Form HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)

W.P. No.63956 of 2021

Ali Ahmad, etc.

v.
Office of the Ombudsperson (Mohtasib) Punjab, etc.

[Link] order/ Date of order/ Order with signature of Judge, and that of parties or
Proceeding Proceeding counsel, where necessary

19.01.2022 Mr. Abbas Ali Chadhar, Advocate assisted by Ch.

Saifullah Shafiq, and Ch. Zeshan Afzaal Hashmi,
Advocates, for the petitioners.
Mr. Zafar Rahim Sukhera, Assistant Advocate-General.
M/s Mushtaq Ahmad Mohal and Irfan Ullah Tarar,
Advocates for the respondents No.2 to 5.

ASIM HAFEEZ, J. This constitutional petition throws

challenge to the legality of decision dated 06.10.2021,

by respondent No.1 – Ms. Nabila Khan, Ombudsperson

Punjab – in exercise of jurisdiction extended under the

Punjab Enforcement of Women’s Property Rights Act,

2021 (“Act, 2021”), while invoking section 7 of the Act,

2021. Notices were issued to the Advocate General,

Punjab under Order XXVII-A of the Civil Procedure Code

1908, on the plea that adjudication perhaps involves

determination of the constitutionality / vires of some

provisions of the Act, 2021. Private respondents were

also put to notice and are represented - Respondents

No.2 to 5 have filed written statement / reply.

2. It is appropriate to sum-up the extent and scope

of instant decision. In the light of the submissions by the

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counsels, appraisal of the facts and examination of

relevant provisions of the enactment – facts of the case

attract section 7 of Act, 2021 – it is decided that no

question of vires or unconstitutionality of section 7 of

the Act, 2021 arises. And the lis at hand, exclusively, calls

for determination of the legality or otherwise of the

order assailed, in the context of the jurisdiction

extended unto learned Ombudsperson and purportedly

exercised.

3. Facts, essential for adjudication, are that

Respondent No.2, widow of Ali Nawaz, filed complaint,

alleging denial share of inheritance, to her and

daughters of the deceased – respondents No.3 to 5 –

regarding estate of her deceased husband, comprising of

landed property. It was alleged that their shares were

fraudulently transferred in the guise of alleged gift,

allegedly extended by the ladies of the family to the sons

of the deceased – petitioners No.1 to 4. The most critical

fact is that before the filing of complaint, respondents

No.2 to 5 have had filed civil suit, seeking declaration of

invalidity against alleged transaction of gift, which suit

was pending when cognizance upon compliant was

taken. The merits of the complaint, potentiality of the

claim and alleged defence thereto is not subject matter

of adjudication, hence, no comments required. The

W.P. # 63956/21 3

context of the controversy-in-issue is whether the

authority / powers, exercised by the respondent No.1 in

view of present facts, are in accordance with and scope

of mandate extended under section 7 of Act, 2021–

dealing, with the complaint(s), where case proceedings

are otherwise pending in a court of law.

Respective submissions.

4. Learned counsel for the petitioners contends that

respondent No.1 lacked jurisdiction to take cognizance

of the complaint, filed even before the promulgation of

the Act, 2021. Adds that civil suit, filed by the

respondents was sub-judice and without adhering to the

mandate and requirements prescribed in section 7 of

Act, 2021, respondent No.1 proceeded to decide the

competing rights claimed qua the property in question,

which is claimed to have been gifted in accordance with

the law. Further submits that allegations of fraud and

deception, qua purported gift, were accepted and

endorsed summarily - merely upon believing contents of

the affidavit of one Muhammad Ashraf, son of

respondent No.2 and brother of the petitioners and

respondents 3 to 5 -, and without calling for evidence

and affording opportunity to cross-examine said

Muhammad Ashraf. Lastly submits that jurisdiction was

allegedly exercised under section 7 of the Act, 2021, but

W.P. # 63956/21 4

without adhering to the requirements of sub-section (3)

of section 7 of the Act, 2021. Adds that implementation

of the order impugned was subjected to the condition of

withdrawal of civil suits by the complainant and her

daughters – respondents No.2 to 5, which alone

manifests erroneous exercise of jurisdiction – which part

of the order draws no support from section 7 of Act,

2021.

5. Learned counsel for the respondents No.2 to 5

submits that instant Constitutional petition is not

maintainable in law due to non-joinder of Muhammad

Ashraf as party, who had submitted affidavit before the

respondent No.1. Adds that petition is not otherwise

maintainable, when alternate remedy is available and

availed, reference is made to the civil suit filed by

petitioners. Adds that order dated 06.10.2021 was also

challenged through said suit – wherein application for

injunctive relief was disallowed and petitioners had filed

appeal, which is pending adjudication. Further submits

that this Court had earlier dismissed instant petition on

the ground of pendency of civil suit, hence, matter

cannot be re-adjudged or reviewed. Adds that various

petitions are pending before this Court, wherein vires of

the law, i.e., Punjab Enforcement of Women’s Property

Rights Act, 2021, is questioned and same are sub-judice,

W.P. # 63956/21 5

wherein notices under Order XXVII-A of Code of Civil

Procedure, 1908 were issued, hence, it is appropriate to

hear Advocate-General in person or attach this petition

with the pending ones. While discussing the purpose of

the law, states that sons have deprived the mother and

sisters of their shares in the estate of deceased husband

/ father; which illegal and unjustified action calls for

interference and exercising jurisdiction under Act, 2021,

and respondent No.1 committed no illegality while

exercising jurisdiction under section 7 of the Act, 2021.

6. Learned law officer supported the

constitutionality of the law, who has also produced

record of the proceedings before the respondent No.1.

Determination.

7. Submissions on behalf of the respondents No.2 to

3 are misconceived and repelled, reasoning hereunder

follows.

8. Petitioners, through this petition, have questioned

the legality of the order dated 06.10.2021 substantially,

and only a ceremonial challenge was thrown to the vires

of the law. No question of vires or unconstitutionality

was pleaded. While hearing the matter on 02.12.2021, it

was announced that petition was disposed of in lieu of

the civil suit filed by the petitioners, and after examining

the record matter was re-fixed for hearing. This court

W.P. # 63956/21 6

finds no clog or encumbrance to re-hear and decide the

matter. Order of 02.12.2021 is reproduced, for facility of

reference, which reads as;

“Order was announced in Court and petition was

disposed of in wake of pendency of civil suit –
documents provided by counsel for petitioner, in terms
of order dated 01.12.2021. Petition was disposed of
under the impression that proceedings before
respondent No.1 are still pending, however, perusal of
order dated 06.10.2021 reveals that order has been
finally passed, only subjected to the condition of
withdrawal of civil suit by the complainant. While
dictating detailed order, it transpired that some issues
require further assistance of the counsels, for instance,
status, enforceability and the scope of order dated
06.10.2021 in the wake of filing of civil suit by the
petitioner, post instant petition. This Court believes
that unless the fate of order dated 06.10.2021 is not
decided, it certainly would have prejudicial
implications. Matter needs adjudication.

2. Let this matter be fixed for hearing on

06.12.2021, after notice Pervi to the counsels”

9. Assertion that order dated 06.10.2021 was also

assailed through civil suit is misplaced. It is evident that

petitioners have filed civil suit, during the pendency of

instant proceedings, perusal whereof manifests that

order dated 06.10.2021 was not challenged therein or

subjected to adjudication by civil court – though

respondent No.1 is a party thereto and declaration was

sought against the Mutation No.2811 dated 25.10.2021,

recorded based on order of 06.10.2021. The objection

that proceedings be enjoined with pending petitions,

wherein vires of the law is challenged, is misconceived.

This Court is not convinced that any ground is available

W.P. # 63956/21 7

to proceed to adjudge the question of constitutionality

or otherwise of the law, hence, tagging petition with

other cases is un-necessary.

10. Now issue of legality or otherwise of the order

impugned - dated 06.10.2021 - is examined. It is

expedient to reproduce relevant portions of the order

impugned, which read as;

“The respondents’ contention that since the case

of the suit property is already subjudice in Civil
Court therefore, the complaint is liable to be
dismissed is not maintainable in light of the
provisions of the section 7(1) of the Punjab
Enforcement of Women’s Property Rights Act,
2021, which provides as follow;

“Where proceedings in a court of law are

pending in relation to the ownership or
possession of any property claimed to be
owned by a woman, she may file a
complaint under this subsection to the
Ombudsperson:

Provided that the Ombudsperson, on its

own motion or on a complaint filed by any
person including a non-governmental
organization may also initiate action under
subsection (1) in relation to the ownership
or possession of a woman’s property, even
if proceedings are pending in a court in
respect of that property”.

Facts and evidence available on record are suffice

to note here that the instant case does not require
in depth inquiry therefore Ombudsperson has clear
and wide jurisdiction of adjudication on the
instant case.

Keeping in view the above discussion, affidavit

submitted by the one of the respondents Mr.
Muhammad Ashraf, element of dominancy and
W.P. # 63956/21 8

influence of respondents, judgments of the

honorable higher courts, fact of illiteracy of
complainant and her daughters and most crucial
fact of gift mutation in favour of complainant’s
daughters and then in favour of their mother on
the same day, it stands established without any
iota of doubt that the respondents has
disinherited complainant and her daughters by
way of fraud and pressure and thus the same is
liable to be cancelled. Therefore, the case in hand
is decided in favour of the complainant Ms.
Basheeran Bibi and her daughters Anwari Bibi,
Asghari Bibi and Sarwari Bibi and the gift
mutation assailed by them whereby they were left
disinherited is hereby declared illegal and void,
against the law and Shariah.

It directed that the complainant and her

daughters be given due share of legacy inherited
by them after death of Mr. Ali Nawaz.

The Deputy Commissioner Sheikhupura with

assistance of concerned SHO shall ensure
implementation of this decision and restoration of
possession to the complainant and her daughters
within the period of 7 days of receipt of this
decision. Compliance report should reach this
office within 7 days as provided under section
5(1)&(3) of the Punjab Enforcement of Women’s
Property Rights Act, 2021. However, it is clarified
that this decision shall be implemented in a
condition when the complainant and her
daughters withdraw all suits pending in Civil
Court”.
[Emphasis supplied]

11. It is evident that in wake of pending civil suit of

the respondents No.2 to 5, at the time of the cognizance

of the complaint by respondent No.1, section 7 of Act,

2021 is applicable and attracted, which for expedience is

reproduced hereunder.

Section 7 of the Act, 2021.

Complaint to the Ombudsperson in case

proceedings in a court of law are pending.– (1)
W.P. # 63956/21 9

Where proceedings in a court of law are pending

in relation to the ownership or possession of any
property claimed to be owned by a woman, she
may file a complaint under this subsection to the
Ombudsperson:

Provided that the Ombudsperson, on its

own motion or on a complaint filed by any
person including a non-governmental
organization may also initiate action under
subsection (1) in relation to the ownership or
possession of a woman’s property, even if
proceedings are pending in a court in respect
of that property.
(2) The Ombudsperson shall make a preliminary
assessment of the complaint under
subsection (1), whereafter he may, if the
matter requires further probe or
investigation, refer the matter to the
concerned Deputy Commissioner, who, after
calling the record, if necessary, and issuing
notices to the complainant or her
adversaries, conduct a summary enquiry and
submit a report within fifteen days to the
Ombudsperson.
(3) If the matter does not require any detailed
probe, investigation or recording of evidence,
the Ombudsperson may, after calling any
record, if deemed necessary, file a report in
the court of law, in which the case is pending,
recommending that the proceedings in the
court may be terminated or put in abeyance
unconditionally or subject to any order of the
court, and the Ombudsperson be permitted
by the court to take further proceedings
under this Act.
(4) Before filing of the report under subsection
(3), the Ombudsperson shall call upon the
complainant and her adversaries to submit
objections, and conduct a hearing and pass
orders, preferably within thirty days of the
hearing, as to whether the Ombudsperson
shall or shall not file a report under
subsection (3).
(5) In case the Ombudsperson passes an order of
not filing a report under subsection (3), he
may advise the complainant to pursue the
proceedings in the court of law and
W.P. # 63956/21 10

terminate the complaint.

(6) The Ombudsperson upon receiving the report
under subsection (2), may further conduct
such summary inquiry and call for such
record as he may deem fit”.
[Emphasis
supplied]

12. It is apparent from perusal of order impugned,

that simultaneously with the issuance of notices to the

respondents, report was sought from the revenue

authorities - submitted on 17.03.2021 – which

perhaps was the only evidence available, in addition to

the affidavit of one of the sons of deceased Ali Nawaz,

Muhammad Ashraf, contents whereof were

erroneously treated as admission qua alleged fraud

and deception – fraudulent transfer of property in

guise of gift. It is apparent that no opportunity was

afforded to rebut the affidavit or to allow cross-

examination upon Muhammad Ashraf, in the absence

whereof bare contents of the affidavit cannot be

treated or construed as admission of fraud,

attributable to the petitioners. This assumption qua

admission is contrary to the settled principles of

evidence qua admissions in civil matters. Further

comments are reserved as review of the contents of

affidavit is not intended, nor subject matter of

adjudication.
W.P. # 63956/21 11

13. In terms of sub-section (1) of section 7 of Act,

2021, pendency of civil suit would not restrict or bar

initiation of proceedings or cognizance by respondent

No.1 – either on its own motion or complaint. Hence,

initiation of proceedings on complaint manifests no

illegality.

14. In terms of sub-section (2) of section 7,

respondent No.1 is required to make preliminary

assessment of the complaint for determining that

whether matter at hand requires further probe or

investigation, and if it does require further probe or

investigation, reference can be made to the concerned

Deputy Commissioner for soliciting report within 15

days. It appears that matter was not referred to the

concerned Deputy Commissioner, suggesting an

inference that no further probe or investigation was

required.

15. Sub-section (3) of section 7 of Act, 2021 is

critical. Respondent No.1 observed that matter does

not require in-depth inquiry. It is evident that

respondent No.1, without adhering to the

requirement(s) of filling report in the court, in which

case is pending, making recommendations accordingly

and waiting for the permission of the court to take

further proceedings, summarily proceeded to decide

W.P. # 63956/21 12

the matter, which significant lapses, in the context of

sub-section (3) of section 7 ibid, manifest failure to

adopt and adhere to the prescribed statutory

requirements, indicating erroneous exercise of

jurisdiction. Respondent No.1 erroneously ignored

factum of proceedings pending in the court, and upon

deciding the matter linked its implementation with

the condition of withdrawal of pending suit. Evidently,

legislative command unequivocally - manifests in

terms of sub-section (3) of section 7, ibid - conferment

of the discretion unto respondent No.1, only to

determine that whether the matter requires detailed

probe, investigation or recording of evidence, for

which determination respondent No.1 may call for the

record, if deemed necessary, before the filing of the

report. The expression ‘if deemed necessary’ must be

read in the company of the expression ‘after calling

any record’ and not be construed as extending an

elective / optional choice or discretion unto

respondent No.1 in the matter of filling report with

the court. Yes, there is no requirement of filing report

if complaint is terminated, upon following the

mandate of sub-section (5) of section 7 of the Act,

2021. And if respondent No.1 intends to proceed to

decide complainant, submission of report in the court

W.P. # 63956/21 13

and awaiting further orders are imperative and

mandatory requirements. Any construction, contrary

to this apparent and obvious legislative intent of filling

report in the court of law, in which case is pending,

would offend the mandate of section 7 of Act, 2021,

undermines the authority and jurisdiction of the court

– evidently protected in terms of section (3) of section

7 of the Act, 2021, and renders section 7 of Act, 2021

redundant and superfluous in the context of sections 4

and 6 of the Act, 2021. Perusal of sub-sections (4) and

(5) of section 7, ibid, reiterate the necessity of

submitting report, unless complaint is terminated,

upon reaching conclusion that no report is required to

be submitted. In terms of sub-section (5) of section 7

of Act, 2021, act of non-filling of report – after

affording opportunity of filling objections and

conducting of hearing in terms of sub-section (4) of

section 7 of Act, 2021 – suggests termination of

complaint and renunciation of jurisdiction.

16. Harmonious and wholesome reading of section

7 of Act, 2021 is required to protect it, instead of

disjunctive and disconnected reading, which line of

interpretation would impart incompatibility,

contradiction, and redundancy. Legislature had not

intended to oust the jurisdiction of the Civil Court and

W.P. # 63956/21 14

ensured that report is essentially filed in the court,

where matter is pending. The intent is to reconcile the

jurisdiction of the court, where matter is pending, and

jurisdiction extended to the respondent No.1, to avoid

apparent collusion or conflict. In brief, perusal of

section 7 of Act, 2021, indicates the jurisdiction(s)

conferred are not mutually exclusive but structured to

avoid conflict, confusion and disarray. The act of non-

submission of report with the Court is illegal and

requires interference by invoking Constitutional

jurisdiction.

17. In view of the above, it is concluded that

respondent No.1, before passing the order of allowing

complaint, failed to adhere to the prescribed statutory

requirements, envisaged under section 7 of Act, 2021,

which suggests that assumption and exercise of

jurisdiction is misplaced, erroneous and illegal.

Reliance on the judicial pronouncements in the order

impugned is otherwise misplaced, wherein critical fact

was ignored that in all the cases referred full trial was

conducted, upon calling of evidence, before

determining alleged influence of the donee over the

donor, element of dominancy and allegations of fraud.

18. This petition is allowed, order dated 06.10.2021

is set aside. Complaint filed by respondent No.2 shall

 W.P. # 63956/21 15

be deemed pending before respondent No.1, which

shall decide the complaint afresh, upon hearing the

parties, in the light of the facts and circumstances

existing, at the time of cognizance of the complaint.

[there is no information that whether suit of the

respondents No.2 to 5 is still sub-judice or withdrawn

under the order of 06.10.2021]. Any observation made

herein is for the purposes of deciding the lis and not

intended to prejudice or affect the rights claimed and

determination of the complaint on merits.

(Asim Hafeez)
Judge.
Approved for Reporting.

A.D. Mian*