http://www.supremecourt.gov.pk/web/user_files/File/const.p.1_%202012_etc.

pdf

Justice of Peace, section 22-A/22-B CrPC, ex-officio justice of peace, FIR, change of
investigation, non-registration of case by police, police order 2002

Justice of Peace' in the Light of Khizer Hayat Case - PLD

2005 Lahore 470

s. 22-A, 154 & 155

Power and procedure of Justice of Peace in registration of case---Scope---Whenever
Justice of Peace would seize of a complaint/petition under S.22-A, Cr.P.C., same
principle and procedure would be applicable as provided under Ss.154 & 155,
Cr.P.C. and Justice of Peace had to apply the same test by applying prudent mind in
ascertaining as to whether the facts constituted a cognizable offence or not.
however, keeping in view the language of all the three clauses of subsection (6) of
S.22-A, Cr.P.C., Justice of Peace, while issuing such directions, would refrain from
giving directions to the Police to register the case under one or the other section of
penal law.
Our criminal justice system has been divided into three phases. The first one is
called investigation phase followed by inquiry phase and the final and the 3rd stage
relates to the trial phase. For all the three phases, different authorities like police,
Illaqa Magistrate and Sessions Courts have been constituted and established by the
law and their respective authorities/powers have been clearly defined and a line of
demarcation in-between the three phases has been drawn with much clarity. The
object and intent of the Legislature behind such scheme is that all the three
authorities shall not interfere into the allotted field of jurisdiction of one another.Of
course during investigation phase, the police have no unbridled powers and the
Illaqa Magistrate and in some cases, the trial Court/Sessions Courts have been
invested with authority to oversee and check this process but to the extent of welldefined limits. For example, after arrest of an accused, police cannot detain an
accused person for more than 24 hours and for the extension of custody, it has to

obtain the sanction of the local Magistrate. Similarly, the period for investigation has
been fixed by the provisions of section 344 and section 167 of the Code and each
extension must emanate from the Illaqa Magistrate or trial/inquiry Court. However,
the police has been invested with powers to form its own opinion at the conclusion of
investigation and if on the basis of evidence/material collected by it, case is made
out against an accused person, it may file a charge-sheet against him while to the
contrary, if the evidence is deficient in all aspects, then it may file a cancellation
report. However, the final decision to approve or disapprove the police opinion is to
be given by the Illaqa Magistrate or the Court competent to take cognizance of the
case. This process cannot be interfered with by Ex-officio Justice of Peace nor it can
dictate to the police as to under what provisions of penal law, the charge-sheet
against an accused shall be filed because while doing so, it will definitely trespass
into the field of the police exercising statutory authority and the judicial authority of
the Court or Magistrate who have been conferred upon such powers under sections
190 and 193 of the Code.
Keeping in view the provisions of section 155 read with section 154 of the Code,
whenever the police (O.I.P.S.) refuses to register a case on the ground that the
information given does not constitute cognizable offence or in his opinion, the
dispute is of a civil nature, then the report must be recorded by it in the daily diary
register and copy thereof shall be supplied to the complainant/informer which shall
be annexed with the petition to be filed under section 22-A of the Code and in such a
case, it would be more appropriate to ask for the written comments of the police
(O.I.P.S.) to ascertain the reasons made basis for refusal to register a case. In some
case, the Ex-officio Justice of Peace while giving directions to the police for
registration of cognizable cases, deep assessment/appreciation of evidence is made
with definite opinion which is unwarranted in law. At such a stage, the Justice of
Peace shall make tentative assessment of the facts/material placed before him
because in such capacity they, act as administrative officers but after all, they hold
judicial office and if after the registration of the case and at the conclusion of
investigation, charge-sheet is filed before the same Court presided over by the
Justice of Peace which has rendered such an opinion earlier, then it would be
difficult for him to wriggle out from that. The cardinal principle of justice also requires
that each accused shall be deemed to be innocent unless proved guilty at the trial
before a competent Court, therefore, in all circumstances, the Ex-officio Justice of

Peace shall not express conclusive opinion on the facts before it while giving
directions to the police to register a case.
2010 P Cr. L J45

http://www.pja.gov.pk/constitution

A petition is a request to do something, most commonly addressed to a government

official or public entity. Petitions to adeity are a form of prayer called supplication.
In the colloquial sense, a petition is a document addressed to some official and
signed by numerous individuals. A petition may be oral rather than written, and in
this era may be transmitted via the Internet.

Powers of High Court Under A-199

1. INTRODUCTION:
According to the constitution of 1973 of Islamic republic of Pakistan a high court is the highest court
in a province. Normally the jurisdiction of a High court is limited to its respective province. There are
five high courts in Pakistan. Out of these high courts one is based in capital city of country and other
four are based in capital cities of Punjab, sindh, balochistan and Khybar Phukton Kha.

2. FORMATION AND APPOINTMENT OF HIGH COURT:

High court shall consist of a chief justice and so many other judges as may be fixed by law.
President of Pakistan makes appointment of chief justices and other judges of high courts from
those names, which are recommended by judicial commission of Pakistan.

3. CONSTITUTIONAL JURISDICTION OF HIGH COURT:

The constitutional jurisdiction of the high court is defined in the constitution but unlike the Supreme
Court, it jurisdiction extends to both judicial and authoritative matters. It is most important part
because a high court is the highest court in the province and supervises the work of the subordinate
courts in it.

4. MEANING OF WRIT:

A written judicial order to perform a indicated act, or offering power to have it done.

5. ESSENTIALS ELEMENTS OF WRITS:

It is necessary to issue the writ that:- i. The court has complete satisfaction that a legal right has
violated. ii. No other adequate and speedy remedy is available iii. The petitioner has locus Standi to
invoke the jurisdiction of the court. iv. Petitioners came to the court with clean hand. v. Court has the
territorial jurisdiction.

6. ANALYSIS OF ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN 1973:

Under article 199 of the constitution the high court may make the following writs or order:6.1 WRIT OF MANDAMUS:
Following are the important point regarding writ of prohibition:6.1.1 MEANING OF MANDAMUS:
A writ of mandamus is a command issuing from the high court of justice, directing any person to do
any particular act therein specified which appertains to his office and is in nature of a public duty.
6.1.2 HISTORICAL BACKGROUND:
Mandamus is a common law writ of extra ordinary character, sometimes referred to as the highest
judicial writ known to the law. It is also called one of the flowers of the crown. It seems originally to
have been one of that large class of writ or mandate by which the sovereign of England guided, the
execution of any wanted demonstration by his subjects
6.1.3 PURPOSE:
It is issued for the purposed that justice may be done in all cases where there is a specific legal right
and no specific legal remedy is available for enforcing such rights. It may also issue in cases where
although there is an alternative lawful cure, yet such mode of review is less advantageous, gainful
and powerful.
6.1.4 CONDITIONS FOR THE WRIT OF MANDAMUS:
There are some conditions for the writ of mandamus:- i. There must be a public duty. ii. There must
be a specific demand and refusal. iii. There must be clear right to enforce the duty.
6.1.5 WHO MAY APPLY?
An aggrieved person may apply for the writ or order of mandamus.
6.1.6 AGAINST WHOM IT MAY BE ISSUED:
Writ of mandamus may be issued against a person performing functions in connection with the
affairs of federation or province or a province or a local authority to do any thin which he is required
by law to do.
6.2 WRIT OF PROHIBITION:

Following are the important point regarding writ of prohibition:6.2.1 MEANING OF PROHIBITION:
A writ of prohibition is an order which is issued to inferior court to discontinue a processing pending
before it on the ground that it has no jurisdiction to hold the said proceeding.
6.2.2 OBJECT OF WRIT OF PROHIBITION:
Following are the object of the writ of prohibition:- i. To prohibit any public functionary from doing an
act which is beyond its jurisdiction. ii. To restrain authorities from exercising extra jurisdictional
powers.
6.2.3 WHO MAY APPLY FOR WRIT OF PROHIBITION:
Only an aggrieved person may apply for the writ of prohibition. Traditional view of Locus Standi is
applicable on the writ of prohibition.
6.2.4 GROUNDS ON WHICH A PROHIBITION MAY BE ISSUED:
Following are the grounds on which a prohibition may be issued:i. Want of jurisdiction: The writ of prohibition lies only when it is intended to restrain a tribunal or a
court which assumes or threatens to assume a jurisdiction which it does not possess.
ii. Violation of principles of natural justice: A prohibition may issue when it is found that the action
was in violation of principles of natural justice.
iii. Limits of Prohibition: There are some limits of prohibition:- unlawful jurisdiction Pending
proceedings. Proceeding party without jurisdiction.
6.2.5 EXCEPTIONS:
This writ cannot be issued against legislative body, political leaders and parties and private
organization etc.
6.3 WRIT OF CERTIORARI:
Following are the important point regarding writ of prohibition:6.3.1 MEANING OF CERTIORARI:
Certiorari means to certify. A writ of certiorari is a writ which is issued from superior court to call up
the record of a proceeding in an inferior court for review.
6.3.2 NATURE AND SCOPE:
It is an order issued by the Supreme Court or by a high court under the constitution to an inferior
court or any authority exercising judicial or quasi judicial functions to transmit to the court the record
of proceeding pending therein for scrutiny and decided the legality and validity of the orders passed
by them.
6.3.3 OBJECT:

The object of this writ is to keep all subordinate court/tribunal, quasi judicial authorities within the
limit of jurisdiction if they excess then their decision would be quashed by superior court by issuing
this writ.
6.3.4 WHO MAY APPLY FOR WRIT OF CERTIORARI:
An aggrieved person can apply for the writ of certiorari. It means that Traditional view of Locus
Standi is applicable on the writ of prohibition.
6.3.5 AGAINST WHOM CERTIORARI IS ISSUED:
The writ of certiorari is issued against:- Court. Judicial body. Quasi judicial body. Purely executive or
administrative tribunal.
6.3.6 GROUNDS FOR THE ISSUES OF WRIT OF CERTIORARI:
The grounds on which a writ of certiorari may be issued usually are as under:- i. Where the inferior
court or tribunal acts without or in excess of the jurisdiction granted. ii. Where the order of the inferior
court or a tribunal is erroneous on the face of the record. iii. Where the order of the inferior court is
tainted with fraud, mala fide, corruption or collusion. iv. Where the inferior court or tribunal has
erroneously decided a collateral question or assuming jurisdiction which is does not possess. v.
Where a procedure is followed which is contrary to the principles of natural justice.
6.4 HABEAS CORPUS:
Following are the important point regarding writ of prohibition:6.4.1 MEANING:
The writ of habeas corpus is the most ancient writ in the common law of England. Habeas corpus
means have the body before the court.
6.4.2 NATURE AND SCOPE:
This is the writ in the nature of an order calling upon the person who has detained another to
produce the latter before the court, in order to let the court know on what judicial grounds he has
been confined and to set him free if there is no legal justification for the imprisonment.
6.4.3 OBJECTS:
The object of this writ is to provide a prompt remedy against illegal confinement. The object of the
writ of habeas corpus is to release a person from illegal detention.
6.4.4 WHO MAY APPLY:
Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply
for writ of habeas corpus against the detention of another provided he is bona fide interested in the
detenue.
6.4.5 AGAINST WHOM IT MAY BE ISSUED:

This writ of habeas corpus may be issued against any person whether private or natural person.
6.4.6 CONDITIONS:
There are some conditions on the writ of habeas corpus:- There must be detention. Detention must
be actual and illegal. Confinement should be in improper and unauthorized place.
6.4.7 EXCEPTIONS:
Preventive detention law and article 10 of constitution are the exception to this writ. Another thing is
Res-Judicata. This principle is not applicable in writ of habeas corpus since the liberty of person is
very much important than anything else. For even former application has been dismissed on other
ground fresh application may be filed on any fresh ground.
6.5 QUO WARRANTO:
Following are the important point regarding writ of prohibition:6.5.1 MEANING:
A writ of Quo warranto is a writ issued by a superior court against a person who claims or who usurp
any office, franchise or liberty to enquire by what authority he supports his claim.
6.5.2 NATURE AND SCOPE:
Quo warranto is a judicial remedy against an occupier or usurper of an independent substantive
public office or establishment or freedom, the usurper is asked by what power quo warranto he is in
such office, franchise or liberty. If the answer is not satisfactory to the court, the usurper can be
ousted by an order of quo warranto.
6.5.3 WHO MAY APPLY:
Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply
for writ of quo warranto.
6.5.4 OFFICE IN RESPECT OF WHICH WRIT IS ISSUED:
It is a public office, in respect of which order or writ of quo warranto is issued, for example, The office
of speaker of national or provincial assembly. The office of advocate general of a province.
6.5.5 CONDITIONS:
There are some conditions on the writ of quo warranto:- That office must be created by statute, by
charter, or by constitution. The office must be public nature. The office must be some substantive
character. The holder must have been in actual occupation and under of the office in question.
6.5.6 RELIEF IN WRIT OF QUO WARRANTO:
Relief must be given by issuance of injunction to a person not to act therein. To declare the office
vacant.

7. CONCLUSION:

Writ jurisdiction of high court under article 199 is available only when no other adequate remedy is
available. The high court can issue writs on mandamus, prohibition and certiorari on the application
of the aggrieved person and it can also issue writ of habeas corpus and writ on the application of
interested party. In case of public interest the Supreme Court also has the some power under article
199.

THE DOCTRINE OF ALTERNATIVE REMEDY WITH REFERENCE TO WRIT

JURISDICTION UNDER THE CONSTITUTION OFPAKISTAN, 1973
Abstract
The present paper would explore the legal principles with reference to the
doctrine of alternate remedy in relation with writ jurisdiction of High
Courts under the constitution of the Islamic Republic of Pakistan,1973. Inthe
light of relevant case law, the scope of the doctrine has been discussed in detail.
The doctrine has been established not to deprive a person from justice but to
give him a chance to exhaust the ordinary remedies. But this is not a static
principle; it has its exceptions too.
Introduction:
The basic and main purpose of framing the law is to maintain justice. If
a principle of law does not serve this purpose, it would cause the system failure.
It is necessary to maintain balance while applying a principle of law to a certain
state of facts, which would lead to upheld the justice. One of the reasons for
introducing the doctrine of alternate remedy is to avoid/reduce the number of
petitions to be filed directly in the High Courts. Secondly, if a person comes in
the High Court without exhausting a remedy available at a lower forum, the
purpose of establishing that forum would also be defeated which is against the
principle of justice. Thus, it is a matter which requires extra care so that the
rights of the individuals must be protected at any cost.
Meaning:
Alternate remedy as it has been held in Rizwan Ullah v. Registrar/President,
Cooperative Societies, N.W.F.P. Peshawar and three others, means a remedy,
which is adequate, efficacious, expeditious, inexpensive, speedy, prompt,
appropriate, exclusive, convenient, beneficial and effective.However, the test of
aforesaid connotation of alternate remedy depends upon the relevant facts and
law in each case.[1]

Before going onward, the distinction between alternative remedy and adequate
remedy must be kept in mind. Both must not be considered the same. When a
constitutional petition is filed in the High Court or Supreme Court, the first
question which may arise is that whether an alternative remedy is available with
reference to the said case or not. If the answer is No, the court may proceed
and decide the petition. But if the answer is Yes, then the second question
would arise and that is whether the available alternative remedy is adequate or
not. The answer to this question is answered by the Court itself. If the answer to
this question is No, the Court may proceed further otherwise the Court may
refuse the relief.
The first case whereby the concept of alternate remedy has been discussed by
the superior courts of Pakistanis the case of Mehboob Ali Malik[2] This case was
heard by a Full Bench of five Judges, and the judgment was delivered by Mr.
Justice Manzur Qadir. In regard to the principles, governing the grant of relief in
cases where alternate remedy was available, criterion was laid down in
paragraph 13 of the judgment appearing at page 581.
It provides that if the relief available through the alternative remedy, in its
nature or extent is not what is necessary to give the requisite relief, the
alternative remedy is not an adequate remedy.[3]
It further provides that if the relief available is equal to what is necessary to give
the requisite relief, the adequacy of the alternative remedy must further be
judged with reference to a comparison of the speed, expense or convenience of
obtaining that relief through the alternative remedy.[4]
Alternate Remedy when bars Writ Jurisdiction:
The Constitution of Pakistan 1973 provides that the writ jurisdiction can be
invoked if alternate remedy is not available to the aggrieved party under the
relevant law.[5] It can be exercised only on proof of non-availability of alternate
remedy. It is, therefore, clear that if an alternate and adequate remedy is
available under the relevant law, the jurisdiction as provided under section 199
cannot be invoked.[6]However, in the absence of availability of alternate and
adequate remedy the constitutional jurisdiction ofSuperior Courts may be called
upon through the writ petition.[7]
Sometime, an alternate remedy is available but the petition is accepted. At
another time, alternate remedy is not available but the petition is not accepted.
It is only because of the circumstances of each case. Generally, when an
alternate and adequate remedy is available to a person, the High Court does not
interfere with the matter. In The Tariq Transport Company Lahorev. The
Sargodha-Bhera Bus Service, Sargodha, etc.[8] the Supreme Court observed:

Where a statute creates a right and also provides a machinery for the
enforcement of that right, the party complaining of a breach of the statute must
first avail himself of the remedy provided by the statute for such breach before
he applies for a writ or an order in the nature of a writ.
In the same case, it was further observed:
It is wrong on principle to entertain petitions for writs, except in very
exceptional circumstances, when the law provides a remedy by appeal to
another Tribunal fully competent to award the requisite relief. Any indulgence to
the contrary is calculated to create distrust in statutory tribunals of competent
jurisdiction and to cast an undeserved reflection on their honesty and
competency and thus to defeat the legislative intent.
The extra-ordinary constitutional writ jurisdiction is entirely discretionary which
cannot be exercised in an ordinary course and it must be exercised with great
care. It cannot be exercised for deciding the disputed facts and thwart the
procedural law.[9]
If the remedy sought for, is in substance a remedy, which is available under the
ordinary law, then a suit should be the appropriate remedy instead of filing a
writ petition, because the remedy provided by the constitution is not intended to
be a substitute for the ordinary forms of legal action. However, where this is not
the case, the remedy by way of a suit can hardly be considered as an alternate
adequate remedy. In such a case, the writ petition may be competent.
The purpose of writ jurisdiction is not to create a competing remedy. It is an
additional remedy in the absence of an alternate adequate remedy subject to
the satisfaction of the higher court.[10] If the alternate adequate remedy has
not been exhausted or if a case requires detailed inquiry, the writ petition may
not be allowed.[11] Nevertheless, to exclude the constitutional writ jurisdiction
the alternate remedy should be meaningful, effective and adequate otherwise, it
would delay the proceedings and it would be a useless exercise, which is equal
to denial of justice (justice delayed, justice denied).[12]
If a statute creates a right and provides a remedy in shape of a machinery for
enforcement of that right, the party (complaining of breach of the statute)
should avail that remedy before invoking writ jurisdiction.[13] For example, in
case of a dispute relating to private contract the proper course would be
arbitration or institution of suit and not the writ petition.[14] The existence of

another remedy does not affect the jurisdiction of the court to issue a writ. It is a
thing to be taken into consideration while granting writs and if such remedy is
not exhausted, it will be a sound exercise of discretion to refuse to interfere
through a constitutional petition unless there are good grounds.[15]
As a rule, a higher court using its discretion may refuse an order of mandamus if
an alternative specific remedy at law, which is not less convenient, beneficial,
effective or adequate, and such remedy includes an appeal to an appellate
tribunal.[16]
In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj
Wadhwani & another, it has held that even where a party has approached the
alternative forum, a straight jacket formula cannot be formulated to decide that
whether the Court should entertain a writ petition or not. The Court may
examine the facts and circumstances of the case and decide as to whether it
was to entertain the petition or not. However, where the petitioner has already
approached the alternative forum for appropriate relief, it is not appropriate that
the writ petition should be entertained. The rule is based on public policy and
the motivating factor is that of existence of the parallel jurisdiction in another
Court.[17]
Alternate Remedy when does not bar Writ Jurisdiction:
The rule that a higher court may not entertain a writ petition if any other
appropriate remedy is yet available, is not a rule of law barring jurisdiction but a
rule by which the court regulates its jurisdiction.[18] Hence, the adequacy of the
remedy is not considered as a rule of law and it is dependent on certain factors
like discretion of the court, the circumstances, etc.
In the following cases an alternate remedy does not bar the writ jurisdiction:
(i)
Violation of fundamental rights
The writ jurisdiction cannot be refused on the ground that alternative remedy is
available if there is violation of fundamental rights.[19] But if a person invokes
jurisdiction of the High Court for any other purpose, the court may refuse the
relief in its discretion.[20]
(ii)
Order malafide or unjust, etc.
Even if the remedy is available, the court will decide the adequacy of the
alternate remedy. It has been held that the writ jurisdiction will be available in
the following cases even if alternate remedy is available:
(i)
(ii)

Orders passed arbitrarily[21]

Orders passed without lawful authority[22];

(iii)
Orders based on Malafide[23]; and
(iv)
Perverse, unjust and oppressive orders[24].
It is obvious that no inflexible rules can be laid down for the exercise of
discretion in this regard. The broad policy behind the doctrine is that the writ
jurisdiction is not meant to short-circuit or circumvent statutory procedures. It is
only where statutory remedies are entirely ill-suited to meet the demands of
extraordinary situations. However, even then the Court must have good and
sufficient reasons to bypass the alternative remedy provided by the statute.[25]
(iii)
Alternative remedy inadequate or illusory, etc.
If the alternative remedy is either inadequate,[26] less convenient[27], illusory,
[28] meaningless,[29]time consuming,[30] or involves delay,[31] or was lost for
no fault of the person,[32] the High Court may grant relief. In Digital World
Pakistan (Pvt.) Ltd. through Chief Executive v. Samsung Gulf Electronics FZE
through Managing Director/Chief Executive Officer and another, damages were
also held as inadequate remedy.[33] In Mian Ayaz Anwar v. Federation of
Pakistan through Secretary Interior and 3 others, the remedy of review was also
considered as inadequate.[34]
(iv)
Lack or abuse of jurisdiction
In a case where the order has been passed without jurisdiction or is unlawful, it
cannot bar the filing of writ petition under Article 199 of the Constitution.[35]
Generally, the High Court, in cases of lack or abuse of jurisdiction, would not
hesitate in entertaining constitutional petition although an alternate remedy is
available.[36]The same principle would apply in a case of excess of jurisdiction.
[37]
An aggrieved party can invoke the constitutional writ jurisdiction where the
impugned action is completely without jurisdiction, mala fide, unlawful and
passed in disregard of the law and principles of natural justice. It is not
necessary to avail alternate remedy in such matters.[38]
(v)
Question of law involved
Where decision of the petition depends upon the resolution of a question of law
or interpretation of a law, a writ petition would be maintainable even if the
alternate remedy has not been availed.[39]
(vi)
Illegitimate order
In Vincent and others v. Karachi Development Authority and others[40], it was
held thatthe mere fact that the right of appeal has been provided under the
relevant law, cannot divest jurisdiction of the High Court to entertain a
constitutional petition if the circumstances requires so. In this case, the
premises in occupation of petitioners was declared to be dangerous on the

report of inspection committee without notice to petitioners. The alternate

remedy was to file an appeal which could prolong the matter. Thus, it was not
proper to dismiss the case.
Where alternate remedy was not equally efficacious or speedily or where
impugned order, as on face of it, is patently, illegal and without lawful authority
or suffers from such legal infirmities which are apparent on the face of the
record, the court may, in spite the existence of alternate remedy, exercise its
jurisdiction under Art.199 of the Constitution.[41]
In error cases, if the error is apparent on the record, the writ petition may be
admitted. For example, a family judge passing an order to evict a tenant.
(vii)
Violation of principles of natural justice
When the constitutionality of an act is challenged or the case involves violation
of principles of natural justice, the writ petition may be admitted.[42]
(viii)
Violation of Legal Principles
It was held in a number of cases that where
(i)
[43] or
(ii)
(iii)

there is total lack of jurisdiction,[44] or

a mandatory provision is ignored, or

(iv)

available material evidence is ignored, or

(v)
(vi)

an order, act or omission is erroneous, autocratic, capricious,

an action is arbitrary, or
an order is tainted with illegality, etc.

(vii)
an order is wholly without authority[45]
the writ petition may be allowed.
(xi)
Mere availability of alternative forum
In M/S. S.J.S. Business Enterprises Ltd. v. State of Bihar (2004 Supp 2 SC 601),
the Court has held that mere availability of alternative forum for appropriate
relief does not impinge upon the jurisdiction of the High Court to deal with the
matter.[46]

It is, thus, clear from the above discussion that in appropriate cases,
constitutional jurisdiction can be exercised by High Court even where alternate
remedy was available.[47]
Well Recognized Adequate Alternate Remedies:
The following alternative remedies are considered as adequate remedies:
(i)
Remedy of suit
If the remedy sought for, is in substance a remedy, which is available under the
ordinary law, then a suit should be the appropriate remedy instead of the
extraordinary remedy under Article 199.[48]Similarly, if the Petitioner had
already availed the remedy of civil suit which had already been finally
concluded, he is not entitled to invoke constitutional jurisdiction of High Court.
[49]
(ii)
Remedy of Representation
A representation has been considered as an adequate remedy.In WAPDA v.
Commissioner Hazara Division, where a person filed a writ petition against the
order of ombudsman without availing the remedy of representation before the
President of Pakistan, it was held that since the writ jurisdiction was a
discretionary remedy, the courts were not inclined to exercise it in the cases
where statutory remedy of representation before the president had not been
availed.[50]
(iii)
Amendment of the suit or pleadings
If the amendment of the pleadings is allowed by the law and it is sufficient to
meet the circumstance, it is adequate remedy. Thus, Circumvention of normal
processes of law cannot be permitted by accepting writ petition.[51]
(iv)
Remedy of appeal
Normally, appeal is considered as an adequate remedy. Thus, a writ Petition filed
against an appealable and revisable order would be rejected[52]
(v)
Appeal before special authority
Sometimes, a right of appeal is available before a special authority. It may
operate as an adequate remedy.[53]
(vi)
Remedy through ordinary criminal courts
The availability of remedy under Cr. P. C. operates as a bar to exercise
constitutional jurisdiction under Art. 199.[54] Similarly, The filing of a direct
complaint under Section 220, Cr. P. C. has been found to be an adequate remedy
in the case of Ghanwa Bhutto.[55] It provides:
Remedy by way of a private complaint is equally an effective and a practical
remedy as against the registration of F.I.R. and is thus an adequate remedy.

With respect to criminal cases, a magistrate is empowered to direct the police to

investigate the case and is authorized to exercise all powers of Criminal
Procedure Code available to him for investigating the case including the power
to arrest.[56] Similarly, a magistrate may also be asked to exercise powers
under Section 156(3) to direct the Police to register the FIR and investigate the
case.[57] Further, a magistrate is also empowered to take action against any
police officer who fails to perform his duties and there is no need to file a
constitutional petition in this respect.[58]
Presently, after insertion of sub-section (6) to Section 22-A, Cr. P. C. a Session
Judge as an Ex Officio Justice of Peace can issue appropriate directions to the
concerned Police Authorities, on the complaint of non-registration of FIR, by
directing them to register the FIR if cognizable offence is found to have been
committed.[59]
Remedies not recognized as Adequate
The following alternate remedies have been considered inadequate under the
relevant circumstances:
(i)
Mere Revision
Mere fact that a revision is competent, would not bar High Court from exercising
constitutional jurisdiction[60] if an impugned order is without jurisdiction or in
violation of some law.[61]
In Ghazi Fabrics International Limited, Gulberg-Iii, Lahorev. Water and Power
Development Authority, Lahore, it was held that failure to have recourse to the
revisional remedy does not necessarily operate as a bar for invocation of writ
jurisdiction.[62]
The availability of a revision may not be fatal to maintainability of petition since
revision in law sometimes is not reckoned to be an efficacious or alternate
remedy. For example, where the assessing officer is acting under the dictate and
control of his superiors, resort to departmental remedies may be an exercise in
futility.[63]
(ii)
Mere Review
Mere review is also not considered as an adequate remedy.[64]
Conclusion:
It is very clear from the aforesaid discussion that apart from certain principles,
the situation and the facts of each case are basis for determining whether
alternate remedy is available or not and that it is adequate or not in the given
circumstances.

Sometime one may feel that the High Court is performing the functions like a
lower civil court. The relief which a lower court may grant is being granted by
the High Court. The very common example, in this respect, is issuing
injunctions. This practice may be avoided. In this regard certain instructions may
be issued to the lower courts.
While considering different factors, the economic position of the petitioner
should also be considered. If he is unable to afford the expense of proceedings
at the ordinary/preliminary level, it may be assumed as equal to inadequate
remedy.
It must be admitted that the Higher Courts of Pakistan have been using their
discretion and deciding the issue of alternate remedy judiciously in a way to
upheld justice only although there may be some examples where an error has
been discovered. It is, because, sometimes merely considering the facts may
lead to injustice.

[1] PLD 2003Peshawar 203

[2] Mehboob Ali Malik v. TheProvince ofWest Pakistan, PLD 1963 Lah. 575
[3] Ibid.
[4] Ibid.
[5] Article 199, The Constitution of Islamic Republic of Pakistan, 1973; Ghulam
Abbas v. Executive District Officer (Health), Gujrat and another, 2010 P L C (C.S.)
744
[6] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri Ghulam Shah and 2
others, 2003 YLR 1316
[7] Allah Nawaz & another v. The State, 2010 MLD 1412; Suo Motu Case No.13 of
2007, PLD 2009 SC 217
[8] PLD 1958 SC (Pakistan) 437
[9] Rizwan Ullah v. Registrar/President, Cooperative Societies, N.W.F.P., PLD
2003Peshawar 203
[10] Naeem Jaffar v. Senior Superintendent of Policeand 2 others, 1997 MLD
1198
[11] Asif Ali and others v. K.M.C. through its Administrator and 6 others, 1995
CLC 1659

[12] Noori Trading Corporation (PVT.) LTD. and others v. Federation Of Pakistan,
PLD 1989Quetta 74
[13] Pakistan National Shipping Corporation v. Rent Controller,Lahore and 2
others, PLD 1992Lahore 305
[14] State ofU.P. v. Bridge and Proof Co., (1996) 6 SCC 31
[15] Union ofIndia & v. T.R. Verma, AIR 1957 SC 882
[16] Tariq Transport CompanyLahore v. The Sargodha-Bhera Bus Service, PLD
1958 SC (Pak) 437
[17] AIR 1961 SC 1506
[18] The Murree Brewery Co. Ltd. v.Pakistan through the Secretary to Govt.
ofPakistan, PLD 1972 SC 279
[19] All Gilgit Baltistan Workers v. Federation ofPakistan, 2010 GBLR 1 Mian Ayaz
Anwar v. Federation ofPakistan, PLD 2010 Lah. 230
[20] Lal Harsh Deo Narain Singh & another v. State ofU.P. & others, AIR 1961 SC
1506
[21] Hayat Khatoon v. Allah Dino, 1985 CLC 1343
[22] Mst. Baghul and 17 others v. Deputy Commissioner, Tharparkar and 13
others, 2004 CLD 1220
[23] Ibid.
[24] Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) LTD, 2009 PTD
1392; Wattan Party through President v. Federation of Pakistan, P L D 2006 SC
697; Ghulam Ali Shah v. Deputy Commissioner & Incharge, Settlement
Cell,Sanghar, 1984 CLC 1729
[25] Assistant Collector Central Excise v. Dunlop India Ltd., AIR 1985 SC 330
[26] Himmatlal v. State of M.P., AIR 1954 SC 403; Ganpat Roy v. Addl. D.M., AIR
1985 SC 1635; Akhtar Abbas v. Administrator, Municipal Committee, Pattoki,
1996 PLC (C. S.) 429 Muhammad Aslam and others v. Municipal Committee and
others, 1998 P L C (C.S.) 93
[27] Wattan Party through President v. Federation ofPakistan, P L D 2006 SC 697
[28] B.E.S. Co. Ltd. v. Commrl. Tax Officer, AIR 1956 Cal 299; Ram & Shyam Co.
v. State ofHaryana, AIR 1985 SC 1147; Muhammad Aslam and others v.
Municipal Committee and others, 1998 P L C (C.S.) 93
[29] Mian Ayaz Anwar v. Federation ofPakistan, PLD 2010 Lah. 230
[30] Abid Hussain v. Government of Sind Through Chief Secretary, PLD 1984
Karachi 269 Shaukat Ali v. State Bank of Pakistan, 2007 CLD 1352
[31] Bhagirath Singh v. State ofPunja, AIR 1965 Punj 170
[32] Zila Parishad v. Kundan Sugar Mills, AIR 1968 SC 98
[33] 2010 CLD 804

[34] PLD 2010Lahore 230

[35] Hayat Khatoon v. Allah Dino, 1985 CLC 1343;
Chairman, Central Board of Revenue, Islamabadv. Messrs Pak-Saudi Fertilizer
Ltd., 2000 PTD 3748
[36] Baburam v. Zila Parishad, AIR 1969 SC 556; Chief Engineer, A.E.B v.
Commissioner for Workmens Compensation Authority, 2000 PLC (CS) 1082
[37] Syed Ali Abbas v. Vishan Singh, PLD 1967 SC 294
[38] Messrs Ahmed Clinic v. Government of Sindh and others, 2003 CLC 1196
[39] Messrs Pioneer Cement Limited v. Province of thePunjab, 2000 CLC 54 Syed
Nayyar Hussain Bukhari v. District Returning Officer, NA-49,Islamabad, PLD 2008
SC 487
[40] Vincent and others v. Karachi Development Authority, 1992 CLC 518
[41] Pervez Iqbal v. Provincial Transport Authority, Sindh, 1996 CLC 182
[42] Sri Balasubramania Traders v. Assistant Commissioner of Income-Tax, 2001
PTD 3475 Muhammad Younus v. Divisional Canal Officer, Lodhran Canal Division,
Multan, 2010 CLC 68
[43] Syed Allah Dost v. Haji Muhammad Alam and 12 others, PLD 1987Quetta
235
[44] Ibid
[45] Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty,
etc., PLD 1961 SC 119
[46] Chief Engineer, A.E.B v. Commissioner for Workmens Compensation
Authority, 2000 PLC (CS) 1082;
[47] Dr. Ghulam Mustafa Chaudhry v. Dr. M Ashiq Khan Durrani, VC BZU Multan,
2000 PLC (CS) 385
[48] Faisal Razzaq v. Tehsil Municipal Administration, Khairpur Tamewali, 2007
YLR 2887
[49] M. Pervaiz Iqbal v. P.O.P., and others, 2008 YLR 2485
[50] WAPDA v. Commissioner Hazara Division, 1992 SCMR 21
[51] Dr. M. O. Ghani, Vice-Chancellor,University ofDacca v. Dr. A. N. M.
Mahmood, PLD 1966 SC 802
[52] Faisal Razzaq v. Tehsil Municipal Administration, Khairpur Tamewali, 2007
YLR 2887 Nizam-ud-Din Ahmad v. Commissioner of Sales Tax, 1971 SCMR 68
[53] The Presiding Officer v. Sadruddin Ansari, PLD 1967 SC 569
[54] Waseem-ul-Haq v. Govt. of Sindh, PLD 1975Karachi 1
[55] Mrs. Ghinwa Bhutto v. Govt. of Sindh, PLD 1997Karachi 119
[56] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri Ghulam Shah, 2003
YLR 1316

[57] Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani, P L D 2002Karachi
328
[58] Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro, 2010 SCMR 624
[59] Zulfiqar Ali v. Sub-Divisional Police Officer, Jampur, District Rajanpur, 2010
P.Cr.L.J. 556
[60] Abdul Baqi and others v. The Superintendent, Central Prison , Machh, PLD
1957Karachi 694
[61] Mrs. Razia Begum v. Cantonment Board,Clifton ,2000 YLR 2114
[62] PLD 2000Lahore 349
[63] SBLR 2001Karachi 945
[64] Mian Ayaz Anwar v. Federation ofPakistan, PLD 2010Lahore 230
By: AMJAD HUSSAIN Assistant Professor, Department of Law, The
IslamiaUniversity of Bahawalpur,Pakistan

Army School vs Smt. Shilpi Paul on 16 August, 2004

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32. In the aforesaid decision in Anand Kumar Gupta's case a Division

Bench (Per M. Katju, J.) observed :
"The language of Article 226 is no doubt very wide. It states that
a writ can be issued 'to anyperson or authority' and 'for enforcement of
rights, conferred by Part III and for any other purpose'. However, the
aforesaid language in Article 226 cannot be interpreted and understood
literally. If we take the language literally it will follow that a writ can be
issued to any privateperson or to settle even private disputes. If we

interpret the words 'for any other purpose' literally it will mean that
a writ can be issued for any purpose whatsoever, e.g. for
decidingprivate disputes, for grant of divorce, succession certificate etc.
Similarly, if we interpret the words, "to any person" literally it will
mean that a writ can even be issued to private persons. However, this
would not be the correct meaning in view of various decisions of the
Supreme Court and of other Courts [vide Smt. Biran Devi v. Sechu Lal,
2001 (4) AWC 2659 ; Gajendra Kumar Sharma v. General Manager, 1999
(3) UPLBEC 2452 ; Carisbad Co. v. Jagtiani, AIR 1952 Cal 315 etc.].
The correct interpretation of the aforesaid words in Article 226 is that
a writ can ordinarily be issued to a person to whom writs were
traditionally issued by British Courts on well established principles.
Similarly, the words, "for any other purpose" have to be interpreted in
the narrower sense to mean that a writ can be issued for the purpose for
which writs were traditionally issued by British Courts on well
established principles [vide Workmen of Pepsico v. Labour
Commissioner, 2000 (3) ESC 1593 (All)]. The British Courts did not
ordinarily issue writs to private personsexcept a writ of habeas
corpus.