PLJ 2008 SC 985
[Appellate
Juridsdition]
Present:
Muhammad Nawaz Abbasi, Zia Perwez & Syed Zawwar Hussain Jafery, JJ.
SALEEM
MALIK--Appellant
versus
PAKISTAN CRICKET
BOARD (PCB) and 2 others--Respondents
Civil Petition
No 505 of 2008, decided on 22-05-2008.
(On appeal from
the judgment dated 20-05-2002 passed by Lahore High Court Lahore in C.R. No
2350/2001).
Paksitan
Commission of Inquiry Act, 1956--
----S. 9--Civil
Procedure Code, (V of 1908), O. VII R. 11--Constitution of Pakistan, 1973, Art. 185(3)--Leave to
appeal--Rejection of plaint--No suit or proceeding lie against Federal
Government--Concurrent finding--Appellant was professional
cricketer--Involvement in betting and match fixing--Inquiry commission was
constituted--Proposed for appropriate action--Recommendation for imposition of
penalty of life on his playing cricket--Appellant challenged through suit for
declaration and permanent injunction--Rejection of plaint--Question of--What is
the status and sanction of the rules and bye-laws of ICC--Assailed--Appellant
was non suited on the ground that action taken against him has immunity from
challenge before the Court of law--Validity--Held: Plaint in the suit cannot be
rejected on the basis of defence plea or material supplied by the opposite
party in case of controversial questions of fact or law--Provisions of O.VII,
R. 11 of CPC cannot be invoked rather the proper course for the Court in such
cases is to frame issue on such question and decide the same on merits in the
light of evidence in accordance with law. [P.
994] A
Islamic Law--
----In Islam
there is no concept of taking any action against a person without providing him
proper opportunity of hearing. [P. 995] C
Civil Procedure
Code, 1908 (V of 1908)--
----O. VII R.
11--Pakistan Commission of Inquiry Act, 1956, S. 9--Rejection of
plaint--Technical grounds--Held: Rejection of plaint on technical grounds would
amount to deprive a person from legitimate right of availing the legal remedy
for undoing the wrong done in respect of his legitimate right--Court can in
exceptional cases, considered the legal objection in the light of averment of
the written statement but the pleading as a whole cannot be taken into
consideration for rejection of plaint under O. VII, R. 11 of C.P.C.
[P. 995] B
Pakistan Commission of Inquiry Act, 1956--
----S.
9--Absence of right of appeal--Remedy--Administration of justice--In absence of
right of appeal against an order of Board, the remedy of civil suit cannot be
denied to an aggrieved person under the garb of
S. 9 of the Pakistan Commission of Inquiry Act, 1956. [P. 995] D
PLD 1989 SC 6,
1994 SCMR 826, 1991 SCMR 2030 &
PLD 2002 Pesh.
45 ref.
Raja Mahmood
Akhtar, ASC for Appellant.
Mr. Taffazal H.
Rizvi, ASC for Respondent No. 1.
Raja Abdur
Rehman, Dy Attorney General for Respondents No. 2 and 3.
Date of hearing:
22.5.2008.
Judgment
Muhammad Nawaz
Abbasi, J.--This appeal by leave of the Court under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, has been directed against the
judgment dated 20.05.2002, passed by a learned Single Judge of the Lahore High
Court, Lahore, in C.R. No. 2350/2001, arising out of a civil suit for
declaration and permanent injunction filed by the appellant against Pakistan
Cricket Board and others. The plaint in the suit was rejected under Order VII,
Rule 11 CPC and the High Court by upholding the concurrent judgment of two
Courts below, dismissed the civil revision filed by appellant, hence this
appeal before this Court.
2. The facts in small compass, leading to
the filing of present appeal, are that the appellant, who is a professional
cricketer as well as an ex-captain of Pakistan Cricket Team, having been found
involved in betting and match fixing was proposed to be proceeded against for
appropriate action. Consequently, the Government of Pakistan, Culture, Sports
and Tourism Division, vide notification dated nil appointed Mr. Justice Malik
Muhammad Qayyum, the then Judge of the High Court (now retired Judge) as one
Member Commission of Inquiry under the Pakistan Commissions of Enquiry Act,
1956, to hold an inquiry--
(a) into the allegations regarding betting
and match fixing against the members of the Pakistan Cricket team.
(b) to determine and identify the persons
including members of the team responsible for betting and match fixing.
(c) to recommend such actions as may be
appropriate; and
(d) to suggest measures to avoid any
future incidents.
3. The one Member Commission of Inquiry
having found the appellant guilty of the charge made recommendation for
imposition of penalty of life ban on his playing cricket with a fine of Rs. 10
lac and Respondent No. 2 vide letter dated 19.07.2000 with supply of copy of
the inquiry report called upon him to show-cause within 15 days as to why
proposed action may not be taken against him and may also indicate as to
whether he would like to avail opportunity of personal hearing before the
Pakistan Cricket Board (Respondent No. 2). Show-cause notice is reproduced
hereunder:--
"July 19,
2000
Mr. Salim Malik
105-B-1, Babar Block,
New Garden Town
Lahore.
I Lieutenant
General Tauqir Zia serve you with the following show-cause notice
That Mr. Justice
Malik Muhammad Qayyum of the Lahore High Court was appointed One Man Judicial
Commission by the Federal Government under the Commission of Enquiry Act, 1956,
with the following mandate--
(a) to probe into the allegations
regarding betting and match fixing against the members of the Pakistan Cricket
team.
(b) to determine and identify the persons
including members of the team responsible for betting and match fixing.
(c) to recommend such actions as may be
appropriate; and
(d) to suggest measures to avoid any
future incidents.
Mr. Justice
Malik Muhammad Qayyum carried out a detailed enquiry into the above allegations
and found you guilty of match fixing and recommended that a life ban be imposed
on you; that you be not allowed to play cricket at any level whether for
Pakistan or at the domestic level; that you be not allowed to associate with
any cricketing affairs including coaching, managerial offices and Selection
Committees; that suitable action in the form of criminal proceedings or
otherwise be taken against you besides taking an account of your finances.
Now, therefore,
you are called upon to show-cause in writing, within 15 days of the receipt of
this notice, why action in the above terms may not be taken against you. You
may also indicate if you would like to avail of a personal hearing before me.
In that event, the Pakistan Cricket Board will initiate action as recommended
by the Commission.
In the event of
your failure to reply, it shall be presumed that you have nothing to say in
your defense and the Board shall proceed with taking appropriate action in the
light of the recommendations of the Commission.
Yours sincerely,
Sd/-
Lt. Gen. Tauqir Zia
Chairman PCB"
5. The appellant submitted a detail reply
to the show-cause notice and the Chairman of the Board having considered the
reply of the appellant not satisfactory, while proceeding on the basis of
recommendation of the Commission, conveyed the following order to the appellant
vide order dated 19.9.2000.
"September
19, 2000
Mr. Salim Malik
105, Baber Block
New Garden Town
Lahore
In obedience to
the recommendations of Mr. Justice Malik Mohammad Qayyum acting as a one man
Judicial Commission appointed by the Government of Pakistan you were
recommended imposition of a fine of Rs. 1,000,000/-. In consequence thereof on
July 19th 2000, the Chairman PCB issued you a show-cause notice to which you
replied on August 2, 2000, the reply is not satisfactory.
Thus by
authority vested in me, I direct you to deposit the fine of Rs. 1,000,000/-
imposed on you before 30.09.2000, this however does not absolve you of any other
likely action being contemplated by the PCB.
Sd/-
Yawar Saeed
Director PCB"
6. The above order shows that the
appellant was imposed only a penalty of fine as recommended by the Commission
and no order in respect of life ban on playing cricket was passed. It is also
not indicated that under what provision of law, penalty of fine was imposed.
The appellant feeling aggrieved of the above order of the Chairman of the
Board, filed a civil suit in the Civil Court at Lahore for declaration with
permanent injunction, that penalty imposed upon him was illegal, mala fide and
without lawful authority and prayed for a decree accordingly. The learned Civil
Judge seized of the matter, on an application filed on behalf of the
respondents under Order VII, Rule 11 CPC alongwith the written statement,
rejected the plaint on the ground that suit was barred under Section 9 of the
Commission of Inquiry Act, 1956. The appeal filed by the appellant was
dismissed and civil revision preferred by him before the Lahore High Court, Lahore, also met the same fate. The
appellant then filed CPLA before this Court against the judgment rendered by
the High Court in revisional jurisdiction in which leave was granted vide order
dated 9.5.2008? as under:--
"Learned
counsel for the respondent-Pakistan Cricket Board, has sent a written request
for the grant of an adjournment without prior intimation to learned counsel for
the appellant who has come from Lahore.
The learned counsel however, has requested for an actual date to avoid
unnecessary traveling and submitted that a very important question of law
relating to the fundamental rights of the appellant and the application of
Order VII, Rule 11 CPC is involved in this case, which requires examination and
notice has already been issued, therefore, after having granted leave, an
actual date may be fixed.
2. In view of the nature of dispute and a
short point is involved, we grant leave in this case and request of learned
counsel also being genuine, we direct for fixation of this mater for a date in
the week commencing from 19th of May, 2008.
3. Since Malik
Muhammad Qayyum, learned Attorney General for Pakistan,
had dealt with this case as one man Tribunal, therefore, instead of him,
learned Deputy Attorney General should appear and assist the Court on the next
date. The office shall place this case at Sr. No. 1 of the cause list and this
may be clear that no further adjournment shall be granted. "
7. Learned counsel for the appellant
placing reliance on the case law and repeating his arguments advanced before
the High Court, has vehemently contended that the scope of Order VII, Rule 11
CPC is confined only to the extent of averments of the plaint and in addition,
at the most uncontroversial material available on record can be considered for
the purpose of determination of the question whether plaint is liable to be
rejected or not but the scope of Order VII, Rule 11 CPC cannot be enlarged to
consider the pleadings of the other side in the written statement or defence
plea raised therein for the purpose of rejection of plaint. In support of his
argument, learned counsel has placed reliance on Jewan and 7 others Vs.
Federation of Pakistan through Secretary, Revenue Islamabad and 2 others (1994
SCMR 826), Haji Mitha Khan Vs. Muhammad Younus and 2 others (1991 SCMR 2030),
Mushtaq Ahmad Khan and another Vs. Mercantile Cooperative Finance Corporation
Ltd. and another (PLD 1989 Lahore 320) and Muhammad Zaman and others Vs. Shah
Wazir Khan (PLD 2002 Peshawar 45) and submitted that since no right of appeal
is provided under the law against the punishment awarded by the Chairman of the
Board on the recommendations of the Commission, therefore, in the light of
principle of natural justice, the remedy of civil suit cannot be denied to an
aggrieved person. Learned counsel added that Section 9 of the Pakistan
Commissions of Inquiry Act, 1956, may provide protection of legal proceedings
against the Commission of Inquiry or the Board or to the Government as the case
may be, for an action done under the Act in good faith but may not debar a
person from filing suit to challenge the legality of the penal action taken
against him by the Board or any other authority.
8. Learned counsel for the respondent on
the other hand, placing reliance on Section 9 of Pakistan Commission of Inquiry
Act, 1956, submitted that in the facts and circumstances of the case, the
Commission of Inquiry in exercise of its powers could recommend any punishment
provided in law and since the penalty of life ban on playing cricket with fine
was recommended by the Commission of Inquiry, therefore, the civil suit against
Pakistan Cricket Board or the Commission as the case may be, by virtue of
Section 9 of the Pakistan Commissions of Inquiry Act, 1956, would not be
competent. Learned counsel submitted that the penalty of life ban on playing
cricket is provided in the rules of International Cricket Council (ICC) and
Pakistan Cricket Board being Member of the ICC would be following these rules,
therefore, Commission of Inquiry with conscious approach, has recommend the
proposed penalty in terms of ICC Rules and in view of the immunity available to
the action of the Commission as well as the Board under Section 9 of the ibid
Act, the suit was squarely barred by law and rejection of plaint was
unexceptionable.
9. The appellant sought a declaration
with permanent injunction in the suit to the effect that neither one Member
Commission appointed under Pakistan Commission of Inquiry Act, 1956 nor
Pakistan Cricket Board or any person acting on its behalf has any authority to
impose on him the penalty which is not provided under the law. The suit was
contested with the assertion that in view of protection provided under Section
9 of Pakistan Commission of Inquiry Act, 1956", in respect of the recommendations
of Commission of Inquiry and the penalty imposed by the Board on the basis of
such recommendations, civil suit was not maintainable. The learned civil Judge
having considered the objection formed opinion that the suit against the
proceedings before the Commission and subsequent recommendations as well as
order passed on the basis thereof, was not competent and consequently, rejected
the plaint under Order VII, Rule 11 CPC. This order of learned trial Judge was
affirmed in appeal and also in civil revision filed by the appellant in the
High Court which was dismissed by learned Single Judge in Chambers with the
observation that written statement could be considered for determination of
legal objection for the purpose of order VII, Rule 11 CPC and since the learned
counsel representing the appellant has not disputed the applicability of
Section 9 of Pakistan Commissions of Inquiry Act, 1956, therefore, no exception
could be taken to the concurrent order of the two Courts regarding the
rejection of plaint in the present case under Order VII, Rule 11 CPC. Learned
Judge while dismissing the civil revision also made observations on merits of
the case to the effect that neither the principle of natural justice was
violated nor appellant had any valid grievance to agitate before the Court of
law.
10. Section 9 of Pakistan Commissions of
Inquiry Act, 1956 provides that no suit or proceeding lie against the Federal
Government, Commission or any other person acting under the directions of
Federal Government or the Commission in respect of anything done in good faith
or to be done in pursuance of the provisions of the Act or any Rule or order
made thereunder. This is settled law that a penal action in consequence to
which a person is deprived of his legitimate or a vested right, should have
sanction of law and such action if taken in violation of the principle of
natural justice, may have no protection of law. The principle of natural
justice is read in every statute as a mandatory rule in the command of the
Constitution, which is also recognized in Islam and a law or an action which is
in conflict to this golden principle may have no legal effect or consequence.
This principle will also be applicable to the proceeding before the Commission
of Inquiry referred above which has all ancillary and accidental powers for the
purpose of holding inquiry under Pakistan Commissions of Inquiry Act, 1956, but
the Commission has no power to propose a penalty, which is not provided under
the law and consequently, the Board or any person acting on its behalf also
would have no authority to impose such penalty. The Commission can certainly
recommend the punishment which is provided in the statute and similarly the
Board after providing proper opportunity of hearing in the light of principle
of natural justice can pass an appropriate order within the scope of law. The
Commission of Inquiry under the scheme of law is not the punishing authority
rather has to make recommendations and Pakistan Cricket Board or its Chairman,
as the case may be, in the light thereof pass an appropriate order in
accordance with law and learned counsel for the parties have not been able to
show us any statutory law, authorizing the Board to award the punishment
proposed by the Commission. Without prejudice to the rights of the parties, we
may observe that the Board has not imposed penalty in toto recommended by the
Commission rather as it appears from the order dated 19.7.2000 only fine was
imposed and the recommendations of the Commission to the extent of life ban on
playing cricket was not followed and given effect. Consequently, the penalty,
subject to any exception would confine to the extent of only fine.
11. There is no cavil to the proposition
that Pakistan being Member of ICC, would be following its bye-laws and Rules
which provide different penalties including life ban on playing cricket but the
essential question requiring determination would be whether without adopting
these Rules in proper manner under the law, the Board, a statutory body
established under Sports (Development and Control) Ordinance, 1962, can impose
a penalty which is not prescribed in law of the land and whether the Commission
or Board or any other person acting on their behalf can claim immunity for an
action taken under these rules on the strength of Section 9 of the Pakistan
Commissions of Inquiry Act, 1956. The State is prohibited under Article 8 of
the Constitution to make any law which abridges the right of people guaranteed
under the Constitution and Article 4 of the Constitution provides protection to
the right recognized in law. The expression "due process of law"
involves both substantive and procedural constitutional issues and principle of
procedural due process requires that a person be given fair process for the
deprivation of a right and may also limit the discretion of the authorities and
Courts in determination of substantive rights whereas the concept of
substantive due process is to examine a law and place limit on the size of
punitive action. The Courts in the light of Articles 4 and 8 of the
Constitution can examine the question whether law on a subject rationally
relates to the legitimate right of the people and subject to the reasonableness
of law, the same text would be relevant for determination of right under due
process of law. This is the duty of the Court to see whether a law is harsh or
oppressive in respect of constitutional guarantees and rights of people and
whether provides equal protection to all or not. In the present case, we find
that all the three Courts, on the basis of Section 9 of the Pakistan
Commissions of Inquiry Act, 1956, non-suited the appellant on the ground that
action taken against him has immunity from challenge before the Court of law.
The subject matter of the civil suit relates to the violation of rules of game
which are mostly of moral character and in case of breach of these rules, the
punishment is also of moral character but if the breach is grave and is of
serious nature calling a severe penal action, the concerned authorities may take
such action, which is provided in the relevant statutes.
12. In the light of the legal position,
the real question for determination, would be that what is the status and
sanction of the rules and bye-laws of ICC and whether on the basis of such
bye-laws and Rules, a cricket player in Pakistan for breach thereof or for
breach of any other rule of game, can be awarded punishment provided thereunder
and these Rules by virtue of Section 9 of Pakistan Commissions of Inquiry Act,
1956, have the force of law for the purpose of Order VII, Rule 11 CPC, which
provides as under :--
"11.
Rejection of plaint: The plaint shall be rejected in the following cases--
(a) where it does not disclose a cause of
action;
(b) where the relief claimed is
undervalued, and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly
valued, but the plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the
statement in the plaint to be barred by any law."
13. The contention of the learned counsel
for the respondents that in the light of statement in the plaint the case would
squarely fall within the ambit of clause (d) of Order VII, Rule 11 CPC wherein
it is provided that plaint in the suit shall be rejected if suit is barred by
any law. Learned counsel, however, has not been able to satisfy us that in what
manner the suit of the nature is hit by clause (d) of Order VII, Rule 11 CPC or
by Section 9 of Act 1956 which provides as under:--
"9. No suit
or other legal proceedings shall lie against the [Federal Government] the
Commission or any member thereof, or any person acting under the direction
either of the [Federal Government] or of the Commission in respect of anything
which is in good faith done or intended to be done in pursuance of this Act or
of any rules or orders made thereunder or in respect of the publication, by or
under the authority of the [Federal Government] or the Commission, of any
report, paper or proceedings."
14. The plain reading of this Section
would show that a legal action for damages etc possibly cannot be taken against
the Commission or Government or against any other person for an action done in
good faith but there can be no restriction on availing the legal remedy by a
person for the protection of his rights. Learned counsel has not been able to
convince us that the suit filed by the appellant in view of the legal position
explained above, was barred by any law or that appellant has no cause of action
or suit was suffering from any other defect mentioned in Order VII, Rule 11
CPC. Subject to the certain exception to the general principle, the plaint in
the suit cannot be rejected on the basis of defence plea or material supplied
by the opposite party with the written statement. This is settled law that in
case of controversial questions of fact or law, the provision of Order VII,
Rule 11 CPC cannot be invoked rather the proper course for the Court in such
cases is to frame issue on such question and decide the same on merits in the
light of evidence in accordance with law. The rejection of plaint on
technical grounds would amount to deprive a person from his legitimate right of
availing the legal remedy for undoing the wrong done in respect of his
legitimate right, therefore, the Court may in exceptional cases, considered the
legal objection in the light of averment of the written statement but the
pleading as a whole cannot be taken into consideration for rejection of plaint
under Order VII, Rule 11 CPC.
15. Dr. Babar Awan, learned Sr. ASC on
Court call, with reference to the verses from Holy Quran and Hadith of Holy
Prophet (PBUH) has submitted that in Islam there is no concept of taking any
action against a person without providing him proper opportunity of hearing and
having acknowledged the arguments of learned counsel for the appellant added
that the Federal Shariat Court in its judgment dated 13.10.1983 rendered in
S.S.M. No. 84,85,100 and 160/82, held that "barring the right of appeal is
against injunctions of Islam" which was affirmed by Shariat Appellate Bench of this Court vide
judgment dated 18.8.1988 in Shariat Appeal No. 2 of 1984 (Pakistan Vs. General
Public, PLD 1989 SC 6), wherein it was held that at least one right of appeal
is mandatory to meet the requirement of principle of natural justice. In view
thereof, in absence of right of appeal against an order of Board, the remedy of
civil suit cannot be denied to an aggrieved person under the garb of Section 9
of the Pakistan Commission of Inquiry Act, 1956.
16. In the light of foregoing reason, we
set aside the judgment of the High Court impugned in the present appeal before
us and remand the case to the trial Court for decision of the suit on merits in
accordance with law. Notwithstanding the fact that there was no mention of life
ban on playing cricket in the order passed by the Pakistan Cricket Board which
was conveyed to the appellant vide order dated 19.9.2000, the career of the
appellant, a cricket player, has been damaged, therefore, the interest of
justice would require the decision of suit as early as possible and
consequently, we direct that learned trial Judge while proceeding with the case
on day-to-day basis will make efforts to give final verdict within a period of
two months. Learned counsel for the parties have undertaken that except for the
compelling reason, they will not ask for adjournment and in view thereof, the
learned trial Judge will not ordinarily grant adjournment to either party. The
learned counsel for the appellant has requested for suspension of the operation
of order of Board pending final disposal of the suit as interim measure in the
interest of justice. The appellant may if so advised, move the trial Court for
appropriate relief and if such an application is moved, the same will be
decided on its own merits. This appeal is allowed in the above terms with no
order as to costs.
(W.I.B.) Appeal allow.
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