2017 CLC 1 LAHORE
2017 C L C 1
[Lahore]
Before Muhammad Farrukh Irfan Khan, J
PAKISTAN FOOTBALL FEDERATION----Petitioner
Versus
The GOVERNMENT OF PAKISTAN and others----Respondents
Writ Petitions Nos.21071 of 2012 and 15481 of 2015, decided on 3rd May, 2016.
(a) Sports (Development and Control) Ordinance (XVI of 1962)---
----Ss. 1, 3 & 4---Constitution of Pakistan, Art.268(1)---Promulgation of Sports (Development and Control) Ordinance, 1962---Validity---Sports (Development and Control) Ordinance, 1962, was validly promulgated by the then President of Pakistan in exercise of powers conferred upon him in terms of Constitution of Pakistan, 1962---Said Ordinance continued to be protected by every succeeding Constitutional set up and as such was still in force.
(b) Constitution of Pakistan---
----Art. 29---Policy making---Scope---Policy making is a function which is exclusively in the domain of Federal or Provincial Government as the case may be-- Even Courts do not intervene in the policy matters unless such policies are perverse, ab initio void or against Constitutional guarantees---Where Federal Government or Provincial Government formulate a policy in accordance with law and under the mandate of the Constitution but not in an conformity with any policy of a private body, may it be an international body, the policy promulgated in Pakistan by its Government would prevail upon statute, policy, direction etc. of such international body.
rel.
Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1
(c) Sports (Development and Control) Ordinance (XVI of 1962)---
----Ss.3 & 4---Constitution of Federation Internationale de Football Association, Art.17---Constitution of Asian Football Confederation, Arts.31.8 & 37---National Sports Policy, 2005---Election of President of Football Federation---Tenure of term---Petitioner, Pakistan Football Federation (PFF) was aggrieved and wanted to get its candidate for the post of President elected for fourth term after completing his earlier three terms of 4 years each---Validity---Two private sector sports bodies controlling football internationally with which PFF was affiliated, had restricted a person from holding office of the President for more than three terms thus providing a certainty in the maximum period that could be availed by that particular person in holding the post of President---Government in its National Sports Policy, 2005, had rightly held that certain office bearers would not be electable for more than two terms on a particular appointment/designation and the same did not tantamount to interference or intervention in the working/ functioning of any such body including PFF as the Policy was not aimed at petitioner specifically rather it was formulated to be applicable to all sports bodies across the board---Candidate of petitioner after completing his initial two tenures in office was elected for the third term 2011-2015 as President of PFF and that he was desirous of continuing for a
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fourth tenure for the period of 2015-2019---Such act of the candidate of PFF was not only in direct contravention of the statutory bar of two terms provided in National Sports Policy, 2005, but was also in conflict with restriction placed by AFC and FIFA on holding the office of President by any particular person for more than three terms of four years each---High Court declined to interfere in National Sports Policy, 2005---Petition was dismissed in circumstances.
JUDGMENT
Bakhtawar and others v. Amin and others 1980 SCMR 89 ref.
Muhammad Afzal Khan for Petitioner.
Muhammad Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan.
Munir Ahmed Paracha for Pakistan Sports Board, Islamabad.
Siraj-ul-Islam Khan, Addl. A.G. with Shahid Mahmood Nizami and Shafqat Mahmood, Law Officers of Sports Board, Punjab.
Ch. Zulfiqar Ali for Respondents Nos.8 to 10 (in W.P. No.15481 of 2015).
Sardar Ilyas Kaleem for Colonel (Rtd.) Farasat Ali.
Dates of hearing: 31st December, 2015, 28th April and 3rd May, 2016.
MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this judgment I intend to dispose of Writ Petition No.21071-2012 as well as Writ Petition No.15481/2015 together as the latter is dependent on the fate of the former and they proceed on the same law points. In W.P.No.21071/12 the petitioner has challenged the very constitutionality of the Sports (Development and Control) Ordinance, 1962 and sought judicial review of the validity and legality of all other subordinate legislation i.e. Notifications, Policies, Rules, Regulations etc. emanating from the said Ordinance while in W.P. No.15481/2015 the petitioner has impugned the order dated 12.05.2015 of the Sports Board Punjab and subsequently the Notification dated 14.05.2015 with the prayer to declare them unconstitutional, illegal, void ab-initio, coram non judice and consequently to restore the Notification dated 20.04.2015 issued by the petitioner.
2.Background of the controversy at hand is that the petitioner-Pakistan Football Federation (hereinafter called as) 'PFF' an independent body to manage and control the affairs of sports namely Football in and outside Pakistan and at international level. Its head quarter is located at Lahore. It is governed by its own constitution namely Pakistan Football Federation Constitution (PFF Constitution). The Congress of the Federation being the legislative body of PFF has enacted and adopted the said Constitution. The Executive Committee is the executive body of PFF which comprises of a President, three (3) Vice-Presidents one of whom shall be Senior Vice-President, eight (8) members from Provinces and three (3) members from the Services Organizations. Its office bearers are appointed through elections which are conducted after every four years, initially at the district level all over Pakistan, the Football clubs affiliated with the PFF also elect respective District Football Associations (DFAs). Then the DFAs elect the Provincial Football Associations (PFAs) in all the four Provinces of Pakistan, one Football Association is elected from the Islamabad Region (ICP Football Association). Finally elections are held at the Federal level for which the electoral college is the members nominated by the PFAs, and the Islamabad region. The petitioner is governed under its Statute called PFF Constitution duly approved by its Congress/Executive. Constitution of PFF (Para 9) requires that PFF be affiliated with the following:-
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(i)The Federation International de Football Association (FIFA).
(ii)Asian Football Confederation (AFC)
(iii)Pakistan Olympic Association
(iv)Pakistan Sports Board
3.The 'FIFA' is an independent, non-governmental body controlling, promoting and supervising the game of football throughout the world giving recognition to various regional bodies and almost all national bodies interested in and affiliated with the control, promotion and management of football, in accordance with FIFA statutes. The PFF and its constitution is duly recognized by FIFA and that PFF is a member in good standing of the said organization which makes it eligible for certain grants and aid for the promotion of the aforesaid objectives of FIFA inter-alia promotion, of the game of football. Article 17 of the FIFA statutes requires that each member of FIFA shall manage its affairs independently, with no influence from any third party.
4.That elections of PFF for the term 2015-2019 were scheduled to be held and PFF Congress in its meeting on 19.11.2014 approved the schedule of the elections and an Electoral Committee was also nominated and approved. The elections for the DFAs were to be held on 21.03.2015, for the Islamabad Region on 04.04.2015 for all the provinces on 17.04.2015 and for the Federation on 30.06.2015. The elections for the Districts, the Islamabad Region and the provinces were held as per schedule and result declared by the petitioner. However, an unsuccessful candidate of PFA and candidate for the office of Vice President in the aforesaid Federation's Election (respondents Nos.8 to 10 in W.P.No.15487/2015) filed two separate writ petitions bearing Nos.12232/2015 and 12233/2015, which were disposed of by this Court on 27.04.2015 with a direction to the Sports Board, Punjab (respondent No.7) to give hearing to the petitioners therein and decide the matter through a speaking order in accordance with law within a week. Pursuant directions of this Court the Director General Sports Board Punjab vide his order dated 12.052015 declared the election of PFA held on 17.04.2015 and the result notification dated 20.04.2015 as void and nullity in the eye of law. He consequently directed one Lt. Col. (Retd..) Syed Farasat Ali Shah, the Secretary Electoral Committee PFF to hold either by himself or cause to be held through PFF Congress elections of PFA in accordance with PFF Rules and Article 10(iv) of the Constitution of Sports Board Punjab. He was also directed to invite the representatives of Pakistan Sports Board, Pakistan Olympic Association (POA) and Sports Board Punjab as observers to the said elections. The aforesaid appointee proceeded with the above directions of respondent No.7 and declared the result of the elected office bearers of PFA vide Notification dated 14.05.2015. The order dated 12.05.2015 and the subsequent Notification dated 14.05.2015 are impugned in W.P.No.15481-2015.
5.Learned counsel for the petitioner, Mr. Muhammad Afzal Khan, Advocate contends that Pakistan Football Federation is an independent body solely authorized to administer, govern, organize, manage, control and promote the game of Football in and outside Pakistan at the domestic and International levels. It is governed by its own constitution which .has been enacted and adopted by Congress of the Federation. The Federation International de Football Association (FIFA) is the supreme body for the sport of football at the international level and all its member associations including the petitioner are subject to FIFA's statutes. The PFF Constitution has been prepared in accordance with FIFA's statutes and the same is accordingly recognized by FIFA. It is also acknowledged as the governing law of PFF by the Government of Pakistan and the respondents have pledged to keep up its sanctity. Respondents, however, started violating their pledge and started interference in independence of the PFF by introducing "Sports Policy, 2005". The said policy was introduced with a design to emphatically interfere into functioning of the various sports bodies in Pakistan
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and to usurp their independence. It was submitted that the Sports Policy, 2005 SRO No.222(I)/81 dated 16.3.1981 whereby the Pakistan Sports Board for the control of sports in Pakistan was created, Pakistan Sports Board Rules, 1981 and the Sports (Development and Control) Ordinance, 1962 are ultra vires, void ab-initio and have no sanctity in the eyes of law.
6.Learned counsel for the petitioner emphatically argued that the Sports Board (Development and Control) Ordinance, 1962 was promulgated by the President of Pakistan in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962 which was notified on 01.03.1962 and in Article 224 there were given two dates for its commencement. According to clause (2) thereof the Constitution commenced on the day of its notification to enable the first general election of the members of the National Assembly and of each of the Provincial Assembly to be conducted and for the first meeting of the National Assembly to be held and also to enable any other thing to be done which for the purposes of the Constitution, it was necessary to do before the commencing day. For the remaining, the Constitution came into force on 08.06.1962, the first day of the meeting of the National Assembly. The Sports (Development and Control) Ordinance, 1962 was promulgated on 02.05.1962 a few days prior to the first meeting of the National Assembly by the President for ulterior motives in transgression of his authority. Mr. Muhammad Afzal Khan stressed that neither the circumstances so required nor was there any justifiable reason available with the President to issue the said Ordinance as the subject of sports was not included in the Central Legislative List over which the Central Government had the legislative competence and executive authority to exercise the powers, therefore, the President traveled beyond its jurisdiction to promulgate the Sports Ordinance, 1962. Even in the late Constitution of the Islamic Republic of Pakistan, 1956, subject of sports was exclusively falling within the domain of Provincial Legislature and Federal Legislature had no authority whatsoever to make laws in respect of sports. Moreso, the Ordinance has died since long, and it cannot be claimed to be an existing law in terms of the PCO No.1 of 1969, the Interim Constitution of 1972 and Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 as the said provisions of timely grund norms of the country did not provide any protection to the Ordinance inasmuch as in all probability if it is construed to have been issued by a competent authority even then it could not survive after 07.06.1964 for not being adapted in terms of clauses (4) and (5) of the Article 225 of the Constitution of 1962. Therefore the authority exercised by the Federal Government through Notification SRO No.222(I)/81 dated 16.03.1981 establishing the Pakistan Sports Board for the control of sports in Pakistan was absolutely without any constitutional mandate. Similarly the National Sports Policy, 2005 is without any lawful authority, hence the Ordinance and the said policy is liable to be struck down.
7.While addressing arguments in W.P.No.15481-2015, learned counsel for the petitioner submitted that respondent No.7 was created through Notification No.SO(Sports)1-5/83 dated 08.04.1985 by the Governor of Punjab in exercise of powers conferred upon him, under sections 3 and 4 of the Sports (Development and Control) Ordinance, 1962 which in itself is ultra vires of the Constitution and the same was issued without any lawful authority and also without following the due process of law. Even otherwise the Governor figures nowhere in the Ordinance and the authority to constitute a Board of Sports in terms of the said Ordinance, was the President of Pakistan alone and none else. There is no authority vested with the Governor to constitute respondent No.7. Therefore, the Governor of the Punjab issued the said Notification without any lawful authority and constitutional mandate. Notification being a subordinate legislation is dependent on supreme legislation in the form of an Act, Ordinance or Order as the case may be, to hold the field. Otherwise any such Notification independent of any parent statute has no legal sanctity behind it and no person can claim to have any authority to act by following such Notification and any act done or purported to have been done in the exercise of any such authority is void ab-initio, coram non judice and of no legal effect. On the basis of these arguments learned counsel submitted that the petitioner was well within his right, after receiving results of the PFA from the Provincial Election Commissioner and the electoral committee, who
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had conducted the said elections to issue the notification of the successful candidates on 20.04.2015 which was unlawfully and without authority annulled by respondent No.7 through its order dated 12.5.2015 and under the garb of sham elections issued the Notification of respondents Nos.8 to 10 as the elected office bearers of PFA on 14.05.2015. It is submitted by learned counsel for the petitioner that the aforesaid order dated 12.05.2015 and the Notification dated 14.05.2015 is, therefore, liable to be set aside.
8.Both the writ petitions have been vehemently opposed by learned counsels for the respondents as well as the learned Deputy Attorney General for Pakistan and the learned Addl. Advocate General Punjab. It has been argued by learned Deputy Attorney General for Pakistan and learned legal Advisor for Pakistan Sports Board that the Government has the absolute authority to manage and control the sports associations and federations responsible for conducting and managing the affairs of sports in Pakistan including the petitioner by virtue of Sports (Development and Control) Ordinance, 1962 which was validly promulgated by the President of Pakistan on 02.05.1962 in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962, as at that time the subject of sports was included in the concurrent legislative list. The said Ordinance demanded the establishment of one or more Sports Board for promotion, control and regulation of Sports in Pakistan and consequently Pakistan Sports Board came into being through Notification /SRO No.222(I)/81 dated 16.03.1981. It was submitted that the Constitution of 1962 was published on 01.03.1962, however it came into force on the day on which the first meeting of the National Assembly was to be held. Article 225 of the Constitution provided that all existing laws shall subject to the Constitution continue in force as far as applicable with the necessary adaptations, until altered, repealed or amended by the appropriate legislature. Existing laws have been defined in sub-clause (7) of Article 225. Admittedly the first meeting of the National Assembly was held on 08.06.1962. Thus any law which was promulgated before 08.06.1962 stood protected. Thereafter the President Order No.1 was promulgated on 30.03.1970. Article 19(1) of the said order provided that all existing laws shall continue in force and existing laws have been defined in the explanation of the said Article. As such the Sports (Development and Control) Ordinance, 1962 continued to remain in force. Then came the Interim Constitution of the Islamic Republic of Pakistan of 1972 which also protected the existing laws in terms of Article 280(1). In 1973 the Constitution of Islamic Republic of Pakistan was enacted and its Article 268(1) gave continuity to all the existing laws defined in sub clause (7) thereof. On the basis of the above chronological resume of the legislative events of the country it was vigorously argued that the Sports (Development and Control) Ordinance, 1962 was validly promulgated and has been continuously in force since its inception and is still an existing law. That no doubt at present sports is a provincial subject and now the provincial government has the power to amend the said law, but so far none of the provinces has amended the said law, therefore, it holds the field.
9.Learned Additional Advocate General Punjab submitted since 1956 Constitution and particularly after the l8th Amendment to the Constitution of Islamic Republic of Pakistan, 1973 sports has been and is a provincial subject and it is the provincial government which enjoys the legislative competence and the executive authority to frame the laws and to exercise powers thereunder in this regard. As such the Governor of the Punjab validly and competently issued Notification bearing No.SO(Sports)1-5/83 dated 08.04.1985 in exercise of powers conferred upon him under sections 3 and 4 of the Sports (Development and Control) Ordinance, 1962. It was further submitted that a Notification of the same kind was also issued previously by the then Governor of the Punjab vide No. SO(IM)8-1970 dated 18.08.1970 and latter, mutatis mutandis, is in continuity of the former. Learned Legal Advisor of respondent No.7 while adopting arguments of the learned Law Officer submitted that by virtue of the aforesaid Notification of 1985 the Sports Board Punjab is a legally constituted body to exercise control over sports within the Province of Punjab; that in compliance with the order of this Court dated 27.04.2015 passed in W.P. 12232 of 2015 respondent No.7 vide order dated 12.05.2015 lawfully declared the elections of the Punjab Football Association held on 17.04.2015 as null and void and directed for holding fresh elections pursuant to which the result notification dated 14.05.2015 was
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issued accordingly.
10.Arguments heard. Record perused.
11.The first and foremost constitutional point raised by learned counsel for the petitioner requiring determination by this Court is whether Sports (Development and Control) Ordinance, 1962 was issued by the then President of Pakistan lawfully and with legislative competence and whether it is still an existing law? To adjudge the legal status of the Sports (Development and Control) Ordinance, 1962 we have to take into consideration the various legislative milestones/events having taken place chronologically from their very inception in the legislative journey of this nation. In the Constitution of 1956 "sports" was included in the provincial list as Item No.24 and as such the provincial legislature was vested with the authority to make laws relating to sports. On 07.10.1958 Martial Law was imposed in the country and President Order (post proclamation) No.1 was issued on 10.10.1958. Article 2 of the said order provided:-
"2.(1) Notwithstanding the abrogation of the constitution of the 23rd March, 1956 hereinafter referred to as the late Constitution, by the proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution."
On 21.03.1959, Legislative Power Order, 1959 was promulgated. It was amended by President Order No.17 of 1959 and paragraph 4 was added, clause (a) whereof is relevant which is reproduced as under:-
(a)the matters enumerated in the Provincial List in the Fifth Schedule to the late Constitution shall be deemed to have been included in the Concurrent List of that Schedule;
Thus by virtue of above amendment the subject of Sports stood included in the concurrent legislative list over which the Federal as well as the Provincial legislature both got the power to legislate upon.
12.The Sports (Development and Control) Ordinance, 1962 was issued by the President on 02.05.1962. The Constitution of 1962 was promulgated on 01.03.1962, however, it was stated to come into force on the day on which the first meeting of the National Assembly was to be held. Article 224 thereof reads as under:-
"224. Commencement.--- (I) Subject to clause (2) of this Article, this Constitution shall come into force on the day on which the first meeting of the National Assembly is held."
Article 225 of the Constitution provided that all existing laws shall subject to the Constitution continue in force as far as applicable with the necessary adaptations, until altered, repealed or amended by the appropriate legislature and, existing laws were defined in Sub-Article (7) thereof as under:-
(7)In this Article, " existing laws " means all laws (including Ordinances, Orders in Council , Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments (having the force of law ) in force in Pakistan or any part of Pakistan, or having extra territorial validity, immediately before the commencing day.
Commencing day was defined in Article 242 as under:-
"Commencing day means the days on which the first meeting of the first National Assembly is held."
13.Admittedly the first .meeting of the National Assembly was held on 08.06.1962. Thus any law which was promulgated before 08.06.1962 stood protected in view of Article 225 of the Constitution of 1962 and
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the said Ordinance continued in force. Then the President Order No.1 of 1970 was issued on 30.03.1970. Article 19(1) of the said order provided that all existing laws shall continue in force and existing laws were defined in explanation to the aforesaid Article. Thereafter, Interim Constitution of Islamic Republic of Pakistan came into force on 15.04.1972. Article 280(1) of the Interim Constitution provided that all existing laws shall continue in force and existing laws were defined in sub-Article (8) of Article 280. Thus the Sports (Development and Control) Ordinance, 1962 stood protected and continued in force being an existing law. In 1973 the Constitution of Islamic Republic of Pakistan came into being. Article 268(1) thereof Provided that all existing laws shall continue to be in force and existing Laws were defined in Sub-Article (7).
14.From the above resume it is abundantly established that the Sports (Development and Control) Ordinance, 1962 was validly promulgated by the then President of Pakistan in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962, it continued to be protected by every succeeding constitutional set up and as such is still in force. Presently after the 18th Amendment to the Constitution of Islamic Republic of Pakistan, 1973, sports is now a Provincial subject and the Provincial legislature of each Province has got the power to amend the aforesaid legislation to adopt to its requirement or to promulgate a fresh enactment but as no Province has yet amended the said law it, therefore, holds the field and as a necessary corollary all Notifications, Policies, Rules, Regulations etc. flowing from the said Ordinance will be deemed to be legally issued. Therefore, calling in question the validity of the Sports Policy, 2005 SRO No.222(I)/81, dated 16.03.1981 establishing Pakistan Sports Board and Notification No SRO (Sports)1-5/83 dated 08-04-1985 whereby Sports Board Punjab was created, is held to be without any legal basis and is thus rejected.
15.Now coming to the controversy being the subject matter of W.P.No.15481 of 2015, it may be observed that elections of the PFF for the term 2015-2019 were being held as per schedule and in the meanwhile respondents Nos.8 and 9 filed Writ Petitions Nos.12232 of 2015 and 12233 of 2015 challenging the result of elections of PFA (held at provincial level) on 17.04.2015. The final and fourth tier of elections at Federal level were yet to be held on 30.06.2015. The aforesaid writ petitions were disposed of by this Court vide order dated 27.04.2015 with a direction to respondent No.7 (Sports Board Punjab) to treat copy of the writ petitions as representation on behalf of the petitioners therein and decide them after granting a hearing to them by passing a speaking order strictly in accordance with law within a week from receipt of the order. The aforesaid order was challenged by the petitioner in ICA No.649/2015 before a Division Bench of this Court but the appeal was dismissed vide order dated 18.05.2015. Pursuant to the directions of this Court the Director General of Sports Board Punjab vide order dated 12.05.2014 declared the election of PFA held on 17.04.2015 and the result notification dated 20.04.2015 as void and directed Lt.Col.(Retd.) Syed Farasat Ali Shah, the Secretary Electoral Committee of PFF to hold fresh election of PFA. Accordingly aforesaid appointee proceeded with the directions of the Sports Board Punjab and issued notification dated 14.05.2015 of the elected office bearers of the PFA.
16.On 29.06.2015 during the course of hearing of the instant writ petition the aforesaid Lt.Col.(Retd.) Syed Farasat Ali Shah who had conducted the election of PFA on the directions of Sports Board Punjab pursuant to the orders of this Court dated 27.04.2015 passed in Writ Petition No.13232 of 2015, appeared and stated that as per Extraordinary meeting of the Congress held on 16.06.2015 under Article 30 of the PFF Constitution, there is an in house change in the management of the governing body of the PFF and the Congress has elected Muhammad Arshad Khan Lodhi as its Acting President while Syed Faisal Saleh Hayat is no more President of the PFF. This Court, therefore, while sensing the extremely polarized situation between the rival groups who were out to get control of the PFF by hook or by crook, passed the following observations/directions:-
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"4.It is an unfortunate situation that two different groups of politicians and ex-high ranking officials are contesting tooth and nail for the control of PFF. There are allegations and counter allegations of use of force for undertaking certain acts. This Court directs that both the parties will undertake the transition and the transfer of any responsibility in a peaceful manner and will refrain from using force or breaking any law by use of brute force or abuse of any process.
5.It is reported by the Deputy Attorney General that both the factions are adamant to hold elections separately at two different venues. One is being undertaken tomorrow at Ambassador Hotel, Lahore wherein certain members of the Congress will participate while another election is being held in Changla Gali, KPK. Both the parties are restrained from holding elections of PFF until the outcome of this and other connected writ petitions challenging the vires of different actions taken by different actors involved in this controversy, whereafter election will be directed to be held in accordance with law by this Court."
17.The above order was passed on 29.05.2015 in presence of learned counsel for the parties nevertheless in sheer violation of the above injunction Faisal Saleh Hayat group conducted their election as planned at Chhangla Gali for which they are facing separate contempt proceedings. In these circumstances this Court on 23.07.2015 passed the following order appointing Administrator of the PFF:-
"In sheer disobedience to this Court's order it is noted that both the parties have paid little heed to the above observations and did not show respect to the injunctive order passed by this Court by trying to take things in their own hands, thus, leading to a stand off against each other which is likely to cause a law and order situation and may result in physical clash between the contesting parties. It is alleged on behalf of the faction headed by Mr. Faisal Saleh Hayat that he has been illegally ousted from the office of PFF by his opponent Mr. Arshad Khan Lodhi in connivance with the Government of the Punjab and a contingent of 150-200 armed men have taken over charge of the said office from him forcibly. On the other hand, the faction headed by Mr. Arshad Khan Lodhi is raising serious charges of corruption and misuse of funds of the PFF by Mr. Faisal Saleh Hayat in which they allege that he is using a four wheeler and two sedan cars, along with 30 odd personal body guards, all of which is being done by using the PFF funding. Further, they are raising allegations of embezzlement of funds obtained from FIFA on the pretext of flood relief and also running football academies, which according to them are ghost academies. This is not a very commendable situation. There are allegations and counter allegations on behalf of both the factions and if this tussle between the two groups continues besides causing harm to the persons from both sides, PFF which is a sporting body will suffer badly, thus, further deteriorating the cause of 'football' in Pakistan.
5.In the circumstances, the so-called elections of PFF, which were held on 30.06.2015 somewhere at Changla Gali District Abbottabad, KPK during the existence of injunctive order passed by this Court, are declared illegal, unconstitutional, mala fide and collusive and the same are annulled. This Court is appointing Mr. Justice (R) Asad Munir as Administrator of the Pakistan Football Federation, who will take charge of the PFF forthwith. There will be no transactions in the accounts of PFF by any of the two feuding factions. The Administrator will look after all the affairs of PFF including operating of its accounts to run the day to day affairs of the organization. All the employed staff of PFF will work under his directions so long as he remains the Administrator. All executive and law enforcing agencies will act in aid of the learned Administrator in carrying out orders of this Court.
6.The Administrator will also get conducted an audit by appointing an Auditor of all the funds used by the various office bearers/organizers of the Pakistan Football Federation and submit a report to this Court in the next six weeks."
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18.The above order of this Court was assailed by the petitioners before the Hon'ble Supreme Court of Pakistan in C.P.No.2379 of 2015 which was disposed of on 21.09.2015 with the following observations:--
"We have heard the case at some length. A look at the impugned order would reveal that both the parties are at the moment out of the arena as an administrator has been appointed to look after the affairs of Pakistan Football Federation and elections held in contravention of the order of the High Court have been declared null and void. In the circumstances, we would not like to intervene as any order at this stage by this Court is likely to create chaos. We expect the Hon'ble Judge of the High Court to decide the whole controversy on the next date of hearing or soon thereafter. In case, any grievance of the petitioners survivers, they may, if so advised, approach the competent forum including this Court. Disposed of accordingly."
19.The contention of the learned counsel for the petitioner is that PFF is an independent entity and respondent No.7 has, in law, no authority and jurisdiction to interfere in its affairs, therefore, under the order of this Court dated 27.04.2015 respondent No.7 without any legal mandate set aside the PFA election held on 17.04.2015, the resultant notification dated 20.04.2015 and proceeded to pass directions for holding election afresh. No doubt there is an inbuilt mechanism provided in the PFF Constitution, Election Rules and Regulations for holding the elections and resolution of the disputes arising therefrom, however, Pakistan Sports Board and Sports Board Punjab are vested with the powers to manage, control and supervise all such affairs of the PFF and the PFA respectively being lawful creation of the Sports (Development and Control) Ordinance, 1962 as has been held above. The way and the manner in which the rival groups are trying to take over management and control of the PFF can neither be termed within the mandate of the Statutes of the PFF nor approved by any organ of a civilized society. So much so the orders of this Court were flouted and sham election was conducted at Changla Gali on 30.06.2015 during the existence of injunctive order, by the Faisal Saleh Hayat Group. One group allegedly took over charge of the petitioner-federation forcibly with the help of armed personnel. There are allegations and counter allegations of mass corruption, embezzlement and misappropriation of the funds of the PFF. Each of the rival group is trying to take over charge and control of the management of the PFF by every possible means. In these circumstances, the so-called election held at Changla Gali on 30.06.2015 during the existence of an injunctive order of this Court was annulled and the Administrator was appointed. The Hon'ble Supreme Court of Pakistan in case 'Bakhtawar etc. v. Amin etc.' (1980 SCMR 89) has held that "when by contravening an injunction order the party against whom the order passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, a if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court."
20.The contention of learned counsel for the respondents is that Mr. Faisal Saleh Hayat has already completed two tenures of the office of President of the PFF as such he is debarred from holding the same post further, in view of the provision contained in Para 10(5) of the National Sports Policy, 2005 and the rules made thereunder. Admittedly Mr. Faisal Saleh Hayat has already enjoyed the office of the President of PFF thrice (including the last term which expired on 30.06.2015). Para 10(5) of the National Sports Policy which was notified by the Federal Govt. vide SRO No.1249(I)/2005 dated 05.12.2005 provides as under:-
"(b)President, Honorary Secretary and the Treasurer will be allowed a maximum of two tenures, in any office of the Federation or Association after which they will become ineligible for holding the same posts of that particular Federation or Association. However, they will be allowed to contest for next higher Post/Association at any time."
Learned counsel for the petitioner has not been able to deny the factum of holding of office of President for
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three terms which is indirect contravention of the above provision of the Sports Policy, legality whereof has been affirmed by this Court in the preceding paras of this Judgment being in conformity with the Sports (Development and Control) Ordinance, 1962.
21.During the course of arguments learned counsel for the petitioner has laid much emphasis that the promulgation of the revised National Sports Policy, 2005 is a direct intervention on the part of the government in the affairs of the Pakistan Football Federation and that the government is not authorized to undertake such intervention in the working of independent and specifically created sports body like PFF and that such intervention would entail severe reaction on behalf of FIFA in the form of boycott of PFF or imposing ban against Pakistani teams for participating in international tournaments and disallowing international coaches and referees to come to Pakistan. The said arguments on behalf of the petitioner are totally misconceived and devoid of any substance for the simple reason that Pakistan Sports Board is a duly constituted legal body under the laws of Pakistan, mandate whereof is to regulate the functions of various bodies and federations which are involved in the promotion of sports throughout Pakistan. Policy making is a function which is exclusively in the domain of the Federal or Provincial Government as the case may be and even Courts do not intervene in the policy matters unless such policies are perverse, ab initio void or against the constitutional guarantees. Reliance in this regard is placed on case reported as 'Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others' (PLD 2014 SC 1). Therefore, it is abundantly clear that where the Federal Government or the Provincial Government formulate a policy in accordance with law and under the mandate of the constitution, but not in conformity with any policy of a private body, may it be an international body like FIFA, the policy promulgated in Pakistan by its Government would prevail upon the statute, policy, directions etc. of such a body. The revised Sports Policy, 2005 requires that the elected office bearers at all levels of Sports Federations/Organizations shall not be elected more than twice on a particular post or designation. On this point it would be advantageous to look at the statutes of Asian Football Confederation and FIFA relating to the provisions of tenure / term for which the President of the said Organizations can be elected. As per Article 37 of the Asian Football Confederation's Constitution, its President shall be elected by the Congress for a period of four years and may be eligible to be re-elected subject to the provision of Article 31.8, which postulates that no person shall be elected to the office of President for more than three terms (12 years in total). As per FIFA statute, its President shall be elected by FIFA Congress for a period of four years and will be eligible for re-election. However, no individual person may serve for the post of President for more than 3 terms (12 years).
22.From the above comparison of the statutes of AFC and FIFA when read in juxtaposition with the Revised National Sports Policy, 2005 it is quite evident that office bearers of any sports organization cannot hold such office for life or an indefinite period. The aforesaid two private sector sports bodies controlling football internationally with which PFF is affiliated, have restricted a person from holding office of the President for more than 3 terms. Thus providing a certainty in the maximum period that can be availed by that particular person in holding the post of President, therefore, if Government of Pakistan in its policy making wisdom stipulates in the National Sports Policy that certain elected office bearers shall not be electable for more than two terms on a particular appointment/designation, that will not tantamount to interference or intervention in the working/functioning of any such body including PFF as the said policy is not aimed at the petitioners specifically rather it has been formulated to be applicable to all sports bodies across the board. The National, Provincial, Regional sports bodies etc. cannot be considered as personal property, domain, bounty and fiefdom of the individuals who are occupying the elected posts for running/managing such bodies as public servants or elected office bearers thereof. These individuals have to conduct themselves in accordance with code of conduct meant for an acceptable legal and judicial system of this country with full transparency and conformity to law. It is the case of the petitioner that its President Mr. Faisal Saleh Hayat after completing his initial two tenures in office was elected for the 3rd term 2011-2015 as
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the President of PFF and that he is desirous of continuing for a fourth (4th) tenure for the period 2015-2019. This act of Mr. Faisal Saleh Hayat is not only in direct contravention of the statutory bar of two terms provided in the National Sports Policy, 2005 but is also in conflict with the restriction placed by AFC and FIFA on holding the office of President by any particular person for more than three terms of four years each. Mr. Ahmed Yar Lodhi who is a paid official/Secretary of PFF appears to be blindly acting at the whims of Mr. Faisal Saleh Hayat and instead of performing his statutory duty of up-keeping the smooth functioning of PFF, he has become an instrument in the hands of Mr. Faisal Saleh Hayat who is promoting his personal agenda of taking control of PFF for an indefinite period.
23.In view of the circumstances narrated above, the election of PFA held on 17.04.2015 and the resultant notification dated 20.04.2015 and so also the election held on 12.05.2015 and resultant notification dated 14.05.2015 and thereafter the so-called election of PFF held on 30.06.2015 are declared as illegal, void ab-initio, collusive and mala fide, therefore, all are hereby set-aside. A panel of three persons including Secretary Pakistan Sports Board, Islamabad, Secretary Sports Board Punjab and Secretary Sports Board Khyber Pakhtunkhwa is constituted to act as Electoral Committee which will manage and conduct fresh elections of PFA and PFF in accordance with the relevant provisions of the PFF Constitution, Rules and Regulations within a period of four months. The Secretary, Pakistan Sports Board, Islamabad will be the Chairperson of the aforesaid Electoral Committee. After the said elections control of PFF will be peacefully handed over to the elected office bearers by the Administrator appointed by this Court. The Administrator will cooperate with the Electoral Committee in conducting the elections. The Administrator in his report No.2 dated 12.12.2015 has pointed out that some of vehicles of the PFF are being used unauthorizedly by Mr. Faisal Saleh Hayat and Mr. Muhammad Arshad Khan Lodhi and PFF's domain name is also being controlled by Mr. Faisal Saleh Hayat. He. is directed to adopt all coercive steps to retrieve all the property of the PFF from unauthorized control of the aforesaid persons or any one else who may be in possession thereof. If any office bearer(s) of the PFF is found involved in embezzlement/ misappropriation of the funds of the Federation, he will be at liberty to lodge criminal as well as civil proceedings against him/them.
24.As a sequel to the above discussion, both the writ petitions are dismissed with the above observations/directions.
MH/P-9/LPetitions dismisse
[Lahore]
Before Muhammad Farrukh Irfan Khan, J
PAKISTAN FOOTBALL FEDERATION----Petitioner
Versus
The GOVERNMENT OF PAKISTAN and others----Respondents
Writ Petitions Nos.21071 of 2012 and 15481 of 2015, decided on 3rd May, 2016.
(a) Sports (Development and Control) Ordinance (XVI of 1962)---
----Ss. 1, 3 & 4---Constitution of Pakistan, Art.268(1)---Promulgation of Sports (Development and Control) Ordinance, 1962---Validity---Sports (Development and Control) Ordinance, 1962, was validly promulgated by the then President of Pakistan in exercise of powers conferred upon him in terms of Constitution of Pakistan, 1962---Said Ordinance continued to be protected by every succeeding Constitutional set up and as such was still in force.
(b) Constitution of Pakistan---
----Art. 29---Policy making---Scope---Policy making is a function which is exclusively in the domain of Federal or Provincial Government as the case may be-- Even Courts do not intervene in the policy matters unless such policies are perverse, ab initio void or against Constitutional guarantees---Where Federal Government or Provincial Government formulate a policy in accordance with law and under the mandate of the Constitution but not in an conformity with any policy of a private body, may it be an international body, the policy promulgated in Pakistan by its Government would prevail upon statute, policy, direction etc. of such international body.
rel.
Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1
(c) Sports (Development and Control) Ordinance (XVI of 1962)---
----Ss.3 & 4---Constitution of Federation Internationale de Football Association, Art.17---Constitution of Asian Football Confederation, Arts.31.8 & 37---National Sports Policy, 2005---Election of President of Football Federation---Tenure of term---Petitioner, Pakistan Football Federation (PFF) was aggrieved and wanted to get its candidate for the post of President elected for fourth term after completing his earlier three terms of 4 years each---Validity---Two private sector sports bodies controlling football internationally with which PFF was affiliated, had restricted a person from holding office of the President for more than three terms thus providing a certainty in the maximum period that could be availed by that particular person in holding the post of President---Government in its National Sports Policy, 2005, had rightly held that certain office bearers would not be electable for more than two terms on a particular appointment/designation and the same did not tantamount to interference or intervention in the working/ functioning of any such body including PFF as the Policy was not aimed at petitioner specifically rather it was formulated to be applicable to all sports bodies across the board---Candidate of petitioner after completing his initial two tenures in office was elected for the third term 2011-2015 as President of PFF and that he was desirous of continuing for a
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fourth tenure for the period of 2015-2019---Such act of the candidate of PFF was not only in direct contravention of the statutory bar of two terms provided in National Sports Policy, 2005, but was also in conflict with restriction placed by AFC and FIFA on holding the office of President by any particular person for more than three terms of four years each---High Court declined to interfere in National Sports Policy, 2005---Petition was dismissed in circumstances.
JUDGMENT
Bakhtawar and others v. Amin and others 1980 SCMR 89 ref.
Muhammad Afzal Khan for Petitioner.
Muhammad Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan.
Munir Ahmed Paracha for Pakistan Sports Board, Islamabad.
Siraj-ul-Islam Khan, Addl. A.G. with Shahid Mahmood Nizami and Shafqat Mahmood, Law Officers of Sports Board, Punjab.
Ch. Zulfiqar Ali for Respondents Nos.8 to 10 (in W.P. No.15481 of 2015).
Sardar Ilyas Kaleem for Colonel (Rtd.) Farasat Ali.
Dates of hearing: 31st December, 2015, 28th April and 3rd May, 2016.
MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this judgment I intend to dispose of Writ Petition No.21071-2012 as well as Writ Petition No.15481/2015 together as the latter is dependent on the fate of the former and they proceed on the same law points. In W.P.No.21071/12 the petitioner has challenged the very constitutionality of the Sports (Development and Control) Ordinance, 1962 and sought judicial review of the validity and legality of all other subordinate legislation i.e. Notifications, Policies, Rules, Regulations etc. emanating from the said Ordinance while in W.P. No.15481/2015 the petitioner has impugned the order dated 12.05.2015 of the Sports Board Punjab and subsequently the Notification dated 14.05.2015 with the prayer to declare them unconstitutional, illegal, void ab-initio, coram non judice and consequently to restore the Notification dated 20.04.2015 issued by the petitioner.
2.Background of the controversy at hand is that the petitioner-Pakistan Football Federation (hereinafter called as) 'PFF' an independent body to manage and control the affairs of sports namely Football in and outside Pakistan and at international level. Its head quarter is located at Lahore. It is governed by its own constitution namely Pakistan Football Federation Constitution (PFF Constitution). The Congress of the Federation being the legislative body of PFF has enacted and adopted the said Constitution. The Executive Committee is the executive body of PFF which comprises of a President, three (3) Vice-Presidents one of whom shall be Senior Vice-President, eight (8) members from Provinces and three (3) members from the Services Organizations. Its office bearers are appointed through elections which are conducted after every four years, initially at the district level all over Pakistan, the Football clubs affiliated with the PFF also elect respective District Football Associations (DFAs). Then the DFAs elect the Provincial Football Associations (PFAs) in all the four Provinces of Pakistan, one Football Association is elected from the Islamabad Region (ICP Football Association). Finally elections are held at the Federal level for which the electoral college is the members nominated by the PFAs, and the Islamabad region. The petitioner is governed under its Statute called PFF Constitution duly approved by its Congress/Executive. Constitution of PFF (Para 9) requires that PFF be affiliated with the following:-
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(i)The Federation International de Football Association (FIFA).
(ii)Asian Football Confederation (AFC)
(iii)Pakistan Olympic Association
(iv)Pakistan Sports Board
3.The 'FIFA' is an independent, non-governmental body controlling, promoting and supervising the game of football throughout the world giving recognition to various regional bodies and almost all national bodies interested in and affiliated with the control, promotion and management of football, in accordance with FIFA statutes. The PFF and its constitution is duly recognized by FIFA and that PFF is a member in good standing of the said organization which makes it eligible for certain grants and aid for the promotion of the aforesaid objectives of FIFA inter-alia promotion, of the game of football. Article 17 of the FIFA statutes requires that each member of FIFA shall manage its affairs independently, with no influence from any third party.
4.That elections of PFF for the term 2015-2019 were scheduled to be held and PFF Congress in its meeting on 19.11.2014 approved the schedule of the elections and an Electoral Committee was also nominated and approved. The elections for the DFAs were to be held on 21.03.2015, for the Islamabad Region on 04.04.2015 for all the provinces on 17.04.2015 and for the Federation on 30.06.2015. The elections for the Districts, the Islamabad Region and the provinces were held as per schedule and result declared by the petitioner. However, an unsuccessful candidate of PFA and candidate for the office of Vice President in the aforesaid Federation's Election (respondents Nos.8 to 10 in W.P.No.15487/2015) filed two separate writ petitions bearing Nos.12232/2015 and 12233/2015, which were disposed of by this Court on 27.04.2015 with a direction to the Sports Board, Punjab (respondent No.7) to give hearing to the petitioners therein and decide the matter through a speaking order in accordance with law within a week. Pursuant directions of this Court the Director General Sports Board Punjab vide his order dated 12.052015 declared the election of PFA held on 17.04.2015 and the result notification dated 20.04.2015 as void and nullity in the eye of law. He consequently directed one Lt. Col. (Retd..) Syed Farasat Ali Shah, the Secretary Electoral Committee PFF to hold either by himself or cause to be held through PFF Congress elections of PFA in accordance with PFF Rules and Article 10(iv) of the Constitution of Sports Board Punjab. He was also directed to invite the representatives of Pakistan Sports Board, Pakistan Olympic Association (POA) and Sports Board Punjab as observers to the said elections. The aforesaid appointee proceeded with the above directions of respondent No.7 and declared the result of the elected office bearers of PFA vide Notification dated 14.05.2015. The order dated 12.05.2015 and the subsequent Notification dated 14.05.2015 are impugned in W.P.No.15481-2015.
5.Learned counsel for the petitioner, Mr. Muhammad Afzal Khan, Advocate contends that Pakistan Football Federation is an independent body solely authorized to administer, govern, organize, manage, control and promote the game of Football in and outside Pakistan at the domestic and International levels. It is governed by its own constitution which .has been enacted and adopted by Congress of the Federation. The Federation International de Football Association (FIFA) is the supreme body for the sport of football at the international level and all its member associations including the petitioner are subject to FIFA's statutes. The PFF Constitution has been prepared in accordance with FIFA's statutes and the same is accordingly recognized by FIFA. It is also acknowledged as the governing law of PFF by the Government of Pakistan and the respondents have pledged to keep up its sanctity. Respondents, however, started violating their pledge and started interference in independence of the PFF by introducing "Sports Policy, 2005". The said policy was introduced with a design to emphatically interfere into functioning of the various sports bodies in Pakistan
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and to usurp their independence. It was submitted that the Sports Policy, 2005 SRO No.222(I)/81 dated 16.3.1981 whereby the Pakistan Sports Board for the control of sports in Pakistan was created, Pakistan Sports Board Rules, 1981 and the Sports (Development and Control) Ordinance, 1962 are ultra vires, void ab-initio and have no sanctity in the eyes of law.
6.Learned counsel for the petitioner emphatically argued that the Sports Board (Development and Control) Ordinance, 1962 was promulgated by the President of Pakistan in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962 which was notified on 01.03.1962 and in Article 224 there were given two dates for its commencement. According to clause (2) thereof the Constitution commenced on the day of its notification to enable the first general election of the members of the National Assembly and of each of the Provincial Assembly to be conducted and for the first meeting of the National Assembly to be held and also to enable any other thing to be done which for the purposes of the Constitution, it was necessary to do before the commencing day. For the remaining, the Constitution came into force on 08.06.1962, the first day of the meeting of the National Assembly. The Sports (Development and Control) Ordinance, 1962 was promulgated on 02.05.1962 a few days prior to the first meeting of the National Assembly by the President for ulterior motives in transgression of his authority. Mr. Muhammad Afzal Khan stressed that neither the circumstances so required nor was there any justifiable reason available with the President to issue the said Ordinance as the subject of sports was not included in the Central Legislative List over which the Central Government had the legislative competence and executive authority to exercise the powers, therefore, the President traveled beyond its jurisdiction to promulgate the Sports Ordinance, 1962. Even in the late Constitution of the Islamic Republic of Pakistan, 1956, subject of sports was exclusively falling within the domain of Provincial Legislature and Federal Legislature had no authority whatsoever to make laws in respect of sports. Moreso, the Ordinance has died since long, and it cannot be claimed to be an existing law in terms of the PCO No.1 of 1969, the Interim Constitution of 1972 and Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 as the said provisions of timely grund norms of the country did not provide any protection to the Ordinance inasmuch as in all probability if it is construed to have been issued by a competent authority even then it could not survive after 07.06.1964 for not being adapted in terms of clauses (4) and (5) of the Article 225 of the Constitution of 1962. Therefore the authority exercised by the Federal Government through Notification SRO No.222(I)/81 dated 16.03.1981 establishing the Pakistan Sports Board for the control of sports in Pakistan was absolutely without any constitutional mandate. Similarly the National Sports Policy, 2005 is without any lawful authority, hence the Ordinance and the said policy is liable to be struck down.
7.While addressing arguments in W.P.No.15481-2015, learned counsel for the petitioner submitted that respondent No.7 was created through Notification No.SO(Sports)1-5/83 dated 08.04.1985 by the Governor of Punjab in exercise of powers conferred upon him, under sections 3 and 4 of the Sports (Development and Control) Ordinance, 1962 which in itself is ultra vires of the Constitution and the same was issued without any lawful authority and also without following the due process of law. Even otherwise the Governor figures nowhere in the Ordinance and the authority to constitute a Board of Sports in terms of the said Ordinance, was the President of Pakistan alone and none else. There is no authority vested with the Governor to constitute respondent No.7. Therefore, the Governor of the Punjab issued the said Notification without any lawful authority and constitutional mandate. Notification being a subordinate legislation is dependent on supreme legislation in the form of an Act, Ordinance or Order as the case may be, to hold the field. Otherwise any such Notification independent of any parent statute has no legal sanctity behind it and no person can claim to have any authority to act by following such Notification and any act done or purported to have been done in the exercise of any such authority is void ab-initio, coram non judice and of no legal effect. On the basis of these arguments learned counsel submitted that the petitioner was well within his right, after receiving results of the PFA from the Provincial Election Commissioner and the electoral committee, who
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had conducted the said elections to issue the notification of the successful candidates on 20.04.2015 which was unlawfully and without authority annulled by respondent No.7 through its order dated 12.5.2015 and under the garb of sham elections issued the Notification of respondents Nos.8 to 10 as the elected office bearers of PFA on 14.05.2015. It is submitted by learned counsel for the petitioner that the aforesaid order dated 12.05.2015 and the Notification dated 14.05.2015 is, therefore, liable to be set aside.
8.Both the writ petitions have been vehemently opposed by learned counsels for the respondents as well as the learned Deputy Attorney General for Pakistan and the learned Addl. Advocate General Punjab. It has been argued by learned Deputy Attorney General for Pakistan and learned legal Advisor for Pakistan Sports Board that the Government has the absolute authority to manage and control the sports associations and federations responsible for conducting and managing the affairs of sports in Pakistan including the petitioner by virtue of Sports (Development and Control) Ordinance, 1962 which was validly promulgated by the President of Pakistan on 02.05.1962 in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962, as at that time the subject of sports was included in the concurrent legislative list. The said Ordinance demanded the establishment of one or more Sports Board for promotion, control and regulation of Sports in Pakistan and consequently Pakistan Sports Board came into being through Notification /SRO No.222(I)/81 dated 16.03.1981. It was submitted that the Constitution of 1962 was published on 01.03.1962, however it came into force on the day on which the first meeting of the National Assembly was to be held. Article 225 of the Constitution provided that all existing laws shall subject to the Constitution continue in force as far as applicable with the necessary adaptations, until altered, repealed or amended by the appropriate legislature. Existing laws have been defined in sub-clause (7) of Article 225. Admittedly the first meeting of the National Assembly was held on 08.06.1962. Thus any law which was promulgated before 08.06.1962 stood protected. Thereafter the President Order No.1 was promulgated on 30.03.1970. Article 19(1) of the said order provided that all existing laws shall continue in force and existing laws have been defined in the explanation of the said Article. As such the Sports (Development and Control) Ordinance, 1962 continued to remain in force. Then came the Interim Constitution of the Islamic Republic of Pakistan of 1972 which also protected the existing laws in terms of Article 280(1). In 1973 the Constitution of Islamic Republic of Pakistan was enacted and its Article 268(1) gave continuity to all the existing laws defined in sub clause (7) thereof. On the basis of the above chronological resume of the legislative events of the country it was vigorously argued that the Sports (Development and Control) Ordinance, 1962 was validly promulgated and has been continuously in force since its inception and is still an existing law. That no doubt at present sports is a provincial subject and now the provincial government has the power to amend the said law, but so far none of the provinces has amended the said law, therefore, it holds the field.
9.Learned Additional Advocate General Punjab submitted since 1956 Constitution and particularly after the l8th Amendment to the Constitution of Islamic Republic of Pakistan, 1973 sports has been and is a provincial subject and it is the provincial government which enjoys the legislative competence and the executive authority to frame the laws and to exercise powers thereunder in this regard. As such the Governor of the Punjab validly and competently issued Notification bearing No.SO(Sports)1-5/83 dated 08.04.1985 in exercise of powers conferred upon him under sections 3 and 4 of the Sports (Development and Control) Ordinance, 1962. It was further submitted that a Notification of the same kind was also issued previously by the then Governor of the Punjab vide No. SO(IM)8-1970 dated 18.08.1970 and latter, mutatis mutandis, is in continuity of the former. Learned Legal Advisor of respondent No.7 while adopting arguments of the learned Law Officer submitted that by virtue of the aforesaid Notification of 1985 the Sports Board Punjab is a legally constituted body to exercise control over sports within the Province of Punjab; that in compliance with the order of this Court dated 27.04.2015 passed in W.P. 12232 of 2015 respondent No.7 vide order dated 12.05.2015 lawfully declared the elections of the Punjab Football Association held on 17.04.2015 as null and void and directed for holding fresh elections pursuant to which the result notification dated 14.05.2015 was
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issued accordingly.
10.Arguments heard. Record perused.
11.The first and foremost constitutional point raised by learned counsel for the petitioner requiring determination by this Court is whether Sports (Development and Control) Ordinance, 1962 was issued by the then President of Pakistan lawfully and with legislative competence and whether it is still an existing law? To adjudge the legal status of the Sports (Development and Control) Ordinance, 1962 we have to take into consideration the various legislative milestones/events having taken place chronologically from their very inception in the legislative journey of this nation. In the Constitution of 1956 "sports" was included in the provincial list as Item No.24 and as such the provincial legislature was vested with the authority to make laws relating to sports. On 07.10.1958 Martial Law was imposed in the country and President Order (post proclamation) No.1 was issued on 10.10.1958. Article 2 of the said order provided:-
"2.(1) Notwithstanding the abrogation of the constitution of the 23rd March, 1956 hereinafter referred to as the late Constitution, by the proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution."
On 21.03.1959, Legislative Power Order, 1959 was promulgated. It was amended by President Order No.17 of 1959 and paragraph 4 was added, clause (a) whereof is relevant which is reproduced as under:-
(a)the matters enumerated in the Provincial List in the Fifth Schedule to the late Constitution shall be deemed to have been included in the Concurrent List of that Schedule;
Thus by virtue of above amendment the subject of Sports stood included in the concurrent legislative list over which the Federal as well as the Provincial legislature both got the power to legislate upon.
12.The Sports (Development and Control) Ordinance, 1962 was issued by the President on 02.05.1962. The Constitution of 1962 was promulgated on 01.03.1962, however, it was stated to come into force on the day on which the first meeting of the National Assembly was to be held. Article 224 thereof reads as under:-
"224. Commencement.--- (I) Subject to clause (2) of this Article, this Constitution shall come into force on the day on which the first meeting of the National Assembly is held."
Article 225 of the Constitution provided that all existing laws shall subject to the Constitution continue in force as far as applicable with the necessary adaptations, until altered, repealed or amended by the appropriate legislature and, existing laws were defined in Sub-Article (7) thereof as under:-
(7)In this Article, " existing laws " means all laws (including Ordinances, Orders in Council , Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments (having the force of law ) in force in Pakistan or any part of Pakistan, or having extra territorial validity, immediately before the commencing day.
Commencing day was defined in Article 242 as under:-
"Commencing day means the days on which the first meeting of the first National Assembly is held."
13.Admittedly the first .meeting of the National Assembly was held on 08.06.1962. Thus any law which was promulgated before 08.06.1962 stood protected in view of Article 225 of the Constitution of 1962 and
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the said Ordinance continued in force. Then the President Order No.1 of 1970 was issued on 30.03.1970. Article 19(1) of the said order provided that all existing laws shall continue in force and existing laws were defined in explanation to the aforesaid Article. Thereafter, Interim Constitution of Islamic Republic of Pakistan came into force on 15.04.1972. Article 280(1) of the Interim Constitution provided that all existing laws shall continue in force and existing laws were defined in sub-Article (8) of Article 280. Thus the Sports (Development and Control) Ordinance, 1962 stood protected and continued in force being an existing law. In 1973 the Constitution of Islamic Republic of Pakistan came into being. Article 268(1) thereof Provided that all existing laws shall continue to be in force and existing Laws were defined in Sub-Article (7).
14.From the above resume it is abundantly established that the Sports (Development and Control) Ordinance, 1962 was validly promulgated by the then President of Pakistan in exercise of the powers conferred upon him in terms of the Constitution of Pakistan, 1962, it continued to be protected by every succeeding constitutional set up and as such is still in force. Presently after the 18th Amendment to the Constitution of Islamic Republic of Pakistan, 1973, sports is now a Provincial subject and the Provincial legislature of each Province has got the power to amend the aforesaid legislation to adopt to its requirement or to promulgate a fresh enactment but as no Province has yet amended the said law it, therefore, holds the field and as a necessary corollary all Notifications, Policies, Rules, Regulations etc. flowing from the said Ordinance will be deemed to be legally issued. Therefore, calling in question the validity of the Sports Policy, 2005 SRO No.222(I)/81, dated 16.03.1981 establishing Pakistan Sports Board and Notification No SRO (Sports)1-5/83 dated 08-04-1985 whereby Sports Board Punjab was created, is held to be without any legal basis and is thus rejected.
15.Now coming to the controversy being the subject matter of W.P.No.15481 of 2015, it may be observed that elections of the PFF for the term 2015-2019 were being held as per schedule and in the meanwhile respondents Nos.8 and 9 filed Writ Petitions Nos.12232 of 2015 and 12233 of 2015 challenging the result of elections of PFA (held at provincial level) on 17.04.2015. The final and fourth tier of elections at Federal level were yet to be held on 30.06.2015. The aforesaid writ petitions were disposed of by this Court vide order dated 27.04.2015 with a direction to respondent No.7 (Sports Board Punjab) to treat copy of the writ petitions as representation on behalf of the petitioners therein and decide them after granting a hearing to them by passing a speaking order strictly in accordance with law within a week from receipt of the order. The aforesaid order was challenged by the petitioner in ICA No.649/2015 before a Division Bench of this Court but the appeal was dismissed vide order dated 18.05.2015. Pursuant to the directions of this Court the Director General of Sports Board Punjab vide order dated 12.05.2014 declared the election of PFA held on 17.04.2015 and the result notification dated 20.04.2015 as void and directed Lt.Col.(Retd.) Syed Farasat Ali Shah, the Secretary Electoral Committee of PFF to hold fresh election of PFA. Accordingly aforesaid appointee proceeded with the directions of the Sports Board Punjab and issued notification dated 14.05.2015 of the elected office bearers of the PFA.
16.On 29.06.2015 during the course of hearing of the instant writ petition the aforesaid Lt.Col.(Retd.) Syed Farasat Ali Shah who had conducted the election of PFA on the directions of Sports Board Punjab pursuant to the orders of this Court dated 27.04.2015 passed in Writ Petition No.13232 of 2015, appeared and stated that as per Extraordinary meeting of the Congress held on 16.06.2015 under Article 30 of the PFF Constitution, there is an in house change in the management of the governing body of the PFF and the Congress has elected Muhammad Arshad Khan Lodhi as its Acting President while Syed Faisal Saleh Hayat is no more President of the PFF. This Court, therefore, while sensing the extremely polarized situation between the rival groups who were out to get control of the PFF by hook or by crook, passed the following observations/directions:-
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"4.It is an unfortunate situation that two different groups of politicians and ex-high ranking officials are contesting tooth and nail for the control of PFF. There are allegations and counter allegations of use of force for undertaking certain acts. This Court directs that both the parties will undertake the transition and the transfer of any responsibility in a peaceful manner and will refrain from using force or breaking any law by use of brute force or abuse of any process.
5.It is reported by the Deputy Attorney General that both the factions are adamant to hold elections separately at two different venues. One is being undertaken tomorrow at Ambassador Hotel, Lahore wherein certain members of the Congress will participate while another election is being held in Changla Gali, KPK. Both the parties are restrained from holding elections of PFF until the outcome of this and other connected writ petitions challenging the vires of different actions taken by different actors involved in this controversy, whereafter election will be directed to be held in accordance with law by this Court."
17.The above order was passed on 29.05.2015 in presence of learned counsel for the parties nevertheless in sheer violation of the above injunction Faisal Saleh Hayat group conducted their election as planned at Chhangla Gali for which they are facing separate contempt proceedings. In these circumstances this Court on 23.07.2015 passed the following order appointing Administrator of the PFF:-
"In sheer disobedience to this Court's order it is noted that both the parties have paid little heed to the above observations and did not show respect to the injunctive order passed by this Court by trying to take things in their own hands, thus, leading to a stand off against each other which is likely to cause a law and order situation and may result in physical clash between the contesting parties. It is alleged on behalf of the faction headed by Mr. Faisal Saleh Hayat that he has been illegally ousted from the office of PFF by his opponent Mr. Arshad Khan Lodhi in connivance with the Government of the Punjab and a contingent of 150-200 armed men have taken over charge of the said office from him forcibly. On the other hand, the faction headed by Mr. Arshad Khan Lodhi is raising serious charges of corruption and misuse of funds of the PFF by Mr. Faisal Saleh Hayat in which they allege that he is using a four wheeler and two sedan cars, along with 30 odd personal body guards, all of which is being done by using the PFF funding. Further, they are raising allegations of embezzlement of funds obtained from FIFA on the pretext of flood relief and also running football academies, which according to them are ghost academies. This is not a very commendable situation. There are allegations and counter allegations on behalf of both the factions and if this tussle between the two groups continues besides causing harm to the persons from both sides, PFF which is a sporting body will suffer badly, thus, further deteriorating the cause of 'football' in Pakistan.
5.In the circumstances, the so-called elections of PFF, which were held on 30.06.2015 somewhere at Changla Gali District Abbottabad, KPK during the existence of injunctive order passed by this Court, are declared illegal, unconstitutional, mala fide and collusive and the same are annulled. This Court is appointing Mr. Justice (R) Asad Munir as Administrator of the Pakistan Football Federation, who will take charge of the PFF forthwith. There will be no transactions in the accounts of PFF by any of the two feuding factions. The Administrator will look after all the affairs of PFF including operating of its accounts to run the day to day affairs of the organization. All the employed staff of PFF will work under his directions so long as he remains the Administrator. All executive and law enforcing agencies will act in aid of the learned Administrator in carrying out orders of this Court.
6.The Administrator will also get conducted an audit by appointing an Auditor of all the funds used by the various office bearers/organizers of the Pakistan Football Federation and submit a report to this Court in the next six weeks."
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18.The above order of this Court was assailed by the petitioners before the Hon'ble Supreme Court of Pakistan in C.P.No.2379 of 2015 which was disposed of on 21.09.2015 with the following observations:--
"We have heard the case at some length. A look at the impugned order would reveal that both the parties are at the moment out of the arena as an administrator has been appointed to look after the affairs of Pakistan Football Federation and elections held in contravention of the order of the High Court have been declared null and void. In the circumstances, we would not like to intervene as any order at this stage by this Court is likely to create chaos. We expect the Hon'ble Judge of the High Court to decide the whole controversy on the next date of hearing or soon thereafter. In case, any grievance of the petitioners survivers, they may, if so advised, approach the competent forum including this Court. Disposed of accordingly."
19.The contention of the learned counsel for the petitioner is that PFF is an independent entity and respondent No.7 has, in law, no authority and jurisdiction to interfere in its affairs, therefore, under the order of this Court dated 27.04.2015 respondent No.7 without any legal mandate set aside the PFA election held on 17.04.2015, the resultant notification dated 20.04.2015 and proceeded to pass directions for holding election afresh. No doubt there is an inbuilt mechanism provided in the PFF Constitution, Election Rules and Regulations for holding the elections and resolution of the disputes arising therefrom, however, Pakistan Sports Board and Sports Board Punjab are vested with the powers to manage, control and supervise all such affairs of the PFF and the PFA respectively being lawful creation of the Sports (Development and Control) Ordinance, 1962 as has been held above. The way and the manner in which the rival groups are trying to take over management and control of the PFF can neither be termed within the mandate of the Statutes of the PFF nor approved by any organ of a civilized society. So much so the orders of this Court were flouted and sham election was conducted at Changla Gali on 30.06.2015 during the existence of injunctive order, by the Faisal Saleh Hayat Group. One group allegedly took over charge of the petitioner-federation forcibly with the help of armed personnel. There are allegations and counter allegations of mass corruption, embezzlement and misappropriation of the funds of the PFF. Each of the rival group is trying to take over charge and control of the management of the PFF by every possible means. In these circumstances, the so-called election held at Changla Gali on 30.06.2015 during the existence of an injunctive order of this Court was annulled and the Administrator was appointed. The Hon'ble Supreme Court of Pakistan in case 'Bakhtawar etc. v. Amin etc.' (1980 SCMR 89) has held that "when by contravening an injunction order the party against whom the order passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, a if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court."
20.The contention of learned counsel for the respondents is that Mr. Faisal Saleh Hayat has already completed two tenures of the office of President of the PFF as such he is debarred from holding the same post further, in view of the provision contained in Para 10(5) of the National Sports Policy, 2005 and the rules made thereunder. Admittedly Mr. Faisal Saleh Hayat has already enjoyed the office of the President of PFF thrice (including the last term which expired on 30.06.2015). Para 10(5) of the National Sports Policy which was notified by the Federal Govt. vide SRO No.1249(I)/2005 dated 05.12.2005 provides as under:-
"(b)President, Honorary Secretary and the Treasurer will be allowed a maximum of two tenures, in any office of the Federation or Association after which they will become ineligible for holding the same posts of that particular Federation or Association. However, they will be allowed to contest for next higher Post/Association at any time."
Learned counsel for the petitioner has not been able to deny the factum of holding of office of President for
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three terms which is indirect contravention of the above provision of the Sports Policy, legality whereof has been affirmed by this Court in the preceding paras of this Judgment being in conformity with the Sports (Development and Control) Ordinance, 1962.
21.During the course of arguments learned counsel for the petitioner has laid much emphasis that the promulgation of the revised National Sports Policy, 2005 is a direct intervention on the part of the government in the affairs of the Pakistan Football Federation and that the government is not authorized to undertake such intervention in the working of independent and specifically created sports body like PFF and that such intervention would entail severe reaction on behalf of FIFA in the form of boycott of PFF or imposing ban against Pakistani teams for participating in international tournaments and disallowing international coaches and referees to come to Pakistan. The said arguments on behalf of the petitioner are totally misconceived and devoid of any substance for the simple reason that Pakistan Sports Board is a duly constituted legal body under the laws of Pakistan, mandate whereof is to regulate the functions of various bodies and federations which are involved in the promotion of sports throughout Pakistan. Policy making is a function which is exclusively in the domain of the Federal or Provincial Government as the case may be and even Courts do not intervene in the policy matters unless such policies are perverse, ab initio void or against the constitutional guarantees. Reliance in this regard is placed on case reported as 'Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others' (PLD 2014 SC 1). Therefore, it is abundantly clear that where the Federal Government or the Provincial Government formulate a policy in accordance with law and under the mandate of the constitution, but not in conformity with any policy of a private body, may it be an international body like FIFA, the policy promulgated in Pakistan by its Government would prevail upon the statute, policy, directions etc. of such a body. The revised Sports Policy, 2005 requires that the elected office bearers at all levels of Sports Federations/Organizations shall not be elected more than twice on a particular post or designation. On this point it would be advantageous to look at the statutes of Asian Football Confederation and FIFA relating to the provisions of tenure / term for which the President of the said Organizations can be elected. As per Article 37 of the Asian Football Confederation's Constitution, its President shall be elected by the Congress for a period of four years and may be eligible to be re-elected subject to the provision of Article 31.8, which postulates that no person shall be elected to the office of President for more than three terms (12 years in total). As per FIFA statute, its President shall be elected by FIFA Congress for a period of four years and will be eligible for re-election. However, no individual person may serve for the post of President for more than 3 terms (12 years).
22.From the above comparison of the statutes of AFC and FIFA when read in juxtaposition with the Revised National Sports Policy, 2005 it is quite evident that office bearers of any sports organization cannot hold such office for life or an indefinite period. The aforesaid two private sector sports bodies controlling football internationally with which PFF is affiliated, have restricted a person from holding office of the President for more than 3 terms. Thus providing a certainty in the maximum period that can be availed by that particular person in holding the post of President, therefore, if Government of Pakistan in its policy making wisdom stipulates in the National Sports Policy that certain elected office bearers shall not be electable for more than two terms on a particular appointment/designation, that will not tantamount to interference or intervention in the working/functioning of any such body including PFF as the said policy is not aimed at the petitioners specifically rather it has been formulated to be applicable to all sports bodies across the board. The National, Provincial, Regional sports bodies etc. cannot be considered as personal property, domain, bounty and fiefdom of the individuals who are occupying the elected posts for running/managing such bodies as public servants or elected office bearers thereof. These individuals have to conduct themselves in accordance with code of conduct meant for an acceptable legal and judicial system of this country with full transparency and conformity to law. It is the case of the petitioner that its President Mr. Faisal Saleh Hayat after completing his initial two tenures in office was elected for the 3rd term 2011-2015 as
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the President of PFF and that he is desirous of continuing for a fourth (4th) tenure for the period 2015-2019. This act of Mr. Faisal Saleh Hayat is not only in direct contravention of the statutory bar of two terms provided in the National Sports Policy, 2005 but is also in conflict with the restriction placed by AFC and FIFA on holding the office of President by any particular person for more than three terms of four years each. Mr. Ahmed Yar Lodhi who is a paid official/Secretary of PFF appears to be blindly acting at the whims of Mr. Faisal Saleh Hayat and instead of performing his statutory duty of up-keeping the smooth functioning of PFF, he has become an instrument in the hands of Mr. Faisal Saleh Hayat who is promoting his personal agenda of taking control of PFF for an indefinite period.
23.In view of the circumstances narrated above, the election of PFA held on 17.04.2015 and the resultant notification dated 20.04.2015 and so also the election held on 12.05.2015 and resultant notification dated 14.05.2015 and thereafter the so-called election of PFF held on 30.06.2015 are declared as illegal, void ab-initio, collusive and mala fide, therefore, all are hereby set-aside. A panel of three persons including Secretary Pakistan Sports Board, Islamabad, Secretary Sports Board Punjab and Secretary Sports Board Khyber Pakhtunkhwa is constituted to act as Electoral Committee which will manage and conduct fresh elections of PFA and PFF in accordance with the relevant provisions of the PFF Constitution, Rules and Regulations within a period of four months. The Secretary, Pakistan Sports Board, Islamabad will be the Chairperson of the aforesaid Electoral Committee. After the said elections control of PFF will be peacefully handed over to the elected office bearers by the Administrator appointed by this Court. The Administrator will cooperate with the Electoral Committee in conducting the elections. The Administrator in his report No.2 dated 12.12.2015 has pointed out that some of vehicles of the PFF are being used unauthorizedly by Mr. Faisal Saleh Hayat and Mr. Muhammad Arshad Khan Lodhi and PFF's domain name is also being controlled by Mr. Faisal Saleh Hayat. He. is directed to adopt all coercive steps to retrieve all the property of the PFF from unauthorized control of the aforesaid persons or any one else who may be in possession thereof. If any office bearer(s) of the PFF is found involved in embezzlement/ misappropriation of the funds of the Federation, he will be at liberty to lodge criminal as well as civil proceedings against him/them.
24.As a sequel to the above discussion, both the writ petitions are dismissed with the above observations/directions.
MH/P-9/LPetitions dismisse
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