of the Notification dated 06.12.2018. Feeling aggrieved by this decision, P1 and P2 have filed the instant petitions.

SUBMISSIONS OF COUNSEL

6.    Before us today, learned counsel for P1 and P2 have primarily focused their submissions on sections 6 and 8 of the Act. Specifically, they have alleged that in issuing the impugned judgment the learned High Court has misinterpreted these provisions resulting in miscarriage of justice. On the other hand, learned counsel for the respondents has supported the impugned judgment for the reasons recorded therein.

ISSUE

7.    We have heard learned counsel for the parties and have perused the material on record. From the submissions of counsel, it has become clear to us that the only question arising for our determination is:

i. Who is the competent authority under the Act to register FIRs and investigate criminal matters in B areas of Balochistan?

ANALYSIS

8.    In our considered view the answer to the question posed above is ascertainable from the Act and the Rules. The impugned notifications have empowered the Tehsildars/Naib Tehsildars to register and investigate cases in B areas whereas the Act has vested this duty in the Levies Force [ref: Section 7(1)(a) of the Act, reproduced in para 2]. Therefore, it needs to be determined whether the impugned notifications can override the express provisions of the Act. A similar question came before this Court in Muhammad Amin Muhammad Bashir Ltd. v. Government of Pakistan [2015 SCMR 630] wherein the Court was confronted with the question whether the Federal Board of Revenue or officers authorised by it could fix the value of goods, for the purpose of levying customs duties, through a notification without having regard to Section 25 of the Customs Act, 1969 which was the substantive section of law for the fixation of prices. The Court answered in the negative and held:

“7.    …The principles of delegated legislation are very clear and hardly require any reiteration by us at this late stage. In brief, they entitle the delegate to carry out the mandate of the legislature, either by framing rules, or regulations, which translate and apply the substantive principles of law set out in the parent legislation or by recourse to detailed administrative directions and instructions for the implementation of the law. They are intended to enforce the law, not override it. They can fill in details but not vary the underlying statutory principles. In case of conflict they must yield to the legislative will. They are below and not above the law. The minutiae can be filled in but the basic law can neither be added to nor subtracted from.”

(emphasis supplied)

9.    It may be observed from the cited dictum that the Court in the Muhammad Amin case (supra) was categorical that delegated (or subordinate) legislation could not contravene the statutory principles underlying the parent legislation. However, by delegating the duty of registration and investigation of cases in B areas to Tehsildars/Naib Tehsildars through the impugned notifications, P1 has ignored this settled principle of law and overridden the fundamental statutory principle of the Act, namely, that it is the duty of the Officers of the Levies Force to register and investigate criminal cases in B areas [ref: Section 7(1)(a) of the Act, reproduced in para 2]. That the Act places this responsibility in Officers of the Levies Force can also be evidenced from Section 8 of the Act which reads:

“8. Power of the Levies Officer. The Levies Officer shall for the purpose of registration of case, an inquiry or investigation under this Act have throughout B-area such powers including the powers relating to search, arrest of person and seizures of property and such duties, privileges and liabilities as a Police Officer has in respect of offences under the Code or any other law for the time being in force.”

(emphasis supplied)

This provision affirms that it is only the jurisdiction of the Officers of the Levies Force to register and investigate criminal cases in B areas under the Act which is why all necessary powers for these purposes have only been vested in the Officers of Levies Force.

10.  That being said, it still needs to be determined precisely who falls in the category of Officers of the Levies Force. Although not clearly explained in the Act, a list of such officers is available in the Rules [reproduced in para 3]. On an examination of the list, it becomes apparent that there are multiple posts within the Levies Force. However, two such posts are that of an Investigation Officer (BPS-17) and an Assistant Investigation Officer (BPS-16). To our minds, the only discernible reason why the Rules, read with the Act, have created the aforesaid posts is because it is these Officers of the Levies Force who are to register and conduct investigations in criminal cases. Delegating this important function of the Levies Force to Telasildars/Naib Tehsildars, who are not included in the Rules as Officers of the Levies Force, violates the very purpose of why the Act was enacted in the first instance.

11.  However, learned counsel for P1 and P2 have attempted to justify the delegation of registration and investigation of criminal cases to Tehsildars/Naib Tehsildars by relying on Section 6 of the Act. For ease of reference, the said provision is produced below:

“6. Superintendence, command, control and Administration of Balochistan Levies Force.—

(1) The superintendence, command and control over the Balochistan Levies Force shall vest in the Government.

(2) The Government shall exercise superintendence and control over Balochistan Levies Force through Home and Tribal Affairs Department/ Director General.

(3) The Administrative control and supervision of the Balochistan Levies Force in B areas shall be vested in Commissioner, Deputy Commissioner, Assistant Commissioner, District Administrative Officer and Executive District Officer.”

Learned counsel have mainly argued that since Section 6 authorises P1 to exercise superintendence, command and control over the Levies Force, therefore, P1 has the power to depute any officer to supervise the registration and investigation of criminal cases in B areas. Resultantly, the impugned notifications dated 03.05.2017 and 06.12.2018 have validly empowered the Tehsildars/Naib Tehsildars to register and investigate criminal cases. We find ourselves unable to agree with the contentions of learned counsel. Section 6 of the Act is a general provision which places the overall superintendence, command and control of the Levies Force in P1. However, it does not confer unfettered discretion in P1 to appoint any officer of its choice to register and investigate cases in B areas, that too in complete disregard of the mandate of the Act. Indeed, under the Act P1 can only confer the power of investigation to an Officer of the Levies Force. Evidence of this can be seen in Section 10(2) ibid which reads:

“10. Conduct of investigation of cases in B-area.—

….

(2) The Government shall confer power of investigation to any officer of the Levies Force as provided under Code of Criminal Procedure, 1898 (Act V of 1898) for the cases registered in levies Police Stations in B-area,”

(emphasis supplied)

12.  Similarly, while the District Administrative Officer/District Coordination Officer etc. are empowered to act as the head of investigation, they have been expressly prohibited by the Act from interfering in the process of investigation. In fact, the Act requires them to provide full support to the Investigating Officer, an Officer of the Levies Force, during the investigation process. Reliance in this regard is placed on sub-sections 10(3) and (4) ibid:

”10. Conduct Investigation of cases in B-area.—

(3) The District Administrative Officer/District Coordination Officer or officer designated as head of the general or revenue administration/posted by Government shall act or designate any officer as head of investigation for the cases registered in Levies Police Stations in B-area of the district.

(4) The District Administrative Officer/District Coordination Officer shall not interfere with the process of investigation… The head of investigation shall provide full support to the Investigating Officer.”

(emphasis supplied)

Therefore, there is no merit in the submission of learned counsel for P1 that the latter possesses an unbridled power to depute officers of its choice to investigate and register cases in B areas when the Act specifically reposes this duty in the Officers of the Levies Force.

13.  In light of our discussion, the answer to the question noted in para 7 is that under the Act only Officers of the Levies Force can register and investigate criminal cases in B areas. Accordingly, P1 has no authority to delegate this duty to Tehsildars/Naib Tehsildars. In this respect, the impugned judgment dated 13.05.2020 has arrived at the same conclusion. However, it has only set aside the Notification dated 03.05.2017 and has made no declaration in respect of the Notification dated 06.12.2018 (even though the latter was challenged before the High Court). Nevertheless, since the substance of both the Notifications is similar, we think that such an omission on the part of the High Court is immaterial. As a result, these petitions are dismissed and the impugned judgment is upheld with the modification that the Notification dated 06.12.2018 is also set aside.

Petitions dismissed.