THE HIGH COURT OF SINDH, KARACHI

Constitution Petition No.D-3519 of 2015

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Date Order with Signature(s) of Judge(s)

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Present:

Muhammad Shafi Siddiqui, J.

Abdul Maalik Gaddi, J.

Muhammad Faizan Amjad …………… Petitioner

Versus

The Secretary,

Board of Secondary Education

Karachi, & 03 others …………… Respondents

For hearing of Main Case.

Date of hearing : 28.04.2017

Mr. S. Osaf Ali, Advocate alongwith Petitioner.

Mr. Masroor Ahmed Alvi, Advocate for Respondent No.1.

Mr. Tajammul Hussain Lodhi, Advocate for Respondent No.2.

Chaudhry Muhammad Rafiq Rajorvi, Addl. A.G.

ORDER

Abdul Maalik Gaddi, J. – Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought following relief(s):-

(a) To direct the respondents to correct the name and father name alongwith date of birth of the petitioner as per his actual name, father name and date of birth i.e. Muhammad Faizan Amjad son of Din Muhammad with date of birth as 25.08.1987 instead of wrong name and father’s name i.e. Muhammad Faizan Iqbal son of Muhammad Amjad Iqbal with date of birth as 25.08.1986 in the all records of the defendants and issue the fresh Certificates, Degrees;

(b) Any other as which this Hon’ble Court may deem fit and proper under the above said prevailing circumstances.

2. The brief facts leading to filing of instant constitution petition are that the petitioner filed a civil suit against the respondents claiming therein that he is real son of Din Muhammad son of Muhammad Hassan, born on 25.08.1987 at Karachi. His name Muhammad Faizan Amjad duly inserted in his birth certificate but due to bonafide mistake in the educational record of the respondents, his name was wrongly inserted as Muhammad Faizan Iqbal son of Muhammad Amjad Iqbal, although, his correct name is Muhammad Faizan Amjad son of Din Muhammad. Alongwith plaint, he had placed on record NIC of his father, Form-B and Admit Card. It appears from the record that suit filed by the petitioner was dismissed on merit by the learned Senior Civil Judge, Karachi (Central) vide Judgment dated 16.07.2004. Being aggrieved and dissatisfied with the said judgment, the petitioner filed civil appeal No.136 of 2005, which was too dismissed on merit vide Judgment dated 12.10.2006, but the said judgment has not been assailed by way of revision petition. However, this constitution petition has been filed for same relief on 01.06.2015 after the expiry of more than nine (09) years after passing the order on appeal.

3. This constitution petition has been seriously opposed by the respondents by filing their comments/objections denying the case and claim of the petitioner.

4. Heard parties advocates and perused the record.

5. The petitioner has claimed that his real name is Muhammad Faizan Amjad son of Din Muhammad, but in the record of the respondents, his name inserted as Muhammad Faizan Iqbal son of Muhammad Amjad Iqbal. It is pertinent to mention here that the Admit Card and documents, which were filed by the petitioner himself before the trial court showing the name of the petitioner as Muhammad Faizan Iqbal son of Muhammad Amjad Iqbal. The Admit Card and Certificates were issued in year 2002. The petitioner had placed on record Form-‘B’ but it showing the name of petitioner as Muhammad Faizan Amjad son of Din Muhammad, but this document was prepared in year 2003. The petitioner has not produced any authenticated and valid documentary evidence to show that before issuance of the Admit Card, his real name was Muhammad Faizan Amjad son of Din Muhammad. The educational record of the respondents appears to be based on the information and documentary evidence produced by the petitioner himself to the concerned quarters. There is nothing on record to show that due to any mistake or error, the name of the petitioner and his father was mentioned in the educational record of the respondents. During the course of arguments, when we asked the question from the petitioner that two courts below have already given Judgments against him, he replied in affirmative, however, alleged certain allegations without any basis, therefore, he was immediately warned to be careful in future and in case, he would repeat the allegations, the cost of Rs.10,000/- will be imposed.

6. It is an admitted position that two courts below have already concurrently given judgments against the petitioner on merits on the same issue, therefore, in our view constitutional jurisdiction could not be invoked as substitute to another appeal against such order, mere fact that upon perusal of evidence High Court came to another conclusion would not furnish a valid ground for interference in such order.

7. As observed above, First Appellate Court has decided the appeal of the appellant on 12.10.2006 and admittedly, no revision has been filed, but this petition has been filed on 01.06.2015, after the expiry of more than nine (09) years and during this intervening period, the petitioner has not made any efforts and steps for claiming his right at an early time. Therefore, under the circumstances, this petition is also hit by principle of laches. The Hon’ble Supreme Court in the case of Jawad Mir Muhammad and other v. Haroon Mirza and others reported as PLD 2007 Supreme Court 472 in paragraph No.27 of the aforesaid judgment has held as under:-

“27. The next issue which requires consideration is whether constitutional petition filed by the appellant was hit by laches and was liable to be dismissed on this ground. The High Court in its judgment observed that there was delay of 16 months in filing the constitutional petition. Mr. Naeemur Rehman strenuously contended that a constitutional petition involving violation and infringement of fundamental rights of the citizens could not be thrown out on the ground of delay in filing the same and heavily relied on the observations of this Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883. From a perusal of the judgment in the cited case it is observed that this Court while dilating on the question of laches held that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case. It was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition “that the delay defeats equities or equity aids the vigilant and not the indolent”. Relying on the above maxim this Court as well as High Courts of the Country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner.”

8. As observed above, the learned First Appellate Court dismiss the claim of the petitioner on 12.10.2006 and this petition has been filed on 01.06.2015, after the expiry of more than nine (09) years and in this regard, no satisfactory explanation has been furnished. Therefore, this petition on the face of it appears to be misconceived and also hit by principle of laches, which was dismissed in open Court in the early part of the day and these are the reasons for the same.

Karachi

Dated: 28.04.2017.

JUDGE

Faizan A. Rathore/PA