Shahid Wazir Vs Additional Chief Secretary & another

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No.114-P/2018

“Shahid Wazir vs. Additional Chief Secretary & another” Date of hearing: 16.09.2025

For Petitioner: Mr. Amaad Nasir Kundi, Advocate. For State: Mr. Azhar Rahim, AAG.

JUDGMENT

F A R A H J A M S H E D, J . - Impugned herein is the judgment and order dated 28.10.2017 of learned District Judge, Peshawar whereby the judgment and decree dated 29.04.2017 of learned Civil Judge-XI, Peshawar was upheld.

2.The impugned findings arise out of suit for recovery of Rs.26,50,000/- alongwith mark up since, 1999 brought by Additional Chief Secretary, FATA Secretariat, and Director Irrigation & Hydel Power, FATA Secretariat, Peshawar against the present petitioner Shahid Wazir on account of alleged embezzlement of Government amount. According to the respondents/complainant, present petitioner while serving as Executive Engineer in the FATA Development Corporation under the Ministry of

SAFRON, Government of Pakistan, was responsible for Earth Moving Machinery. It was alleged that petitioner drew income from said machinery, which was deposited in account No.C-950 the National Bank of Pakistan, Warsak Road branch, without obtaining prior authorization from the competent authority and without any legal justification. Details of the transactions made through different cheques, is explained in the plaint.

3.An inquiry was initiated through an Inquiry Committee constituted under the Khyber Pakhtunkhwa (Efficiency and Discipline) Rules, 2011 and petitioner was found guilty of the embezzlement. The inquiry committee recommended his removal from service, recovery of embezzled amount as well as registration of a criminal case. Consequently, the respondents instituted suit, bearing No.49/1 on 02.04.2012, under discussion of this petition, for recovery of the embezzled amount.

4.After recording of pro and contra evidence and hearing arguments of both the learned counsel for the parties, learned trial court decreed the suit in favour of respondents vide judgment and decree dated 29.04.2017, which was upheld by the learned appellate court vide its impugned judgment and order dated 28.10.2017, hence the instant petition.

5.Arguments heard and record perused.

6.Although concurrent findings of both the learned courts below lies in favour of respondents and it ordinarily warrant limited interference in revisional jurisdiction, however, the petitioner has raised a pure question of law regarding the competence and maintainability of the suit filed by the respondents, which goes to the root of the matter. It is settled law that the courts are empowered to examine questions of legal maintainability suo motu, even if not specifically pleaded.

7.Perusal of the plaint reveals that a suit bearing No.49/1 Neem was filed by Additional Chief Secretary FATA, Warsak road Peshawar and Director, Irrigation and Hydel Power, FATA Secretariat, both being functionaries of the Federal Government at the relevant time.

8.Under section 79 of the Civil Procedure Code, 1908 (the CPC) the procedure for filing the suit “By or Against the Government or Public Officer in Official Capacity” is explicitly provided. The relevant provision is reproduced below for ease of the reference:- “79. Suits by or against the Government.--- In a suit by or against the Government the

authority to be named as plaintiff or defendant, as the case may be, shall be---

(a)in the case of a suit by or against the Federal Government, Pakistan;

(b)in the case of a suit by or against a Provincial Government, the Province;

9.Likewise, Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 under Part VII, Chapter 3 titled “Suits and Proceedings” has fortified this legal proposition in the following terms:

“174. The Federation may sue or be sued by the name of Pakistan and a Province may sue or be sued by the name of the Province.”

10.The combined reading of Section 79 CPC and Article 174 of the Constitution makes it abundantly clear that a suit by or against the Federation or a Province must be instituted in the name of Pakistan or the Province, respectively. This is a mandatory procedural requirement, and non-compliance renders such a suit incompetent No relief can be sought without its compliance.

11.The question here is whether the suit brought by respondents in their official capacity without impleading the Federal/Provincial was competent within the meaning and scope of Section 79 CPC read with Article

174 of the Constitution. The apex court in Nawabzada Mir Tariq Hussain Khan Magsi1 case, held that:

No suit can be filed against the Provincial Government without impleading the Province as a party and the procedural pre-condition is mandatory in nature and no relief can be sought without its strict compliance and suit would not be maintainable---

12.Likewise in Haji Abdul Aziz2 case, the apex court held that:-

“It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears at the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of section 79, C.P.C. or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the concerned Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless the suit is filed through a proper person, any Government of Balochistan, CWPP&H Department and others Vs. Nawabzada Mir Tariq Hussain Khan Magsi and others, 2010 SCMR 115 Haji Abdul Aziz Vs. Government of Baluchistan, through Deputy Commissioner, Khuzdar (1999 SCMR 16)

order directing ex parte proceedings against the defendant would be liable to challenge.”

“....there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge 'in Chambers is not open to exception.”

13.This legal flaw is further fortified in view of the C.M. bearing No.1564-P/2024 filed by learned counsel for the petitioner for correct address of respondent No.01 for service, wherein it was requested that respondents be summoned as “Government of Khyber Pakhtunkhwa through its Secretary, Home and Tribal Affairs, Civil Secretariat, Peshawar” due to change in the nomenclature of the office of respondent No.01 post- 25th Amendment merger of FATA into Provincial Government. The said correction substantiated that previously FATA being under the Administrative control of Federal Government through Ministry of SAFRON was not impleaded contrary to section 79

CPC.

14.The record also tells that in written statement, petitioner raised preliminary issues to the effect that:

 That the present suit is not maintainable.

 That plaint is bad due to miss- joinder and non-joinder of necessary parties.

15.Unfortunately, the learned trial court failed to taken into account this legal aspect of the case and no issue was framed nor this legal question was addressed at the first instance. Both the learned courts below overlooked this mandatory legal requirement.

In Ghulam Haider3 case, the Sindh High Court held that:

“In the above reported case the issue with regard to non-maintainability of the suit was raised before the High Court in revisional jurisdiction. Since both the courts below by overlooking the provisions of law have committed illegality and have also failed to exercise the jurisdiction vested in them properly and in consonance of law, I set aside both the judgments and decrees passed by the learned trial Court as well as the appellate Court. However, keeping in view the facts and circumstances I direct the Member, Board of Revenue to hold enquiry in the matter and after hearing the parties decide the matter without taking into consideration the decree passed in Suit No.26 of 1962.”

Divisional Forest Officer, Larkana & 3 others Vs. Ghulam Haider and 8 others (PLD 2007 Karachi 392)

17.Hence, without further dilating upon the merits of the instant revision petition, the impugned judgments and orders of learned courts below are hereby set aside and case is remanded back to the learned trial court to first determine the question of maintainability of the suit in light of legal position discussed hereinabove and thereafter to decide the matter afresh on its merits in accordance with law.

18.Consequently, the civil revision petition is hereby accepted in the above terms.

Announced:

(Shahid Ali, Court Secretary)

JUDGE

(S.B.) Hon’ble Justice Ms. Farah Jamshed