KARACHI, Feb 18: The following is the text of Justice Zahid Kurban Alavi’s order on Dr A.Q.Khan’s application in the IBS case:

“This application (CMA No. 8253/02) has been filed under order XXXIX Rules 1&2 CPC by the plaintiff with the prayer to restrain the defendants, their officers, agents and privies from interfering with the plaintiff in the effective management and control in relation to the Institute of Behavioral Sciences (hereinafter referred to as the IBS) and from disturbing the possession and control of the plaintiff (Dr A.Q.Khan) from the assets, funds, property including building and lands meant for IBS. The prayer made in this application is supported by an affidavit of attorney of the plaintiff namely, Mushtaq Ahmed son of (late) Musharraf Khan. The said affidavit states that the plaintiff is a national hero. He is singularly responsible for facilitating the acquisition of nuclear technology for Pakistan. He has been the recipient of many awards including the National Awards of ‘Nishan-e-Imtiaz’ and ‘Hilal-e-Imtiaz’. He is a philanthropist with many charitable projects to his credit. The defendant No.1 (Dr S. Haroon Ahmed) is a psychiatrist while the defendant No. 2 (PMAH) is a body registered under the Voluntary, Social Welfare Agencies (Registration and Control), Ordinance, 1961 (hereinafter referred to as the Ordinance, 1961). It is claimed in the Plaint that from the year 1994 till date the plaintiff single-handedly has been able to raise nearly Rs 80 million. At the time when the plaintiff was gathering a team so as to run the IBS, he met the defendant No. 1, who specializes in mental diseases. The defendant No.1 expressed his willingness to voluntarily render his services in promoting the IBS as a centre of excellence imparting education of mental health and providing free medical treatment to the poor who were mentally sick. The defendant No. 1 agreed to act as Secretary of the IBS. The plaintiff agreed to the constitution of a Governing Body so as to run the affairs of the IBS under the chairmanship and total control of the plaintiff. According to Government of Sindh, Health Departments’s notification dated 2-11-1995 a Governing Body was appointed to run the affairs of the IBS. The Government of Sindh allotted six acres of land at Suparco Road for the purpose of establishment of the IBS. It is alleged that the defendant No. 1, who was Secretary of the Governing Body of the IBS, kept the plaintiff in the dark and had applied for allotment of land on the letterhead of the defendant No. 2 and also got a mention of the defendant in the allotment order dated 7.11.1995. Even the defendant No. 1 in his annual report has explicitly acknowledged that the entire funds for the project had been solely raised by the plaintiff. It is alleged that the defendant No. 1 commenced holding of the meetings of the Governing Body of the IBS without properly informing the plaintiff of the dates and time thereof. The three members of the Governing Body i.e. the defendant No. 1, M/s S.M. Farooq and A. Qayyum Khan were designated as signatories to operate the Bank Accounts. The defendant No. 1 attempted to introduce a fourth person of his own choice with a view to assume control of the finances of IBS. The entire idea of getting the notification dated 12-6-2002 was to reduce the plaintiff only as the figurehead, appoint the chairman and other members of his own choice so that the defendant No. 1 could have a field day and enjoy total control over the IBS. After great hue and cry the Government of Sindh withdrew the notification dated 12-6-2002 through notification dated 20-11- 2002. It is claimed that the plaintiff is in peaceful physical possession of the land, assets and funds meant for IBS and has been running the said body.

“2. Mr Kazim Hassan, advocate, has filed counter affidavit to this application on behalf of defendant No. 1 and at the outset has challenged the maintainability of the suit and that the declarations being sought by the plaintiff are barred under Section 42 of the Specific Relief Act. The defendant No. 2 was established 37 years ago. As per its Constitution elections are held regularly and accounts are audited. The objective of the defendant No. 2 was to promote the understanding of mental health, to provide a centre for information, education and promotion in the field of mental health, to inspire and further research in the cause and prevention of mental, neurological and psychosocial disorders, to work for the development of adequate facilities for the diagnosis and treatment of mental, neurological and psycho-social disorder and to advise government and other interested organizations in the field of mental health. It is the case of the defendant No. 1 that Dr. K. Zaki Hasan, the then President of the defendant No. 2 wrote letter to the Director General, KDA, which was followed up. Thereafter in 1989 a letter was written by the defendant No. 1 to General Aslam Beg, the then Chief of Army Staff for army land adjacent to Jinnah Postgraduate Medical Centre, Karachi. The General Headquarters earmarked one acre of land and allotment was made in the year 1991. Between the years 1991-93 several correspondence were exchanged and personal contacts made with successive Chief Ministers for this purpose. In the year 1995 a piece of land measuring 6 acres or thereabout was allotted by Government of Sindh to defendant No. 2 which was later on leased out for a period of 30 years and physical possession was taken over on 18- 11-1995. The defendants deny that the plaintiff was concerned with the allotment in any manner. A Resolution was passed on 17-5-1995 whereby the General Body of the defendant No.2 empowered the Governing Body of IBS to open an account and handle it, they also authorised them to acquire property, hire manpower and undertake other activities according to the objectives of the PAMH and in the best interest of mental health. The General Body of the defendant No. 2 in consultation with the plaintiff (Chairman) constituted the new Governing Body. The defendants deny that the IBS was set up by the plaintiff. It was the defendant No. 2 and its members who conceived and established IBS. It is alleged that the defendant No. 1 made the plaintiff and his wife Honorary Life Members of the Association in 1989. This position was acknowledged by the plaintiff through his letter dated 14-11-1989. The plaintiff did not approach the Government of Sindh for the allotment of land for the IBS. The notification dated 2-11-1995 issued by the Government of Sindh and no validity in view of the fact that IBS is not a statutory organization. It is denied that the original notification dated 12-11-1995 has been revived. Apart from everything else, the Government of Sindh lacks the authority to issue notifications in respect of institutions and organizations which are not statutory bodies. Even if it is accepted that the notification was legally issued, once superseded, it does not automatically revive. The defendant No. 1 is not under any obligation to submit accounts of any funds to the plaintiff. It is submitted that the accounts are properly maintained and audited and the annual reports show that IBS is a part of the Association. The plaintiff does not have and has never had control of the management of IBS. The plaintiff has no right to control and manage the affairs of IBS. The daily operation of IBS has continued because of huge sums as well as minuscule amounts received from the general public who have donated with great generosity. These donations have not come because of the plaintiff. On 15-8-1997 a donation was made by the Cowasjee Foundation in the sum of Rs 10,00,000/- through cheque. The said cheque was made out to the defendant No. 2. “3. Mr. Akhtar Hussain, advocate, appearing on behalf of defendant No. 2 has filed counter affidavit of Dr Ali Wasif, duly authorized by the defendant No.2 to this application. He more or less mentioned the same facts as submitted by defendant No.1 in his counter affidavit.

“4. The perusal of file shows that CMA No. 8253/2002 was filed by learned counsel for the plaintiff on 10.12.2002 and on 11.12.2002 notice was ordered to be served on the defendants. On the said date ad-interim order was passed by my learned brother Zia Pervaiz J., and the matter was again adjourned for 18.12.2002.

“5. On 18.12.2002 the matter was placed before me and after hearing the learned counsel at length orders on this application was reserved for announcement on 19.12.2002. On 19.12.2002 the interim order dated 11.12.2002 passed on this application was not required to be extended.

“6. In this case an order for vacating the stay was passed. However, applications have been moved which have been fixed for hearing. On 29.1.2003 application under Order XXXIX Rules 1&2 CPC, application under Order VII Rule 11 CPC application for contempt application under order I Rule 10 CPC, application under order VI Rule 17 CPC were pending for hearing. Each side has produced voluminous documents alongwith their respective counters and rejoinder affidavits.

“7. I have heard the learned counsel at length and through this order I shall only pass an order on the injunction application under Order XXXIX Rules 1&2 CPC. It would be appropriate to note herein that the plaintiff has sought a restraining order against the defendants, their officers agents and employees from interfering with the plaintiff in the effective management and control in relation to the IBS and from disturbing the possession and control of the plaintiff from their assets funds properties including building and lands.

“8. This suit has been filed by the plaintiff through his attorney Mushtaq Ahmed and he has prayed that the defendant No.1 should submit full accounts of all the funds raised and donations collected as also withdrawal and expenditures therefrom. He has further sought a declaration that the attempt of the defendant No.1 to oust the plaintiff from the effective management and control of the IBS is to be held as without jurisdiction void ab initio and mala fide. He has also sought a declaration that it is the plaintiff alone who has a right to effectively manage and control the affairs of the IBS. In the application he has sought a permanent restraining order against the defendants from the management of the IBS.

“9. Alongwith the Plaint no power of attorney has been filed. It is also not known in what capacity the plaintiff Dr. Abdul Qadeer Khan or Mushtaq Ahmed have filed this suit against Dr. Haroon Ahmed and the Pakistan Association for Mental Health.

“10. With the Plaint the plaintiff has filed a Notification dated 12.11.1995, issued by the Secretary Health, Government of Sindh whereby certain number of persons have been appointed on the Governing Body of the IBS. There is another notification issued by the Ministry of Health, Government of Sindh which also talks of certain number of people who would run the IBS. In this notification the Patron of Pakistan Association for Mental Health has been shown as Chairman and Dr. Abdul Qadeer Khan has also been mentioned in the other notification with the designation of Patron of Pakistan Association for Mental Health. It is also evident that the Government of Sindh had allotted plots to the Pakistan Association for Mental Health for establishing an Institute of Behavioural Sciences (IBS) and to that extent a lease was granted for thirty years. These documents clearly establish that the defendant No.2 had been allotted six acres of land for the establishment of an Institution catering completely to those in need of special care. “11.I do not have to go into the factual enquiry of the entire case. What I am concerned at the present moment is whether the plaintiff has a prima facie case. Balance of convenience lies in whose favour and who shall suffer irreparable loss and injury. The plaintiff himself cannot run an Institution. An Institution has to be run by a Group of qualified people qualified especially when they are dealing with patients who require special care. The fact that the Institution needs to be run and governed by Group of People is vindicated from the documents available on record which clearly show the names and designations of the Governing Body.

“12. The counsel for the defendants have placed before me a Publication called Mental Health Ordinance, 2001. In this Publication they have also reproduced Ordinance VIII of 2001 which relates to and is called the Mental Health Ordinance 2001. In this Ordinance the definition of an approved psychiatric is given and those requiring specialised psychiatric treatment is also given. In Chapter XI there is entire discussion on specialised psychiatric treatment how it is to be done who is to carry it out. One therefore cannot and should not underestimate the importance of qualified experienced and dedicated people need to look-after those in need of special care. The report of the Official Assignee shows that the minimum qualification of the doctors who are called psychiatrists is MBBS and MCPS who are looking after the patients. There is also one lady who has got a degree of MA in Psychology. It is clear that those who are handling the patients are not qualified enough.

“13. Counsel appearing for the plaintiff have conceded at the time of arguments that the possession is in their control and that no order can be passed which can alter the position as it stands. Learned counsel has relied on several case law.

“14. These cases according to the counsel for the plaintiff show that at the interim stage Court cannot undo even a wrong order. He has furthermore insisted that as per the observation of the Official Assignee patients are not suffering.

“15. Indeed the counsel for the plaintiff may be hundred percent right and I may not be in a position to alter the position as it stands. However at this juncture of granting or otherwise an injunction application I am concerned with the case that has been made out and as it stands. It is evident that from the bare reading of the prayer (b) the plaintiff has sought a declaration that the attempt of the defendant No.1 to oust the plaintiff from the effective management and control should be considered as an act without jurisdiction mala fide and illegal. He has further demanded accounts and funds from the defendant No.1 as according to him the defendant No.1 has failed to submit them.

“16. Whilst the body of the Plaint is a narration of facts which apparently shows a dispute over the control of the Organisation one cannot overlook the fact that eminent persons were sitting on the Board of IBS and surely accounts must have been audited and if taxes have been received then receipts must have been issued. It is settled principle wherever such institutions are run on a voluntarily basis that the checks and balances are maintained and the Board grants approval for all major / minor expenditures. At this juncture I am a little hesitant to believe that the defendant No.1 has failed to accounts for the funds at his behest.

“17. The attorney of the plaintiff Mushtaq Ahmed with his rejoinder affidavit has annexed a letter dated 10.12.2002, issued by the plaintiff in his capacity as Chairman Governing Body. He has given reference to the fact that the notification issued by the Government of Sindh dated 12.6.2002 was withdrawn and therefore he in his capacity as Chairman reconstituted the Governing Body. He has therefore named eleven persons who also have been mentioned in the application under Order I Rule 10 CPC. The letter so issued is dated 10.12.2002 which is the exact date when the suit was filed. In this suit the persons originally appointed through a Government Notification of the year 1995 have been mentioned. In fact the plaintiff has gone to the extent of showing certain number of persons who expired or resigned and the name of the persons who have replaced them.

“18. All the above discussions including the prayer clause (b) clearly shows some apprehension on the part of the plaintiff to file this suit in a hurry and seek injunction. As prayed he was anticipating and fearing a change in the management.

“19. I am therefore of the considered view that prima facie no case has been made out for grant of injunction. From the report of the Official Assignee it is evident that if proper competent and qualified people are not available to deal with the patients perhaps irreparable loss and injury shall occur. Certain facts are clear that at present moment the defendants Nos. 1&2 are not involved in the running of the Institute.

“20. On the other hand, the plaintiff has sought, through his attorney a clarification on accounts and the donations received as well as a restraining order from being ousted. The plaintiff as stated above is very much in control of the situation therefore the only other prayer available to the plaintiff would be as regards Accounts are concerned. I would therefore order that as an interim arrangement the plaintiff and the defendants Nos. 1&2 shall jointly look-after the affairs of the IBS. They would be assisted by President of the Pakistan Medical a Dental Council or his nominee the President of the High Court Bar Association or his nominee the President of the Sindh Red Crescent Society or his nominee two eminent Doctors each one by the Dow Medical College and Sindh Medical College, Karachi and Head of Aga Khan University, Karachi. Their sole task would be to look into the accounts of the Organization collect all the books and the records and to prepare and submit a report within one month from the receipt of this order.

“21. CMA No. 8253/2002 stands disposed of on the above terms.”