KARACHI, Oct 8: The provisions of the Limitation Act, particularly articles 23 and 24, restricting the right to seek justice is contrary to the injunctions of Islam as laid down in the Holy Quran and Sunnah.

This has been contended in the review application against a single-bench judgment in a suit instituted by Nasir Raza Jaffery, a resident of Hyderabad, who is in the pharmaceutical profession, for payment of damages/compensation in connection with his prosecution by M/s Macter Pharmaceutical (Pvt) Ltd.

On the previous date of hearing when the matter came up, the court directed to repeat notice because of the non-appearance of any representative of the office of Attorney-General/Advocate-General.

The plaintiff was holding agency for distribution of medicines prepared by M/s Macter Pharmaceutical. In the course of business, dispute arose between the two parties on financial matter.

The plaintiff claimed that in order to put pressure on him the other party lodged FIR at SITE police station under sections 420/406 of PPC against the plaintiff, who was illegally arrested, kept in custody and bodily/mentally tortured by police at the behest of the complainant, M/s Macter Pharmaceutical.

The plaintiff obtained bail, and thereafter filed a quashment application with the Sindh High Court on the ground that a civil dispute had been maliciously converted into criminal prosecution, causing serious damage to the personal liberty, reputation and to his business ventures.

The Sindh High Court quashed the criminal case, against which the state went in appeal before the Supreme Court which was dismissed in limine. Thereafter, the plaintiff filed the above-mentioned suit wherein M/s. Macter Pharmaceutical (Pvt) Ltd and police personals were impleaded as defendants.

Summons of the court were duly served and responding to the same the assistant advocate-general Sindh appeared for defending the province of Sindh and police functionaries.

He filed an application under Order VII Rule 11 CPC for rejecting the plaint on the ground that it was barred by articles 23 and 24 of the Limitation Act, as such suit claiming damages against malicious prosecution and defamation was required to be filed within one year of such occurrences.

In reply K. M. Nadeem, counsel for the plaintiff, submitted that the reputation of a person was a valuable property and could not be tarnished, except in due course of law, and that such defamation was a continuing wrong inasmuch as wide publicity was made to the criminal charge prepared against the plaintiff mischievously.

He added that the provisions of the Limitation Act, particularly articles 23 and 24, restricting the right to seek justice was contrary to injunctions of Islam as laid down in the Holy Quran and Sunnah.

The Islamic jurisprudence advances the concept that relief cannot be shut down unless the grievance is redressed on the Islamic principles which prescribe justice herein and justice hereafter, if the worldly authorities failed to provide redress.

He submitted that these provisions of the Limitation Act were ultra vires of the Constitution, hit by articles 2-A and 227 thereof, which prohibited making of law and existing law to run contrary to the provisions of the Constitution, so these articles of the Limitation Act should be ignored if halting the process of justice and confining the same for one year only.

The application and the reply was considered by the court, and the suit was rejected as being barred by the Limitation Act. In the judgment to this effect, the single-judge of the SHC held that the said provisions of the Limitation Act were independent and not subordinate to the constitutional provisions, and thus were fully applicable.

It is the case of the plaintiff that the question was determined by the judge without issuing notice to the Attorney-General/Advocate-General as necessarily required under Order 27-A of the Civil Procedure Code.

Counsel K. M. Nadeem, on the instructions of the plaintiff, filed a review application which was taken up by the court, but again it was required by the court that in view of the amended provision of law, another sum of Rs7500 be paid for purposes of review, which was again un-Islamic, insofar as the court fee being a tax on justice was contrary to the injunctions of Islam. However, he paid the court fee under protest.

In the review, counsel Nadeem submitted that there was apparent error on record inasmuch as constitutional provisions overrode/overreached the ordinary law like the Limitation Act. And if any provision of any ordinary law was conflicting with the constitutional provisions, that law was liable to be struck down by the court. He submitted that because of non-compliance with the provisions of the Order 27-A of CPC the judgment delivered by the court was a nullity in law as held by a full bench of the Supreme Court in the case of Federation of Pakistan Vs Aftab Ahmad Khan Sherpao (PLD 1992 SC 723).