PLJ 2021 Lahore 56
Punjab Overseas Commission Act, 2014 (XX of 2014)--
----Ss. 4, 6 & 7--Constitution of Pakistan, 1973, Art. 199--Recovery of amount--Settlement deed--Civil dispute--Powers of commissioner--Maintainability--Challenge to--Commissioner, accordingly, is empowered to only transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal, or to refer any complaint of an Overseas Pakistani to Ombudsman for further necessary action in accordance with law--Govt. Agencies have summoned Petitioner, who is a private person, without there being any criminal case registered against him, in order to determine a civil dispute between parties--Such actions on behalf of Govt. Agencies are patently in excess of their powers--It is an established principle of law that Overseas Pakistanis, no matter wherever they may be, are subject to same protection of law as of every other Pakistani without any discrimination--It contemplates that equal is not preferential and thus Overseas Pakistanis are not given any preference for resolutions of disputes by Govt. Agencies--If there is any dispute between parties over transaction of money, they may avail remedy under Civil Procedure Code, 1908 (the “C.P.C.”) before Civil Court which is Court of ultimate jurisdiction and is empowered to deal with such like matters--Since instant matter relates to civil dispute, Respondent No. 7 may put into operation jurisdiction of Court of competent Civil jurisdiction for redressal of his grievance by filing a suit with all relevant material/documents and producing evidence in support of his assertion so as to substantiate his claim--Respondent No. 7 has only stated in his complaint that he is a British national having a British Passport without uttering anything about his permanent or temporary residence for a definite period in United Kingdom, which is sine qua non for attracting jurisdiction for an ‘Overseas Pakistani’--As far as objection of law officer regarding maintainability of this writ petition is concerned, under Art. 4 of Constitution of Islamic Republic of Pakistan, 1973, petitioner has an inalienable right to enjoy protection of law and to be treated in accordance with law and has every right to knock door of this Court if this inalienable right is denied to him--This writ petition is disposed of with a direction that complaint of Respondent No. 7 will be decided by Commission, after hearing all concerned including Petitioner, strictly in accordance with law/Act, keeping in view above observations of this Court, including discussion on law points, through a speaking order, within four weeks from receipt of certified copy of this order--Commission shall also determine whether Respondent No. 7 is an Overseas Pakistani and whether dispute in hand is a third party dispute or dispute relating to Govt. Agencies--Petition was disposed of.
[Pp. 66, 67, 69, 70 & 72] E, F, G, H, I, J, K & L
Words & Phrases--
----Emigrant--Someone who leaves his or her country for any reason with intent to establish a permanent residence elsewhere.--Emigration--Act of leaving a country with intent not to return and to reside elsewhere--Emigration is usually defined as voluntary removal of an individual from his home State with intention to residing abroad--However, not all emigration is voluntary; there sometimes exists forced emigration; even mass emigration--Emigration may also be due to flight for political reasons or expulsion--One then speaks of refugees or exiles--Immigrate--To come to dwell or settle; to move into a country where one is not a native for purpose of permanent residence--Immigration--“Act of entering a country with intention of settling there permanently.”
[P. 62] B
Black’s Law Dictionary 11th Edition
Words & Phrases--
----Emigrant--An “emigrant” is one who emigrates or quits one country or region to settle in another; one who quits his country for any lawful reason, with a design to settle elsewhere, and takes his family with him--Emigrate--To “emigrate” is to remove from one country or state to another for purposes of residence--Immigrant--“Immigrant” as used in immigration law included every alien coming to country either to reside permanently or for temporary purposes. [P. 63] C
Words and Phrases Volume 14-A and 20 Permanent Edition
Words & Phrases--
----Connected with foreign countries, especially those separated from your country by sea or ocean. [P. 63] D
Oxford Advanced Learner Dictionary New 8th Edition
Punjab Overseas Commission Act, 2014 (XX of 2014)--
----S. 2(i)--Overseas Pakistani--Person can be characterized as Overseas Pakistani who has (i) origin of this country and is (ii) either permanently or (iii) temporarily settled outside Pakistan for purposes of (iv) employment, (v) carrying on a business or vocation and for any other purpose with (vi) intention to stay outside Pakistan for an unspecified period. [P. 59] A
Mian Tanveer Kamran, Advocate for Petitioner.
Mr. Azhar Saleem Kamlana, A.A.G. (on Court call).
Ch. Shahid Aleem, A.P.G. for Respondents Nos. 1 to 4 (on Court call).
Date of hearing: 19.3.2020.
PLJ 2021 Lahore 56
[Multan Banch, Multan]
Present: Jawad Hassan, J
TANVEER CHISHTI--Petitioner
versus
CITY POLICE OFFICER and others--Respondents
W.P. No. 4276 of 2020, decided on 19.03.2020.
Order
The Petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) with a view to seek a declaration to the effect that proceedings being conducted by the Punjab Overseas Pakistani Commission (the “Commission”), on complaint of the Respondent No. 7, are illegal and without lawful authority.
I. BACKGROUND OF THE DISPUTE
2. Succinct facts germane to the disposal of this constitutional petition are that the Respondent No. 7, who holds a foreign national passport but is permanently residing in Gulgasht Colony Multan, Pakistan invoked the forum of the Commission under the Punjab Overseas Pakistanis Commission Act, 2014 (the “Act”) for resolution of a dispute concerning recovery of investment/concealed amount of Rs. 6.2 million from the Petitioner and one Sheikh Muhammad Rizwan. It has also been brought to the fore that the issue between the Petitioner and the Respondent No. 7 had already been resolved in terms of a Settlement Deed/Agreement dated 9th of October, 2019 (the “Settlement Agreement”), nonetheless the Petitioner was constrained to file Writ Petition No. 2522 of 2020 on account of unlawful actions on the part of the Respondents in utter departure thereof, yet such constitutional petition was disposed of by this Court vide order dated 27th of February, 2020 on the basis of a statement/undertaking recorded by the police officials to the effect that they will act strictly in accordance with law. The Petitioner has alleged that Respondents Nos. 1 to 6 are adamant to illegally, unlawfully and forcibly recover the disputed investment/ concealed amount from him despite of the fact that he has no nexus with the controversy between Respondent No. 7 and one Sheikh Muhammad Rizwan.
II. ARGUMENTS OF THE PETITIONER
3. Mian Tanveer Kamran, Advocate while arguing on behalf of the Petitioner submitted that the Respondent No. 7, a foreign national is living in Pakistan and residing at Gulgasht Colony, Multan, approached the Commission under the Act for resolution of a dispute viz-a-viz recovery of investment/concealed amount, claiming himself to be an Overseas Pakistani. He urged that the issue between the Petitioner and Respondent No. 7 has already been set at rest under the Settlement Agreement; yet another dispute erupted between the Respondent No. 7 and one Sheikh Rizwan, which has no bearing on the Petitioner but the Respondents Nos. 1 to 6 are surprisingly prone to recover the investment/concealed amount under dispute from him by resorting to coercion and illegal means. He asserted that previously the Petitioner moved Writ Petition No. 2522 of 2020 which was disposed of by this Court in view of the statement dated 27th of February, 2020 by the police officials whereby they had reassured to act in accordance with law.
4. Learned counsel next urged that section 2(i) of the Act ibid only that person can be characterized as Overseas Pakistani who has (i) origin of this country and is (ii) either permanently or (iii) temporarily settled outside Pakistan for the purposes of (iv) employment, (v) carrying on a business or vocation and for any other purpose with (vi) the intention to stay outside Pakistan for an unspecified period; therefore, the Respondent No. 7, who is permanently residing in Multan, does not fall within the purview nor can he be termed as an ‘Overseas Pakistani’. He further maintained that allegiance to the Constitution as well as adherence to the law is inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. He placed reliance on the case of “Tahir Mirza v. Saleha Mehmood, DCO and others” (2019 YLR 2852) in this regard.
5. Mian Tanveer Kamran, Advocate reiterated that the Commission should have first determined as to whether the Respondent No. 7 is an Overseas Pakistani as defined under Section 2(i) of the Act and only thereafter was supposed to proceed in the matter. He placed reliance on the recent judgment of this Court reported as “Tariq Mehmood v. Punjab Overseas Pakistani Commission and 2 others” (PLD 2020 Lahore 49) in which this Court has delineated the functions of the Commission and directed it to enquire/examine the complaint in line with the available record and decide the matter in accordance with the law after hearing both the parties.
III. ARGUMENTS OF THE LAW OFFICER
6. Ch. Shahid Aleem learned APG for Respondents Nos. 1 to 4 while advancing his arguments apprised to this Court that the plea of harassment to the Petitioner by the Police hierarchy has already been agitated and disposed of by this Court in earlier Writ Petition No. 2522/2020, therefore, this writ petition is not maintainable.
7. Mr. Azhar Saleem Kamlana, learned AAG further objects to the locus standi of Petitioner in the instant matter and calls in question the maintainability of this petition on the premise that the Commission is competent under the Act to deal with the matters relating to the Government Agencies. He attempted to clarify that the Commission has been constituted under Section 4 of the Act while the Commissioner is appointed under Section 6 of the Act with powers to perform functions under Section 7 of the Act, which encompassed the receiving and transmission of the complaints and suggestions of the Overseas Pakistanis to concerned government agencies/offices. He adds that although this Court has also established an Overseas Pakistanis Cell to entertain the issues of Overseas Pakistanis with solemn object and with a view to efficiently adjudicate upon their cases in a bid to resolve their issues in expeditious manner yet the functions of the Commission are to deal with those issues on the administrative side and this Court can only look into the matters and adjudicate upon the instant petition only if the case of Respondent No. 7 falls within the definition of Overseas Pakistani as provided in Section 2(i) of the Act. In this connection, he placed reliance on the judgment of this Court passed in the case of Shahid Idrees v. Government of the Punjab and others (PLD 2018 Lahore 284).
8. I have heard the arguments and perused the record.
IV. DOCUMENTS TO BE EXAMINED FOR DETERMINATION
9. The Petitioner has filed the instant petition to declare the application of Respondent No. 7 before the Commission as null and void and to set aside the proceedings carried out by the Commission on the said application, with the following prayer:
“Therefore, relying upon all above narrated submission, it is most respectfully prayed that this writ petition may very kindly be accepted and the application (Annexure-B) filed by the Respondent No. 7 may very kindly be declared null and void, and proceedings carried out by the Respondent upon the application may kindly be set aside by this Hon’ble Court being not maintainable in the circumstances, as in the light of affidavit submitted by the Respondent No. 7, matter is of purely civil nature and Respondent No. 7 has to approach the learned Civil Court and the Respondents be directed to remain within the four corners of law.
It is further prayed that proceedings upon the application of the Respondent No. 7 may very graciously be stayed and Respondent No. 2 may kindly be restrained from calling the Petitioner at his office till the final decision of the instant writ petition.”
10. A careful perusal of the Settlement Agreement shows that the existing matter between the parties is that of civil nature, which is manifested from the complaint filed by the Respondent No. 7 before the Commission (Annexure-B), relevant portion of which is produced below:
“As per cited subject it is submitted that, I Hafeez Ahmed Anjum son of Muhammad Yousaf bearing CNIC No. 36302-0407286-1, resident of North Gulgasht Multan and I am also British national bearing British Passport No. 517266735. I have invested amount PKR 6.2 (M) with Tanveer Chisti son of Muhammad Shafi and Mr. Sheikh Muhammad Rizwan son of Muhammad Tayyab for the purpose of import of jewellery and cosmetics last year now both the persons mentioned above have refused to return my amount. It is humbly requested to look into the matter and provide justice.”
In his complaint, the Respondent No. 7 has merely mentioned that he is a British national having a British Passport and that he has invested Rs. 6.2 million with the Petitioner and one other person for the purposes of import of jewelry and cosmetics, however, both of them have now refused to return his invested amount.
V. MOOT POINTS
11. After hearing the parties at length, and out of the instant Petition, following moot points have arisen which require determination of this Court:
A. Whether the Commission is obliged to first decide whether the person complaining, falls under the definition of Overseas Pakistani?
B. Whether the Commission can entertain complaint of a foreign passport holder who is permanently residing in Pakistan?
C. Whether the Commissioner can exercise any of its powers to resolve the disputes of civil nature of an Overseas Pakistani?
D. Whether an Overseas Pakistani can be given any preference over the nationals by the Government Agencies?
VI. DETERMINATION BY THE COURT (RATIO DECIDENDI)
12. The history of mankind is replete with the examples of people from different nationalities and cultures migrating from their parental societies to others in the hope of earning a better future and following the trail of pursuit of happiness from one country to another either for permanent settlement or for a short duration to look for a better social and economic conditions. They are generally referred to as ‘overseas’ of the country. Although this term has not been defined in the Constitution, but the word ‘emigration’ has been used in the Federal List, Part-I, Item No. 6 in respect of admission into and expulsion from Pakistan:
“Admission into, and emigration and expulsion from, Pakistan including in relation thereto the regulation of the movements in Pakistan of persons not domiciled in Pakistan, pilgrimages to places beyond Pakistan.”
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