Reasonable freedom essential to perform duties: SC

Rules in favour of excise officials against PHC order

ISLAMABAD:

The Supreme Court has ruled that reasonable freedom is most essential for state functionaries to effectively perform the duties they are tasked with.

"Any obstruction with the performance of state business is interference with the writ thereof and cannot be countenanced without grievously undermining its authority,” says a four-page order authored by Justice Qazi Muhammad Amin Ahmed while hearing an appeal against Peshawar High Court judgment wherein direction was passed to police for registration of FIR against officials of Excise & Taxation Peshawar.

“Independence is not sole prerogative or attribute of any particular limb of the state as within the defined limits of the law, each department, must be sovereign to effectively ensure its functionality so as to achieve a statutory purpose, there being no sword of Damocles hanging over the head,” it read.

According to the facts of the case, petitioners Ikramullah Khan Yousafzai, Sahibzada Daud Jan and Syed Naveed Jamal were, respectively, posted as Excise and Taxation Officer, Assistant Excise and Taxation Officer and Inspector Excise and Taxation in Peshawar.

Respondent Dr Rizwanullah, a medical officer, is an assessee of property tax relating to 132 shops located within the remit of Excise and Taxation Office in Peshawar, allegedly in default; the assessed amount was Rs182,365 seemingly till the assessment year 2008 and it was for the recovery of the said amount that the petitioners while executing a non-bailable arrest warrant purportedly issued by the competent authority took him into custody on June 16, 2008, at 10:30 am while he was present at the Services Hospital.

It is alleged that the respondent was not in default and he asked the raiding party to allow him an opportunity to clarify his position, however, he was meted out a treatment rude and uncalled for where after being forcibly shifted to the Excise and Taxation Office where he was kept in wrongful confinement till 5 pm when some advocates had him released.

It is in this backdrop that the respondent approached Bhana Mari police station SHO for registration of a criminal case against the excise officials and upon refusal filed a petition under Section 22-A of the Code of Criminal Procedure, 1898, which was declined by a Justice of Peace vide order dated November 10, 2008. The Peshawar High Court Peshawar on June 24, 2015, directed the registration of a criminal case. However, the officials challenged the PHC order in the apex court.

The three-judge bench of the apex court led by Justice Mazhar Alam Miankhel accepted their petition against the PHC order.

The court, however, noted that state authority is a sacred trust; it vests in its functionaries to accomplish purposes designated by law and no doubt while exercising such authority within remit thereof, the functionaries must act in a manner most benign with a degree of restraint, expedient to avoid transgression.

The court said that it is even more important for those who are assigned the responsibility of enforcement of the law or for collection of state revenue and, thus, while there must be an unblinking judicial vigil over alleged transgressions, the court must simultaneously give effect to statutory presumption attached to official acts as contemplated by Article 129 (e) of the Qanun-e-Shahadat Order, 1984 as well as Article 150 of the Constitution.

Justice Ahmed, while authoring the order, said, "There is nothing on the record to view the purported non-bailable warrant as a fake instrument; similarly, it is not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly stalled till date.

"We are also at loss to understand under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, a criminal offence in itself.

"These are the issues that hinged upon factual controversies and as such could not have been attended in the exercise of Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent."

In view of these reasons, the court has converted the petition into appeal and allowed and the direction/order dated June 24, 2015, is set aside, however, the respondent is certainly at liberty to dispute the vires of assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits, if so advised, the order says.