Contempt of Court

2010 S C M R 594
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed,
JJ
KHALID RASHID----Petitioner
Versus
KAMRAN LASHARI, Chairman, C.D.A., Islamabad and others----Respondents
Criminal Original Petition No.32 of 2008 in Civil Appeal No.1637 of 2007, decided on
3rd June, 2009.
(Petition under Articles 204 and 187 of Constitution of Islamic Republic of Pakistan,
1973, read with Contempt of Court Ordinance, 2003 and Order XXVII, Rule 1 of the
Supreme Court Rules, 1980 read with all enabling provision for contempt of Court).
(a) Constitution of Pakistan (1973)---
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---
Initiation of contempt proceedings---Principles: (1) Proceedings cannot be initiated at the
desire of a litigant party, (ii) Court has to be satisfied as to whether act of respondents
comes within the mischief of law or otherwise amounts to interference with the
administration of justice, (iii) Very purpose of initiating contempt proceedings is always
vindication of dignity and honour of the Court or that of the justice of administration, (iv)
Once undertaking is given to the Court by a party or on behalf of his counsel it becomes
bound to fulfill the same on the ground that the undertaking has exactly the same force as
an order made or an injunction issued by a Court, (v) Supreme Court is not bound to start
contempt proceedings unless it is shown that the alleged contemner had acted recklessly
and with the open motive to show his disrespect to the authority of the Court, (vi)
Supreme Court instead of starting such proceedings would prefer to adopt the principle of
"Afwoo" as recognized by Muslim Jurisprudence and (vii) Contempt is always between
the contemnor and the Court.
Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580; Khyber Zaman's case 2005
SCMR 235; Shah Alam Khan's case PLD 1993 SC 297; Sarfraz Hussain's case 2005 YLR
337 and Tarit Kanti Biswas' case AIR 1918 Cal. 988 ref.
(b) Constitution of Pakistan (1973)---
----Arts. 4, 189 & 190---Decisions of Supreme Court binding on the other Courts---All
executive and judicial authorities to act in aid of Supreme Court---Judgment of Supreme
Court, and a right declared thereunder, cannot be overridden or nullified by an executive
order, a rule or a dispensation short of legislative will.
Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi Development Authority's case PLD
1969 SC 430 and Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184 ref.
(c) Constitution of Pakistan (1973)---
----Art. 204---Contempt of Court---Change of master plan or creation of plots in open

area---In view of the concise statement filed by the respondents and the decision of the
C.D.A. Board, no case for taking action against the respondents for contempt of Court
was made out because the main civil appeal had not been decided on merits, but the same
was decided on the undertaking of the respondents as was depicted from the order of
Supreme Court and the decision of the Board of C.D.A. did not seem to be violative of
the said order of Supreme Court---Petition for contempt of Court was dismissed
accordingly.
Page No. 1 of 2
Moulvi Iqbal Haider's case PLD 2006 SC 394; Mst. Kishwar Sultan Jehan Begum's case
PLD 1976 Lah.580; Khyber Zaman's case 2005 SCMR 235; Shah Alam Khan's case PLD
1993 SC 297; Sarfraz Hussain's case 2005 YLR 337; Tarit Kanti Biswas' case AIR 1918
Cal. 988 Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi Development Authority's
case PLD 1969 SC 430; Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184; Messrs
Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692; Imtiaz Ali's
case 2001 SCMR 832; Tariq Aziz's case 2000 SCMR 751; Safia Bibi's case PLD 1982 SC
247 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.
Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner.
Afnan Karim Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-
Record for Respondents.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S Khattak, Advocate-
on-Record for Applicants (in Criminal Miscellaneous Application No.432 of 2008).
ORDER
CH. IJAZ AHMED, J.--- Brief facts out of which the present petition arises are that Plot
No.27 measuring about 600 square yards situated at Street No.39, 1-8/2, Islamabad, was
originally allotted to Bashir Ahmed on 12-2-1990 which was purchased by the petitioner
and the same was transferred in the name of the petitioner on 9-4-2005. The petitioner
had constructed house over the plot in question. Allegedly respondent No.1 approved
sector plan of sector I-8/2 and adjacent to his house as well as other House No.22 towards
north area has been left as "green area". Respondent No.1 had created four plots to
accommodate respondents Nos.3, 4, 6 and 7. The petitioner being aggrieved filed
Constitution Petition No.1045 of 2007 in the Lahore High Court, Rawalpindi Bench,
Rawalpindi, with the following prayer:--
"In the circumstances it is respectfully prayed that the conversion of the area earmarked
as "green" attached to the house of the petitioner and House No.22, situated at Street
No.39, Sector I-8/2, Islamabad may kindly be declared as illegal, based on mala fide. An
appropriate writ may kindly be issued and respondents be restrained from converting the
green area into the plots for the benefits of the respondents."
The afore-said writ petition was dismissed by the learned High Court vide order dated 18-
5-2007. Petitioner being aggrieved filed C.P. No.553 of 2007 which was fixed before this
Court on 12-9-2007. Leave was granted in the following terms:--
"The questions as whether the C.D.A. Authorities can make allotment of a residential or
commercial plots in the C.D.A. area in their discretion and policy of law regarding
disposal of such plots through public auction is not mandatory and can be dispensed with
and whether green area can be converted into residential or commercial plots without the
change of the master plan, would require consideration. Leave is accordingly granted to
consider the above questions and in the meanwhile subject to notice to the private
respondents, status quo in all respects shall be maintained by the parties vis-a-vis the
plots in question."
The said petition was converted into Appeal No.1637 of 2007 which was finally decided
on 15-4-2008 in the following terms by this Court:---
"Messrs Malik Muhammad Qayyum, learned Attorney General for Pakistan and Abdur
Rehman Siddiqui, Advocate Supreme Court appearing on behalf of Federation of
Pakistan and C.D.A. have stated that green area adjacent to House No.27 Street No.39, 1-
8/2, Islamabad belonging to appellant Khalid Rashid shall not be disturbed and will
remain as such.
In view of above, Mr. Muhammad Akram Sh., learned Senior Advocate Supreme Court
appearing on behalf of appellant is satisfied and does not want to pursue the matter
further to which Messrs Babar Awan, learned counsel appearing on behalf of private
respondents and Muhammad Ishtiaq Ahmed Raja, learned Advocate Supreme Court
appearing in C.M.A. No.3026 of 2007 have no objection.
Page No. 2 of 2
Accordingly, instant appeal along with C.M.As. Nos.2872 and 3026 of 2007 and C.M.A.
No.641 of 2008 are disposed of in the above terms with no order as to cost."
Respondents allegedly failed to honour their commitment in terms of the order of this
Court dated 15-4-2008. Petitioner being aggrieved filed Criminal Original Petition with
the following prayer:--
(i) The respondents Nos. 1 to 7 be punished for contempt of Court.
(ii) That respondents Nos.1 to 7 be directed to comply with the order dated 15th April,
2008 in letter and spirit and to demolish construction of building carried out after the 15-
4-2008 and to confirm in writing to the honourable Court compliance of the order dated
15th April, 2008,
(iii) To direct the respondents to pay the cost of the petitioner's litigation besides paying
Rs.50 million as compensation to the petitioner for the mental agony and distress for over
one year.
(iv) Any other relief, which the petitioner is entitled in law, justice and equity may also be
awarded."
The said contempt petition was fixed before this Court on 3-9-2008 and the following
order was passed:---
"This Court vide order dated 15-4-2008 had disposed of the matter with consent and with
the observation that green area adjacent to House No.27, Street No.39, Sector 1-8/2,
Islamabad, belonging to the appellant Khalid Rashid shall not be disturbed and will
remain as such. Through the instant criminal original petition, the appellant has agitated
that the orders of this Court have been violated and respondents have started construction
on the green area mentioned above. The respondents have filed written statement and
have denied the contention raised in the contempt application.
In order to resolve the dispute Haji M. Rafi Siddqqui, learned Advocate, Supreme Court,
is appointed as Local Commissioner to inspect the site in presence of both the parties.
The appellant will pay a sum of Rs.15,000 (Rupees fifteen thousand) only, as cost to Haji
M. Rafi Siddiqui, Local Commissioner.
By consent adjourned to 15-9-2008."
The said petition was fixed on 15-9-2008 and the following order was passed:---
"In this case, Local Commissioner has submitted his report. Mr. M. Jafar Hashmi, learned
counsel for the respondents submits that he has not received the copy of the report, as
such is not in a position to argue the matter and requests for time to file the reply to the
Local Commissioner's report. Adjourned to 7-10-2008.
Thereafter the case was fixed on 7-10-2008 and the following order was passed:---
"Mian Muhammad Hanif, Advocate Supreme Court undertakes to file reply within
fortnight. By consent adjourned to 27-10-2008."
The order dated 27-10-2008 depicts that Advocate-on-Record of the respondents handed
over copy of concise statement to petitioner on 25-10-2008 which was received by the
counsel of the petitioner on 27-10-2008 and the case was adjourned. Thereafter the
petition was fixed before this Court on 18-11-2008 and 2-12-2008 and the following
orders were passed respectively:--
Order dated 18-11-2008
"Mian Muhammad Hanif, learned counsel for C.D.A. requests for time to produce
Original/unamended Master Plan of Sector I-8 as well as amended Plan. Adjourned to 2-
12-2008.
Page No. 3 of 2
Notice be issued in Cr.M.A. No.432 of 2008 for impleadment of party to the petitioner as
well as the respondents."
Order dated 2-12-2008
"Mian Muhammad Hanif, learned Advocate Supreme Court has placed on record original
copy of map of 1991. Whereas so far as the plot in question is concerned clear open space
has been shown in front of it. He requests for time as Director (Town Planning), C.D.A.
has proceeded to perform Hajj and is not available. By consent adjourned to a date in
office during the last week of January, 2009."
2. Learned counsel for the petitioners submits as under:
(i) That respondents had committed contempt of this Court as depicted by mere perusing
the contents of the concise statement filed by them before this Court.
(ii) The respondents have no lawful authority to change the master plan without adopting
proper procedure prescribed under the provisions of C.D.A. Ordinance and regulations
framed thereunder. In support of his contention he relied upon Moulvi Iqbal Haider's case
PLD 2006 SC, 394.
(iii) The respondents had given undertaking before this Court that green area adjacent to
the house of the petitioner as shown in the Master Plan would not be disturbed in any
manner whatsoever and would remain as such.
(iv) On the basis of the undertaking of the respondents, the appeal of the petitioner was
disposed of.
(v) The petitioner had sent a letter dated 28-5-2008 and letter dated 7-6-2008 for the
implementation of the order of this Court.
(vi) The respondents did not respond to the afore-said letters and had violated the order of
this Court.
(vii) The Local Commissioner has already submitted report which reveals that the
respondents had committed contempt of this Court.
(viii) Respondent No.1 had created plots over the land reserved for green area in violation
of the provisions of C.D.A. Ordinance, 1960 and regulations framed thereunder to favour
their own high officers of the C.D.A., namely Brig. Nusratullah, Ex-Member Planning
and Design, Mr. Kamran Qureshi, Member Finance, Mr. Shaukat Mehmand, Ex-Member
Administration and Brig. (R) Syed Ghulam Akbar Bukhari, Ex-Member Engineering,
without inviting applications from the public at large or from all the employees of the
C.D.A.
(ix) The action of the respondents is not only violation of the provisions of the C.D.A.
Ordinance and Rules and Regulations framed thereunder but the action of the respondents
is also hit by fundamental rights i.e. Articles 9, 14 and 15 of the Constitution.
(x) The respondents, mentioned above, have been allotted plots in question for a petty
amount whereas the same are worth of crores of rupees which is not in accordance with
law. It is inalienable right of every citizen by virtue of Article 4 of the Constitution.
3. Learned counsel for the respondents submits that respondents had not violated the
order of this Court. The respondents had also filed objections with regard to the report of
the Local Commissioner. The petitioner approached the respondents to purchase the land
of the respondents adjacent to the house of the petitioner. The area adjacent to the house
of the petitioner had not been disturbed till date. The matter was placed before the Board
of the C.D.A. in its meeting held on 28-10-2008 with regard to the implementation of the
order of this Court. The Board had taken a decision on 28-10-2008 which is as follows:
Page No. 4 of 2
"The Board decided that Environment Wing to establish a public park on that site. The
development and maintenance of the plots is to be one by the Environment Wing of
C.D.A. with the cooperation of residents of Society of the area."
4. He further urges that petitioner has not approached this Court with clean hands as the
petitioner wants to grab and utilize the land owned by the C.D.A. as is evident from the
contents of the application submitted by the petitioner to the respondents which is to the
following effect:---
"That in order to grab the unutilized land owned by the C.D.A., the petitioner Mr. Khalid
Rashid applied to C.D.A. for grant of permission for development of waste land into
green are adjacent to H. No.27, Street No.39, Sector I-8/2. The subject of the application
submitted by the petitioner is reproduced below;
Please find enclosed pictorial representation of the waste land adjacent to my house. As
per C.D.A.'s master plan sewerage pipelines are passing through waste land now turned
into shrubs and wild growth, abode for wild bears etc.
The land in question as such cannot be used for any other purpose except to be developed
as green area.
Sir, I am willing to undertake the project developing the waste land into green area at my
cost and kind cooperation of C.D.A."
5. The learned counsel of the private respondents submits that private respondents had
not committed contempt of this Court as evident from the contents of the order of this
Court dated 15-4-2008.
6. The learned counsel for the petitioner in rebuttal submits that respondents had no
lawful authority to convert green belt into park and had no lawful authority to change the
master plan. The petitioner had not submitted an application before the respondents to
purchase the area in question which is adjacent to his house.
7. We have given our anxious consideration to the contentions of the learned counsel of
the parties and also perused the record. It is pertinent to mention here that the appeal was
disposed of on 15-4-2008 in the aforesaid terms mentioned hereinabove. Contentions
which have been raised before us by the learned counsel of petitioner on merits with
regard to change of the master plan or creation of plots in open area east of Plots Nos.22,
24, 25 and 26 have no force which can be relevant to resolve the controversy between the
parties at the time of deciding the main Civil Appeal No.1637 of 2007. The question
before us is of to examine whether respondents have violated their undertaking which
was made before this Court on 15-4-2008? It is better and proper to highlight principles
qua initiation of contempt proceedings or not as under:--
(i) That the proceedings cannot be initiated at the desire of a litigant party.
(ii) The Court has to be satisfied as to whether act of respondents comes within the
mischief of law or otherwise amounting to interference with the administration of justice.
(iii) The very purpose of initiating contempt proceedings is always vindication of dignity
and honour of the Court or that of the justice of administration.
(iv) That once undertaking given to the Court by a party or on his behalf of his counsel it
becomes bound to fulfill the same on the ground that undertaking has exactly the same
force as an order made or in injunction issued by a Court as law laid down by Full Bench
of the Lahore High Court headed by Sardar Muhammad Iqbal, C.J (as his Lordship then
was) in Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580 and Khyber
Zaman's case 2005 SCMR 235.
(v) This Court is not bound to start contempt proceedings unless it is shown that the
alleged contemnor acted recklessly and with the open motive to show his disrespect to the
authority of the Court.
Page No. 5 of 2
(vi) Instead of starting such proceedings, this Court preferred to adopt the principle of
"Afwoo" as recognized by Muslim Jurisprudence. See Shah Alam Khan's case PLD 1993
SC 297.
(vii) Contempt is always between the contemnor and the Court. See Sarfraz Hussain's
case 2005 YLR 337. This question of law has also been considered by Calcutta High
Court in Tarit Kanti Biswas' case AIR 1918 Cal.988.
Order dated 15-4-2008 has already been reproduced hereinabove which was passed on
the undertaking of the counsel of the respondents and Attorney General for Pakistan. The
said order was considered in the meeting of the Board of Directors of C.D.A. held on 28-
10-2008. The decision has already been reproduced hereinabove. The manner in which
the order was discussed in the meeting in para 7.4 is reproduced herein below:--
"Director Urban Planning, explained to the Board that Sewerage trunk line was laid
diagonally when the area in Sector I-8 was unplanned. However, in the years 1996-1997
utilization of land in Sector I-8 was approved along with re-routing of trunk sewer line,
space thus became available has been utilized for planning/adjustment of plots as per
ground situation. At the time of existence of trunk sewer line, permission was issued to
Col. Khalid Rashid, allottee of Plot No.27, St.39, Sector I-8/2 for beautification of C.D.A.
land on temporary basis liable to be withdrawn as and when desired by the authority. By
virtue of this temporary permission the allottee has approached the Supreme Court of
Pakistan about the creation of plots in open area of east of Plots Nos.22, 24, 25 and 26
have also been adjusted towards west keeping in view the ground situation. The orders of
the Supreme Court of Pakistan are as under:
He explained that in pursuance of the Court decision, Col. Khalid Rashid, has approached
the authority to keep the area green on east of Plot No.27, St.39, Sector I-8/2, whereas as
per plan previously this area was waste land because of trunk sewer line and row is a
planned plot.
He further explained that Col. Khalid Rashid has served a fresh notice that he is going to
file contempt of Court against C.D.A. for non-compliance with the orders of Supreme
Court of Pakistan.
He further explained that in case the area on east of Plot No.27 is to be converted into
green, C.D.A. has to sacrifice two plots (unallotted) measuring `60 x 90'. He placed the
following options before the Board for decision:
(i) If there is binding on C.D.A. as per decision of the Supreme Court of Pakistan to
convert the area adjacent to Plot No.27 into green on permanent basis, then two plots
numbered 25 and 26 have to be eliminated from the plan.
(ii) If the Court decision may be interpreted as "It means the issuance of permission for
beautification of the same land till the land is utilized by C.D.A.", then permission for
beautification may be issued which would be purely temporary and liable to be
withdrawn whenever required by C.D.A."
Mere reading the manner in which the order was considered in the meeting of the Board
of C.D.A. is contemptuous. It is settled principle that everybody is bound to obey the
command of the Constitution in view of Article 5(2) of the Constitution as law laid down
by this Court in Ch. Zahur Illahi's case PLD 1975 SC 383. The public functionaries are
also duty bound to act in accordance with law in view of Article 4 read with Articles 189
and 190 of the Constitution. Laws are made not to make them merely on the statute book
which are framed time to time but act upon them, which is in consonance with the Holy
Qur'an as enshrined in Surah Baqra. The afore-said proposition of law is also supported
by the following judgments:
(i) Karachi Development Authority's case PLD 1969 SC 430, (ii) Capt.(Retd.) Abdul
Qayyum's case PLD 1992 SC 184.
The ratio of the afore-said cases is as follows:---
Page No. 6 of 2
"that a judgment of the Supreme Court, a right declared thereunder, cannot be overridden
or nullified by an executive order, a rule or a dispensation short of legislative will."
The question of law has been examined by this Court in Messrs Nishat Mills Limited v.
Government of Pakistan and others 1989 CLC 1692 and laid down the following
principle:---
"Before concluding, I would like to mention that the manner in which the Central Board
of Revenue has flouted the law declared by the Supreme Court, leaves much to be
desired, under Article 5(2) of the Pakistan Constitution, 1973, obedience to the
Constitution and the law is the inviolable obligation of every citizen and every other
person resident in Pakistan. I am not aware that the departments of the State are exempt
from which obligation. Since under Article 189 of the Constitution, the law declared
by the Supreme Court of Pakistan is binding on all Courts in Pakistan and under
Article 190 of the Constitution, all executive and judicial authorities throughout
Pakistan are bound to act in aid of the Supreme Court, one would assume that all
organs of the State are duty bound to act in aid of the law declared by the Supreme
Court and not flout it. One would expect that the Central Board of Revenue, with its
full-fledged legal cell, is aware of all laws declared by the superior Courts of Pakistan
relating to the subjects within their jurisdiction and does not ignore these declaration
when framing or amending the law, rules, and notifications on the subject."
The afore-said minutes of the meeting dated 28-10-2008 clearly depict that the
respondents have prima facie committed contempt of this Court which is not in
consonance with the judgments of this Court as mention herein above. In fact it is clearly
in derogation of the judgment of this Court which tantamounts to interference in the
judgment of this Court and falls within the scope of contempt of Court. It is settled
principle of law that the judgment of this Court could not be modified/ erased as law laid
down by this Court in Imtiaz Ali's case 2001 SCMR 832. Non-observance of the orders
of the superior Courts would create a chaos which brings a situation to minimize the State
concept of sovereign Islamic State minus a strong and independent judiciary is
unimaginable if the judiciary of the country is stripped off, its power, the country would
cease to exist as free nation as laws laid by this Court in Tariq Aziz's case 2000 SCMR
751.
8. We are constrained to observe after perusing the minutes of the meeting of the
respondents dated 28-10-2008 reproduced hereinabove. However, Board in its decision
dated 28-10-2008 reproduced hereinabove that Environment Wing to establish a public
park on that site.
9. Adverting to the case in hand after perusing the concise statement filed by the
respondents and the decision of the C.D.A. Board dated 28-10-2008 we find that a case
for taking action against the respondents for contempt of Court is not made out for the
following two reasons:
(i) Civil Appeal No.1637 of 2008 was not decided on merits but it was decided in view of
the undertaking of the respondents as is depicted from the order of the Court dated 15-4-
2008.
(ii) The decision of the Board of the C.D.A. dated 28-10-2008 as mentioned hereinabove
does not seem to be in violative of the order of this Court dated 15-4-2008.
10. We are not inclined to proceed against the respondents as law laid down by this Court
in Safia Bibi case PLD 1982 SC 247. After perusing the application mentioned herein
above of the petitioner we are not inclined to exercise our discretion in favour of the
petitioner as law laid down by this Court in Rana Muhammad Arshad's case 1998 SCMR
1462.
11. In view of what has been discussed Criminal Original Petition has no merits and the
same is dismissed with no order as to costs.
N.H.Q./K-11/SC Petition dismissed.
Page No. 7 of 2
2009 SCMR 477
Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq , JJ
Cr.P.L.A. No.176 of 2008
Syed MASOOD ALAM RIZVI and others----Petitioners
Versus
Dr. MUHAMMAD SAEED----Respondent
(On appeal from the order, dated 21-5-2008 of the Lahore High Court, Lahore passed in
Criminal Original No.323/W of 2008).
Cr. P.L.A. No.219 of 2008
Dr. MUHAMMAD SAEED----Petitioner
Versus
Syed MASOOD ALAM RIZVI----Respondent
(On appeal from the order, dated 27-5-2008 of the Lahore High Court, Lahore passed in
Criminal Original No.383/W of 2007).
Crl. P.L.As. Nos.176 and 219 of 2008, decided on 1st December, 2008.
----Arts. 204 & 185(3)---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of
Court---High Court had summoned the petitioner to charge him for committing contempt
of Court---Tenor of the order showed that High Court, after proper application of mind
had decided to proceed against the petitioner under contempt laws and had issued notice
to him---Since High Court had expressed its mind to charge the petitioner in contempt
proceedings, the said order, to all intents and purposes, was a final order and hence could
be assailed before Supreme Court---Respondent alleging violation and disobedience of
two orders; one passed by High Court and the other by Supreme Court, had filed two
contempt petitions---Record of the case manifested that pursuant to the said orders,
petitioners had completed the missing service record of the respondent and referred the
case to the Committee for the grant of BS-21 on meritorious grounds---Meeting of the
Committee was also convened for considering the case of the respondent for regular
promotion to BS-21, which came to the conclusion that no professor could be promoted
to regular BS-21 through regular promotion and that no regular post in BS-21 existed
against which any professor could be promoted, relevant portion whereof had been
reproduced in the impugned order---Petitioners, by submitting the case of the respondent
before the competent authority, had complied with the directions of High Court and
Supreme Court and they could not be argued to have failed to do so---No case for
initiating contempt proceedings was made out against the petitioners under the
circumstances---High Court had dismissed the first petition after giving cogent reasons in
accordance with the record of the case and also in consonance with the law on the
subject---Admittedly, letter issued by the Cabinet Division informing that "none of the
officers of SZPGMI has been approved for grant of BS-21 on meritorious basis" was not
challenged by the respondent before any forum and he instead had opted to file the
second petition, which was an endeavor to secure the promotion through exercise of
pressure tactics by filing repetitive contempt petitions and, thus, even equity did not lean
in his favour---Assuming that a case for initiating contempt proceedings was made out
against the petitioners, even then in view of the settled law that a matter of contempt in
between the court and the alleged contemnor, it was upto the Court either to take any
appropriate action against the alleged contemnors or drop the matter---Respondent on this
count too had no case---Petition filed by the petitioners was converted into appeal and
Page No. 1 of 2
allowed setting aside the impugned order passed by High Court, while the petition filed
by the respondent was dismissed being meritless and leave to appeal was refused
accordingly.
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt of Court---

Repetitive petitions, not permissible---Litigant cannot be allowed to file repetitive
petitions on the same subject-matter and for the same relief.
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt petition-

Competency-Matter of contempt being between the Court and the alleged contemnor, it is
upto the Court either to take any appropriate action against the alleged contemnor or drop
the matter.
Amir Alam Khan, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for
Petitioners (in Cr.P.L.A. No.176 of 2008).
Ihsan-ul-Haq Ch., Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for
Respondent (in Cr.P.L.A, No.176 of 2008).
Ihasn-ul-.Haq Ch., Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for
Petitioner (in Cr.P.L.A. No.219 of 2008).
Amir Alam Khan, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for
Respondent (in Cr.P.L.A. No.219 of 2008).
Date of hearing: 1st December, 2008.
JUDGMENT
MIAN HAMID FAROOQ, J.---We, through this single judgment, propose to decide two
connected petitions (Crl.P.L.A. No.176 of 2008 and Crl.P.L.A. No.219 of 2008), as
identical questions of law and facts are involved in both the petitions and those are
between the same parties.
2. Syed Masood Alam Rizvi, etc. (the petitioners), through filing the petition (Cr1.P.L.A.
No.176 of 2008), seek leave to appeal against order, dated 21-5-2008, whereby learned
Lahore High Court at Lahore directed petitioner No.1 to file reply to the Criminal
Petition (Criminal Original No.323/W of 2008) to be charged in contempt and issued
notices to other petitioners, while Dr. Muhammad Saeed ('the respondent') through filing
other petition (Crl.P.L.A. No.219 of 2008), seeks leave to appeal against order, dated 27-
5-2008, passed by the learned Lahore High Court at Lahore, through which it dismissed
his petition (Criminal Original No.383/W of 2007) for initiating contempt proceedings
against the petitioners.
3. Facts, relevant for the decision of the afore-noted petitions, are that the respondent,
through the constitutional petition (Writ Petition No.1753 of 2006), challenged the
notification dated 14-11-2005, whereby his case for promotion to BS-21 was rejected and
other doctors allegedly junior to him were promoted. Said petition was disposed of by the
learned High Court, on 25-7-2006, directing the petitioners to complete service record of
the respondent and subject to his eligibility present the same before the competent
authority for considering his merit and fitness for promotion. Professor Anwaar A. Khan
(petitioner No.3 in Crl.P.L.A. No.176 of 2008) challenged the said decision through filing
the appeal (I.C.A. No.258 of 2006) and the learned Division Bench of the Lahore High
Court at Lahore partially modified the order, dated 25-7-2006 holding that the grant of
BS-21 is a matter for the competent authority to consider, vide judgment, dated 18-10-
2006. The respondent challenged the said judgment through filing civil petition (C.P.L.A.
No.2388/L of 2006), which was disposed of by this Court, vide order, dated 2-2-2007,
observing that "on completion of the record of the petitioner, the same should be placed
before the competent authority for examining his case for promotion to BS-21 in
Page No. 2 of 2
accordance with law and prevailing policy". According to the respondent, various written
and oral requests, including a legal notice, for implementation of afore stated orders
passed by the High Court and this Court proved abortive and his grievance was not
redressed. He, on 13-6-2007, filed the contempt petition (Criminal Original No.383/W of
2007) ("First petition") for initiating contempt proceedings against Syed Masood Alam
Rizvi, (petitioner No.1) who resisted it through filing the reply. It appears that in the
meantime cases of certain persons, including the respondent, for grant of BS-21 under
meritorious basis were submitted to the Establishment Division, Government of Pakistan,
however, none of the officers of Sheikh Zayed Post Graduate Medical Institute, Lahore
(SZPGMI) was approved for grant of BS-21 on the said basis and this was
communicated, vide order, dated 17-1-2008. During the proceedings, in the "First
Petition" the learned High Court, on 17-3-2008, directed the petitioners "to take all steps
to comply with" the order, dated 2-2-2007, and present the case before the competent
authority for regular promotion to BS-21 as directed by the High Court and by this Court.
The learned counsel for the petitioners was further directed to file report on or before 15-
4-2008. Pursuant thereto the report, in compliance with order, dated 17-3-2008, coupled
with the minutes of the meetings of department held on 31-3-2008, was submitted before
the Court. It was reported that the committed considered the case of the respondent and
concluded that there is no regular post available in BS-21, against which any of the
Professors could be promoted and no Professor was promoted to BS-21 through regular
promotion. During pendency of the "First petition", the respondent, on 20-5-2008, opted
to file another petition (Criminal Original No.323/W of 2008) "second petition" against
the petitioners, which came up for hearing before the learned High Court on 21-5-2008
and the learned single Judge in Chambers issued notice to the petitioner No.1 (Syed
Masood Alam Rizvi) "to be charged in contempt" and also issued notices to the other
respondents. Syed Masood Alam Rizvi along with other challenged the order, dated 21-5-
2008 before this Court through Cr.P.L.A. No.176 of 2008. During pendency of the
"second petition", the learned High Court after hearing the learned counsel for the parties,
dismissed the "first petition" (Criminal Original No.383/W of 2007), vide order, dated
27-5-2008, which is the subject-matter of the Cr.P.L.A. No.219 of 2008 filed by the
respondent.
4. Learned counsel for the petitioners submitted that successive contempt petitions on the
same subject-matter and arising out of one order could neither be entertained nor
competent before the High Court, that in view of dismissal of first contempt petition on
27-5-2008, the "second petition" lost its efficacy; that the directions of the High Court as
well as of this Court were complied with in letter and spirit, therefore, the petitioners
were not guilty of committing contempt of the Court; that the respondent could not seek
promotion in regular course after the post of Professor and that he filed two contempt
petitions to compel the petitioners for creating a post of BS-21 for him. Conversely,
learned counsel representing the respondent submitting that since order dated 21-5-2008
was an interim order, therefore, could not be assailed before this Court. He further
submitted that orders passed by the High Court as well as by this Court for promotion of
Dr. Muhammad Saeed to BS-21 were not complied with and thus, the petitioners
committed contempt of the Court and the learned High Court while dismissing first
contempt petition committed grave legal error.
5. We have heard the learned counsel for the parties and deeply examined order, dated 21-
5-2008 in order to determine as to whether it is an interim order or a final order. We
found that the learned single Judge while issuing notice to petitioner No.1 (Syed Masood
Alam Rizvi) specifically directed that notice be issued to him for a date "to be charged in
contempt". The words "to be charged in contempt" are of utmost significance. It flows
therefrom that the learned High Court summoned the petitioner No.1 to charge him for
committing contempt of Court. It appears from the tenor of the order that the learned
Judge after proper application of mind and with determination to proceed against the
petitioner No.1 under contempt laws issued notice to him. We have no doubt in our mind
that the learned single Judge was convinced that the petitioner No.1 committed contempt
of the Court and he be charged for contempt and that appeared to be the reason why the
petitioner No.1 was issued notice to be charge in contempt, while rest of the petitioners
were issued notices only to file reply to the "second petition". In view whereof, as the
learned Judge expressed his mind to charge the petitioner No.1 in contempt proceedings,
therefore, the said order for all intents and purposes is a final order and hence could be
assailed before this Court.
Page No. 3 of 2
6. The respondent filed the "second contempt" petition (Criminal Original No.323/W of
2008) on 20-5-2008, when his "first petition" (Criminal Original No.383/W of 2007) was
pending. It may be noted that the respondent admitted in para.2 of the "second petition"
that, "it is the second contempt petition". The "first petition" was dismissed on merits by
the High Court on 27-5-2008. Now the question arises as canvassed by the learned
counsel for the petitioners, as to whether during pendency of the "first petition", the
"second petition" was competent in law. We compared the contents of the afore-noted two
petitions and found that paras.3 to 13 of the "second petition" are merely reproduction of
paras.2 to 12 of the "first petition", while rest of the paras., are rejoinder to the reply of
the "first petition". Admittedly, the respondent filed the "second petition" on the same
subject-matter and seeking same relief for no apparent reasons. His "second petition"
does not even feebly indicate as to what were the reasons necessitating filing of the
"second petition". Even the learned counsel for the respondent could not demonstrate
from the available record as to why the second petition on the same subject-matter was
filed and that too at a stage when his "first petition" for same relief was pending before
the same High Court. A litigant cannot be allowed to file repetitive petitions on the same
subject-matter and for the same relief. Under the circumstances, we are of the view that
"second petition" was not competent in law during pendency of the "first petition" and it
deserved to be dismissed on the short ground that the "first petition" stood dismissed on
merits on 27-5-2008 by the High Court. It was noted in para.2 of the "second petition"
that, "the first Contempt Petition No.Crl.Org. No.383/W of 2007 was heard by his
Lordship Mr. Justice Maulvi Anwar-ul-Haq". The learned Judge in Chambers, it appears,
on 21-5-2008 without noticing that the "first petition" was pending proceeded to summon
the petitioners in the "second petition" and directed them to file reply to the "second
petition" inasmuch as petitioner No.1 was called upon to filed reply to be charged in
contempt. We are unable to subscribe view of the learned High Court to summon the
petitioners in the "second petition". Proper course for the High court would have been, on
21-5-2008, to adjourn the "second petition" to be heard along with the "first petition".
Under the facts and circumstances of the present case the "second petition" was
incompetent and not maintainable in law and, therefore, was liable to be dismissed.
7. Even otherwise the respondent has got no case on merits. It appears appropriate to
reproduce operative portions of different orders Passed by the High Court and by this
Court---
(i) Order dated 25-7-2006 passed in respondent's petition (Writ Petition No.1753 of 2006)
by the learned Single Judge of Lahore High Court at Lahore:---
"It goes without saying and is so directed that the respondents shall act expeditiously in
the matter of completing the service record of the petitioner and, subject to his eligibility,
presenting the same before the contempt authority for considering the petitioner's merit
and fitness for promotion. The needful for the completion of the said record shall be
accomplished by the respondents within four weeks after the receipt of a certified copy of
this order. Disposed of."
(ii) Order, dated 18-10-2006 passed in petitioner No.3's appeal (I.C.A. No.258 of 2006)
passed by the learned Division Bench of the Lahore High Court, Lahore:--
"The appeal is accordingly disposed of with this modification that whereas the service
record of respondent No.1 needs to be completed expeditiously, the grant of BS-21 is a
matter for the competent authority to consider in the light of the prevailing policy."
(iii) Order, dated 2-2-2007, passed by this Court in respondent's petition (C.P.L.A.
No.2388/L of 2006):---
"After hearing the learned counsel for the parties and going through the order passed by
Lahore High Court, Lahore in Writ Petition No.1753 of 2006, (dated 25-7-2006) and in
I.C.A. No.258 of 2006, (dated 18-10-2006) on completion of record of the petitioner, the
same should be placed before the competent authority for examining his case for
promotion to BS-21, in accordance with law and prevailing policy."
Page No. 4 of 2
The respondent alleging violation and disobedience of orders, dated 25-7-2006 and 2-2-
2007 filed the afore-stated two contempt petitions. Record of the case manifests that
pursuant to the said orders, the petitioners completed the missing service record of the
respondent and referred the case to the Committee for the grant of BS-21 on meritorious
grounds and then in compliance with the order, dated 17-3-2008 meeting of the
Committee was convened for considering the case of the respondent for regular
promotion to BS-21. It is evident from the report of the Committee that the said exercise
was undertaken in obedience to order, dated 17-3-2008 and the Committee came to the
conclusion that no Professor could be promoted to regular BS-21 through regular
promotion and that no regular post in BS-21 exists against which any Professor could be
promoted. Relevant portion whereof has been reproduced in the impugned order, dated
27-5-2008. The petitioners by submitting the case of the respondent before the competent
authority complied with the directions of the High Court and by this Court, thus, it cannot
be argued that the petitioners failed to comply with the directions passed by the learned
High Court and by this Court. Under the circumstances, no case for initiating contempt
proceedings was made out against the petitioners. The learned High Court while
dismissing "first petition" did not commit any error in law rather it after examining the
entire record of the case and orders passed at different stages rightly decided the case
after giving cogent reasons, which are not only in accordance with the record of the case
but also in consonance with the law on the subject. We are not persuaded to reverse the
findings of the learned High Court rendered in order dated 27-5-2008.
8. There is another aspect of the case. Admittedly, letter, dated 17-1-2008 issued by the.
Cabinet Division informing that "none of the officer of SZPGMI has been approved for
grant of BS-21 on meritorious basis" was not challenged by the respondent before any
forum and he instead of assailing the said order before the competent Court of law opted
to file the "second petition". We have a feeling that the respondent endeavored to secure
his promotion through exercise of pressure tactics and by filing repetitive contempt'
petitions and thus, even equity does not lean in his favour.
9. Assuming a case for initiating contempt proceedings was made out against the
petitioners, even then in view of the settled law, that a matter of contempt is between the
Court and the alleged contemnor, it was upto the Court either to take any appropriate
action against the alleged contemnors or drop the matter. On this count too the respondent
has got no case.
10. For the foregoing reasons, Cr.P.L.A. No.176 of 2008, filed by Syed Masood Alam
Rizvi, etc. is converted into appeal and allowed; consequently order, dated 21-5-2007,
passed by the learned High Court is set aside and Criminal Original No.323/W of 2008
stands dismissed, while Crl. P.L.A. No.219 of 2008, filed by Dr. Muhammad Saeed,
being meritless is dismissed and leave refused.
N.H.Q./M-11/SC Order accordingly.
Page No. 5 of 2
2009 S C M R 780
Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Syed Zawwar Hussain Jaffery,
JJ
CRIMINAL MISCELLANEOUS APPLICATION NO.296 OF 2008 IN/AND

CRIMINAL ORIGINAL PETITION NO.38 OF 2008
Criminal Original Petition No.38 of 2008, decided on 30th July, 2008.
(Suo motu action taken on the application filed by Syed Sharifuddin Pirzada, learned
Senior Advocate of Supreme Court and others regarding manhandling of their client,
Irfan Ali, in the Court Premises).
----Art. 204--Contempt of Court Act (LXIV of 1976), Ss.3 & 4--Contempt of Court---
Unconditional apology---Effect---When a contemner tenders unconditional apology at the
first opportunity and the Court is satisfied that his regret and repentance are sincere,
ordinarily he is pardoned; however, it is not a rule to be invariably followed in all cases
and much would depend upon the circumstances of each case.
----Arts. 204 & 184(3)---Contempt of Court Act (LXIV of 1976), Ss.4 & 5--- Contempt
of Court--- Unconditional apology--- Effect--- Law Enforcement Agencies, no doubt, are
duty bound to cause arrest of the required persons, but it should be done in a decent and
proper manner with decorum---Had it been a simple case of arrest in the Court premises,
contemners could have been excused on the ground of being not aware of the decorum of
the Court, but the acts of dragging, manhandling and beating the accused in the Bar
Room situated in the Court premises, misbehaving with the Advocates and Media
personnel, could by no stretch of imagination be regarded as innocent and bona fide acts,
rather it appeared to be a flagrant attempt to undermine and lowering authority of the
Court besides disturbing its decorum---Courts in such-like cases, in order to safeguard
their dignity and honour, would not be reluctant to initiate contempt proceedings against
the contemners---Contemners in the case being custodian of law were not supposed to act
in such a disgusting manner, particularly in the presence of specific directions of
Supreme Court for maintaining status quo in accordance with the order of High Court---
Contemners, however, had placed themselves at the mercy of the Court by submitting
unconditional apology at the very outset and stated to remain careful in future---
Unconditional apology of the contemners was accepted and contempt proceedings against
them were dropped in circumstances.
Zulfiqar Ali v. The State 1999 SCMR 2810 and Raja Munawwar and others v. The State
1990 SCMR 215 fol.
Dr. Babar Awan, Senior Advocate Supreme Court, Wasim Sajjad, Senior Advocate
Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Applicants.
Dr. Danishwar Malik, P.-G. NAB, Dr. M Asghar Rana, A.D.P.-G., NAB, Sardar
Muhammad Ghazi, D.A.-G. and Raja Niaz Ahmad Rathore, D.A.-G. on Court call.
Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Ch. Muhammad Akram,
Advocate-on-Record, Altaf Aziz Khattak, S.H.O., Police Station Secretariat, Muhammad
Rashid, A.S.-I., Police Station Secretariat, Abrar, A.S.-I. Police Station Secretariat along
with Contemners Col. (R.) Tariq, Investigating Officer, NAB and M. Aslam Member,
F.C.I.W., NAB for Contemners.
ORDER
Page No. 1 of 2
ABDUL HAMEED DOGAR, C.J.---This Criminal Original Petition has been registered
on the application filed by Syed Sharifuddin Prizada, learned Senior Advocate Supreme
Court and others regarding manhandling of their client, namely, Irfan Ali, in the Court
Premises.
2. Briefly stating facts of the case are that a case was registered against Sheikh
Muhammad Munir, Chief Executive of the Haris Steel Industries (Pvt.) Ltd. on the
complaint filed by the Acting President of the Bank of Punjab, Lahore, in pursuance of
report of audit team mentioning that loans of billions of rupees were sanctioned to fake
and unidentified borrowers against inflated/unreal value of collaterals and non-existent
business places. It was alleged that the National Accountability Bureau started making
efforts to force the administration of Messrs Haris Steel Industries to enter into plea
bargain with NAB. Feeling aggrieved, Messrs Haris Steel Industries filed Writ Petition
No.7104 of 2008 before the Lahore High Court, Lahore. A learned Division Bench of the
Lahore High Court, vide order dated 18-6-2008, directed the NAB authorities that no
uncalled for harassment shall be caused to the petitioners. On 1-7-2008, the matter again
came up for hearing before the High Court when the petitioners counsel complained that
the NAB authorities were harassing the petitioners by conducting raids one after the other
and removed their vehicles, office equipments, cash amount and other valuable items.
The High Court, on the said date, again directed the NAB authorities that no further
coercive measures should be applied against the petitioners, till, the next date of hearing.
C.M.No.4 of 2008 was also filed in the said writ petition wherein vide order dated 8-7-
2008 the High Court deputed the bailiff to visit the site and prepare a detailed report to be
placed before the Court on the next date of hearing. After submission of the report by the
bailiff, the case was fixed for 15-7-2008, when one of the learned Judges showed his
inability to hear the petition, hence, the office was directed to place the matter before
some other Bench. Thereafter Messrs Haris Steel Industries filed Constitution Petitions
bearing No.4 to 7 of 2008, under Article 186-A of the Constitution of the Islamic
Republic of Pakistan, 1973, for transfer of the writ petitions with the prayer that the same
may be withdrawn from the file of Lahore High Court and be heard and decided by this
Court.
3. The matter came up for hearing before this Court on 24-7-2008 when the following
order was passed:---
"By consent adjourned to 6-8-2008. Notice be repeated to respondents Nos.7 and 10.
Respondent No.1 is directed to file concise statement disclosing the entire facts and
maintain the position which was subsisting prior to restraining order dated 18-6-2008
passed by the learned High Court."
On the same day at about 12.30 p.m. Syed Sharifuddin Prizada, learned Senior Advocate
Supreme Court along with Mr. Wasim Sajjad, Dr. Babar Awan, Mr. Arshad Ali Chaudhry
and other Senior Advocates appeared before this Court and complained that after passing
of the above order, in the morning, accountant of Messrs Haris Steel, namely, Irfan Ali,
while sitting with Mr. Arshad Ali Chaudhry, learned Advocate-on-Record, in the cafeteria
of the Bar Room inside the premises of this Court, was mercilessly beaten up by NAB
officials, namely, Col. (R) Tariq, Investigating Officer and M. Aslam, Member FCIW,
along with three other persons, in presence of the Advocates as well as media personnel.
The written complaint, filed by the learned Senior Advocates of this Court, was registered
as Criminal Original Petition No.38 of 2008. In this regard four affidavits were also filed
before this Court by (i) Syed Muzammal Hussain, President Press Association of
Supreme Court, (ii) Mr. Wasim Akhtar, Reporter, Aaj TV, (iii) Mr. Arshad Ali Chaudhry,
Advocate-on-Record and (iv) Irfan Ali, the victim, wherein they unanimously stated that
the victim Irfan Ali, was taken into custody from the Court premises (Bar Room),
dragged, severely beaten, thrown in a car and was taken away by some persons in civil
dress and that when asked by the deponents as to why the victim was being beaten in the
Court premises, the said officials not only refused to disclose their names but misbehaved
with the deponents and other journalists, who were present at the spot. They also tried to
snatch cameras from media personnel, footage whereof was available with them.
4. The learned Attorney-General for Pakistan, the Chairman NAB and the Prosecutor-
General NAB were, in pursuance of the complaint, summoned and were directed to
produce the detenu as well as the above named NAB officials before the Court. On the
Page No. 2 of 2
same day, at about 2-00 p.m. the Chairman NAB along with NAB officials and the detenu
appeared before this Court. The NAB officials admitted that the detenu was arrested from
the premises of this Court, however, pleaded that it was done in order to execute warrants
of arrest issued against him. This Court considering that prima facie, the NAB officials,
namely, Col (R) Tariq and M. Aslam were guilty of committing gross contempt of this
Court ordered that they be remanded to police custody to initiate proceedings under
Article 204 of the Constitution. The detenu Irfan Ali was ordered to be set at liberty,
forthwith, and the matter was adjourned to 30-7-2008 for further proceedings. .On 30-7-
2008, the above contemnors, while placing themselves at the mercy of the Court, filed
Unconditional Apology in writing vide C.M.A. No.296 of 2008.
5. Moot question in the instant case is as to whether the tendering of unconditional

written apology by the contemnors and placing themselves at the mercy of the Court
would be sufficient to let them off unpunished, and if not, what should be the quantum of
punishment that they deserve to suffer. The trend of case-law on the subject, would
suggest that when a contemner tenders unconditional apology at the first opportunity and
the Court is satisfied that his regret and repentance are sincere, ordinarily, he is pardoned.
However, it is also well settled that it is not a rule, to be invariably followed in all cases
and much would depend upon the circumstances of each case.
6. No doubt the law enforcement agencies are duty bound to cause arrest of the persons
required, but it should be done in a decent and proper manner with decorum. Had the
instant been a simple case of arrest in the Court premises, the contemnors could have
been excused on the ground that they were not aware of the decorum of the Court but the
acts of dragging, manhandling and beating the accused in the Bar Room situated in the
Court premises, misbehaving with the Advocates and the media personnel can by no
stretch of imagination be regarded as innocent and bona fide acts rather it appears to be a
flagrant attempt to undermine and lowering authority of the Court besides disturbing its
decorum. In such like cases the Courts, in order to safeguard the dignity and honour of
the Courts are not reluctant to initiate contempt proceedings against the contemnors. The
contemnors, in this case, who are the custodians of law, were not supposed to act in such
a disgusting manner, particularly when this Court had issued specific directions for
maintaining the position subsisting prior to 18-6-2008 in accordance with the order
passed by the learned High Court.
7. Normally, the contemnors would have been proceeded against, on account of the
aforesaid acts had they not placed themselves at the mercy of the Court by submitting
unconditional apology, but since they have admitted the allegations and tendered
unconditional apology at the very out set, by stating that they would remain careful in
future, therefore, following the ratio decidendi of the cases reported as Zulfiqar Ali v. The
State 1999 SCMR 2810 and (ii) Raja Munawwar and others v. The State 1990 SCMR
215, we feel it appropriate to accept the unconditional apology submitted by the
applicants.
8. For the foregoing reasons the proceedings in pursuance of order dated 24-7-2008
passed by this Court are dropped and the contemnors are ordered to be released forthwith.
These are the reasons for our short order of even dated, announced in open Court.
N.H.Q./S-12/SC Contempt proceedings dropped.
Page No. 3 of 2
P L D 2007 Lahore 359
Before Hasnat Ahmad Khan, J
THE STATE---Petitioner
Versus
MASKEEN ALI and others---Respondents
Criminal Original No. 1 of 2007 (Suo Motu), decided on 6th January, 2007.
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---
Apology---Sincere apology is normally to be accepted---Apology if found to be sincere is
normally accepted as High Court is never vindictive and it always takes due notice of
sincere apology.
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3 & 4---Contempt of Court---
Apology---Apology when not to purge the offence---Apology not tendered in written
form and the accused simply seeking forgiveness, such type of apology cannot purge the
offence and the same cannot be accepted.
----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---

Punishment---Contemnor cannot claim acquittal as a matter of right---Leniency is shown
by way of grace and concession only.
The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.
(d) Constitution of Pakistan (1973)---
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3, 4 & 7,-Contempt of Court---
Proceedings, nature of---Proceedings in contempt matters are sui generous and are
species of its own kind---Same are neither civil nor criminal in nature, but are quasi
criminal proceedings---Allegation in the nature of contempt shall not be dealt with like a
criminal charge as laid down in Criminal Procedure Code, 1898.
(e) Constitution of Pakistan (1973)---
---Art. 204---Contempt of Court Act (LXIV of 1976), S. 4--Contempt of Court---

Apology---Mitigating circumstance---Contemnor respondent had played the leading role
while disobeying and disregarding the order of High Court and misbehaving with the
Bailiff calling him as a Dacoit and also uttered innocuous remarks against High Court--
Said contemnor had, thus, committed gross contempt of court amounting to impairing the
dignity and authority of High Court and he was found to be guilty of interference with the
administration of justice and process of law---Besides, the contemnor had caused fist
below to the petitioner of the habeas corpus petition while he was under the umbrella of
the Bailiff---Apology was neither tendered at the earliest nor the same was found to be
sincere, which was mechanical and not sufficient to purge the contemnor from the wilful
non-compliance and disobedience of the orders of High Court---Contemnor had tendered
the apology in order to escape the punishment---Court had to uphold the dignity, decorum
and authority of the Court to see that the process, direction and orders issued by it were
enforced throughout the Province and in case of disobedience and disregard shown on the
part of any person, High Court would not be reluctant to act in accordance with contempt
law to punish wrong doers---Contemptuous act of the contemnor respondent demanded
full dose of sentence, but he did not opt to contest the petition and threw himself at the
mercy of the Court, his apology was treated as a mitigating circumstance and he was
convicted under Article 204 of the Constitution read with S.4 of the Contempt of Court
Page No. 1 of 2
Act, 1976, and sentenced to two months simple imprisonment with a fine of Rs.4,000 or
in default to suffer further simple imprisonment of fifteen days.
PLD 1999 Lah. 156; 2002 SCMR 1623; Raja Munawar v. The State 1990 SCMR 215;
PLD 1964 SC 562 and PLD 1989 Kar. 264 ref.
(f) Constitution of Pakistan (1973)---

Apology---Mitigating circumstance---Respondents had misbehaved with the Bailiff of the
Court and also failed to appear before High Court and despite having received notices did
not cause appearance of the detenue on the first date and she was only produced in the
Court after non-bailable warrants were issued against them---Respondents thus, were
liable for the offence of Contempt of Court, but their role was of lesser degree than that
of the principal co-accused, and the apology tendered by them was 'treated as a mitigating
circumstance---Respondents were accordingly convicted under Art. 204 of the
Constitution read with S.4 of the Contempt of Court. Act, 1976, and sentenced to fifteen
days simple imprisonment with a fine of Rs.1,000 each or in default to undergo five days
simple imprisonment further.
PLD 1999 Lah. 156; 2002 SCMR 1623; Raja Munawar v. The State 1990 SCMR 215;
PLD 1964 SC 562 and PLD 1989 Kar. 264 ref.
(g) Constitution of Pakistan (1973)---

Apology---Mitigating circumstance---Respondent Sub-Inspector of Police had confessed
his guilt and though contempt of Court was being committed right in his presence, yet he
remained as a silent spectator and failed to provide necessary assistance to the Bailiff and
in this way he abetted the offence and became cause of lowering the authority of High
Court and bringing the same into disrespect---Said police officer had become an
instrument in prejudicing the process of law---Apology of the contemner being not
sincere was not accepted, but the same was treated as a mitigating circumstance and he
was convicted under Art.204 of the Constitution read with S.4 of the Contempt of Court
Act, 1976, and sentenced to fifteen days simple imprisonment with a fine of Rs.1,000 in
default whereof to suffer five days simple imprisonment---Respondents constables had
also admitted their guilt, but they being under the command of their superior police
officer their role was much lesser and they were convicted under the aforesaid provisions
of law and sentenced to imprisonment till rising of the Court.
Ch. Aamir A. Rehman, Addl. A.G./Prosecutor for the State/Petitioner.
S. Hammad Raza for Private Respondents.
Saiful Malook for Police Officials.
ORDER
HASNAT AHMAD KHAN, J.---The facts which led to the issuance of notice under
Article 204 of the Constitution of Pakistan and section 3/4 of the Contempt of Court Act,
1976, to the respondents are as under:
That one Amjad Mehmood filed habeas corpus petition for the recovery of his daughter
Mst. Tosheeba Amjad who is about thirteen and half years old from the illegal and
improper custody of Maskeen Ali, Shabbir Hussain, Ansar Mehmood and Muhammad
Akram respondents herein. The said petition came up for hearing before this Court on 22-
12-2006 and a Bailiff was detailed to recover the said alleged detenue namely Mst.
Tosheeba Amjad from the illegal custody of above mentioned respondents and of her
production before this Court. In pursuance of said order Mr. Ehsan-ul-Haq Bailiff visited
Page No. 2 of 2
police station Sadar on 23-12-2006 and in the company of police officials raided the
house of above said respondents at 6-30 p.m. According to his report which was
submitted on 27-12-2006, he entered the house of said respondents after introducing
himself along with police officials. The petitioner of said case pointed out the presence of
his daughter in a room and before the Bailiff could ask anything from the alleged
detenue, all the above mentioned respondents stopped him from entering into the said
room and after a shortwhile they caused disappearance of the detenue and despite his
repeated demands, they failed to produce the detenue and forcibly turned out the Bailiff
from the house. In the meanwhile according to the report of the Bailiff, the police
officials stood as silent spectators and refused to render any assistance to him.
Muhammad Akram respondent misbehaved with the Bailiff and called him as a Dacoit.
He had audacity to say that he does not care any Court. The Bailiff further reported that
all the respondents except Muhammad Akram received the notices and assured to
produce the detenue in the Court on 27-12-2006. After boarding the vehicle, Muhammad
Akram respondent abused and gave a forceful fist blow to the petitioner on his face who
was sitting on the rear seat of the vehicle. On 27-12-2006 the above said Criminal
Miscellaneous bearing No.1422-H/2006 came up for hearing before me and the Bailiff
submitted his report dated 27-12-2006 which has been placed on the record of this case as
Mark-A. Neither the above mentioned respondents opted to appear before this Court on
the said date in pursuance of the notices issued to them by the Bailiff nor they cared to
produce the detenue in accordance with their commitment. The report of the Bailiff
disclosed that the above mentioned respondents had committed grave contempt of Court.
Therefore, this Court was compelled to issue non-bailable warrants for their arrest. The
S.H.O. Police Station Sadar, Gujrat, was directed to produce them along with detenue
namely Mst. Tosheeba Amjad on 4-1-2007 and taking suo motu action on the report of
the Bailiff, notices under section 3/4 of the Contempt of Court Act, 1976, read with
Article 204 of the Constitution of Pakistan were ordered to be issued to the said
respondents and a similar notice was issued to Nasir Mehmood, S.H.O. also. Said notice
has been attached as Mark-B.
2. In pursuance of said order, Maskeen Ali, Shabbir Hussain, Ansar Mehmood and
Muhammad Akram respondents were arrested and detenue was recovered and produced
before this Court on 4-1-2007. In view of the statement of the detenue that she was not
willing to join her father, habeas corpus petition was disposed of on the said date.
However, contempt petition bearing Criminal Original No.1 of 2007 (Suo Motu) was
taken up on the said date. In response to the above mentioned notices which had been
issued to and received by the above mentioned respondents, the said respondents did not
opt to file any written reply. However, Nasir Mehmood Inspector/S.H.O. stated that at the
time of raid, he was not accompanying the Bailiff and in fact Mumtaz Ahmad SI,
Muhammad Afzal F.C. No.873 and Shakarullah F.C. No.608 were accompanying the
Bailiff at the relevant time. Being confronted with the said statement, Bailiff did not
controvert said factual position and admitted the same as correct. In view of the said
statement, notices under section 3/4 of Contempt of Court Act, 1976, read with Article
204 of the Constitution of Pakistan were ordered to be issued to the said police officials
on the said date. Mumtaz Ahmad S.I. who was present in Court on said date accepted the
notice. Formal notice was issued to them and received by them, copy of which has been
placed as Mark-C. The case was adjourned to 5-1-2007. On said date Muhammad Afzal
and Shakarullah above mentioned constables also appeared. Even on said date, none of
the respondents opted to file written reply to the notice. However, keeping in view the
provision of section 7(2) of the Contempt of Court Act, 1976, another opportunity was
given to all the contemnors to explain their conduct, whereby the Bailiff of this Court was
misbehaved with. In response to said order, none of the contemnors opted to admit the
guilt or to tender apology, on the contrary all of them controverted the averments made
by the Bailiff in his report dated 27-12-2006. Maskeen Ali respondent stated that he did
not misbehave with the Bailiff, Ansar Mehmood raised the plea of alibi by claiming that
he was not present at the spot at the time of raid. Muhammad Akram and Shabbir Hussain
respondents also denied the allegations levelled by the Bailiff in his above mentioned
report, Mumtaz Ahmad S.I. Afzal Ahmad and Shakarullah constables also followed the
rest of the respondents and refused to admit their fault. As all the respondents had opted
to contest the notices, order of framing of charge was passed by this Court. The charge
was accordingly framed against all the above mentioned contemnors/respondents and
duly explained to them. When the charge was put to the contemnors, they took a
somersault and admitted the guilt and all of them threw themselves at the mercy of the
Page No. 3 of 2
Court and sought forgiveness. As the charge was not denied, there was no need to record
any evidence.
3. As the apology was not tendered at the earliest and the same was only tendered after
framing of the charge, this Court refused to straightway discharge all the contemnors on
the basis of said apology and both the sides were asked to advance the arguments. It
would be relevant to point out here that private respondents were represented by Mr.
Hammad Raza, Advocate, while police officials were not being represented by any
counsel. In reply to a question in this regard, they stated that they did not want to engage
their counsel and they would conduct their own case.
4. Both the sides put their respective arguments and the case was adjourned for 6-1-2007
to hear rest of the arguments. On said date, Mr. Saif-ul-Malook, Advocate, submitted his
power of attorney on behalf of private respondents as well as police official and sought
permission to argue the case on behalf of the contemnors. He was allowed to do so. After
arguing the case on merits, he sought some time to produce the case law and his request
to that extent acceded to and case was again taken up after one and half hours.
5. Learned Prosecutor has argued that as all the contemnors have admitted their guilt, the
charge framed against them stand fully established and proved. He has argued that the
contemnors are guilty of commission of grave contempt of Court, inasmuch as, the order
of this Court was disregarded and flouted and hindrance was caused in due process of
law, the Bailiff of this court was misbehaved with by all the respondents. The detenue
was not handed over to him as directed by this Court, especially Muhammad Akram
respondent called the Bailiff as Dacoit and while the Bailiff was returning in a vehicle
along with petitioner, Muhammad Akram contemnor abused and gave a fist blow to the
petitioner who at the relevant time was under the umbrella of the Bailiff who was deputed
by this Court. Muhammad Akram refused to receive the notice and rest of the contemnors
namely Maskeen Ali, Shabbir Hussain and Ansar Mehmood though received notices yet
did not opt to appear before this Court as directed by this Court and further more, they
did not opt to produce the detenue before this Court on the relevant time, though, they
had made commitment in this regard with the Bailiff of this Court. He further contends
that conduct of the respondents showed that they had shown scant regard to this Court
and said conduct coupled with the innocuous remarks given against the Bailiff and the
Court has made them liable to be convicted for committing Contempt of Court and he
prayed that they be awarded exemplary punishment. As far as the police officials are
concerned, he had contended that they being men in uniform and member of the
discipline force were bound to give proper assistance to the Bailiff but they remained
silent spectators while the Bailiff was being misbehaved with. Even otherwise, as one of
the respondents had given beating to the petitioner in their presence, they failed to arrest
them in accordance with law and as such they are also fully responsible for the act of the
other respondents. In support of his arguments he has placed reliance upon case-law
reported as "PLD 1999 Lah. 156, 2002 SCMR 1623".
6. In response to the arguments advanced by the learned Prosecutor, learned counsel for
the contemnors has contended that the contemnors have sought forgiveness after placing
themselves at the mercy of the court and as such, notice issued to them is liable to be
discharged and also the contemnors are entitled to the acquittal. According to him, the
apology has purged the offence. In support of his arguments he has placed reliance upon
the judgments reported as "Raja Munawar v. The State 1990 SCMR 215, PLD 1964 SC
562 and PLD 1989 Kar. 264".In the alternative, learned counsel for the petitioner has
contended that if the court comes to the conclusion that apology tendered by the
contemnors has not purged the offence, the same may be treated as mitigating
circumstances while awarding the sentence.
7. As all the respondents have confessed their guilt and have placed them at the mercy of
the Court, the charge against them stands fully proved. There is thus no doubt that the
respondents are guilty of flouting and disobeying the order of this Court which they were
legally bound to honour and they have brought the authority of this Court into disrespect.
Now the question remains as to whether the apology tendered by the contemnors would
ipso facto purge the offence and notice would be liable to be discharged. It is observed
that there is no denying the fact that if the apology is found to be sincere, the same is
normally accepted as the High Court is never vindictive, and always take due notice of
Page No. 4 of 2
sincere apology. Now the next question which has to be seen is that whether in this case
the apology is sincere or not. In this regard it is observed that the accused did not
straightway seek forgiveness and firstly they tried to contest the notice and denied the
averments of the Bailiff made in this report and reiterated by him in the Court. In their
statements dated 4-1-2007 before the Court they stated that the Bailiff was not
misbehaved with and some of them even refused their presence at the time of the raid.
Police officials also stated that the Bailiff was not misbehaved with and the apology was
tendered by all of them only after seeing the fate of the case and framing of charge. It
would be also relevant to point out that the apology was not tendered in the written form
and all of them simply sought forgiveness. Such type of apology cannot be accepted and
the same cannot purge the offence. Even otherwise, the contemnors cannot claim
acquittal as a matter of right and whenever leniency is shown that is by way of grace and
concession. Reliance in this regard is placed upon "The State v. Rana Muhammad Akram
1983 PCr.LJ 188". The case-law cited by the learned counsel for the contemnors is quite
distinguishable.
8. The proceedings in contempt matters are sui generous and are species of its own kind.
These are neither civil nor criminal in nature and same are quasi criminal proceedings. It
has been nowhere laid down that the allegation in the nature of contempt shall be dealt
with like a criminal charge as laid down in Criminal Procedure Code.
9. As the apology was neither tendered at the earliest nor the same was found to be
sincere one, the same cannot ipso facto purge the offence.
10. Now, I would like to deal the case of all the contemnors individually. In this case,
Muhammad Akram respondent played the leading role while disobeying and disregarding
the order of this Court and misbehaving with the Bailiff. According to the report of the
Bailiff, he not only misbehaved with the Bailiff called him as a Dacoit and further went
on to utter innocuous remarks against this Court. As such, he had committed gross
contempt of Court amounting to impairing the dignity and authority of this court and he
is found to be guilty of interference with the administration of justice and process of law.
Apart from that he had caused fist blow to the petitioner of the habeas corpus petition
while he was under the umbrella of the Bailiff. His apology is mechanical and is not
sufficient to purge him from the willful non-compliance and disobedience of the order of
this Court. Like others, he also tendered the apology in order to escape the punishment.
This Court has to uphold the dignity and decorum and authority of the court to see that
process, direction and orders issued by it are enforced throughout the Province and in
case of disobedience and disregard shown on the part of any person, this court would not
be reluctant to act in accordance with contempt law to punish wrong doers. The
contemptuous act of Muhammad Akram respondent demanded full dose of sentence but
keeping the fact into consideration that he did not opt to contest the petition and threw
himself at the mercy of the Court, said apology is being treated as a mitigating
circumstance and he is convicted under Article 204 of the Constitution of Pakistan read
with section 4 of the Contempt of Court Act and sentenced to two months' S.I. with fine
of Rs.4,000 in default whereof, he would suffer further simple imprisonment of fifteen
days.
11. As far as Shabbir Hussian, Ansar Mehmood and Maskeen Ali respondents are
concerned, they are equally liable for the offence of Contempt of Court as they are also
guilty of misbehaving with the Bailiff and apart from that they failed to appear before the
Court, though, they had received the notices even they did not cause appearance of the
detenue on the first date and she was only produced after non-bailable warrants were
issued against them, but their role being of lesser decree than that of Muhammad Akram,
the apology tendered by them is being treated as a mitigating circumstance. They are
accordingly convicted and sentenced to fifteen days' S.I. with a fine of Rs.1000 each, in
default whereof, five days' S.I. under the above mentioned provisions of law and
Constitution.
12. As far as the case of Mumtaz Ahmad S.I. is concerned. He had also confessed the
guilt. The contempt of Court was being committed right in his presence, but he remained
as silent spectator and though all the authorities are expected to act in aid of the Courts,
he failed to provide necessary assistance to the Bailiff and in this way he abetted the
offence and became cause of lowering the authority of this Court and bringing into
Page No. 5 of 2
disrespect. He became instrument in prejudicing the process of law, therefore, his
apology which is also not sincere one is also not accepted. However, the same is treated
as a mitigating circumstance and he is also convicted and sentenced under the above said
provisions to fifteen days' S.I. with a fine of Rs.1000, in default whereof, five days' S.I.
As far as the constables are concerned, they have also admitted their guilt, but keeping
the fact into consideration that they were under the command of their superior, their role
is quite lesser than that of their superior i.e. Mumtaz Ahmad, S.I. and as such, they are
only convicted and sentenced till rising of the Court. As far as Nasir Mehmood, S.H.O. is
concerned, it has come on the record that he has not accompanied the Bailiff at the
relevant time, as such, notice issued to him is discharged.
13. Maskeen Ali, Muhammad Akram, Shabbir Hussian and Ansar Mehmood are already
in the police custody, they be lodged in the District Jail, Gujrat, to serve out their
sentences. Likewise Mumtaz Ahmad S.I. he be also sent to said Jail for serving out the
sentence. Disposed of.
14. Before parting with the judgment, I would like to appreciate the able assistance
rendered to this Court by the learned Prosecutor as well as learned counsel for the
contemnors.
N.H.Q./S-4/L Order accordingly.
Page No. 6 of 2
2007 P Cr. L J 1082
[Northern Areas Chief Court]
Before Sahib Khan, J
AFSAR JAN----Petitioner
Versus
Ch. FAZAL HUSSAIN and another----Respondents
Criminal Miscellaneous No.1 of 2007, decided on 5th March, 2007.
(a) Contempt of Court Act (LXIV of 1976)----
----Ss. 3/4---Contempt of Court---Non-compliance of order of Civil Court---Petition not

maintainable---Civil Judge had passed an order directing the defendant to produce certain
documents in the Court on the next date---Defendant on the said date excused himself
with the plea that required documents were not in his possession---Petitioner had filed the
present petition for initiating contempt of Court proceedings against the said defendant
for the said disobedience of the order of Civil Court---Validity---Code of Civil Procedure,
1908, being a complete Code provided provisions and mechanism for solution of issues
arising during the trial of the suits, appeals, revisions etc.---Said provisions had given
powers and jurisdiction to the Courts to resolve the issues and the relief which could be
sought and remedy thereof were embodied therein---Noncompliance of any order of Civil
Court passed during the trial could be remedied or penalized under the relevant
provisions of Civil procedure Code, 1908, and petitioner had already filed such
application before the Trial Court, which was pending adjudication---All situations
including the one arising in the present case were to be dealt with in accordance with the
provisions of C.P.C. including the penal clauses provided therein---If no penal provision
was available for certain acts or omissions, then it would be presumed that no person or
party could be penalized for such acts or omissions against the wisdom of Legislature---
Petitioner could seek relief from the Trial Court under the relevant provisions of C.P.C.
subject to availability of provision---Petition was not maintainable and the same was
dismissed in limine accordingly.
PLD 1955 FC 98; PLD 1956 W.P. (Kar.) 288 and 1988 CLC 778 ref.
(b) Civil procedure Code (V of 1908)---
----Preamble---Scheme, extent and scope of C.P.C.---Code of Civil Procedure, 1908, is a

complete Code providing provisions and mechanism for solution of issues arising during
the trial of the suits, appeals, revisions etc.---Said provisions confer powers and
jurisdiction on the Courts, relief which can be sought and remedy thereof are embodied
therein---All situations shall be dealt with in accordance with the provisions of C.P.C.
including the penal clauses like O.IX, R.6, O.XVII, R.3, O.XXXIX, R.2(3) etc.---In case
there exists no penal provision for certain acts or omissions in the Code, it is presumed
that no person or party can be penalized for such acts or omissions against the wisdom of
Legislature.
Asadullah Khan and Amjad Hussain for Petitioner.
Respondent No.1 through Attorney.
Respondent No.2 in person with Ali Nazar and Manzoor Ahmed.
Date of hearing: 5th March, 2007.
JUDGMENT
SAHIB KHAN, J.--- Through instant complaint under sections 3/4 of Contempt of Court
Act, petitioner Afsar Jan has charged respondents for wilful disobedience of Court order,
Page No. 1 of 2
dated 30-12-2006 passed by Civil Judge/Magistrate 1st Class Gilgit, whereby, the learned
trial Judge had asked for production of documents.
Arguments pro and contra heard in detail. Record perused.
Counsel for the petitioner argued that the learned Civil Judge, Gilgit on 30-12-2006 had
passed an order directing respondents for production of certain documents relating to
tender. They submitted that respondents willfully ignored the said order and did not
produce the documents on the fixed date thereby they have committed an offence as
defined in section 3 and punishable under section 4 of the Contempt of Court Act, 1976.
They further submitted that the offence under section 4 of Contempt of Court Act is
exclusively triable by this Court under section 5(3) of the said Act. Non-appearance of
respondent No.1 before the Court today was also seriously objected by the counsel. The
learned counsel in support of their submission referred following laws:--
Sections 3 to 5 of Contempt of Court Act.
Counsel for respondents opposed the petition and challenged the maintainability of the
petition with the contention that the Judge before whom the alleged contempt was
committed is competent to provide remedy for failure if any in compliance of Court
order. Accordingly petitioner has already moved an application before trial Court under
Order XI, rule 21 of C.P.C. They in support of their contention referred Order XI, rules
12, 14 and 21 of C.P.C. (1988 CLC page 778).
It is evident from the record that the learned Civil Judge, Gilgit has passed an order on
30-12-2006 requiring the production of certain documents in the Court on 4-1-2007 by
defendants. On 4-1-2007, one of the defendants excused with the plea that the required
documents are not in his possession. Petitioner has charged the respondent for the same
and initiated the present petition. Counsel for respondent has pointed out that the
petitioner/plaintiff has already filed an application before the trial Court for above failure
which is pending adjudication invoking certain provision of the Code.
The Code of Civil procedure, 1908 is complete Code providing provisions and
mechanism for solution of issues arising during the trial of the suits/appeals/revisions etc.
These provisions confer powers and jurisdiction to the Courts, relief which can be sought
and remedy thereof are embodied therein. Likewise, in the case of non-compliance of any
order/failure in compliance of the Court order passed during the trial can be
remedied/penalized under the related provisions of Civil Procedure Code, 1908 for
instance i.e. one who has been ordered by the Court through a summons for appearance
in the Court on a fixed date, or one who was required by the Court for submission of
written statement or was ordered for adducing of evidence etc. in case of their
failure/noncompliance would be dealt with the provisions of Contempt of Court Act,
1976 or any other law enforced for time being? In my humble opinion, all the situations
including the order passed on 30-12-2006 by Civil Judge Gilgit shall be dealt with in
accordance with the provisions of C.P.C. including by application of penal clauses if
provided therein like Order IX, rule 6, Order XVII, rule 3, Order XXXIX, rule 2(3) etc.
In case there exists no penal provision for certain acts or omissions in the Code. It is
presumed that no person or party can be penalized for such act/omission against the
wisdom of Legislature.
The learned counsel for petitioner pressed that this Court has got exclusive jurisdiction to
try the matters or disobedience under sections 3/4 of Contempt of Court Act and lower
Courts have no power to punish the disobedient. Although this point is not related with
the matter in hand however, to clear the mind I reproduce the relevant clause of Contempt
of Court Act, 1967 which is self-explanatory.
Section 5(3). A High Court shall exercise the same jurisdiction in respect of contempt of
Courts subordinate to it or to any other High Court as it exercises in respect of contempts
of itself.
The nutshell of the discussion is that petitioner can seek relief from the Court trying the
main suit, under the relevant provisions of C.P.C. subject to availability of provision, if so
advised.
Page No. 2 of 2
Petition dismissed in limine being non-maintainable.
N.H.Q./12/Glt. Petition dismissed.
Page No. 3 of 2
2007 M L D 248
[Lahore]
Before Muhammad Sair Ali, J
Mian MAROOF ASHRAF---Petitioner
Versus
SHAGUFTA PARVEEN and others---Respondents
Crl. Org. No.68-W of 2006, decided on 5th May, 2006.
Constitution of Pakistan (1973)---
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3 & 4---Institution of contempt
proceedings---Scope---Contempt proceedings could neither be initiated at the desire or
whim of a litigating party nor for any consideration that did not weigh with the Judge---
Court had to be satisfied as to whether the act of respondents would come within the
mischief of the law of contempt or otherwise amounting to interference with
administration of justice---Contempt in its legal connotation signified disrespect to that
which was entitled to a high legal regard---Very purpose of initialing contempt
proceedings was the vindication of dignity and honour of the Court or that of the justice
administration---Petitioner, in the present case, had not been able to show that any
judgment, order or direction of the Court was flouted, disregarded or disobeyed by
respondents---No valid justification existing for High Court to initiate action in contempt
against respondents or to grant any of the prayers made in petition---Petition was
dismissed, in circumstances.
Tahir Munir Malik for Petitioner.
S.M. Masud for Respondents Nos. 1 to 4.
Muhammad Saleem Dogar for Respondents Nos. 5 to 8.
ORDER
MUHAMMAD SAIR ALI, J.---The petitioner seeks proceedings and ultimate

punishment of respondents Nos. 1 to 8 in contempt of this Court. The ground thereof is
that the respondents involved the petitioner in false, frivolous and vexatious litigation
initiated under diverse jurisdictions before numerous forums. The petitioner also sought a
direction for possession ante of the land, stay of various civil suits and cases before the
Revenue Courts and Criminal Courts and also for transfer of the contempt proceedings
before the subordinate Courts pending inter-sc parties to this Court.
2. Heard.
3. The case of the petitioner is presented by his learned counsel is that Respondents Nos.
I and 2 and their late mother in application under section 12(2), C.P.C. claimed
entitlement to inherit estate of late Mian Muhammad Akram respectively as his son,
daughter and widow and thus sought reversal of decree, dated 22-12-1998 in favour of
the petitioner etc. The application was dismissed and so was the revision there-against.
Constitution petition No.2425 of 1997 filed before this Court there-against was also.
dismissed by this Court through judgment, dated 14-3-2002. The petitioner contends that
the matter thus became final but admits that the petition for leave before the Hon'ble
Supreme Court was pending against the judgment, dated 14-3-2002.
4. It was also contended that against Mutation No.325 sanctioned on 10-8-1988 in favour
of the petitioner and three others as collaterals of deceased Mian Muhammad Akram, late
Maqsoodan Begum (mother of Respondents Nos. 1 and 2) sought review and the
permission thereto was granted by DCO Lahore. Yet on petitioner's challenge, the order
of review was suspended and the matter was adjourned sine die to enable the parties to
Page No. 1 of 2
obtain declaration of their rights on the civil side. In the meanwhile inheritance mutation
was sanctioned in favour of Respondents Nos. 1 and 2 and the appeal of the petitioner
there against was dismissed on the ground that case was pending in the Civil Court.
However subsequently the mutation was restored. And that on decision of the
Constitutional petition by this Court through above-referred judgment, dated 14-3-2002,
the petitioner filed eviction petition against Respondents Nos. 5 to 8 (who were not
parties in Writ Petition) from the agricultural land on which they were in cultivating
possession as the tenants throughout since the life-time of the deceased. Further that a
suit for declaration and perpetual injunction on the basis of an exchange deed was filed
by Respondent No.8 to establish his title to the said agricultural land. The suit as well as
appeal were dismissed. Nevertheless litigation between the parties on the revenue as well
as civil side continued and a number of cases between them were presently pending in the
Civil, Revenue and the Criminal Courts where before contempt proceedings for
disobedience of injunctive orders and judgments were also being tried on initiation of the
petitioner and the respondents.
5. The petitioner requested for stay of trial of all the above cases by this Court.
6. On notice, the respondents filed their respective replies.
7. All the respondents objected to the maintainability of the present Criminal original,
concealment, misrepresentations, misuse of Court process and that of the law, breach of
injunctive orders/judgments, fraud and active malpractices were alleged by all the
respondents against the petitioner. It was specifically alleged that the petitioner tampered
with the Revenue Record in connivance with the Revenue staff and sold the above land in
2005 thus losing the locus standi and cause to file the contempt petition.
8. The respondents in their replies also listed out cases, suits and proceedings pending
against the petitioner etc. in various jurisdictions. It was also alleged that the petitioner
obtained orders and judgments through misrepresentations, concealments and in the
absence of the respondents.
9. DDO, (R) Lahore and EDO, Lahore being Respondents Nos. 9 and 10 in para 16 of
their comments importantly asserted as under:---
"Admitted to the extent that the ejectment petition filed by the petitioner is pending in the
Court of Deputy District Officer (Revenue) Lahore City and next date of hearing is fixed
for 6-4-2006 whereas petitioner and others had already sold out the suit-land as per
Revenue Record and the petitioner has not approached this Honourable Court with clean
hands and concealed the facts therefore, the petitioner is no more owner of the suit-land
according to the Revenue Record. Photo-copies of the Mutations Nos. 27-29-30-31-32-
33-34-38 are attached herewith for kind perusal of this Honourable Court."
A number of sale mutations were placed upon record.
10. Respondents Nos. 5 to 8 in their reply specifically contended that application of the
petitioner to seek possession of the suit-land was dismissed by the learned Additional
District Judge Lahore through order, dated 21-12-2005. They also alleged maneuvering
of ex parts decrees, orders, judgments and proceedings by the petitioner with the object to
harass and disposses them out of their legal possession of the land in question.
11. In view of the contentions herein raised by the parties, this Court does not find any
merit in the present criminal original. The petitioner has not been able to show or prove
the existence of necessary conditions for an action against the respondents in contempt
jurisdiction by this Court.
The main stay of the case of the petitioner is the judgment, dated 14-3-2002 passed by
this Court in Writ Petition No.2425 of 1997 upholding the dismissal of application under
section 12(2), C.P.C. of Respondent No.1 and her late mother. Both the parties however
admit that petition for leave was pending in the Hon'ble Supreme Court of Pakistan
against this Court's judgment, dated 14-3-2002 wherefor claim of Respondents Nos.1 and
2 to be heirs of deceased Mian Muhammad Akram was under consideration before the
Hon'ble Supreme Court of Pakistan. The parties also admit against each other the
Page No. 2 of 2
pendency of numerous civil suits, cases and contempt petitions in various forms, wherein
alleged questions of concealments, misrepresentations, fraud, active misuse of the Court
process and that the law, questionable alienations, breach of injunctive orders and
judgments, conspiratory connivance and acts of commission and omission of the parties
are under decision.
12. The learned counsel for the petitioner has not been able to show disobedience or
breach of orders of this Court by Respondents Nos. 5 to 8 who were not parties in Writ
Petition No. 2425 of 1997 decided by this Court on 14-3-2002 nor in the trial or appeal
proceedings relating thereto.
13. Contempt proceedings can neither be initiated at the desire or whim of a litigating
party nor for any consideration that does not weigh with the Judge. The Court has to be
satisfied as to whether the act of the respondents comes within the mischief of the law of
contempt or otherwise amounting to interference with the administration of justice.
contempt in its legal connotation signifies disrespect to that which is entitled to a high
legal regard. The very purpose of initiating contempt proceedings is the vindication of
dignity and honour of the Court or that of the justice administration. The petitioner herein
has not been able to show that any judgment, order or direction of this Court was flouted,
disregarded or disobeyed by the respondents.
14. In the above circumstances, no valid justification exists for this Court to initiate
action in contempt against the respondents or to grant any of the prayers made in the
petition.
15. In view thereof, this Criminal original is dismissed.
H.B.T./M-625/L Criminal original dismissed.
Page No. 3 of 2
2002 M L D 1122
[Lahore]
Before Muhammad Akhtar Shabbir, J
NOMAN HAFEEZ and others---Petitioners
versus
MANAGER SMALL BUSINESS FINANCE CORPORATION, RAHIMYARKHAN

through Manager---Respondents
Criminal Original No.71 in Writ Petition No.716 of 2001/BWP, decided on 16th July,
2001.
Contempt of Court Act (LXIV of 1976)---
----Ss.3/4---Petition for contempt of Court---Respondents stated that they had not adopted
coercive measures against petitioner; that petitioner having not approached them within
stipulated period, therefore, statement of rendition of accounts could not be made with
petitioner; that they had not violated orders of Court and even now they were ready to
make rendition of account---Effect---Explanation by respondents was sufficient to satisfy
the Court that order of Court had not been violated and there was no need in
circumstances to proceed further against respondents under Ss.3/4 of Contempt of Court
Act, 1976---Petition being misconceived was dismissed.
Dr. M. Aslam Khaki v. Syed Muhammad Hashmi and 2 others PLD 2000 SC 225 ref.
Nemo for Petitioner.
Ch. Muhammad Ashraf Mohandra for Respondents.
ORDER
A Writ Petition No-716 of 2001 titled as "Noman Hafeez v. Small Business Finance
Corporation Branch, through its Manager, Rahimayar Khan" had been filed which was
disposed of by this Court on 15-2-2001 with the direction to the respondents to decide the
chatter in accordance with the judgment of the Supreme Court, referred in case of Dr. M.
Aslam Khaki v. Syed Muhammad Hashmi and 2 others (PLD 2000 SC 225), for the
rendition of accounts.
2. Comments from the respondents have been received, wherein it is stated that in
accordance with the order of this Court, the respondents have not adopted coercive
measures against the petitioner and he has not approached them within stipulated period,
therefore, the statement of rendition of accounts could not be made with the petitioner. It
is further stated that the respondents have not violated the orders of the Court, even now,
they are ready to make the rendition of accounts with the petitioner. The explanation
given by the respondents is sufficient to satisfy the Court that the order of this Court has
not been violated, thus, there is no need to further proceed against the respondents under
section 3/4 of Contempt: of Court Act, therefore, this petition being misconceived is
dismissed. Notice issued to the respondent shall stand discharged.
H.B.T./N-179/L Petition dismissed.
Page No. 1 of 2
Before Karamat Nazir Bhandari, J
THE STATE---Petitioner
Versus
MUHAMMAD ZAFARULLAH and 2 others --- Respondents
Criminal Original No.78. of 1994, heard on 25th May, 1999.
(a) Contempt of Court Act (LXIV of 1976)---
S. 3/4 --- Contempt of Court --- Unconditional apology --- Effect--Considerations ---
Question whether an unconditional apology will purge the contempt is dependent upon
facts and circumstances of a given case and the discretion of the Court --- Relevant
considerations are; the nature and gravity of contempt, whether unconditional apology is
tendered at the earliest, whether the Court is satisfied regarding its genuineness and
contrition and further that it is not meant to avoid punishment --- Contemners have to
show genuine remorse about the conduct of which they are accused of.
(b) Contempt of Court Act (LXIV of 1976)---
S. 4 --- Contempt of Court --- Three accused were members of police force which existed
to implement and protect the law --- Fourth accused being the Deputy District Attorney
was a law man and a part and parcel of the -Court--Conduct of the accused (contemners)
as detailed in the reference made by the Acting District and Sessions Judge was simply
atrocious, who had ridiculed the Judge/Court and lowered its authority and prestige, right
in the view of the public --- Unconditional apology tendered by the contemners did not
suffice to purge the contempt nor entitled them to discharge --- Accused were
consequently convicted under S.4 of the Contempt of Court Act, 1976 (law applicable at
the time of commission of contempt) and punished to simple imprisonment till rising of
the Court with a fine of Rs. 100 each or in default to suffer simple imprisonment for
seven days --- Lenient view in the matter of sentence had been taken on account of
accused’s aforesaid apology and their throwing themselves at the mercy of the Court.
Muhammad Amin Lone, Asstt. A. -G., Punjab for, the State.
Farooq Bedar for Respondents Nos. I to 3
Muhammad Kazim Khan for Respondent No.4.
Date of hearing: 25th May, 1999.
JUDGMENT
An unfortunate incident took place in the Court of Mr. Muhammad Mujahid Hussain
Sheikh, Acting District and Sessions Judge, Bahalwalnagar which may best be
reproduced in his own words as per reference made by him to this Court:
With heavy heart I have the honour to bring into your kind notice the unfortunate incident
which took place in my Court on 12-8-1993. 1 was hearing a bail application titled
Muhammad Aslam etc. v. State. The A.S.I. Muhammad Zaffarullah, C.I.A. Staff,
Bahawalnagar appeared in my Court in the capacity of the Investigating Officer. In
response to a query of mine, he showed the sinister and rude attitude. For his
contemptuous behaviour, I selected to try him under section 476, Cr. P. C. for the offence
of 228, P. P. C. I - got a. written notice served upon him and gave him the time for the
reply. Although after his apprehension the accused officer was given into the custody of
the police guard but he was given the facility of sitting in his office by the District
Attorney Abdul Haleem. There, the D.S.Ps. Malik Abdul Aziz, Shaukat Murtaza and
Syed Safdar Hussain Shah also joined with him. The Deputy District Attorney Mr. Abdur
Rauf Dasti also happened to be there for the active support of the delinquent police
Page No. 1 of 2
officer. This Dy.D,A. is a very notorious and corrupt person. He lives in the house of the
ex-Law Minister Ch. Abdul Ghafoor and due to that reason, he has developed the
obnoxio4s and affronting arrogance. Prompted by the same he cares a fig for the Courts
and their decorum. At my initiation the District Attorney transferred him from my Court.
Due to this reason he developed ill-will and estrangement towards- me. Seeing a good
occasion of vindicating the grudge towards me, Mr. Abdur Rauf Dasti ventured to help
the accused A.S.I. When I opened the lInd Box for the disposal of the urgent bail
Petitions. the Dy.D.A. Abdur Rauf Dasti appeared in the Court alongwith the accused
A.S.I. He began to agitate the matter like anything. At my very face, he challenged my
authority of apprehending a police officer. He uttered many other objectionable sentences
and cast aspersions on me. I asked Mr. Abdul Rauf Dasti to leave my Court-room but he
refused to obey my order. After a great deal of reluctance, he skipped away, -ultimately. I
became busy in my Court work. Meanwhile the A.S.I. submitted his reply in regard to the
show-cause notice. I convicted the A.S.I. under section 228, P.P.C. and awarded him the
punishment of 3 months' simple imprisonment alongwith a fine of Rs. 1,000., At his
conviction the accused officer was taken into custody and delivered to the Naib Court
Muhammad, Shafique Constable No.615/C11 for committing him to the Jail. The police
officer escaped from the custody of the Naib Court with the active assistance of the
constables Shafat Ali and Ameer. Therefore, an F.I.R. under sections 224 and 225-A,
P.P.C. was ordered to be registered against the persons at fault. A perpetual warrant for
arrest of the escaped police officer was also issued to the Superintendent of Police,
Bahawalnagar.
After a while, when the Court time had become over, Mr Abdur Rauf Dasti appeared in
my chamber in a very dashing way, after crossing the dais of the Court, he rushed into the
retiring room without my permission. Mr. K.M. Sohel, Senior Civil Judge, Bahawalnagar,
was also sitting with me. After a few minutes the three D.S.Ps. who have been named
above also entered in the retiring room in the same manner. I asked the D.S.Ps. to leave
my retiring room. They went outside after showing the protesting derneanour. The
Dy.D.A. Abdur Rauf Dasti fell back upon me and he began to cry like anything. He did
not show me any regard and passed many objectionable remarks against me. I tried my
level best that the better sense should prevail upon him but all in vain. Therefore, I asked
my Naib Qasid to take the gentleman out. The DY.D.A. began to scuffle with the Naib
Oasid and refused to leave the retiring room. Ultimately, the Senior Civil Judge stood up
and he took him out of my Chamber. Had the Senior Civil Judge not been alive to the
occasion, the Dy. D.A. would have physically attacked me. In the meanwhile the three
D.S.Ps. had surrounded my Court by deploying, the force of the police station of City
Bahawalnagar. Apart from hurling the numerous abuses upon me, the D.S.P. Mr. Safdar
Hussain Shah also insulted the Senior Civil Judge in the presence of hundreds of people.
In order to avoid the more deterioration of the situation, the Senior Civil Judge pocketed
the insult. For bringing about the respite, the Senior Civil Judge began to advise the
police officers to remain peaceful and within their limits. He took them to his retiring
room and requested them that they should ask the police force and the people to disperse.
On the advice, of the Senior Civil Judge, the police officers ordered the people to disperse
from the spot. Themselves, they again gathered in the office of the District Attorney Mr.
Abdul Haleem. From there, they sent me the message of facing the dire consequences or
to accept the bail application of the convicted/absconder police officer in an uncalled for
and unwarranted way.
Due to the hooliganism and highhandedness of the above named police officers and of
Mr. Abdur Rauf Dasti DY.D.A. I remained virtually confined in my retiring room till 4-30
p.m. The D.S.P. Syed Safdar Hussain Shah. also threatened that he would register some
false case to teach me a lesson.
In the last, it is reiterated that the above named D.S.Ps. and the Dy. D.A., behaved just
like the rascals the rogues to overawe me. Therefore, in the wider public interest and for
the prestige of the judiciary, they deserve to 6e fixed up and punished severely.
Accordingly, it is requested that the appropriate punitive action may be taken against the
D.S.Ps. Malik Abdul Aziz, Shaukat Murtaza and Syed Safdar Hussain Shah and the
Dy.D.A. Mr. Abdur Rauf Dasti.
The appropriate copies of the record are annexed herewith for your kind perusal.
Page No. 2 of 2
Submitted please." (Underlining is mine).
2. The file reveals that the matter was processed in this Court on the 'administrative side.
The opinion of the learned Advocate-General, Punjab was also solicited. Since the facts
revealed commission of contempt of Court of the grossest type, this Court decided to
proceed in the matter on judicial side by issuing contempt notices to the
respondents/conternners. Accordingly the case was registered as Criminal Original No.78
of 1994 and notices were issued to the respondents viz. (i) Safdar Hussain Shah, the then
Deputy Superintendent of Police, (ii) Malik Abdul Aziz Khan the then Deputy
Superintendent. of Police, (iii) Shaukat Murtaza, the then Deputy Superintendent of
Police, (iv) Malik Zafarullah, the then Assistant Sub-Inspector Police, and (v) Abdur Rauf
Dasti, the then Deputy District Attorney. Notice was also issued to the learned Advocate-
General, Punjab to nominate a law officer for prosecuting the reference.
3. It may be noted that during the pendency, Safdar Hussain Shah, Deputy Superintendent
of Police was reported to have died. Vide order dated 13-10-1998, the proceedings
against him were directed to be dropped, as these had abated.
4. The perusal of the file further reveals that for one reason or the other the proceedings
dragged on. Most of the time, the respondents/contemners did not appear because they
were transferred from one place to other and their service was not being affected.
Ultimately, even though through bailable warrants, all the respondents entered
appearance. Initially Malik Abdul Aziz Khan,' resp6ndent/contemner filed a reply dated
20-6-1997 wherein the allegations levelled in the reference were described as baseless
and devoid of facts and this respondent proceeded to give his own version of the events.
Subsequently, however, when the proceedings were taken in hand and in full earnest, this
respondent alongwith Malik Zaffarullah and Shaukat Murtaza tendered unconditional
apology through their learned counsel Mr. Muhammad Farooq Bedar, Advocate. This was
on 9-4-1999. Mr. Muhammad Farooq Bedar, Advocate, also submitted that the reply of
Malik Abdul Aziz, respondent/contemner already submitted be read in the light of his
above statement. Abdul Rauf Dasti, respondent/contemner sought time to contest the
notice and file his separate reply. The matter was adjourned to 10-5-1999 to enable him to
do so. It was- indicated to Mr. Muhammad Farooq Bedar, Advocate, that if so advised he
may as well place on record a written -unconditional apology.
5. On 10-5-1999, an unconditional written apology was filed on behalf of

respondents/contemners Malik Abdul Aziz Khan, Shaukat Murtaza and Zafarul-lah.
Wakalatnama of Mr. Muhammad Kazim Khan, Advocate, on behalf of Abdur Rauf Dasti,.
respondent/contemner was placed on record. The case was adjourned to 25-5-1999 to
enable Abdur Rauf Dasti, respondent/contemner to place on record his reply. It was made
clear to him that this would be the last chance for placing on record the reply.
6. No reply on his behalf has been placed on record. However, his learned counsel Mr.
Muhammad Kazim Khan, Advocate, has tendered unconditional apology and has prayed
that contempt notice against Abdur Rauf Dasti, respondent/contemner be withdrawn. Mr.
Muhammad Farooq Bedar, Advocate, as already noted, reiterated unconditional apology
on behalf of other respondents/contemners and also prayed that the notices be discharged.
These two learned counsel were directed to assist me with reference to case-law that in
such circumstances, an unconditional apology operates to purge the contempt and entitle
the respondents to claim acquittal. However, these two learned counsel did not cite any
case-law in support of 'the prayer that their respective clients be let off.
7. The question whether an unconditional apology will purge the contempt is dependent
upon facts and circumstances of a given case and the discretion of the Court. The relevant
considerations are the nature and gravity of contempt, whether unconditional apology is
tendered at the earliest, whether the Court is satisfied regarding its genuineness and
contriteness and further that it is not meant to avoid punishment. The contemners have to
show genuine remorse about the conduct of which they are accused of.
8. The perusal of the reference of the learned Judge shows that the matter is extremely
serious. The annoyance of Zafarullah, Assistant Sub-Inspector Police in respect of action
taken against him by the learned Judge is understandable (though not condonable) but the
conduct of the other respondents, senior police officers and a law man, particularly, in
Page No. 3 of 2
forcing their entrance into the retiring room of the learned Judge, their insolent and
threatening/abusing language and liter on their surrounding the Court-room so as to
confine him in Chamber till 4-30 p.m., cannot be explained except on the hypothesis that
they cared little about the Court and its processes and they wanted to have the order
against Zafarullah, Assistant Sub-Inspector reversed even it had to be done by coercion or
by show of force. Malik Abdul Aziz, respondent/contemner in his first reply dated 20-6-
1997 contested the allegations. It was much later and possibly due to observations of this
Court on a few dates of hearing "that this respondent chose to tender unconditional
apology. Shaukat Murtaza and Zafarullah respondents/contemners followed the line of
Malik Abdul Aziz, respondent/contemner and also chose to tender unconditional apology.
It is clear that the written apology tendered on 10-5-1999 is belated and as noted may
have been motivated by observations of this Court. Abdul Rauf Dasti,
respondent/contemner was given number of opportunities to file a. reply which he did
not, even today, His learned counsel, however, has tendered unconditional apology
verbally. This apology is also belated. This respondent has not availed of quite a few
opportunities to file a written reply. In his wisdom, he has chosen to avail of none. Verbal
apology, therefore, has to be rejected.
9. Three of the respondents are members of police force which, exists to implement and
protect the law. The forth is a law man, and in a way, part and parcel of the Court. The
conduct of these respondents, as detailed in the reference is simply atrocious. They have
by their conduct ridiculed the Judge/Court and lowered its authority and prestige, right in
the view of the, public. Keeping in view all the above circumstances I hold that the
unconditional apology does not suffice to purge the contempt nor entitle the
respondents/contemners to discharge. I would, therefore, proceed to convict each of the
above four respondents under section 4 of the Contempt of Court Act, 1976 (the law
applicable-at the time of commission of contempt) and punish Them to simple
imprisonment till rising of the Court and further impose a fine Of Rs. 100 (Rupees one
hundred only) upon each of the respondents/contemners. On failure to pay the fine, each
of the respondents/contemners shall have to suffer simple imprisonment for seven days. I
have taken the lenient view in the matter of sentence, on account of respondents' above
said apology and their throwing themselves at the mercy of the Court.
10. Copy of this judgment shall be sent to the Home Secretary, Government of Punjab,
Inspector-General of Police, Punjab and Secretary, Law Department, Province of Punjab.
N. H.Q./S-400/L Order accordingly.
Page No. 4 of 2
P L D 2000 Supreme Court 71
Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ
MUHAMMAD IBRAHIM and others---Petitioners
versus
Syed AHMAD and others---Respondents
Civil Petition for Leave to Appeal No.793-L of 1999, decided on 22nd September, 1999.
(On appeal from the order dated 17-12-1998 passed by Lahore High Court, Lahore in
C.M. No. 1 of 1998 in Criminal Original No.71/W/94 in W.P. No.23-R of 1987).
----Art. 199---Constitutional jurisdiction of High Court under Art.199 of the

Constitution---Nature of proceedings.
Whether the proceedings were civil or not depends upon the nature of the subject-matter
of the proceedings and its object and not on the mode adopted or the forum provided for
the enforcement of the right. Proceedings, which deal with a right of civil nature do not
cease to be so merely because the writ is said to be enforced by having recourse to the
writ jurisdiction.
Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 rel.
(b) Contempt of Court Act (LXIV of 1976)---
----Ss. 3, 4 & 7---Constitution of Pakistan (1973), Art.204---Contempt of Court---

Superior Courts are not bound by the provisions of Civil Procedure Code, 1908 or
Criminal Procedure Code, 1898 or by the technicalities of ordinary criminal proceedings
or civil proceedings in dealing with a contempt matter---Basic requirement in such cases
is the ascertainment of truth by providing the contemner a fair hearing to defend
himself---Principles.
Admittedly, the Code of Civil Procedure regulates civil proceedings but the contempt
proceedings are neither civil nor criminal and it partakes both. The power exercised by
the Court in contempt proceedings is in the nature of special jurisdiction. Section 7 of the
Contempt of Court Act, 1976 lays down a procedure for Supreme Court and High Court.
Where it is necessary in the interest of effective administration of justice to proceed
against a contemner, he may be proceeded against by getting forth the substance of the
charge against him and the ground on which he is charged with contempt of Court and
calling upon him to show cause why he should not be punished, after holding such
enquiry and taking such evidence as the Court deems necessary. A bare perusal of section
7 of the Act indicates that section 12(2), C.P.C. is not applicable to proceedings initiated
under the Act. Clause (3) of Article 204 of the Constitution provides that the exercise of
the power conferred on a Court may be regulated by law and subject to law by rules made
by the Court. The superior Courts are not bound by the provisions of the Civil Procedure
Code or the Code of Criminal Procedure or by the technicalities of ordinary criminal
proceedings or civil proceedings in dealing with a contempt matter. The basic
requirement in such cases is the ascertainment of truth by providing the contemner a fair
hearing to defend himself.
The jurisdiction of Courts of Record or superior Courts to punish for contempt by the
summary process of attachment or committal is a special jurisdiction, which is inherent in
all such Courts as an essential concomitant of their power to preserve order in judicial
proceedings and to maintain the authority of law. There is no fixed formula for contempt
proceedings and technical accuracies are not required nor are the superior Courts bound
by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary
criminal proceedings. All that is necessary is that the fundamental rules for the
Page No. 1 of 2
ascertainment of truth should be followed and the contemner should be given the fullest
opportunity defending himself.
G.S. Gideon v. The State PLD 1963 SC 1 quoted.
Mian Husrat Ullah, Senior- Advocate Supreme Court and Muhammad Bashir Malik,
Advocate Supreme Court for Petitioners.
Rana Muhammad Anwar, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-
on-Record for Respondent No. 1.
Date of hearing: 22nd September, 1999.
JUDGMENT
IRSHAD HASAN KHAN, J. ---This petition under Article 185(3) of the Constitution of
the Islamic Republic of Pakistan, 1973, is directed against the order dated 17-12-1998,
passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal
Miscellaneous No.1 of 1998 in Criminal Original No. 71/W of 1994 in Writ Petition No.
23-R. of 1987.
2. It is pleaded that Muhammad Hussain, father of the petitioners filed writ petition
No.23-R of 1987 in the Lahore High Court, Lahore in respect of the disputed land.
Alongwith the petition, an application under section 151, C.P.C. (C.M. No.409 of 1987),
seeking preservation of the possession of Muhammad Hussain writ petitioner, and
restraining the respondent Syed Ahmed etc. from alienating the land, in dispute, in any
way or in any manner whatsoever, till the disposal of the writ petition, was filed. Another
application under Order 1, Rule 10, C.P.C. (C.M. No.410 of 1987), was also filed for
impleading Syed Ahmed as respondent in the writ petition.
On 21-12-1993, Syed Ahmed filed a petition (Criminal Original No. 71/W of 1994) under
sections 3 and 4 of the Contempt of Court Act, 1976 (hereinafter referred to as the Act),
read with Article 204 of the Constitution, against Muhammad Ikram, Muhammad
Ibrahim and Manzoor Hussain sons of Muhammad Hussain,' writ petitioner, in Writ
Petition No.23-R of 1987, inter alia, stating therein. that there was dispute between Syed
Ahmed applicant and the father of the above contemners regarding land measuring 80
Kanals and 8 Marlas situate in Chak No.30/UCC, Tehsil Ferozewala, District.
Sheikhupura and that in spite of the order of status quo dated 8-10-1987; passed by the
High Court, Mutation No. 129 in respect of the same land was entered in the names of the
petitioners herein and, in this way, they had committed contempt of the High Court. It
was also stated in the application that Muhammad Hussain, father of the petitioners
herein obtained the status quo order about the land, in dispute, but thereafter, the
petitioners herein filed a civil suit in the Court of Senior Civil Judge, Shejkhupura and
obtained ex parte decree about the land, in question, getting the change about the
ownership of the land thus committing contempt of the High Court and were liable to be
punished for the same. Criminal Original No.71 /W of 1994, was dismissed by a learned
Division Bench vide order dated 3-4-1994,in the following terms:--
"The grievance of the petitioner is that during the pendency of W.P. No:23-12 of 1987,
the respondent petitioner in the said writ petition had obtained an order of status quo in
C.M. No.409 of 1987. Thereafter lie filed a civil suit for declaration that he was the
owner of the property iii dispute and obtained ex parte decree in the said suit and in
pursuance of the same got a mutation sanctioned in the Revenue Record, which is
violative of the said order passed by this Court,, therefore, he should be punished for
contempt of Court. The prayer in C.M. No.409 of 1987 was that during the pendency of
W.P. No..23-R of 1987, the petitioner's possession over the property in dispute should be
preserved and the present petitioner/respondent in the writ petition should be restrained
from alienating the property in dispute."
2. After hearing learned counsel for the petitioner, we are of the view that the status quo
order shall be deemed to have been passed in terms of these two prayers, therefore, the
act of the respondent of filing of the said suit prima facie does not amount to violation of
the said order. We have also gone through the copy of the decree passed in the said suit,
Page No. 2 of 2
which has been placed on record, It shows that the present petitioner was not made a
party in the same, therefore, the said decree prima facie is not binding on the petitioner.
The respondent was not restrained from seeking any remedy available to him against any
other person by filing a suit We notice that after the said decree was passed, the
respondent's W.P. No-23-R of 1987 was dismissed by this Court upholding the transfer of
the property in dispute in favour of the present petitioner. The petitioner is at liberty to get
the entries made in the Revenue Record according to the judgment passed by this Court
to the said writ petition. No case for contempt of Court has been made out, therefore, this
application is dismissed."
3. Syed Ahmed also moved Civil Miscellaneous Application No. l of 1998 in Criminal
Original No.71 /W of 1994 in Writ Petition No.23-R of 1987 under section 12(2) read
with 114/151, C.P.C. for setting aside the order dated 3-4-1994 passed by a learned
Division Bench of the Lahore High Court, Lahore in Criminal Original No.71/W of 1994
in W.P. No.23-R of 1987. The prayer clause reads thus:-- - .
"It is, therefore, respectfully prayed that the impugned order dated 7-4-1994 to the extent
of the observation:
We notice that after the said decree was passed, the respondent's W.P.23-R of 1987 was
dismissed by this Court upholding the transfer of the property in dispute in favour of the
present petitioner. The petitioner is at liberty to get the entries made in the Revenue
Record according to the judgment passed by this ,Court in the said Writ Petition.'
'Be set aside/modified in the interest of Justice and petition of the respondent No.1 be
dismissed to that extent. The delay if any in filing of this application may also kindly be
condoned and this application be heard on merits.'
'It is further prayed that the operation of the impugned order be suspended and the
respondent No.4 be restrained not to eject the petitioners from the disputed land till the
final decision of this petition.'
'Any other relief which this Hon'ble Court deems fit and appropriate may also be
granted'."
4. The learned Division Bench of the High Court dismissed the above application vide the
impugned order dated 17-12-1998 in the following terms:--
"This application on the face of it is misconceived. The main petition was a criminal
original for taking action against the respondents who allegedly committed contempt of
Court which was a criminal or at least quasi-criminal in nature to which C.P.C. does not
apply. An application under section 12(2), C.P.C. cannot be filed in a criminal case.
2. The application is dismissed as being not competent."
5. Mian Nusrat Ullah, learned Senior Advocate Supreme Court for the petitioners
contends that whether the proceedings were civil or not depends upon the nature of the
subject-matter of the proceedings and its object and not on the mode adopted or the
forum provided for the enforcement of the right. He contends that proceedings, which
deal with a right of civil nature do not cease to lie so merely because the writ is said to be
enforced by having recourse to the writ jurisdiction.
6. There is no cavil with the above proposition, which is supported by the judgment of
this Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC I.
Relevant observations in the report read thus:--
"The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original
jurisdiction. Obviously, the jurisdiction under that Article pertains to civil as well as other
matters. At the moment, I shall consider the nature of the proceeding arising out of a writ
petition relating to a civil matter, as in the instant case. A proceeding taken for the
enforcement of a civil right is a civil proceeding, whatever may be the source of the
Court's jurisdiction invoked for enforcement of such a right. According to Stround's
Judicial Dictionary, Civil proceedings is a process for recovery of individual right or
Page No. 3 of 2
redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see
Bradlough v. Clarks (2). Whether a proceeding is civil or not depends on the nature of the
subject-matter of the proceeding and its object, and not on the mode adopted or the forum
provided for the enforcement of the right. A proceeding which deals with a right of a civil
nature does not cease to be so merely because the right is sought to be enforced by having
recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98
of the Constitution relating to a civil matter is a civil proceeding, although the High
Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind.
A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil
Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a
High Court is also governed by the provisions of the Code other than the provisions
which are specially excepted. A proceeding under Article 98.of the Constitution
concerning a civil matter being a civil proceeding relating to the High Court's original
civil jurisdiction and section 114 of the Code conferring power of review not having been
made inapplicable to the High Court in the exercise of its original civil jurisdiction, the
power of review an order made by the High Court in its writ jurisdiction will be available
to it under the said section 114 if that section is otherwise applicable."
7. In the instant case, however, the controversy arises out of proceedings initiated under
sections .3 and 4 of the Act and Article 204 of the Constitution. Admittedly, the Code of
Civil Procedure regulates civil proceedings but the contempt proceedings are neither civil
nor criminal and it partakes both. The power exercised by the Court in contempt
proceedings is in the nature of special jurisdiction. Section 7 of the Act lays down a
procedure for Supreme Court and High Court. Where it is necessary in the interest of
effective administration of justice to proceed against a contemner, he may be proceeded
against by setting forth the substance of the charge against him and the ground on which
he is charged with contempt of Court and calling upon him to show cause why he should
not be punished, after holding such enquiry and taking such evidence as the Court deems
necessary. A bare perusal of section 7 of the Act indicates that section 12(2), C.P.C. is not
applicable to proceedings initiated under the Act. Refer clause (3) of Article 204 of the
Constitution which provides that the exercise of the power conferred on a Court may be
regulated by law and subject' to law by rules made by the Court. The superior Courts are
not bound by the provisions of the Civil Procedure Code or the Code of Criminal
Procedure or by the technicalities of ordinary criminal proceedings or civil proceedings in
dealing with a contempt matter. The basic requirement in such cases is the ascertainment
of truth by providing the contemner a fair hearing to defend[ himself. Refer G .S. Gideon
v. The State PLD 1963 SC 1, wherein it was observed:--
"The jurisdiction of Courts of Record or superior Courts to punish for contempt by the
summary process of attachment or committal is a special jurisdiction, which is inherent in
all such Courts as an essential concomitant of their power to preserve order in judicial
proceedings and to maintain the authority of law. There is no fixed formula for contempt
C proceedings and technical accuracies are not required nor are the superior-Courts
bound by the provisions of the Code of Criminal Procedure or by the technicalities of
ordinary criminal proceedings. All that is necessary is that the fundamental rules for the
ascertainment of truth should be followed and the contemner should be given the fullest
opportunity of defending himself. "
9. Resultantly, no case is made out for interference with the impugned order. The petition
is dismissed and leave declined.
M.B.A./M-398/S petition dismissed.
Page No. 4 of 2
2005 C L C 1740
[Lahore]
B efore Muhammad Jehangir Arshad, J
IFTIKHARUL HAQ---Petitioner
Versus
DISTRICT CANAL OFFICER and others---Respondents
Civil Revision No.677-D of 2004/BWP, decided on 10th February, 2005.
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XXXIX, R.1 &
27--Rejection of plaint while deciding application for interim injunction---Considering
material other than the plaint---Trial Court, while deciding application for interim
injunction, took into consideration the material other than the plaint and rejected the
plaint under O.VII, R.11 C.P.C.---Order passed by Trial Court was maintained by
Appellate Court---Validity---Neither the plaint could be rejected while deciding
application for temporary injunction nor Trial Court, while rejecting plaint, could take
into consideration the material other than the contents of plaint or the material produced
by plaintiff---Facts stated in the order of Trial Court related to ingredients required to be
proved by plaintiff for obtaining temporary injunction---Trial Court did not mention
about the contents of plaint or the material attached to it---Appellate Court decided the
matter while taking into consideration either extraneous material or facts which could
only be proved after recording of evidence---Judgments and decrees of both the Courts
below were not only violative of the provisions of law as contained in O.VII, R. I l C.P.C.
but were also in disregard of the law declared by Supreme Court---High Court noted with
concern that a general tendency has developed in Trial Courts and even in Lower
Appellate Courts confirming the orders of Trial Court to reject plaint while deciding
application for temporary injunction in derogation of express provision of O.VII, R.II
C.P.C.---High Court directed that such tendency needed to be curbed by taking a serious
view of the matter in order to save public from indulging into litigation by way of filing
appeals and revisions up to High Court due to unlawful orders of subordinate Courts and
also to ensure safe administration of justice and law through competent judicial
officers---Orders passed by both the Courts below were set aside and the case was
remanded to Trial Court for passing a separate fresh order on the application filed by
plaintiff for temporary injunction---Revision was allowed accordingly.
Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and
2 others 1994 SCMR 826 fol.
----Art. 189---Decisions of Supreme Court---Non-compliance of such judgment by the

Courts below whether was an act of contempt of Court---Decisions of Supreme Court
deciding a question of law or a principle of law, are binding on all Courts in Pakistan---
Judgment cited before the Courts below constituted a law in terms of Art. 189 of the
Constitution, hence binding on all the Courts---Findings recorded by both the Courts
below were not only against the law but also contravened the expressed mandate of the
Constitution as contained in Art. 189 of the Constitution---High Court recommended
proceedings against Trial Court as well as Lower Appellate Court for passing judgment
not only in violation of law declared by Supreme Court but also acting in violation of Art.
189 of the Constitution.
M.H. Bazmi for Petitioner.
Ch. Haq Nawaz for Respondent No.3.
Page No. 1 of 2
Date of hearing: 10th February, 2005.
JUDGMENT
This civil revision has been filed to challenge the order (amounting to decree) dated 15-7-
2004 whereby a Civil Judge 1st Class, Bahawalnagar while dismissing petitioner's
application for temporary injunction, also rejected the plaint under Order VII, rule 11,
C.P.C. and judgment and decree dated 19-10-2004 passed by learned Additional District
Judge, Bahawalnagar by which petitioner's appeal against rejection of his plaint by the
learned trial Court, was also dismissed.
2. Facts briefly stated are that petitioner feeling aggrieved against the order dated 13-10-
2003 passed by D.C.O./respondent No.1 regarding sanction of Nakka-jaat by respondent
No.2/S.D.C.O. vide order, dated 23-6-1999, filed a suit for declaration and permanent
injunction. Along with the suit an application for temporary injunction was also filed
seeking a restraint order against the respondents from implementing the order, dated 13-
10-2003 of respondent No. 1, till the final decision of the suit. The suit as well as
application were contested by respondent No.3 only, by way of filing written statement
and reply. The learned trial Court, thereafter, heard arguments on application for
temporary injunction but while deciding the said application on 15-7-2004 not only
dismissed the application but also rejected petitioner's plaint under Order VII, rule 11,
C.P.C. against the above-said order of learned trial Court, the petitioner filed an appeal
but the same was also dismissed by a learned Additional District Judge, Bahawalnagar
vide judgment and decree dated 19-10-2004. hence, this civil revision.
3. Before this Court, learned counsel for the petitioner has mainly argued that plaint could
only be rejected within four corners of under Order VII, rule 11, C.P.C. whereas a perusal
of' the plaint did show that it did disclose a cause of action to be challenged through the
civil suit. He has further argued that it has been held time and again by the superior
Courts that while deciding petition under Order XXXIX, rules 1 and 2, C.P.C., even if the
Court finds that plaintiff has failed to make out a prima facie case, it can only refuse to
grant temporary injunction and dismiss the application under Order XXXIX, rules 1 and
2, C.P.C. but this dismissal cannot result in the rejection of plaint at a preliminary stage
when the plaintiff has not led any evidence in support of his case and rejection of plaint is
only possible if the Court reaches to the conclusion on consideration of statement
contained in the plaint and other material available on the record before the Court which
the plaintiff admits as correct. He further argued that while rejecting the plaint the Court
cannot travel beyond the contents of the plaint, much less taking into consideration the
view point of the defendant or after going through the material contained in the written
statement and the documents placed on record by the defendant. While arguing so, the
learned counsel has placed reliance on the case Jewan and 7 others v. Federation of
Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826.
4. On the other hand, learned counsel for private respondent No.3 has argued that the two
Courts below have rightly non-suited the petitioner as neither the bare reading of the
statement of the plaint disclosed cause of action nor the Civil Court had jurisdiction to try
the petitioner's suit. Further argues that the petitioner having not come to the Court with
clean hands, was guilty of abuse of process of law for ulterior motives hence the two
Courts below acted lawfully and with lawful authority.
5. I have given my considerations to the arguments of learned counsel for the parties,
perused the relevant record and have also gone through the case-law.
6. Prima facie the contention of the learned counsel for the petitioner is sustainable. A
bare perusal of the judgment of the Honourable Supreme Court of Pakistan referred to
above, makes it abundantly clear that neither the plaint can be rejected while deciding
application for temporary injunction nor the Court while rejecting the plaint can take into
consideration the material other than the contents of the plaint as well as the material
produced by the plaintiff. It is clear A from the tenor of the order of the trial Court that all
what has been stated therein relates to the ingredients required to be proved by the
plaintiff for obtaining temporary injunction. Not a single word has been said by the trial
Court about the contents of the plaint or the material attached with it. Similarly, the
learned Appellate Court has decided the matter while taking into consideration either
Page No. 2 of 2
extraneous material or the facts which could only be proved after recording of evidence.
The question whether the petitioner was guilty of making any tampering with the record
or that he was not given any notice before passing of the order dated 13-10-2003 passed
by respondent No. I and impugned in the suit, are the questions of fact which could only
be decided after recording evidence as well as proper trial.
7. The judgments and decrees or both the Courts below are not only violative of the
provisions of law as contained in Order VII, rule 11, B C.P.C. but also in clear disregard
to the law declared by the Honourable Supreme Court of Pakistan in Jewan and 7 others
v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994
SCMR 826, referred to above, which to me amounts to contempt of Court, because it is
the mandate of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 that
decisions of the Honourable Supreme Court of Pakistan are binding on all the Courts in
Pakistan, so far as such decisions decide a question of law or enunciate a principle of law.
The judgment of the Honourable Supreme Court cited above since constitutes a law in
terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, hence
binding on all the Courts in terms of said Article. Therefore, the findings recorded by
both the Courts below are not only against law but also contravene the expressed mandate
of the Constitution as contained in Article 189 thereof.
8. The upshot of above discussion in that this Civil Revision is allowed, the judgments
and decrees of the two Courts below are set aside and the suit filed by the petitioner shall
be deemed to be pending before the trial Court. The trial Court shall now pass a separate
fresh order on the application filed by the petitioner for temporary injunction, after
hearing both the parties and shall proceed to decide the suit in accordance with law.
9. While hearing such-like cases after my elevation as a Judge of the High Court, I have
come across a general tendency being developed in the trial Courts and even in the
Appellate Courts confirming the orders of the trial Court, to reject the plaint while
deciding application for temporary injunction and in derogation of expressed provision of
order VII, rule 11, C.P.C. This tendency needs to be strictly curbed by taking a serious
view of the matter in order to save the public from indulging into litigation by way of
filing appeals and revisions up to this Court due to unlawful orders of the subordinate
Courts and also to ensure the safe administration of justice and law through competent
judicial officers. I, therefore, direct the Additional Registrar of this Bench, to send a copy
of this judgment to the concerned Civil Judge as well as the relevant Additional District
Judge, Bahawalnagr, through District Judge, Bahawalnagar with a direction to submit
their written explanations within one month as to why the matter be not taken up on
administrative side and the learned Inspection Judge be requested to recommend
proceedings against them, for not only passing the judgment in violation of the law
declared by Honourable Supreme Court of Pakistan in the above-referred authority as
well as subsequent case-law and also for acting in clear violation of Article 189 of the
Constitution of Islamic Republic of Pakistan, 1973. The explanations so submitted shall
be placed before me in Chambers.
10. It is expected that this observation/direction would be taken by all members of the
Judiciary in the Province as an alarm and they would in future while passing the order be
strictly guided with the law declared by the superior Courts and in future any such lapse
is brought to my notice. I would not hesitate to launch contempt proceedings against such
Judicial officer, besides recommending the worthy Chief Justice for initiating disciplinary
proceedings against him.
M.H./I-96/L Case remanded.
Page No. 3 of 2
2005 Y L R 3324
[Lahore]
Before Ch. Ijaz Ahmad, J
S.M. ANWAR ALVI and others---Petitioners
Versus
MEMBER, BOARD OF REVENUE (J-II), LAHORE and another---Respondents
Writ Petition No. 14036 of 2004, decided on 2nd March, 2005.
(a) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 163---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973),

Arts.199 & 4---Constitutional petition---Review of order---Duty of public
functionaries--- Board of Revenue accepted review petition and decided controversy
between the parties without application of mind and without adverting to reasoning of
earlier order of Member, Board of Revenue, which was not in accordance with mandate
of S.24-A of General Clauses Act, 1897 which was procedural in character and had
retrospective effect---Public functionaries were duty bound to decide cases after judicial
application of mind---Section 24-A of General Clauses Act, 1897 read with Art.4 of the
Constitution, had cast duty upon Public functionaries to decide controversies between
parties with reasons---Courts insisted upon disclosure of reasons in support of order---
Impugned order was set aside and review petition of petitioner would be deemed to be
pending adjudication before Member, Board of Revenue, which would be decided
afresh after due application of mind.
Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419; Messrs Airport Support
Services v. The Airport Manager Karachi 1998 SCMR 2268 and Breen's case (1971) 1
All ER 1148 ref.
----Arts. 189, 190 & 201---Binding force of judgments of Supreme Court and High
Court---Judgment of Supreme Court was binding on each and every organ of State as
envisaged by Arts. 189 & 190 of the Constitution and judgment of High Court was also
binding upon each and every organ of State by virtue of Art.201 of Constitution.
Abdul Wahid Chaudhry for Petitioners.
Muhammad Hanif Khatana, Addl. A.-G. for Respondents.
ORDER
CH. IJAZ AHMAD, J.--The petitioners have challenged the vires of the order of the
respondents dated 6-7-2004 through this Constitutional petition.
2. The learned counsel of the petitioner submits that the Member Board of Revenue
decided the case in the earlier round of litigation in favour of the petitioners vide
order dated 12-10-1999 under the scheme of 1995 but the learned Member Board of
Revenue has reviewed the order through the impugned order without adverting to the
scheme of 1995 therefore, impugned order is without lawful authority and is passed
by Member Board of Revenue without application of mind.
3. The learned law officer submits that the petitioners secured the order from the
Member, Board of Revenue without disclosing real facts in view of the letter
conveyed by the Member, Board of Revenue on 22-9-1990, therefore, order dated 12-
10-1999 is without lawful authority, therefore, Member, Board of Revenue was
justified to review the order dated 12-10-1999 in the impugned order with cogent
reasons after application of mind.
Page No. 1 of 2
4. I have given my anxious consideration to the contentions of the learned counsel of
the parties and perused the record.
5. In case both the orders of the Member Board of Revenue one earlier passed in
favour of the petitioners dated 12-10-1999 and the impugned order dated 6-7-2004 are
put in a juxtaposition then it is crystal clear that the Member, Board of Revenue has
not considered the effect of scheme of 1995 in the impugned order, this fact brings the
case in the area that Member, Board of Revenue has accepted the review petition
without application of mind. It is settled principle of law that public functionaries are
duty bound to decide the cases after judicial application of mind after addition of
section 24-A of the General Clauses Act. Section 24-A of the General Clauses Act is
procedural in character, therefore, it has retrospective effect as per law laid down by
the Honourable Supreme Court in Zain Yar Khan v. The Chief Engineer 1998 SCMR
2419. Section 24-A of the General Clauses Act read with Article 4 of the Constitution
cast duty upon the public functionaries to decide the controversies between the parties
with reasons as per law laid down by the Honourable Supreme Court in Messrs
Airport Support Services v. The Airport Manager Karachi 1998 SCMR 2268. It is
pertinent to mention here that Member Board of Revenue has decided the controversy
between the parties in the capacity as Quasi-Judicial Authority. Lord Denning in
"Breen's case" (1971) 1 All ER 1148 says, "the giving of reasons is one of
fundamentals of good administration." The condition to record reasons introduces
clarity and excludes arbitrariness and satisfies the party concerned against whom
order is passed. To provide a safeguard against the arbitrary exercise or power by the
public functionaries the condition of recording reasons is imposed on them, after
addition of section 24-A in the General Clauses Act. It is also settled principle of law
that Courts insisted upon disclosure of reasons in support of order as per law laid.
down by this Court in judgment dated 23-2-2005 passed in Writ Petition No.2728 of
2005. It is settled principle of law that judgment of the Honourable Supreme Court is
binding on each and every organ of the State as envisaged by Articles 189 and 190 of
the Constitution. The judgment of this Court is binding upon each and every organ of
the State by virtue of Article 201 of the Constitution. The Member Board of Revenue
has decided the controversy between the parties without application of mind and
without adverting to the reasoning of the earlier order of the Member Board of
Revenue, which is not in accordance with the mandate of section 24-A of the General
Clauses Act and the law laid down by the Honourable Supreme Court and by this C
Court in the aforesaid judgment, therefore, the impugned order is set aside. Meaning
thereby that the review petition of the petitioner shall be deemed to be pending
adjudication before the Member Board of Revenue. Parties are directed to appear
before the Member Board of Revenue, who is directed to decide the review petition of
the petitioner afresh after due application of mind as expeditiously as possible.
With these observations the writ petition is disposed of.
H.B.T./S-457/L Order accordingly
Page No. 2 of 2
2005 P L C (C.S.) 154
[Lahore High Court]
Before Ch. Ijaz Ahmad, J
JAMIL AHMED VIRK and another
Versus
SECRETARY EDUCATION GOVERNMENT OF PUNJAB and 8 others
Writ Petition No. 17529 of 2003, decided on 18th May, 2004.
(a) Constitution of Pakistan, (1973)---
----Arts. 18 & 199---Constitutional petition---Fundamental rights, violation of---Freedom

of profession---Grievance of the petitioners in Constitutional petition was that
respondents were appointed by the Authorities to the posts for which they were not
qualified and such action was in violation of terms and regulations provided by the
Government for the said appointments---Validity---Practice of Authorities, of making
initial appointments on provisional basis in violation of terms and regulations of
appointment and then converting such appointments into regular appointments, was
prima facie, violative of fundamental rights provided under Art. 18 of the Constitution
which guaranteed every citizen freedom of profession.
Human Right's case 1996 SCMR 1349; Munawar Khan's case 1993 SCMR 1287;
Channabasa Bhi's case AIR 1965 SC 1293; Abdur Rashid's case 1995 SCMR 999 and
Aziz Ahmad's case 1997 PLC (CS) 356 ref.
----Arts. 2-A, 4, 5(2), 37 & 38---Each and every organ of the State has to function
independently, freely without interference by any other organ of the State---Said principle
along with Arts. 2-A, 4, 5(2), 37 & 38 of the Constitution lead to a conclusion that each
and every organ of the State should remain within its own sphere---Superior Court set
aside the actions which were not within the domain of the Authorities or amounted to
usurping the functions of other organs---Action taken by the Authorities in the present
case, was not according to the prescribed rules and regulations but was under the
influence and direction of private individuals same was not sustainable in the eye of law.
Zahid Akhtar's case 1995 SCMR 530; Ghulam Mohy-ud-Din's case PLD 1964 SC 829;
Syed Fayyaz Hussain Qadri's case PLD 1972 Lah. 316; Amanullah Khan's case PLD
1990 SC 1092 and Sacm Labour Union's case (1946) 2 All ER 201 ref.
(c) Constitution of Pakistan (1973)-----
----Arts. 189 & 201---Judgment of Supreme Court was binding on each and every organ
of the State and the judgment of High Court Was binding op each and every organ of the
State by virtue of Art. 201 of the Constitution---Supreme Court had on each occasion,
declared void the actions of the Authorities which were passed in violation of law,
Constitution and amounted to usurpation of authority of other
functionaries---Non-observance by the functionaries of such rule as laid down by the
Supreme Court was a violation of Art.189 of the Constitution.
(d) Constitution of Pakistan (1973)---
----Arts. 4 & 212---Service Tribunals Act, (LXX of 1973), S.4---Civil service---Bar of

jurisdiction---Legality---In spite of the bar contained in Art. 212 of the Constitution read
with S. 4 of the Service Tribunals Act, 1973, the Constitutional Court under Art. 199 of
the Constitution had ample jurisdiction to give directions to public functionaries to act
strictly in accordance with law in view of Art.4 of the Constitution.
Page No. 1 of 2
H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612 and Province
of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano
2003 SCMR 325 ref.
Hafiz Abur Rehman Ansari for Petitioners
Muhammad Hanif Khatana Add. A.G. for Respondents Nos. 1 to 3&9.
Rai Tufail Ahmad Kharal, for Respondents No.6 and 8.
Ahmad Raza Malik, for Respondent No.7.
ORDER
The petitioners have filed this Constitutional petition with the following prayer:--
"It is humbly prayed that adjustment/postings of respondents Nos.4 to 9 as

Headmasters and Headmistresses in the District Sheikhupura and other Districts
as such in violation of existing rules may kindly be declared illegal and without
lawful authority and the same be set aside."
2. The learned counsel of the petitioners submits that no subject specialist can be
appointed or posted as Headmaster and Headmistress without experience of 10-years,
whereas respondents Nos.4 to 8 have no requisite qualification to be appointed as
Headmaster and Headmistress. He further submits that the Education Department, Punjab
Lahore, promoted respondents Nos.4 to 8 as subject specialist in B.S. 17 and their
services have been placed at the disposal of District Co-ordination Officer, Sheikhupura
for further posting in District Sheikhupura. Respondent No.3 vide letter, dated 24-9-2003
has sent proposal of respondents Nos.4 to 6 and 8 for adjustment as subject specialist to
the District Co-Ordination Officer, Sheikhupura. Respondent No.2 has appointed the
aforesaid respondents as Headmasters and Headmistresses in violation of Rules and
Regulations of the respondents and this fact was pointed out by the Executive District
Officer, Education, Sheikhupura vide letter, dated 30-10-2003 to respondent No.2.
Respondent No.2 while responding to the letter of respondent No.3, dated 30-10-2003,
modified the postings of aforesaid respondents as stop-gap arrangements as is evident
from Annexure-B. The petitioners being aggrieved submitted various applications to the
District Nazim concerned, who also did not take any action on their applications. He
further submits that this fact was not denied by the respondents in the report and parawise
comments.
3. The learned law officer submits that postings/adjustment of private respondents were
made by respondent No.2 just stop-gap arrangements and were placed as and when
regular officers are available. There are so many vacancies vacant qua postings of
Headmasters and Headmistresses in the District Sheikhupura and no eligible person is
available under the control of the respondents to be appointed against the said posts,
therefore, the impugned adjustment order was passed by respondent No.2 in the best
interest of public and Government and in fact he has passed the order to avoid the
hardship of administration. He further submits that the Constitutional petition is not
maintainable in view of bar contained in Article 212 of the Constitution read with section
4 of the Service Tribunals Act.
4. The learned counsel of private respondents submit that the petitioners are not qualified
to be posted for the post in-question. They further submit that 31 posts are vacant with
the respondents. The petitioners have no locus standi to challenge the adjustment order
through this Constitutional petition.
5. I have given my anxious consideration to the contentions of the learned counsel of the
parties and perused the record.
6. The question of law has been decided qua such type of action by the Honourable
Supreme Court in "Human Right's case". No. 104 of 1992 (1996 SCMR 1349). The
relevant observation is as under:--
Page No. 2 of 2
"While inquiring into various complaints of violation of Fundamental/Human
Rights, it has been found that, the Federal Government, Provincial Government,
Statutory Bodies and the Public Authorities have been making initial recruitments,
both A ad hoc and regular, to posts and offices without publicly and properly
advertising the vacancies and at times by converting ad hoc appointments into
regular appointments. This practice is prima facie violative of Fundamental Rights
(Article 18 of the Constitution) guaranteeing to every citizen freedom of
profession.
Subject to notice to all concerned, and subject, to final orders after full hearing in
the matter, it is ordered as an interim measure that the violation of this
Fundamental/Human Right shall be discontinued forthwith.
Steps shall immediately be taken to rectify, so as to bring the practice in accord

with the Constitutional requirement.
The aforesaid proposition of law is also supported by the following judgments:--
"Munawar Khan's case" (1993 SCMR 1287), "Channabasa Bhi's case " (AIR 1965
SC 1293) and "Abdur Rashid's case" (1995 SCMR 999).
The similar controversy was also considered in "Aziz Ahmad's case (1997 PLC (CS)
356). The relevant observation is as under:--
"The constitution of a country is a kind of "social contract" I which binds a

people, society and a State. The terms of the contract foster feelings of
interdependence, of belonging to an entity and of adherence to law. An honest
commitment to the goals set out in the Constitution ensures promotion or
nationhood and stability of the system. Feelings of patriotism do not sprout out of
a big arsenal. These are not borne in the battlefields where warring camps shed
colossal human blood in the name of narrow nationalism, not in the "Chambers of
Politics" where high sounding clichés are spun out to inflate one's ego and
innuendos are hurled to humble the opponents. These are borne in schools which
impart good education, in the fields where tiller gets wages for his blood and
sweat, in factories where the labourer gets a fair deal, in the hospitals which
provide medical care to the sick, in the Courts which dispense justice and in a
socio-political system where merit reigns Supreme. If we want a system to be
stable and if we want the people to defend the system we will have to create
conditions where they feel that the system protects their fundamental rights,
which were recognized in the social contract. A people fight for something which
is worth fighting for, worth living for and worth dying for contemporary history is
testimony to the fact that systems have collapsed less on account of foreign
invasion and more on account of internal mismanagement and on account of
betrayal to the social contract".
7. It is pertinent to mention here that the concept of equality amongst the mankind was
introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached
and practised equality throughout the life and sermon delivered on the occasion of last
Hajj performed by the Holy Prophet (peace be upon him) is the first landmark in the
history of mankind. It was made clear for all times to come that there is no difference
amongst the individuals on the basis of race, colour and territory. The scheme of our
Constitution has set-up the role of each and every organ. The superior Courts of Pakistan
have also laid principle that each and every organ has to function independently, freely
without interference by any other organ of the State. The abovementioned principle
coupled with Articles 4,5(2), 2-A, 37 and 38 of the Constitution of Pakistan lead us to
irresistible conclusion that each anti every organ should have to remain within its own
sphere. The superior Courts consistently observed/considered and set aside the actions
which are not within the domain of the Authority or usurping the functions of other
organs. In case, adjustment order and letter of respondent No.3 be put in juxta-position
then it is crystal clear that respondent No.2 has passed the order which is not
inconsonance with law and Constitution as per law laid down by the Honourable
Supreme Court in "Zahid Akhtar's case" (1995 SCMR 530). Meaning thereby respondent
No.2 has passed the order under influence/direction of private respondents, which action
Page No. 3 of 2
is not sustainable in the eye of law, as per principle laid down by the Superior Courts in
the following judgments:---
"Ghulam Mohy-ud-Din's case" (PLD 1964 SC 829), "Syed Fayyaz Hussain

Qadri's case" (PLD 1972 Lahore 316), "Aman ullah Khan's case " (PLD 1990 SC
1692) and "Sacm Labour Union's case (1946) 2 All ER 201).
8. It is also settled principle of law that judgment of the Honourable Supreme Court is
binding on each and every organ of the State and the judgment of this Court is also
binding on each and every organ of the State by virtue of Article 201 of the Constitution
respectively. The above mentioned series of judgments reveal that the Honourable
Supreme Court has on each occasion, declared the actions of the Authorities which are
passed in violation of the law, Constitution and amounts to usurpation of authority of
other functionaries. Non observance by the functionaries of the dictum laid down by the
Supreme Court of Pakistan is violation of Article 189 of the Constitution. If all the
prevailing circumstances i.e. judgments of the Supreme Court, action of the authorities
and attitude of the respondents put in juxta position then it becomes crystal clear that the
Legislature and executive have refused to give due respect to the dictum of Supreme
Court of Pakistan; which is not congenial and conductive for the existence of the country,
to run the State smoothly, mutual cooperation, respect and understanding. This situation
will create chaos. So, in a word, it can be safely concluded that each organ must work
within its limits prescribed by the Constitution and law. In spite of the bar contained in
Article 212 of the Constitution read with section 4 of the Service Tribunals Act, this
Court has ample jurisdiction to give direction to the public functionaries to act strictly in
accordance with law in view of Article 4 of the Constitution, while exercising power
under Article 199 of the Constitution, as per principle laid down by the Honourable
Supreme Court in "H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others" (PLD 1981
SC 612) and "Province of Sindh through Chief Secretary Sindh, Karachi and 4 others Gul
Muhammad Hajano" (2003 SCMR 325).
9. In this view of the matter and keeping in view the administration problems of the
respondents, let a copy of writ petition be sent to the Secretary Education concerned, who
is directed to 'look into the matter personally and pass an appropriate order' strictly in
accordance with law preferably within 2 months from today, either himself or send the
same to competent authority for its decision, who is also directed to pass an appropriate
order strictly in accordance with law within 2-months from today. He is further directed
to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
10. The aforesaid learned law officer is directed to notify the order of this Court to the
Secretary Education concerned for necessary action and compliance. Office is also
directed to provide one copy of this order to the aforesaid learned Addl:
Advocate-General for onward transmission to the concerned Secretary, Education for
necessary action and compliance.
With these observations the writ petition is disposed of.
M.A.W./J-26/L Order accordingly.
Page No. 4 of 2
Before Gul Muhammad Khan, J
IFTIKHAR AHMAD-Petitioner
Versus
THE MUSLIM COMMERCIAL BANK LTD.
AND ANOTHER-Respondents
Civil Miscellaneous No. 1823 of 1983, heard pit 4th June, 1983,
(a) Constitution of Pakistan (1973)-----
-- Arts. 175 8t 212 -- "Court" and "Tribunal"-Meaning and difference between two
concepts-Banking Companies (Recovery of Loans) Ordinance (XI of 1979), S.
5(2).-[Words and phrases].
It is historically accepted that only the Courts exercise judicial power, and Court is a
place where justice is judicially administered since the term 'Court' has acquired the
meaning of the place where justice is administered, therefore, has come to mean the
persons who exercise judicial functions under authority either immediately or mediately
from the Sovereign ...and not by reason of merely submission to their jurisdiction.
Generally speaking, the word 'Court'... describes an organ of the Government consisting
of one person or of several persons, called upon and authorised to administer justice.
Whether a governmental agency is a Court is determined not by its name or title but by
its organizational character, its purpose or its function.
Again, a Court is required to base its decision upon the material presented to it in
evidence while a tribunal can make use of the information within its personal knowledge
also. A Court is generally not concerned with the objective truth or accuracy of its
findings.
Therefore, a Court adjudicates by fixed standard objectives, upon a controversy or

dispute, as regards pre-existing legal rights and liabilities, conferred or imposed by a
statute, usage or agreement recognised by law and long settled principles, on the basis of
the evidence produced by the parties before it. In contrast a non judicial or administrative
tribunal may adopt the same procedure as the Courts but its decision or orders are
incidental to an obligation to administer law to regulate or supervise matters that are
based not on fixed objective standards but on subjective considerations, policy and
expediency. A Court looks for some law to guide it but an administrative tribunal, within
its province, is law into itself.
In contrast the tribunals are those bodies of men who are appointed to decide
controversies arising' under certain special laws.
The tribunal, on --the other hand, may try itself to dig up fats or collect evidence in order
to find the true facts on which, to- base its result. The approach of a Court is through
adversary system while that of the tribunal is inquisitorial. An administrative tribunal is
characteristically delegated the function of developing and applying through its decision
a set of principles which are important and after highly specialized activity can be
regulated in the public; interest. It possesses a complete, absolute or unfettered discretion
and decides matters before it not on the requirement of law, but policy. It has no
ascertainable standards to guide it and so follows expediency and policy, subjectively on
such considerations as it sees fit..
Ministerial, judicial and àdministrative' functions, therefore, exemplify the three degrees
of irresponsibleness that a tribunal may possess. Acting ministerially tribunal has no
power (except in the rare cases where a statutory discretion is given) to consult its own
wishes: it must carry out its legal duties as judicially decided for it Acting judicially a
Page No. 1 of 2
tribunal has very little power to consult its own wishes in theory, whatever it may do in
practice; because it professes to be bound by a fixed and settled objective standard. A
tribunal exercising àdministrative' functions, when within its proper province and
observing any procedural formalities prescribed, must inevitably be guided by its own
wishes, because it has no fixed standard to follow, but only policy and expediency; and
these are what it makes them. Its standards are purely subjective so in the last analysis it
follows its own will.
There is no hard and fast test to distinguish between a `Court' and a `Tribunal' and that
functions assigned shall have to be analysed in each case to see if they fall under one or
the other category. They deal with the disputes or controversies between two or more
parties about their existing legal rights so as to giving binding decisions.
Constitution of Pakistan, (1973) recognises only such specific tribunals to share judicial
power with Courts, as are particularly mentioned in Article 212 or elsewhere but none
else.-. Neither, a Court nor any other judicial tribunal is relieved of the duty of deciding a
matter before it justly, fairly, equitably and objectively. The only difference is that a
tribunal is not as much bound by the rules of procedure and the evidence as the Courts of
law are.
(b) Constitution of Pakistan (1973)----
-- Arts. 175, 212, 192 4), 190, 201 & 208--"Judicial power---- Not possible to adopt any
exhaustive and exclusive definition of term Principle of separation of State power and
conferment of powers on three organs, legislative, executive and judicial--Exercise of
Powers conferred on Courts legislative and executive-Extent and scope exhaustively.
illustrated--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.
5(2)..-[Words and phrases].
It is not possible to adopt any exhaustive and exclusive definition of term "Judicial
power".
`Judicial power' is the legal. right, ability and authority-to hear: and decide, objectively
and after allowing opportunity to produce evidence, a justifiable issue-dispute ; or
controversy; concerning-the existing legal rights, duties or interests of persons or
property; arising out of relations and dealings; between two or more parties, who bring
the 'same for, an authoritative decision; binding` on them and may 'include the authority
to execute or get executed its decision and protect rights; prevent and redress wrongs and
punish offences through legal process:. further the judicial power must be conferred
by-the State under-Constitution on law and not the mere consent of parties, on persons
who are paid by the State and removable by it only. The authority or -'body in which-this
power is vested- is generally called a 'Court' and in performing its functions it declares;
construes and applies law or custom or usage; having the force - of law. The `judicial
power' ` is thus the instrument to be used by the Court.
The framework of Constitution was also based on the principle of separation of .the State
power and its conferment on three organs i.e. Legislature, Executive and Judicial: This
division is not exclusive and absolute and one sphere of power may overlap the other but
extent thereof in each case can be located. Article 175 provides the hierarchy of the
judicial power as is quite clear from the word 'judiciary' used in sub-Article (3).
Under our constitutional system of separation of three branches of Government, Courts

are part of the judicial whereas administrative agencies are part of the executive branch of
the Government.
The Legislature enacts laws, i.e. declares what the law shall be. The executive
administers that law but any disputes arising thereabout or there under are brought before
the Courts for resolution. The legislative power is enjoyed by the Legislature exclusively
within the Constitutional limits. The laws made by it, to be valid, thus must conform to
the Constitutional requirements. For example, if a Legislature can make laws only in
respect of a certain specified terrority or subject, any law transgressing those limits is
ultra vires and so void. Again, if the judicial power has been vested by the Constitution
only in Courts, the Legislature cannot enact a law to confer any part of it on any
Page No. 2 of 2
executive or other forum. The power to decide as to whether, the Legislature has
transgressed its limits or if the executive has correctly administered law vests with
Courts. It is, however, the obligation of the Courts not to encroach upon the domain of
any other organ of the State.
Constitutions which are based on the principle of separation of power, use the term
`Judicial power' and say that it shall vest in the 'Courts'.
Any judicial function, given to the executive, after the enforcement of the 1973
Constitution, may not be saved and merit being struck down.
The definitions of `judicial power' and 'Courts' show that the Courts use judicial power to
decide conclusively the justiciable issues, controversies or disputes about existing legal
rights in accordance with law or a usage having the force of law. These legal rights, of the
individuals, created by natural law or consent of the parties, are recognised by the society
in which the individuals live and are protected by the State. The test of that right is that if
it is assailed; will the State enforce it, or grant damages for any failure to carry out the
corresponding duty or in some other way recognise the right and attach legal
consequences to the interference with it? However, the State may, by law, for political,
social or economical reasons regulate those rights so as to curtail, limit or restrict them.
In that situation, the differences or disputes arising may either be left to be determined by
Courts or power to settle those disputes be conferred on authorities who are to administer
the law also. Now, if those authorities are to take a decision which adversely affects the
existing natural rights of an individual, it may be an act judicial in nature. In such a case,
the law may provide an administrative relief but it must not bar the individual to
approach a Court unless the Constitution itself confers immunity to such an action. The
reason as explained above, is that executive authorities cannot be entrusted with the
function of determining or passing an order about an actual or potential controversy as to
an existing right or obligation as it is a judicial function. However, if the right has been
created by the same law itself, and an authority to administer the law has also been
created the decision of the authority may be challenged in accordance with the procedure
laid down in that law. Even in that situation any constitutional power vesting in a Court to
judicially review that decision will remain available for a redress or remedy except where
the Constitution itself denies it. So, no law can without the support of the Constitution,
deny any individual to go to a Court in respect of a matter which concerns his natural
rights, irrespective of the fact whether the said right has been violated by another
individual or a public functionary -or a statutory authority. Further, the Courts are entitled
to declare such laws ultra vires and hence void and inoperative. Along with that any part
of the judicial power being conferred on any executive authority without the backing of
the Constitution will also be ultra vires.
Such executive authorities, adjudicating matters incidental to the exercise of their

administrative power, under a law, are generally referred to as “administrative tribunals”
and the adjudication that they do may not be in the exercise of judicial power. It may be
noted that even administrative tribunals may have trappings of Courts but, they would not
lose their character just for that reason.
No executive authority can be empowered to exercise judicial power under Article 175
and any power so conferred by a Legislature shall be ultra vires.
The Judicial power may be, exercised both by the Courts and quasijudicial tribunals.
The Judicial power as is contained in Article 175 can be conferred only on judicial
tribunals called Courts and no other authority.
These will be only one Supreme Court for the whole of Pakistan and one High Court for
each Province. There can thus be no parallel or higher Courts at these levels. All the other
Courts in a Province created under Article 175, thus must be lower or inferior to the High
Court of that Province. Thug, section 14 of the West Pakistan Civil Courts Ordinance,
1962, or other similar provisions laying down that all the Courts created thereunder are
subordinate to the. High Court, are mere recognition of the Constitutional position. The
Courts mentioned in the Constitution, apart from òther Courts' given in Article 175 and
to be created and located in a Province, will thus be exception to the main set up.
Page No. 3 of 2
There is another part of judicial power for which the Article 175 of the Constitution may
also be deemed to be providing. There are other territories, apart from the Provinces, like
Islamabad, the Federally Administered Tribal Areas and such other states and territories
as are or may be included in Pakistan, They are part of Pakistan, as given in Article l of
the Constitution.
Thus the citizens of the above territories also have the inalienable right to get their
disputes settled and grievances redressed by competent Courts and according to Article
192(4) the jurisdiction of any High Court may be extended with regard to such other
territory. As a result it will 3e a High Court for that territory also and so all the inferior
Courts of that territory will become the Courts subordinate to it. Reference be also made
to Article 187(2) which provides, that any direction, order or decree issued by the
Supreme Court shall be enforceable throughout Pakistan. It shows that the jurisdiction of
the Supreme Court also extends to the whole of Pakistan. The only exclusion is given in
Article 247(7) whereby the Supreme Court or the High Courts have been denied the same
in respect of tribal areas unless Parliament by law otherwise provides. According to
Article 258, the President may, by order, make provision for peace and good Government
for any part of Pakistan not forming part of a Province, until Parliament by law otherwise
provides. This also proves that all the other Courts to be created under Article 175 have to
be subordinated to a High Court, as and when that area is brought within the jurisdiction
of a High Court. The above position further establishes the view that the judicial power of
Pakistan, save as is excepted in Articles 199(5) and 2,12, is to be vested in Courts created
under this Article and no forum, other than that specifically mentioned in the Constitution
can be created for the performance of judicial functions and exercise of judicial power.
This conclusion is strengthened by the fact that the Constitution does exclude certain
other subjects also from the purview of the Courts' jurisdiction as given in its Articles 69,
225 and 247(7).
The Judicial power be conferred on any authority, other than a Court or, the same be
curtailed, in any respect, it would have either so stated in Article 175 or that intention
would have been made clear elsewhere. Further, the intention of the Constitution to
separate the judiciary from the executive progressively as contained in Article 175(3) and
the Pre-amble also upholds the above position.
(c) Constitution of Pakistan (1973)--
-- Arts. 203, 212, 175,199, 201 & 208 -- Banking Companies (Recovery of Loans)
Ordinance (XIX of 1979), Ss. 2(f), 5(2), 6 & 8--Banking Court, held, -a Court in fact and
law- Superintendence, control and exercise of disciplinary jurisdiction of High Court over
subordinate Courts, quasi-judicial and judicial tribunals-Scope and extent.
The concept that there will be a High Court for each Province has to have its plain
meaning, in the absence of a definition. Its clear concept will be that it is the highest
Court in the Province and all other Courts there must be inferior to and be subject to its
supervision. Further, as Article 175 of the Constitution embodies the judicial power and
also gives the hierarchy of the Courts i. e. a Supreme Court for Pakistan, a High Court for
a Province and some other Courts as may be created by the Legislature, "the such other
Courts" must necessarily be inferior to the High Courts.
Article 201 lays down that any decision of a High Court shall to the extent it decides a
question of law, or is based upon or enunciates a principle of law, be binding on all
Courts subordinate to it. The Constitution, however, does not specifically say as to which
Courts are subordinate to it. The scheme of the. Constitution, however, appears to be that
while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court,
merely because of its position. the Courts in a Province have to follow the High Court
and be bound by its decisions as they are subordinate to it. So, the mere fact that there is
no express indication in Article 175 of the Constitution that all "other Courts" to be
created by or under law will be the Courts subordinate to the High Court, is not at all
important. The jurisdiction conferred on a High Court by the Constitution under Article
199 also gives a clear cut scope of its authority. It lays down that a High Court may, on an
application made by an aggrieved person, direct any person performing, within its
territorial jurisdiction, functions in connection with the affairs of the Federation or a
Page No. 4 of 2
Province, or a local authority, to do or refrain from doing, any act which he is not
permitted by law to do. The High Court can likewise declare their actions as without
lawful authority. Further, within its territorial jurisdiction, which would include such
other area as may be brought within its jurisdiction under Article 192, it can satisfy itself
if a person is not being held without lawful authority. Thus, the authority of a High Court
extends throughout the Province, in respect of all matters and persons except those
expressly taken out of its ambit by the Constitution itself. .Reference be made to Article
199(5) which provides for the exclusion of the Courts for the Armed Forces. As a result,
the specific mention of “subordinate Courts” and not the other Courts and tribunals, in
Articles. 202 and 203 only amounts to making sure that the superintendence and control
of the High Court shall be confined to the Courts to the Province and not the other
authorities there.
Thus, the judicial power, in view of Article 175 of the Constitution vests, in a Province,
only in the High Court and such other inferior Courts as may be created under law. The
earlier civil, criminal and revenue Courts have, however, been continued under Article
275(3) of the Constitution but the judiciary has to be separated from the Executive within
the period provided in Article 175(3). May be it is for the reason of saving .the
unconstitutional position of some of these Courts that the Constitution provided a time
limit under Article .175(3). The Constitution further provides that .the Courts shall
exercise such jurisdiction as is conferred on them by the Constitution or law. The
jurisdiction is a slice of the judicial power. It is defined, as the power to hear and
determine a cause of action presented to it.
' The term has reference to power of the Court, over the subject-matter, over the res or:
property in contest and to the authority of the Court to render the judgment or decree it
assumes to make. To create jurisdictions the judicial power is to be divided horizontally,
with the Supreme Court at the apex, High Courts in the middle and the subordinate
Courts at the base. A further division in each case, may be made into original, appellate
reviewal or revisional segments and also on the basis of territories, persons, or subjects or
their combinations.
The 'jurisdiction' thus represents that part or a segment of the judicial power which is
conferred either by the Constitution itself or the law, or any Court. The jurisdiction of the
Supreme Court has been given in detail in the Constitution, though the Parliament may
also confer on it more of it. The High Courts have also been given the power of
superintendence on the Courts subordinate to it and also the power of judicial review on
all the statutory functionaries and the local authorities within its territorial jurisdiction.
The jurisdiction conferred by the Constitution cannot be altered, amended or repealed by
Legislature. Thus, while the Constitution has placed the High Court as the highest Court
in the Province and conferred on it jurisdiction of superintendence and control, and of
judicial review to ensure that any aggrieved person can bring to its notice any injustice or
illegality for a redress, it has left it to the respective Legislature to confer any other
jurisdiction on it. It is quite clear that there is a guarantee given in the Articles 199 and
203 of the Constitution to an aggrieved person to approach a High Court, against any
excess, illegality or injustice committed by any authority or Court in its territorial
jurisdiction. So, the purpose of the provision of Article 203 in the Constitution itself
appears to be that if the Legislature for any reason, takes away the appellate or the
revisional powers of the High Court in respect of any matter, or fails to supply the same
in certain cases, the High Court shall still be left with a power to redress the genuine
grievances of the aggrieved persons and see that injustice, if any, done by the subordinate
Courts is not perpetuated. Where superintending control over all inferior Courts is
conferred by a provision of the Constitution, the supervisory power cannot be restricted
or removed by legislative action, unless the constitutional provision granting supervisory
jurisdiction authorises the legislation to enact a statute regulating such superintending
control.
Other Courts created under Article 175 are subject to the superintendence and control of
the High Courts, in their respective territories.
This power of superintendence extended only to the subordinate Courts and not even to
the acts of the subordinate judicial Officers while they were acting as tribunals or persona
designata, though in quasi judicial capacity.
Page No. 5 of 2
The word 'superintendence' includes both judicial as well as administrative functions.
There is authority to conclude that the words `supervision' and `control' empower the
High Court to exercise judicial control over the decisions of the subordinate Courts
though the limits within which it has to be exercised is a different question. The judicial
control is limited to the correction of exercise of jurisdiction or noncompliance of any
statutory provision of the concerned law, and it does not extend to interference on merits,
if otherwise, the subordinate Court has acted within its bound.
An action under power of superintendence may result in a relief which may be in the
nature of judicial or administrative exercise of power.
Courts have admitted no hurdle or obstacle in their way and have granted relief whenever
it was found necessary or proper, in the interest of justice, both-on the application of
aggrieved persons and also suo motu. .
The result seems to be that the High Court has unlimited Constitutional discretionary
power to supervise and control all such forums, by whatever names called, if they
exercise judicial power in the Province and this jurisdiction would encompass the judicial
decisions as well as the administrative actions so that the particular judgments and orders
as well as the main stream of justice are kept pure and clean and the Courts are directed
to remain within the bounds laid down by law and the superior Courts. The High Court
may even go to the extent of taking disciplinary action against the declinquent Officers as
is supported hereinafter.
A little more closer look at the terms "superintendence" and "control" would show that
they overlap each other both in meaning and scope. According to dictionary `control' may
also mean superintend and vice versa. Again while the superintendence may be of the
system, its working and the product, the control may be of the personnel also.
The power of control conferred on the High Court in Constitution included the power to
take disciplinary action.
That control over subordinate Courts carried with it the power to fix the seniority of
Officers employed in those Courts.
If exercise of disciplinary jurisdiction over the subordinate judiciary is not a part of the
Constitutional power of superintendence then the High Courts cannot exercise effective
control and be made responsible for proper functioning of the subordinate Courts. On the
other hand, there is no provision of the Constitution burdoning the executive with such a
responsibility. Further, it is not only relevant to the concept of separation of judiciary
from the executive, it is essential to inspire confidence in the public mind about the
independence of judiciary.
The scope of Article 203 be summed up as under:-
The High Court can interfere in cases of (a) erroneous assumption or excess of
jurisdiction; (b) refusal to exercise jurisdiction; (c) error apparent on the face of the
record; (d) violation of the principles of natural justice; (e) fraud on the part of the
prosecutor; (f) arbitrary or capricious exercise of authority; or discretion; (g) perverse
finding e. g. where it is based on no material whatsoever; (h) deciding contrary to the law
laid down by the High Court or refusal to comply with the decision of the High Court.
This power will be restricted to (i) cases of grave dereliction of duty, or flagrant violation
of law, where grave injustice would result unless the High Court interferes; (ii) be
exercised only to do justice between the parties and not even to remove an illegality if the
result may be to perpetuate some other illegality or injustice; (iii) not be exercised to
correct an error of fact or of law, not being an error of law apparent on the face of the
record, unless such error affects the jurisdiction of the inferior tribunal (iv) will not
proceed to reappraise the evidence on which the conclusion of the Court is based, or to go
into the evidence for any other purpose except in exceptional cases e. g., to see whether
its own order of remand has been carried out; (v) intervene to correct an error as to the
interpretation of the Constitution; (vi) not substitute its own judgment for that of the
inferior Court, whether on a question of fact or of law or interfere with the intra vires
Page No. 6 of 2
exercise of a discretionary power, unless .it is àrbitrary or capricious'; or perverse e. g.,
where it is based on no material whatsoever.
The Courts in Pakistan enjoy powers given to them under Article 203 of 1973
Constitution as conferring right of administrative as well as judicial superintendence over
its subordinate Courts.
The Banking Court, when judged on the above standard is a Court in fact and law.
According to section 6(1)(a) of the Ordinance, it has to exercise civil jurisdiction as
vested in a civil Court, under the Code of Civil Procedure. Again under section 6(1)(b) it
exercises criminal jurisdiction vesting in an Assistant Sessions Judge under the Code of
Criminal Procedure. Section 6(3) says that all proceedings before a Special Court shall be
deemed to be judicial proceedings within the meaning of sections 193 and 288 of the
Pakistan Penal Code and it is a Court for the purposes of sections 480 and 482, Cr. P. C. It
has to decide a controversy before it, objectively, vide section 7 in accordance with Order
XXXVII in the First Schedule to the Code of Civil Procedure. After hearing the case, it
pronounces a judgment on which has to follow a decree as per section 8(1). The Special
Court has also the power to execute its decree under section 8(3). The orders of the
Courts are also appealable before the High Court. The rights or the liabilities of the
parties before it are preexisting and they have to be dealt with in accord with the evidence
produced and the law. The mere fact that the procedure adopted is shorter would not take
it out of the ambit of a Court as even the other regular Courts in certain specified matters
adopt the same procedure.
(d) Constitution of Pakistan (1973)----
-- Art. 203 - Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), Ss. 5, 6
& 8-Banking Companies (Recovery of Loans) Rules, 1980, r. 9-Maintainability of appeal
under Art. 203 of Constitution of Pakistan (1973)-Petitioner allowed by Special Judge
Banking to pay back loan by six monthly instalments-Default in payment of instalments
by petitioner-Special Judge directing collector to attach property of petitioner and recover
amount of loan of such property by sale-Special Judge, on application by petitioner,
withdrawing order of attachment of property and directing petitioner to deposit entire
amount in lump sum - Application against order of Special Judge Banking, under Art. 203
before High Court, held, maintainable-Order of Special Judge Banking withdrawing
previous orders and directing petitioner to pay entire amount in lump sum, held further,
not harsh and there being no miscarriage of justice or illegality calling for interference
under Art. 203, Constitution of Pakistan (1973), petition dismissed.
Words and Phrases Legally Defined, Vol. I, p. 367; A. C. Companies v. P. N. Sharma A I

R 1965 S C 1595; Durga Shankar Mehta's case A I R 1954 S C 520; Attorney-General for
Australia v. The Queen and the Boilermakers' Society of Australia (1957) A C 288;
Waterside Workers Federation of Australia v. Alexander Ltd. (1918) 25 C L R 434; In re:
The Judiciary Act (1921) 29 C L R 257; R. v. Local Government Board for Ireland (1902)
2 1 R 349; The Queen v. Devison (1954) 90 C L R 353; The Queen v. Trade Practices
Tribunal (1970-71) 123 C L R 361; Labour Relations Board of Saskatchewan v. John East
Ironworks Ltd. (1949) A C 134; Prentis v. Atlantic Coast Line Co. (1908) 211 U S 210;
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1931) A C 275;
Muhammad Ahmad v. Governor-General-in-Council A I R 1945 Lah. 313; The
Corporation of the City of Lahore v. Fahmida Begun P L D 1952 Lah. 258; Masud
Ahmad v. Muhammad Saeed Sehgal P L D 1958 Lah. 153; Abdul Hamid v. Karam Dad P
L D 1966 Lah. 16; Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala A I R 1961
S C 1669; Shankar Lal Aggarwal v. Shankar Lal Loddar A I R 1965 S C 570; Works
Manager v. Hashmat A I R 1946 Lah. 316; H. C. D. Mathur v. E. I. Railway
Administration A I R 1950 All. 80 ; Engineering Mazdoor Sablia v. Hind Cycles Ltd. A I
R 1963 S C 874; Judicial Review of Administrative Action, Prof. S. A. De Smith by 1st
Edn., p, 41 ; Tariq Transport Company's case P L D 1958 S C (Pak.) 437; Dwarkins v.
Lord Rokeby 8 Q B 255; Pir Syed Safi-ud-Din v. Secretary P L D 1958 Pesh. 157;
Province of Bombay v. Khushaldas S. Advani A I R 1950 S C 222; Attorney-General v.
The Queen (1957) 95 C L R 529; Meakes N. Dignans (1931) 46 C L R 73; Victorian
Stevedoring and General Contracting Co. and Meakes v. Dignan (1931) 46 C L R 73;
Kansas v. Colorado (1907) 206 U S 46; Constitution of the United States Part I, Vol. I. P.
425; Haaburn's case (1792) 2 Dal. 409; Rola Company (Australia) Proprietary Ltd. v.
Page No. 7 of 2
Commonwealth (1944) 69 C I. R 185; Federal Commissioner of Taxation v. Munro
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451; 20 Am Jur 2d, p. 470; Aziz Begum v. Noor Muhammad P L D 1962 Lah. 887;
Khadim Mohyuddin's case P L D 1965 S C 459; Abdur Rehman v. Mst. Chaman Ara P L
D 1972 Kar. 164; Karim Bakhsh v. Mst. Mubarik Jan P L D 1970 Pesh. 169; Emperor v.
Tarapore A I R 1940 Sind 230; Mst. Gaman v. Taj Din P L D 1968 Lah. 987; Mst. Safia
Begum v. Abdul Hamid P L D 1968 Lah. 1358; Mst. Farida Parwin v. Qadeeruddin
Ahmad Siddiqui P L D 1971 Kar. 118; S. Zahid Ali v. Mubarak Bano P L D 1976 Kar. 68;
Muhammad Siddiq v. Syed All Shah P L. D 1976 Lah. 293; Muhammad Naeem v. State
1979 P Cr. L J 333; Fardaus Kausar v. Subah Sadiq 1979 C L C 208; Shahzad Hussain v.
State P L D 1980 Lah. 54: Mst. Shirin Taj v. Akbar Khan 1980 C L C 787; Khadi/a Bibi v,
Abdul Wahid 1980 C L C 2145; 20 Am Jur 2d; W. B. v. Nripendra Nath A I R 1966 S C
447, Madan Mohan v. Bihar A I R 1970 Pat. 432; Assam v. Ranga Muhammad A I R
1967 S C 903; Chandramouleshwar v. Patna High Court A I R 1970 S C 370; Raj Kumar
v. Ram Sundar A I R 1932 P C 60; Shamsher Singh v. Punjab A I R 1974 S C 2192;
Words and Phrases, Permanent Edn., Vol. 9-A, p. 21; Sakai v. lswar (1941) 2 Cal. 366;
Jahnahi v. Basudeb (1949) 54 C W N 626; Ryots of Garabanphu v, Parlakimedi (1943) 70
I 'A 129; Satyanarayan v. Mallikarjun A I R 1960 S C 137; Waryam Singh v. Amarnath A
I R 1954 S C 212; Hari Vishnu v. Ahmad A I R 1955 S C 233; Sholapur Municipality v.
Tuljaram A I R 1931 Rom. 153; Balkrishna v. Emperor A I R 1933 Born. 1; Sandal v.
Kedar A I R 1935 All. 519; Rajkumar, Ramsundar A I R 1932 P C 69; In re: Pattisam A I
R 1954 Mad. 573: Faqir v. Gopi A I R 1962 Pb. 117; Barrow v. State of U. P. A I R 1958
All. 154 and Carlstill v. State of Bihar A I R 1961 S C 1615 ref.
C. M. Latif Rawn for Petitioner.
Sh. Javed sarfraz Khan for Respondent No. 1.
Tanvir Ahmad Khan, Asstt. A.-G. with Syed Iftikhar Ahmad Shah, Dy. Attorney-General
for Respondent No. 2.
Date of hearing: 4th July, 1983.
JUDGMENT
The learned Special -Judge, Banking Court, vide order, dated 9th September, 1982
allowed the petitioner to pay, by six monthly instalments, the sum of Rs. 73,69:1 with
costs, decreed against him. It was further stated in the order that in case of default in
payment of any instalment, the balance amount shall become payable immediately and
the Bank may recover it by execution of the decree. Later, the petitioner did fail to pay
the instalments, on which the learned Special Judge as per order, dated 3rd April, 1983
directed the Collector to attach his property and recover the amount by its sale. The
petitioner made an application for the suspension/ vacation of that order. The learned
Special Judge allowed his request and withdrew the attachment warrants. He, however,
asked him to pay the entire amount in lump sum till 7th July, 1983, as committed by him.
The petitioner challenged that order, through this petition, under Article 203 of the 1973
Constitution, read with Provisional Constitution Order, 1981, with the prayer that the
previous order of instalments, on yearly basis; be restored, for the reason that the order of
the trial Court was harsh and unjust. The application, however, failed and was dismissed,
on 18th July, 1983 for reasons to be recorded later. The present order is meant only to
supply the reasons.
2. To support the maintainability of this application, the learned counsel relied on rule 9
of the Banking Companies (Recovery of Loans) Rules, 1980, and stated that according to
it, the Special Court being subject to the administrative control and superintendence of
this High Court, within whose jurisdiction its permanent seat is situate, the impugned
order can be modified as prayed.
3. The learned counsel for the respondent Bank resisted this application on the ground
that firstly, the respondent Court established under Ordinance XIX of 1979,-is not a Court
subordinate to the High Court and secondly, the prayer made does not fall within the
Page No. 8 of 2
scope of the power of superintendence and control, conferred on this Court, under Article
203 of the Constitution. Mr. Tanvir Ahmad Khan, Assistant Advocate-General, who
appeared on notice, agreed with the learned counsel for the petitioner and stated that rule
9, referred to above, makes the respondent Banking Court, subject to the superintendence
and control of the High Court. He, however, denied if any relief, of the nature prayed for,
could be granted to the petitioner in that jurisdiction, or in the circumstances of the case.
4. The learned Deputy Attorney-General, however, opposed the motion. He pleaded that
rule 9, made in 1980, had become redundant, in view of the later amendment.
incorporated vide Ordinance II of 1983, by which the Special Court was reconstituted
vide section 2(f). According to the new provision; a District Judge or an Additional
District Judge, to he appointed by the Federal Government, will be the Special Court, for
a given territory- in respect of a loan, the outstanding amount of which does not exceed
rupees one million For higher amounts, the High Court, in exercise of its original civil
jurisdiction, shall be the Special Court. The argument was that as a case concerning a
loan of an amount, exceeding rupees ten lacs, is now to be brought before a Special
Court, presided by a High Court Judge, it cannot be said that the same Special Court
when presided by an officer of the rank of a District 7udgc, would be subordinate to the
High Court This argument, however, has no merit. Firstly, the jurisdiction for an amount
over one million is conferred on the High Court, as such and secondly, if it is to be
accepted, then it will be presumed that even those High Courts, which exercise original
civil jurisdiction, cannot superintend and control Courts subordinate to them.
5. The learned Deputy Attorney-General then referred to section 5 of the Banking

Companies (Recovery of Loans) Ordinance, 1979 (hereinafter called the Ordinance) to
state that , a Court, established by the Federal Government, as a Special Court and
presided over, not by a District Judge, but by a persona designata, cannot be a Court
subordinate to the High Court. Admittedly, section 5 has been repealed and so the
argument on that basis is not available. It is, however, correct that under section 2(f) of
the above Ordinance, a Special Judge is to be appointed, not by the Provincial
Government or High Court, but the Federal Government, though in the absence any such
appointment, the District Court is to be the Special Court. The controversy thus raised by
the learned Deputy Attorney-General is that the Special Judge is not a `Court' but a
`Tribunal and so not subordinate to the High Court.
6. In order to appreciate the point, we must first know the meanings of and the difference
between the two concepts i.e. ‘Court’ and ‘Tribunal’. It is historically accepted that only
the Courts exercise judicial power. Coke said; Court is a place where justice is judicially
administered. According to Words and Phrases Legally Defined' Volume I, page 367, the
term 'Court' has acquired the meaning of the place where justice is administered and has
come to mean the persons who exercise judicial functions under authority either
immediately or immediately from the Sovereign and not by reason of merely submission
to their jurisdiction". The 20 Am. Jurisdiction 2nd page 386 gives the definition as under: -
“Generally speaking, the word 'Court' ...describes an organ of the Government

consisting of one person or of several persons, called upon and authorised to
administer justice. Whether a government agency is a Court is determined not by
its name or title but by it organizational character, its purpose or its function.”
As for the distinction it states that "under our constitutional system of separation of the
three branches of government, Courts are part of their judicial whereas administrative
agencies are part of the executive branch of the Government". The American and
Australian Constitutions which are use the term `Judicial power' based on the principle
of separation of power, and say that it shall vest in the 'Courts'.
7. There appears to be a very special feature in our 1973 Constitution. It includes a

specific provision in Article 212 for the constitution of tribunals for purposes expressly
given therein and provides for an appeal before the Supreme Court. Article 175 only
speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province
have been created under that Article while power has been conferred on the Legislature to
create other Courts and also to confer jurisdiction on them. This position may be
contrasted with the Indian Constitution. Article 136 (1) of that Constitution lays down
that the Supreme Court may grant special leave to appeal from any judgment etc., in any
Page No. 9 of 2
cause or matter, passed or made by any, Court or tribunal in the territory of India. Article
227 states that every High Court shall have superintendence over all Courts and tribunals
throughout the territories in relation to which it exercises jurisdiction. Thus, while the
Indian Constitution recognizes existence of tribunals sharing judicial power with Courts,
it is conspicuously absent in the 1973 Constitution. This appears to be a very important
departure from the previous Constitutional position as even Article 98 (5) of the 1962
Constitution recognised tribunals alongwith Courts. Strangely enough, however, the
power of superintendence of High Courts was conferred only with regard to the Courts
subordinate to them and not for tribunals as in .the Indian Constitution. It is thus quite
clear that the 1973 Constitution of Pakistan recognizes only such specific tribunals to
share judicial power with Courts, as are particularly mentioned in Article 212 or
elsewhere but none else. It may also be useful to note here that neither a Court nor any
other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly,
equitably and objectively. The only difference is that a tribunal is not as much bound by
the rules of procedure and the evidence as the Courts of law are. I may also refer here to
some observations of the Indian Supreme Court in support of tribunals sharing judicial
power with Courts, as made by Gajendragadkar Civil Judge in A. C. Companies v. P. N.
Sharma (AIR1965SC 1595), while comparing Indian Constitution with that of Australia.
The learned Judge remarked: -
“Under our Constitution, there is no rigid separation of powers as under the

Australian Constitution ; and so, it would not be constitutionally inappropriate or
improper to say that judicial power of the State can be conferred on the hierarchy
of Courts established under the Constitution as well as on tribunals which are not
Courts strictly so-called. Indeed, the fact that Article 136 (1) refers to Courts and
tribunals and makes the determination, sentence or order passed by them subject
to appeal to this Court by special leave, shows that our Constitution assumes that
judicial power of the State can be vested in and exercised by both Courts and
tribunals alike.”
A similar remark by Bachawat Judge in that case is as follows :-
(1608) “Unlike Australia, in our country the judicial power of the State may be
vested not only in Courts but also in other authorities. The Courts alone have no
monopoly of this judicial power. An authority other than a Court vested with the
judicial power of the State in this sense is regarded as a tribunal within Article
136.”
In Durga Shankar Mehta's case (AIR 1954SC524) B. K. Mukherjea Judge speaking for
the Court observed :--
“It is now well-settled by the majority decision of this Court in the case of Bharat
Bank Ltd. (A I R 1950 S C 188) that the expression `Tribunal' as used is Article
136 does not mean the same thing as 'Court' but includes, within its ambit, all
adjudicating bodies, provided they are constituted by the State and are invested
with judicial as distinguished from purely administrative or -executive functions.”
8. The Constitution of Pakistan as regards judicial power is thus quite different from that
of India and resembles the Australian Constitution inasmuch as that no executive
authority can be empowered to exercise judicial power under Article 175 and any power
so conferred by a legislature shall be ultra vires. Relevant portions from two Australian
judgments may F also be quoted in support. In the Attorney-General for Australia v. The
Queen and the Boilermakers' Society of Australia (1957 A C 288) an interesting question
arose for the decision of the Court under sections 29(l)(b) and (c) and 29-A of the
Commonwealth Conciliation and Arbitration Act, 1904-1952. These provisions purported
to vest judicial power-even to the extent of finding a citizen or depriving him of his
liberty-in the Court of Conciliation and Arbitration established under the Act with powers
of an administrative, arbitral and executive character. It was held that the said provisions
were invalid, because the function of an industrial arbitrator is completely outside the
realm of judicial power and is of a different character. Viscount Simonds, cited with
approval the observations made by Griffith Civil Judge in Waterside Workers Federation
of Australia v. Alexander Ltd. ((1918) 25 C L R 434), that it is impossible under the
Constitution to confer such functions (i.e. judicial functions) upon any body other than a
Page No. 10 of 2
Court, nor can the difficulty be avoided by designating a body, which is not in its
essential character a Court, by that name, or by calling the functions by another name. In
short, any attempt to vest any part of the judicial power of the Commonwealth in any
body other than a Court is entirely ineffective.
9. Many Courts and legal philosophers who attempted to give the exact meaning and
scope of the term `judicial power' have opined that it is not possible to adopt any
exhaustive and exclusive definition. However, in re : The Judiciary Act ((1921) 29 C L R
257), it was stated that àll these opinions indicate that a matter under the judicature
provisions of the Constitution must involve some right or privilege or protection given by
law or the prevention, redress or punishment of some act inhibited by law'. A passage
from R. v. Local Government Board for Ireland ((1902) 2 1 R 349), has been quoted by
Dixon, C. J. of the High Court of the Commonwealth of Australia, in The. Queen v
Davison ((1954) 90 C L R 353) as under :-
"I have always thought that to erect a tribunal into a `Court' or `jurisdiction', so as
to make its determination judicial, the essential element is that it should have
powers, by its determination within jurisdiction, to impose liability or affect
rights. By this I mean that the liability is imposed, or the right affected by the
determination only, and no: by the fact determined, and so that the liability will
exist, or the right will be affected, although the determination be wrong in law or
in fact."
The views of Dixon, C. J. as recorded by him in the above case are as under :-
"The truth is that the ascertainment of existing rights by the judicial determination
of issues of fact or law falls exclusively within judicial power so that the
Parliament cannot confide the function to any person or body but a court
constituted under sections 71 and 72 of the Constitution and this may be true also
of some duties or powers hitherto invariably discharged by courts under our
system of jurisprudence but not exactly of the foregoing description."
Kitto, J. in a very learned judgment in The Queen v. Trade Practices Tribunal (5)
concluded :-
"Thus, a judicial power involves, as a general rule, a decision settling for the
future, as between defined persons or classes of persons, a question as to the
existence of a right or obligation, so that an exercise of the power creates a new
charter by reference to which that question is in future to be decided as between
those persons or classes of persons. In other words, the process to be followed
must generally be an inquiry concerning the law as it is and the facts as they are,
followed by an application of the law as determined to the facts as determined;
and the end to be reached must be an act which, so long as it stands, entitles and
obliges the persons between whom it intervenes, to observance of the rights and
obligations that the application of law to facts has shown to exist."
10. The Privy Council in Labour Relations Board of Saskatchewan v. John East
Ironworks Ltd. ((1949) A C 134) opined that
"It is truism that the conception of judicial function is inseparably bound up with
the idea of a suit between parties, whether between. Crown and subject or
between subject and subject."
Holmes, J. of the United States Supreme Court in Prentis v. Atlantic Coast Line Co.
((1908) 211 U S 210) laid the following test: -
"A judicial inquiry investigates, declares and enforces liabilities as they stand on
present or past facts and under laws supposed already to exist."
Again, the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of
Taxation ((1931) A C 275) approved a definition of Griffith, C. .J. who says :-
Page No. 11 of 2
"I am of the opinion that the words `judicial power as used in section 71 of the
Constitution, mean the power which every sovereign authority must of necessity
have to decide controversies between its subjects or between itself and its
subjects, whether the rights relate to life, liberty, or property, The exercise of this
power does not begin until some tribunal which has- the power to give a binding
and authoritative decision (whether subject to appeal or not) is called upon to take
action."
The above Privy Council opinion and the definition referred to therein has been cited for
guidance in number of judgments of our Courts.
Reference be made to Muhammad Ahmad v. Governor General-in-Council (A I R 1945

Lah. 313) The Corporation of the City of Lahore v. Fahmida Begum (P L D 1952. Lah.
258), Masud Ahmad v. Muhammad Saeed Sehgal (P L D_ 1958 Lah. 153) and Abdul
Hamid v. Karam Dad (P L D 1966 Lah. 16).
11. The Indian view also on the scope and extent of judicial power is not much different.
In Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala (A I R 1961 S C 1669)
Hidayatullah, J. observed :-
"In my opinion, a Court in the strict sense is a Tribunal which is a part of the
ordinary hierarchy of Courts of civil judicature maintained by the State under its
constitution to exercise the judicial power of the State. These Courts perform all
the judicial functions of the State except those that are excluded by law from their
jurisdiction."
In contrast the tribunals are those bodies of men who are appointed -to decide
controversies arising under certain special laws. The same Supreme Court in Shankar Lal
Aggarwal v. Shankar Lal Poddar (A I R 1965 S C 507) observed that it is `conceived that
an administrative order would be one which is directed to the regulation or supervision of
matters as distinguished from an order which decides the rights of the parties or confers
or refuse to confer rights to property which are subject of adjudication before the Courts.
One of the tests would be whether a matter which involves the exercise of discretion is
left for the decision of authority, particularly if that authority were a Court, and if the
discretion has to be exercised on objective as distinguished from a purely subjective,
consideration if the were a judicial decision." Later, Bachawat, J. of the Indian Supreme
Court in A. C. Companies v. P. N. Sharma devised a test to say: -
"For the purpose of this case it is sufficient to say that any outside authority
empowered by State to determine conclusively the right of two or more
contending parties with regard to any matter in controversy between them
satisfies the test of an authority vested with the judicial power of the State."
12. A Full Bench of this Court in Works Manager v. Hashmat (A I R 1946 Lah. 316)
devised the following test: -
"One of the fundamental tests whether a certain tribunal is a Court or is not so is

whether it exercises jurisdiction by reason of the sanction of the law or whether
jurisdiction is given to it by the voluntary submission of the parties to a dispute.
Another important test whether a certain tribunal is or is not a Court is whether it
can take cognizance of a lis and whether in exercising its functions it proceeds in
a judicial manner."
The above test was followed by a Full Bench of Allahabad High Court in H. C. D.
Mathur v. E. I. Railway Adminisiration (A I R 1950 All. 80). In Engineering Mazdoor
Sabha v. Hind Cycles Ltd. (A I R 1963 S C 874) the Supreme Court observed that a
Tribunal would be outside the ambit of Article 136 if it is not invested with any part of
the judicial functions of the State but discharges purely administrative or executive
duties. In the opinion of the learned Judge, Tribunals which are found invested with
certain functions of a Court of justice and have some trappings also would fall within the
ambit of Article 136 and would be subject, to the appellate control of this Court whenever
it is found necessary to exercise that control in the interest of justice. The learned Judges
further noticed that apart from the importance of the trappings of a Court, the basic and
Page No. 12 of 2
essential condition which makes an authority or a body a tribunal under Article 136 is
that it should be constituted by the State and should be invested with the State's inherent
judicial power. Professor S. A. De Smith at page 41 of Judicial Review of Administrative
Action, 18th Ed. discussed this aspect. The test formulated by him is as under :-
"An authority acts in a judicial capacity when, after investigation and deliberation
it determines an issue conclusively by the application of a pre-existing legal rule
or any fixed objective standard to the facts of the situation."
13. A majority decision in Muhammad Ahmad v. Governor-General-in-Council (5) noted

that no exhaustive definition has been given to the word `Court'. To determine whether an
authority. was a Court or not, the learned Judges noted the negative proposition promoted
by Lord Sankey L. C. in the Shell Co. of Australia's case. para. 26 infra and further
referred to the following facts to be considered: -
(i) mode of appointment of the members and their qualifications ;
(ii) tenure of office ;
(iii) method of removal ;
(iv) the manner of payment ;
(v) if the authority can enforce its order.
From the judgment of Abdur Rehman, J. who agreed with the general definition of
`Court' as adopted by the Full bench in Muhammad Ahmad's case, but differed with
conclusion, the following definition of `Court' can be gathered:
That is must be constituted of person, or persons who are entrusted with judicial
functions of deciding litigated questions, concerning civil rights, between the contesting
parties according to law, under the judicial power of the State, duly conferred on them, so
as to give a binding and an authoritative decision, whether subject to appeal or not and
that it will not lose its character simply because it does not have the power to execute its
decree or order.
14. In Sahibzad a Masud Ahmad v. Mian Muhammad Saeed Sehgal, a learned single
Judge of this Court held that before a person or persons can be said to constitute a Court,
the following conditions must be satisfied: -
(1) That such persons are entrusted with judicial functions i. e. of deciding litigated
questions according to law ;
(2) that they derive their powers to decide such question from the State ;
(3) that they exercise the judicial powers of the State ;
(4) that there is a plaintiff who complains to such persons of an injury done ;
(5) that there is a defendant who is called upon by such persons to make satisfactions for
the injury done ;
(6) that they are empowered to pronounce a definitive judgment which is binding and
authoritative;
(7) that such persons are appointed by the Government and should receive payments for
their services exclusively out of Government funds and they should not be liable to
removal by any authority other than Government.
15. The Supreme Court in Tariq Transport Company's case (P L D 1958 S -C (Pak.) 437)
held that it is not presence or absence of the trappings of a Court but the character of
action taken in a given case and nature of rights it operates which determines whether
that action is judicial, ministerial or legislative or whether it is simply the act of a public
Page No. 13 of 2
agent. According to the learned judges an authority acts judicially, in the full sense of the
term;
(1) if it has to determine a dispute;
(2) the dispute relates to a right or liability which, what ever its immediate .aspect, is
ultimately referable to some right or liability, recognised by the Constitution or
statute or by custom or equity which by the domestic law is declared to be the rule
of decision ;
(3) since every right or liability depends upon -facts, the tribunal is under an
obligation to discover the relevant facts ;
(4) the ascertainment of the facts is in the presence of the parties either of whom is
entitled to produce evidence in support of its respective case and to question the
truth of the evidence produced by its opponent; and
(5) after an investigation of the facts and hearing legal arguments the tribunal renders
a judgment which so far as the tribunal is concerned, terminates the dispute.
In respect of an administrative tribunal, the learned Judges added that its emphasis is on
policy, expediency and discretion to enable it to achieve the object with which it was set
up. In the case of such a tribunal, it was added, the approach in determining the relevant
facts is often subjective and not objective; there being generally no /is before it, in which
the parties are arrayed against each other, for the enforcement of private right or liability
and who for that purpose are entitled to produce evidence and adduce legal argument.
16. In Abdul Hamid v. Malik Karam Dad a Division Bench of this Court referred to the
negative proposition (referred to in para. 26 infra) about a Court given by a Privy Council
in Shell Company of Australia v. Federal Commissioner of Taxation. The learned Judges
further went on to say as under: -
"Quasi-judicial tribunals are not fettered by the technical rules of evidence. The
concensus of opinion is that administrative tribunals are fact finding bodies and
the method of fact-finding varies from that which obtains in Courts of
Law….`Judicial proceedings are to be distinguished from the duties of
administrative tribunals. As observed by Lopes L. J. in Dwarkins v. Lord Rokeby
8 Q. B. 255 `the word "judicial" has two meanings. It may refer to the discharge
of duties exercisable by a Judge, by Justices in Court, or to administrative duties
which need not be performed in Court, but in respect of which it is necessary to
bring to bear a judicial mind that is, a mind to determine what is fair and just in
respect of the matters under consideration ...............
At the same time this does not mean that Tribunals can act arbitrarily and
capriciously. The Tribunals especially in cases where they are required to
adjudicate upon the civil rights of the parties are under an obligation to act
judicially and are bound to follow the fundamental rules of evidence and fair play
which are embodied in the principles of natural justice.”
A part of the quotation adopted by the learned Judges in Pir Syed Safi-ud-din v. Secretary
(P L D 1958 Pesh. 157), from Province of Bombay v. Khushaldas S. Advani (AIR 1930 S
C 222), may be reproduced with' advantage :-
“After giving my anxious consideration to the distinction between the

quasi-judicial and administrative order, I have arrived at the conclusion that if the
statutory authority is allowed to pass an order subjectively, based on his personal
or private opinion, and does not impose a liability or affect the right of others in a
substantial manner, then the order will be executive, but if the statutory order is to
be passed objectively, and based on some relevant and existing circumstances and
facts, and at the same time substantially affects the rights of others, it would be a
quasi-judicial order.”
Page No. 14 of 2
17. The above discussion, apart from clarifying the attributes of Court, quite clearly
shows that the judicial power may be exercised both by the Courts and quasi-judicial
tribunals. This conclusion, however, has been drawn from foreign judgments or such
judgments of our Courts which were delivered before the promulgation of the 1973
Constitution. However, as discussed in para. 7 above, the judicial power. as is contained
in Article 175 , can be conferred only on judicial tribunals called Courts and not other
authority. Thus, the discussion about Courts and quasi-judicial tribunals is of no
importance at all. So, as far as Pakistan is concerned, the distinction is to be found not
between judicial and quasi-judicial tribunals but judicial and administrative tribunals and
any Court or other authority, by whatever name called, shall be deemed to be a Court,
constituted in pursuance to Article 175 (2) of the Constitution and subject to the
superintendence and control of the High Court of the Province, in which it is situate, if it
exercises judicial power of the State, under an Act of a Legislature, and its existence is
not specifically provided for by any other provision of the Constitution.
18. Despite the collection of elaborate views above, it has been generally observed that
the definitions so far attempted are not exhaustive of the term `Court'. However, inspired
by all that has 'peen said so far, and without claiming that it will be exhaustive, in my
humble view, `judicial power' is the legal right, ability and authority to hear and decide,
objectively and after allowing opportunity to produce evidence, a justifiable issue,
dispute, or controversy, concerning the existing legal rights, duties or interests of persons
or property, arising out of relations and dealings, between two or more parties, who bring
the same for an authoritative decision, binding on them and may include the authority to
execute or get executed its decision and protect rights, prevent and redress wrongs and
punish offences through legal process. Further, the judicial power must be conferred by
the State under Constitution or law and not the mere consent of parties, on persons who
are paid by the State and removable by it only. The authority or body in which this power
is vested is generally called `Court' and in performing its functions it declares, construes
and applied law or custom or usage, having the force of law. The ‘judicial power’ is thus
the instrument to be used by the Court.
19. The American and Australian Constitutions divide the State power into three organs
i.e. legislature, executive and judiciary. The precise position under such Constitution is
that the Legislature enacts laws, i.e. declares what the law shall be. The executive
administers that law but any disputes arising there about or thereunder are brought before
the Courts for resolution. The legislative power is enjoyed by the Legislature exclusively
within the Constitutional limits. The laws made by it, to be valid, thus must conform to
the Constitutional requirements. For example, if a legislature can make laws only in
respect of a certain specified territory or subject, any law transgressing those limits is
ultra vises and so void. Again,' if the judicial power has been vested by the Constitution
only in Courts, the Legislature cannot enact a law to confer any part of it on any
executive or other forum. The power to decide as to whether the Legislature has
transgressed its limits or if the executive has correctly administered law vests with
Courts. It is, however, the obligation of the Courts not to encroach upon the domain of
any other organ of the State.
20. The Privy Council in Attorney-General v. The Queen ((1957) 95 C I. R 529) opined
that in a federal system the absolute independence of the judiciary is the bulwark of the
Constitution against encroachment whether by the Legislature or by the executive. To
vest in the same body executive and judicial power is to remove a vital Constitutional
safeguard. Resultantly, their Lordships upheld the judgment of the High Court of the
Commonwealth of Australia, whereby the Commonwealth Court of Conciliation and
Arbitration, Court of record, created under a law and presided over by a Judge of the
High Court, who was to hold office for seven years, was declared unconstitutional,
though the objectionable union of executive and judicial power in it was not challenged
for about a quarter of a century earlier. Dixon J. also in Meakar v. Dignan's ((1931) 46 C
L R 73) observed that `Parliament is restrained both from reposing any essentially
judicial power in any other organ or body and from reposing any other than that judicial
power in such tribunals. Again, Dixon, C. J. in The Queen v. Daison stated that Ìt is
beyond the Constitutional power of the Parliament to authorise any person or body to
make such an order except a Court constituted under sections 71 and 72 of the
Constitution.
Page No. 15 of 2
21. Griffith, C. J. of the High, Court of the Commonwealth of Australia, held in
Alexander's case ((1918) 25 C L R 434) that it is impossible under that Constitution to
confer judicial functions upon any body other than Courts, nor can the difficulty be
avoided by designating a body, which is not in its essential character a Court, by that
name, or by calling the functions by another name. In his view, any attempt to vest any
part of judicial power of the Commonwealth, in any body, other than a Court, is entirely
ineffective. Barton, J. in the above case at page 451 observed:
“Whether persons were judges, whether tribunals were Courts and whether they
exercised what is now called judicial power, depended and depends on substance
and not on mere name.”
The above view was approved by the Privy Council in Attorney-General v. The Queen
Dixon, J. in Victorian Stevedoring and General Contracting Co. and Meakes v. Dignam
remarked, with the later approval of the Privy Council in the above case, that an
independent consideration of the provisions of the Commonwealth Constitution, unaided
by any knowledge of the Constitution of the United States cannot but suggest that it was
intended to confine, to each of the three departments of the government, the exercise of
power with which it is invested by the Constitution.
22. Article III, section 1 of the American Constitution states that the judicial power of the
United States shall be vested in one Supreme Court and in such inferior Courts as the
Congress may from time to time ordain and establish. The Supreme Court in Kansas v.
Colorado ((1907) 206 U S 46) observed that Artical III granted to the Supreme Court
èntire judicial power of the Nation' and that if there are any limitations they must be
expressed. Professor Schwartz in his book À Commentary on the Constitution of the
United States' Part 1, Volume I, page 425 states Àccording to Chief Justice Taney,
though there was no decision by the Supreme Court in Huyburn's case. ((1792) 2 Dal,
409), the opinions expressed by the members of that tribunal on circuit clearly established
that the power proposed to be conferred upon .the Federal Courts by 1792 statute was not
judicial power within the meaning of the Constitution and was, therefore,
unconstitutional and could not lawfully be exercised by the Courts. On the other hand, no
effort seems to have ever been made to confer judicial power on executive. The judicial
power of the Australian Commonwealth under sections 71 and 72 of the Constitution is
also conferable only on Courts. The Australian Courts have, therefore, as also said above,
held all such provisions of law as ultra vires that vest any judicial power in bodies other
than Courts. The High Court went rather, further in the Rola Company Australia
Proprietary Ltd v. Commonwealth ((1944) 69 C L R 185) to say that the power to find
fact, that is fundamental to legal liability, is part of judicial power. It went on to say that
where the finding amounts to a binding determination as between parties, the Tribunal
empowered to make the finding necessarily exercises judicial power and any statute
depriving Courts of judicial power has to be declared unconstitutional. Apparently, it is to
take care of that situation that Article 175 (3) of the 1973 Constitution was incorporated
so as to give the executive and the Legislature some time to take steps to separate the
judiciary from the executive as regards the then existing position. It is, however, to be
noted that any judicial, function, given to the executive, after the enforcement of the 1973
Constitution, may not be saved and merit being struck down.
23. So, the definitions of `judicial power' and `Courts' as given above show that the
`Courts'. use judicial power to decide conclusively the justiciable issues, controversies or
disputes about existing legal rights in accordance with law or a usage having the force of
law. These legal rights, of the individuals, created by natural law or consent of the parties,
are recognised by the society in which individuals live and are 'protected by the State.
The test of that right is that if it is assailed, will the State enforce it, or grant damages for
any failure to carry out the corresponding duty or in some other way recognise the right
and attach legal consequences to the interference with it? However, the State may, by law,
for political, social or economical reasons regulate those rights so as to curtail, limit or
restrict them. In that situation, the differences or disputes arising may either be left to be
determined by Courts or power to settle those disputes be conferred on authorities who
are to administer the law also. Now, if those authorities are to take a decision which
adversely affects the existing natural rights of an individual, it may be an act judicial in
nature. In such a case, the law may provide an administrative relief but it must not bar the
individual to approach a Court unless the Constitution it self confers immunity to such an
Page No. 16 of 2
action. The reason as explained above, is that executive authorities cannot be entrusted
with the function of determining or passing an order about an actual or potential,
controversy as to an existing right or obligation as it is a judicial function.
24. However, if the right has been created by the same law itself, and an authority to
administer the law has also been created the decision of the authority may be challenged
in accordance with the procedure laid down in that law. Even in that situation any
constitutional power vesting in a Court to judicially review that decision will remain
available for a redress or remedy except where the Constitution itself denies it. So, no law
can without the support of the Constitution, deny any individual to go to a Court in
respect of a matter which concerns his natural rights, irrespective of the fact whether the
said right has been violated by another individual or a public functionary or a statutory
authority. Further, the Courts are entitled to declare such laws ultra vires and hence void
and inoperative. Alongwith that any part of the judicial power being conferred on any
executive authority without the backing of the Constitution will also be ultra vires, as
held by the Privy Council in Attorney-General v. The Queen: referred to above.
25. Such executive authorities, adjudicating matters incidental to the exercise of their
administrative power, under a law, are generally referred to as "administrative tribunals"
and the adjudication that they do may not be in the exercise of judicial power. It may be
noted that even administrative tribunals may have trappings of Courts but they would not
lose their character just for that reason. In Federal Commissioner of Taxation v. Munro
(1926 CLC 153), it was said that power and function of finally determining matters of
fact and even discretion are not solely indicative of judicial action. That is an attribute; it
was added, common to administrative bodies that are adjunct to legislation and to judicial
bodies. Kitto, J. in The Queen v. Trade Practices Tribunal, observed that the fact that an
official is given a power conditionally upon being satisfied of a particular state of facts is
no indication that in deciding that he is exercising judicial power.
26. It is a generally accepted position that there is no hard and fast test to distinguish
between a `Court' and a `tribunal' and that functions) assigned shall have to be analysed
in each case to see if they fall under one or the other category. What is available,
however, are only the broad guidelines. The general attributes of a Court have been
mentioned in paras. 17-18 above. They deal with the disputes or controversies between
two or more parties about their existing legal rights so as to giving binding decisions.
Again, a Court is required to base its decision upon the material presented to it in
evidence while a tribunal can make use of the information within its personal knowledge
also. A Court is generally riot concerned with the objective truth or accuracy of its
findings, as held in re K (infants) (1965 A C 201) as it proceeds to decide, in accordance
with law, on the basis of the material placed before it. The tribunal, on the other hand,
may try itself to dig up facts or collect evidence in order to find the true facts on which to
base its result. The approach of a Court is through adversary system while that of the
tribunal is inquisitorial. An administrative tribunal is characteristically delegated the
function of developing and applying through its decision a set of principles which are
important 'and after highly specialised' activity can be regulated in the public interest. It
possesses a complete, absolute or unfettered discretion and decides matters before it not
on the requirement of law, but policy. It has no ascertainable standards to guide it and so
follows expediency and policy subjectively on such considerations as. it sees fit. A
negative proposition was given in R. v. Electricity Commissioners (1924 IKB 171), to say
that, a tribunal:
(a) is not necessarily a Court in the strict. Sense because it gives a final decision;
(b) nor because it hears witnesses on oath;
(c) nor because two or more contending parties appear before it between whom. it has
to decide;
(d) nor because it gives decisions which affect the rights of subjects;
(e) nor because there is an appeal to a Court;
(f) nor because it is a body to which a matter is referred by another body.

Page No. 17 of 2
It was held by the Privy Council in Shell Company of Australia Ltd. v. Federal
Commissioner of Taxation, already referred to above, that 'an administrative tribunal may
act judicially but still remains an administrative tribunal as distinguished from a Court
strictly so-called.
27. To sum up, therefore, a Court adjudicates by fixed standard objectives, upon a
controversy or dispute, as regards pre-existing legal rights and liabilities, conferred or
imposed by a statute, usage, usage or agreement recognised by law, and long settled
principles, on the basis of the evidence produced by the parties before it. In contrast a non
judicial or administrative tribunal may adopt the same procedure as the Courts but its
decisions or orders are incidental to an obligation to administer law to regulate or
supervise matters and are based not on fixed objective standards but on subjective
considerations, policy and expediency. A Court looks for some law to guide it but an
administrative tribunal, within its province, is law unto itself.
28. Gordon D. M. in his essay on Administrative Tribunals and Courts' published in 1933
L Q R 94 expressed the following view :-
(110) "Ministerial, judicial and 'administrative' functions, therefore, exemplify the

three degree of irresponsibleness that a tribunal may possess. Acting magisterially
a tribunal has no power (except in the rare cases where a statutory discretion is
given to consult its own wishes; it must carry out its legal duties as judicially
decided for it. Acting judicially a tribunal has very little power to consult its own
wishes in theory, whatever it may do in practice; because it professes to be bound
by a fixed and settled objective standard. A tribunal exercising 'administrative'
functions, when within its proper province and observing any procedural
formalities prescribed, must inevitably be guided by its own wishes, because it
has no fixed standard to follow, but only policy and expediency; and these are
what it makes them. Its standards are purely subjective; so in the last analysis it
follows own will.”
29. The Banking Court, when judged on the above standard is a Court in fact and law.
According to section 6 (1) (a) of the Ordinance, it has to exercise civil jurisdiction as
vested in a Civil Court, under the Code of Civil Procedure. Again under section 6 (1) (b)
it exercises criminal jurisdiction vesting in an Assistant Sessions Judge under the Code of
Criminal Procedure. Section 6 (3) says that all proceedings before a Special Court shall
be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the
Pakistan Penal Code and it is a Court for the purposes of sections 480 and 482 Cr. P. C. It
has to decide a controversy before it, objectively vide section 7 in accordance with Order
XXXVII in the First Schedule to the Code of Civil Procedure. After hearing the case it
pronounces a judgment on which has to follow a decree as per section 8(1). The Special
Court has also the power to execute its decree under section 8(3). The orders of the Court
are also appealable before the High Court. The rights or the liabilities of the parties
before it are pre-existing and they have to be dealt with in accord with the evidence
produced and the law. The mere fact that the procedure adopted is shorter would not take
is out of the ambit of a Court as even 'the other regular Courts in certain specified matters
adopt the same procedure.
30. The next point is to know if it is a Court subordinate to the High Court. The
framework of all the three Constitutions made by the people of Pakistan, 'and enforced at
times, was also based on-the principle of separation of the State power and its conferment
on three organs i. e. Legislature, executive and judicial This division is not exclusive and
l. absolute and one sphere of power may overlap the other but extent thereof: in each case
can be located. In the 1973 Constitution, Article 175 provides the hierarchy of the judicial
power as is quite clear from the word `judiciary' used in. sub-Article (3). Article 175 (f)
states that there shall be a Supreme Court of Pakistan and a High Court for each Province
sad such other Courts a$ may be established by law. The point to be noted is that there
will be only one Supreme Court for the whole of Pakistan and one High Court for each
Province. There can thus be no parallel or higher Courts at these levels. All the other
Courts in Province created under Article 175, thus must be lower or inferior to the High
Court, of that Province. Thus section 14 of the West Pakistan Civil Courts Ordinance,
1962, or other similar provisions laying down that all the Courts created thereunder are
Page No. 18 of 2
subordinate to the High Court, are mere recognition of the Constitutional position: The
Courts mentioned-; in the Constitution, apart from òther Courts' given in Article 175 and
to be created and located in a Province, will thus be exception to the main set up.
31. There is another part, of judicial power for which the Article 175 of the Constitution'
may also be deemed to be providing. There are other territories, apart from the Provinces,
like Islamabad, the Federally Administered Tribal Areas and such other States and
territories as are or may be included in Pakistan. They are part of Pakistan, as given in
Article 1 of the Constitution and held by the Supreme Court in the Superintendent etc. v.
Zawar Khan(P L D 1969 S C 485). Thus the citizens of the above territories also have the
inalienable right to get their disputes settled and grievances redressed by competent Court
and according to Article 192 (4) the jurisdiction of any High Court may be extended with
regard to such other territory. As a result it will be a High Court for that territory also and
so all the inferior Courts of that territory will become the Courts subordinate to it.
Reference be also made to Article 187 (2) which provides, that any direction, order or
decree issued by the Supreme Court shall be enforceable throughout Pakistan. It shows
that the jurisdiction of the Supreme Court also extends to the whole of Pakistan. The
only exclusion is given in Article 247 (7) whereby the Supreme Court or the High Courts
have been denied the same in respect, of tribal areas unless Parliament by law otherwise
provides. According to Article 258, the President may, by order, make provision for peace
and good government for any part of Pakistan not forming part of a Province, until
Parliament by law otherwise provides. This also proves that all the other Courts to be
created under Article 175 have to be subordinated to a High Court, as and when that area
is brought within the Jurisdiction of a High Court.
32. The above position further establishes the view that the judicial power of Pakistan,
save as is excepted in Articles 199 (5) and 212, is to be vested in the Courts created under
this Article and no forum, other than that specifically, mentioned. in the Constitution, can
be created for the performance of judicial functions and exercise of judicial power. This
conclusion 'is strengthened by the fact that the Constitution does exclude certain other
subjects also from the purview of the Courts jurisdiction as given in it: Articles 69, 225
and 247 (7). Article 209, with regard to the Constitution of the Supreme Judicial Council
may also be cited for the same purpose. All these articles thus support the above view, for
if the framers of the Constitution wanted, that the judicial power be conferred on any
authority, other than a Court or, the same be curtailed, in any respect, it would have either
so stated in Article 175 or that intention would have been made clear elsewhere. Further,
the intention of the Constitution to separate the judiciary from the executive progressively
as contained in Article 175 (3) and the Pre-amble also upholds the above position.
33. Again, the concept that there will .be a High Court for each Province has to have its
plain meaning, in the absence of a definition. Its clear concept will be that it is the highest
Court in the Province and all other Courts there, must be inferior to and be subject to its
supervision. Further, as Article 175 of the Constitution embodies the judicial power and
also gives the hierarchy of the Courts i.e. a Supreme Court for Pakistan, a High Court for
a Province and some other Courts as may be created by the Legislature, "the such other
Courts" must necessarily be inferior to the High Courts.
34. It will be seen that there is no mention in the Constitution that the Supreme Court will
have any Court subordinate to it, though, according to Article 190, all executive and
judicial authorities have to act in its aid and all Courts in the country shall be bound to
follow its decision in view of Article 189. As for the High Courts, the Article 202 states
that subject to the Constitution and law, a High Court may make rules regulating the
practice and procedure of the Court or of any Court, subordinate to it. Article 203
provides that each High Court shall supervise and control all Courts subordinate to it.
Article 201 lays down that any decision of a High Court shall to the extent it decides a
question of law, or is based upon or enunciates a principle of law, be binding on all
Courts subordinate to it. The Constitution, however, does not specifically say as to which
Courts are subordinate to it. The scheme of the Constitution, however, appears to be that
while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court,
merely because of its position, the Courts in a Province have to follow the High Court
and be bound by its decision as they are subordinate to it. So, the mere fact that there is
no express indication in Article 175 of the Constitution that all "other Courts" to be
Page No. 19 of 2
created by or under law will be the Courts subordinate to the High Court is riot at all
important.
35. The jurisdiction conferred on a High Court by the Constitution, under Article 199 also
gives a clear cut scope of it's authority. It lays down that a High Court may, on an
application made by an aggrieved person, direct any person performing within its
territorial jurisdiction, functions in connection with the affairs of the Federation or a
Province, or a local authority, to do or refrain from doing, any act which he is not
permitted by law to do. The High Court can likewise declare their actions as without
lawful authority. Further, within, its territorial jurisdiction, which would include such
other area as may be brought within its jurisdiction under Article 192, it can satisfy itself
if a person is not being held without lawful authority. Thus, the authority of a High Court
extend throughout the Province, in respect of all matters and persons except those
expressly taken out of its ambit by the Constitution itself. Reference be made to Article
199 (5) which provides for the exclusion of the Courts for the Armed Forces. As a result,
the specific mention of "subordinate Courts and not the other Courts and tribunals, in
Articles 202 and 203 only amounts to making sure that the superintendence and control
of the High Court shall be confined to the Courts- in the Province and not the other
authorities there.
36. Thus, the judicial power, in view of Article 175 of the Constitution vests, in a
Province, only in the High Court and such other inferior Courts as may be created under
law. The earlier civil, criminal and revenue Courts have, however, been continued under
Article 275(3). of the Constitution but the judiciary has to be separated from the
executive within the period provided in Article 175(3). May be it is for the reason of
saving the unconstitutional position of some of these Courts that the Constitution
provided a time limit -under Article 175 (3).
37. The Constitution further provides that the Courts shall exercise such jurisdiction as is
conferred on them by' the Constitution or law. The jurisdiction is a slice of the judicial
power. It is defined, as the power to hear and determine a cause of action presented to it,
in the 20 Am Jur 2d page 451. The term has reference to power of the Court, over the
subject matter over, the res or property in contest and to the authority of the Court to
render the judgment or decree it assumes to make. To create jurisdictions the judicial
power is to be divided horizontally, with the Supreme Court at the apex High Courts in
the middle and the subordinate Courts at the base. A further division in each case, may be
made into original, appellate, reviewal or revisional segments and also on the basis of
territories, persons, or subjects or their combinations.
38. The `jurisdiction' thus represents that part or a segment of the judicial power which is
conferred either by the Constitution itself or the law, or any Court. The jurisdiction of the
Supreme Court has been given in detail in the Constitution, though the Parliament may
also confer on it more of it. The High Courts have also been given the power of
superintendence on the Courts subordinate to it and also the power of judicial review on
all the statutory functionaries and the local authorities within its territorial jurisdiction.
The jurisdiction conferred by the Constitution cannot be altered, amended or repealed by
Legislature. Thus while the Constitution has placed the Court as the highest Court in the
Province and conferred on it jurisdiction of superintendence and control and of judicial
review to ensure that any aggrieved person can bring to its notice any injustice or
illegality for a redress, it has left it to the respective Legislature to confer any other
jurisdiction on it. From the above, it quite clear that there is a guarantee given in the
Articles 199 and 203 of the Constitution to an aggrieved person to approach a High
Court, against any excess, illegality or injustice committed by any authority or Court in
its territorial jurisdiction. So, the purpose of the provision of Article 203 in the
Constitution itself appears to be that if the Legislature for any reason, takes away the
appellate or the revisional powers of the High Court in respect of any matter, or fails to
apply-the same in certain cases the High Court shall still be left with a power to redress
the genuine grievances of the aggrieved persons and see that injustice, if any, done by the
subordinate Courts is not perpetuated. According to 20 Am Jur 2d, page 470, section 112
"where superintending control over all inferior Courts is conferred by a provision of the
Constitution, the supervisory power cannot be restricted or removed by legislative action,
unless the constitutional provision granting supervisory jurisdiction authorises the
legislation to enact a statute regulating such superintending control.
Page No. 20 of 2
39. Having discussed that the other Courts created under Article 175 are subject to the
superintendence and control of the High Courts, in their respective territories, it is now
necessary to know as to what kind of 'superintendence' and control can a High Court
exercise over them. The learned counsel have referred to a number of judgments of our
Courts which I shall consider presently. It appears to have been the unanimous view of
our Courts in the past that this power' of superintendence extended only to the
subordinate Courts and not even to the acts of the subordinate judicial officers while they
were acting as tribunals or persona designata, though in a quasi-judicial capacity.
Reference be made to Aziz Begum v. Noor Muhammad (P L D 1962 Lah. 887 (F B)),
where this Court held that a Civil Judge acting as a Rent Controller under the West
Pakistan Urban Restriction Ordinance, 1959, was a persona designata and not a Court and
the High Court could not order transfer of proceedings before him under Article 203 of
the Constitution. This view was upheld by `-the Supreme Court in the case of Khadim
Mohyuddin (P L D 1965 S C 459). It may, however, be noted that the above views fell
under the previous constitutional position and as said in para. 17 above; the distinction to
be brought out now will be whether it was a judicial or an administrative function.
40. As far its scope, a Full Bench of the Sind High Court in Abdul Rehman v. Mst.
Chaman Ara (P L D 1972 Kar. 164) considered it while interpreting Article 102 of 'the
1962 Constitution, which is similar to Article 203 of the 197.1 Constitution and did not
dissent with the earlier views on the point. However, Qadeeruddin, C. J. who wrote the
judgment for the Full Bench remarked that an earlier Division Bench judgment to which
he was a party had been misunderstood. He observed in its first part of the judgment that
the power of supervision and control conferred on the High Court, with regard to its
subordinate Courts, did not authorise it to settle the grievance of the parties or to do
justice between their for their sake. According to him, as Article 102 of the 1962
Constitution did not refer to any proceedings, order, judgment, relief or remedy, all these
would not be considered to be within its ambit and its scope shall have to be confined to
supervising only the, conduct of the subordinate Courts. The High Court, it was stated,
should only keep an eye on the subordinate Courts so that they may not fail to do their
duties i. e. attending the Courts regularly and punctually, to hear and decide those cases
only which fall within their jurisdiction and not to hear and decide those which may be
ousting their jurisdiction, to obey legitimate directions of their superior authorities and to
know the law and to conduct themselves like judicial officers. However, the following
concluding remarks may be reproduced with advantage to show that the concept of
judicial control earlier approved was maintained :-
“But Article 102 merely empowers the High Court to supervise and control the
Courts which are subordinate to it so that they may be guided, kept in check and
even encouraged to act and conduct themselves rightly as Courts. If a party
applies to the High Court under this Article it merely brings the failure, faults or
derelictions of duty to the notice of the High Court and if the High Court takes
action on such an application it does so 'for keeping the administration of: justice
pure and not to help the appellant. "This duty is to be performed (by the High
Court) irrespective of whether anybody has been harmed or not and irrespective
of whether anybody will be benefited by it or not". It is easy to imagine that an
action taken under this Article may be against the liking and even the private
interests of both the parties to a proceedings.”
41. In an earlier Division Bench judgment in Karim Bakhsh v. Mst. Mubarik Jan (P L D
1970 Pesb. 169 ), to which Qadeeruddin, J. was a party, and which was written by Dr.
Nasim Hasan Shah, J., now a very eminent Judge of the Supreme Court, the learned
Judges carefully considered with approval some earlier opinions on the same point, as
expressed by various Courts, including the Privy Council, the Indian Supreme Court, as
well as a judgment of the Sind High Court, Emperor v. Tarapore (A I R 1940 Sind 230),
to express the view that Article 102 conferred, not only power of administrative but
judicial superintendence .also. The relevant portion of the judgment may be reproduced
with advantage :-
"We respectfully agree with the view expressed in the above judgments that a
Family. Court, constituted under the West Pakistan Family Courts Act (XXXV of
1964), is a Court subordinate to the High Court, within the meaning of Article 102
Page No. 21 of 2
of the 1962 Constitution. Likewise, we agree with the proposition that the power
conferred by the Article on the High Court to supervise and control all other
Courts that are subordinate to it" being a general power and includes the control
of subordinate Courts not merely administratively but also judicially. We are also
in accord with the view, taken in those judgments, that Article 102 confers upon
the High Court, unlimited power to correct or revise ail proceedings, orders and
judgments of as the Courts subordinate to it, for the purpose of enforcing the law
correctly and guiding or compelling the subordinate Courts to follow the law and
to exercise other jurisdiction properly."
42. The learned. Judges, in the above case, also approved two single Bench judgments of
this Court, in Mst: Gaman v. Taj Din (P L D 1968 Lab. 987) and Mst. Safia Begum v.
Abdul Hamid (P L D 1968 Lab. 1358.) recorded by different Judges. In the case of Mst.
Gaman, Karam Elahi Chauhan, J. after taking note of the historical background held that
Article 102 gave the High Courts power to control all subordinate Courts administratively
as well as judicially. In the other case of Mst. Safia Begum, the view taken by A. R.
Sheikh; J. was as under :-
"No doubt the power is unlimited but it does not have the effect of converting the
High Court into a Court of appeal or revision, regardless of the limitations
imposed by law on those powers. 1, however, agree with the view that the power
is to be exercised only in very rare and exceptional cases and may be used
exdebito justitias, where there is no other remedy available under the ordinary
law. The case before me is of that description and the circumstances are such that
I feel persuaded to invoke the extraordinary power of superintendence under
Article 102 of the Constitution."
(The underlining* is supplied).
43. The last case approved in the above D. B. judgment (see para. 41) is reported as Mst.
Farida Parwin v. Qadeeruddin Ahmad Siddiqui (P L D 1971 Kar. 118) Mr. Justice
Muhammad Haleem, as he then was, and who now adorns the chair of the Chief Justice
of the Supreme Court of Pakistan, approved the Indian as well as the view of Karam
Elahee Chauhan, J. in the case of Mst. Gaman referred to above, to say that the word
'superintendence' includes both judicial as well as administrative junctions. The learned
Judge further observed that there is authority to conclude that the word `supervision' and
`control' in Article 102 empower the High Court to exercise judicial control over the
decisions of the subordinate Courts though the limits within which it has to be exercised
is a different question. In his view, the judicial control is limited to the correction of
exercise of jurisdiction or non-compliance of any statutory provision of the concerned
law, and it does not extend to interference on merits, if otherwise, the subordinate Court
has acted within its bounds. The result was that the order of the appellate Court was set
aside and he was directed to rehear the appeal, for the reason that he had not considered
the judgment of the Family Court and had merely set it aside and ordered retrial on the
consideration that the declaratory suit of the respondent was still sub judice and until
there was a decision against him, the decree for deferred- dower could not be passed.
44. It is quite clear from the above that there is no difference of opinion of our Courts on
the extent and scope of the power of superintendence conferred on this Court by the
Constitution. It is established that, an action thereunder may result in a relief, which may
be in the nature of t judicial or administrative exercise of power the controversy, if any,1
may only lie in the procedure i.e. should the Court act on the application of an aggrieved
person and for his benefit? It is respectfully submitted that the emphasis placed by the
learned Judges of the Full Bench is that the High Court should not exercise that power
just for the benefit of one or the other party to the case but should do so only under the
dictates of law and. justice. I think, with respect that the view expressed in: the case of
Farida Parveen (Para. 43 above) gives the most concise but comprehensive and correct
exposition of Article 102. It may further be seen that our Courts have admitted no hurdle
or obstacle in their way ands have granted relief whenever it was found necessary or
proper, in the interest of justice, both on the application of aggrieved persons and also suo
Motu.
45. Some of the situations countered may be given chronologically to illustrate the point:-
Page No. 22 of 2
1976. A Division Bench of the High Court of Sind held that the High Court is
empowered to correct the failure, faults or dereliction of duty, laches, defect of
jurisdiction, denial of justice, bias or disability of the Court in order to keep -the
administration of justice pure.
(S. Zahid Ali v. Mubarak Bano P L D 1976 Kar. 68).
1976. Karam Elabi Chauhan, J. held that the record of the case pending before a.
Judge Family Court could be called for suo Motu to set aside the short orders
passed by him and he could be directed to pass proper orders in accordance with
law.
(Muhammad Siddiq v. Syed Ali Shah P L D 1976 Lab. 293).
1979. The power of superintendence and control was relied on by a learned single
Judge of the Lahore High Court (Rustam Sidhwa J.) to allow interim.bail.)
(Muhammad Naeem v. State 1979 P Cr. L J 333).
1979. Another learned single Judge (M. S. H. Quraishi, J.) of the Lahore High
Court held that as the Rent Controller was not a Court, the power under Article
102 of the Constitution could not be invoked for the transfer of proceedings from
one Controller to another.
(Fardaus Kausar v. Subah Sadly 1979 C L C 208).
1980. Mr. Justice Gulbaz Khan in Shahzad Hussain v. State P L D 1980 Lah. 54
held that as the orders of the special Courts constituted under the Suppression of
Terrorists Activities (Special Courts) Act, 1975, are appealable to the High Court,
the special Court is a Court subordinate to the High Court and Article 203 of the
Constitution would apply so as to set aside proceedings instituted without juris-
diction. It was further held that any order passed by such a Court in violation of
law could be corrected.
1980. A learned single Judge of the Peshawar High Court in Mst. Shirin Taj v.
Akbar Khan 1980 C L C 787 held that any finding that could be challenged in
appeal or revision would not fall for determination in exercise of supervisory
jurisdiction given under Article 203 of the Constitution. The learned Judge,
however, refused to interfere in the matter before him as the order passed by the
learned District Judge was neither perverse nor such that no Court could have
arrived at that conclusion.
1980. A Division Bench of the Baluchistan High Court in Khadija Bibi v. Abdul
Wahid 1980 C L C 2145 held that superintendence or administrative jurisdiction
of the High Court clearly means judicial superintendence over subordinate Courts
or administrative control over such Courts in judicial matters. According to the
learned Judges such control did not travel beyond passing such orders which are
necessary for ensuring that they are functioning in the best interest of law and
justice: Regarding the judgments and orders of the subordinate Courts the learned
Judges observed that as they were subject to appellate or revisional jurisdiction of
the High Court, no coverage from Article 203 be provided: Reverting to the
meaning of the word `Court' they observed that it did not deserve a limited but
elastic meaning depending, of course, upon the consideration that it serves the
purpose of letter and real administration of justice.
The result seems to be that the High Court has unlimited Constitutional discretionary
power to supervise and control all such forums, by whatever names called, if they
exercise judicial power in the Province and this jurisdiction would encompass the judicial
decisions as well as the administrative actions so that the particular judgments and orders
as well as the A main stream of justice are kept pure and clean and the Courts are directed
to remain within the 'bounds laid down by law and the superior Courts. The High Court
may even go to the extent of taking disciplinary action against the delinquent officers as
Page No. 23 of 2
is supported hereinafter. In this connection reference may also be made to note 115-117
of the 20 Am Jur 2d, which reads as under: -
"115. Scope and mode of exercising jurisdiction.-The scope of supervisory

jurisdiction is very broad and it may be exercised to different modes, depending
on the nature of the particular case. In the exercise of its superintending control
over trial Courts, the Supreme Court may make rules for them and enforce those
rules, it may restrain a state Court from proceeding in an action involving the
same controversy and the same parties as an action pending in a federal Court, it
may require a Court to make an order fixing the amount of security for costs
where the defendant has a statutory right to such security and no appeal would lie
from its detail, and it may compel appropriate action by a lower Court where the
lower Court applied a rule in a manner the higher Count considers unreasonable.
Supervisory jurisdiction may be exercised to compel action by an inferior Court or to

keep an inferior Court within its jurisdiction, as by the issuance of a writ of mandamus, or
a writ of prohibition. It may also, subject to the rules governing that remedy in the
particular jurisdiction, be exercised by the issuance of a writ of certiorari. And although
the cases are not in harmony with regard to this point, and the view has been taken that an
error not going to the jurisdiction of the Court may not be the subject of remedial action
by way of exercise of supervisory jurisdiction, there are opinions to the effect that
supervisory jurisdiction may be exercised in the case of a non jurisdictional error.
116. Discretion of supervising Court.--The exercise of supervisory jurisdiction is

of discretionary nature. It is generally a matter of judicial policy, particularly
dependent on the judicial policy prevailing in the given jurisdiction. A Court will
not lightly use its superintending jurisdiction and ordinarily will do so where there
is an adequate remedy by appeal or writ of error. It has been pointed out, however,
that the self-restraints used by Courts are not limitations on the supervisory
powers.
117. When exercised.--The general practice is that supervisory jurisdiction will

not be exercised as a matter of course, but only where there is an urgent reason for
its exercise. It will, therefore, generally be exercised only in extreme cases, to
accomplish such things as to prevent irreparable mischief or great hardship, to
protect fundamental rights of a party or parties or to achieve justice. It will not be
used merely for the purpose of controlling the exercise of discretion by an inferior
Court.
One of the reasons frequently given for the exercise of supervisory jurisdiction is
that a remedy by appeal is not available, or is not adequate to give relief under the
particular circumstances, or would come too late for effective redress.
Sometimes the Supreme Court of a state exercise its supervisory jurisdiction to

create uniformity of decisions in the intermediate appellate Courts of the state."
46. It is necessary to point out with respect, that though some of the above judgments
have referred also to the word "control" as appearing in the Article 102 of the 1962
Constitution or Article 203 of 1973 Constitution, yet they have not dwelt on its meaning
and scope. A little more closer look at the terms "superintendence" and "control" would
show that they l overlap each other both in meaning and scope. According to dictionary
`control' may also mean superintend and vice versa. Again while the superintendence
may be of the system, its working and the product, the control may be of the personnel
also. The Courts of this country did never have the occasion to consider and decide the
scope of "Control" in the Article 203 but the Indian Courts have fathomed the scope of
the same term as found in the parallel provisions of the Indian Constitution in W. B. v.
Nripendra Nath (A I R 1966 S C 447), the Supreme Court held that the power of control
conferred on the High Court in Article 235 of the Constitution included the power to take
disciplinary action and so the Government had no power to hold an inquiry against an
Additional Sessions Judge. The Patna High Court in Madan Mohan v. Bihar (A I R 1970
Pat: 432), held that control', over subordinate Courts carried with it the power to fix the
seniority of Officers employed in those Courts. In Assam v. Ranga Muhammad (A I R
1967 S C 903), the Supreme Court held that a power to transfer a District Judge from one
Page No. 24 of 2
place to another belonged not to Government but formed part of the control, exercisable
by the High Court under Article 235. The same view was taken by the Supreme Court in
Chandramouleshwar v. Patna High Court, (A I R 1970 S C 370). Interpreting similar
power, the Privy Council in Raj Kumar v. Ram Sundar (A I R 1932 P C 69), opined that
High Court could take disciplinary action for cases of flagrant mal-administration of
justice.
47. Even the termination of the services of a member of his judicial service, by the High
Court, on the findings of an inquiry, conducted by the Director of Vigilance, at the
instance of the High Court was set aside by the Supreme Court in Shamsher Singh v.
Punjab (A I R 1974 S C 2192), on the ground that the High Court not only denied the
employee the protection under Article.311 but also denied to itself the dignified control of
the subordinate judiciary. According to "Words and Phrases Permanent Edition"; Volume
9-A page 21 "the power of the Supreme Court, conferred by I.-C. A, Court, Article 5.1 to
supervise the inferior Courts is to oversee for direction, to superintend and to inspect with
authority: and. to "control" is to exercise restraining or governing influence over and to
regulate, govern, or overpower, so that the appointment of the District Judges as
Condemnation Commissioners by statutory authority is properly within the supervisory
control of the Supreme Court. It is to be appreciated that if exercise of disciplinary
jurisdiction over the subordinate judiciary is not a part of the constitutional power of
superintendence then the High Courts cannot exercise effective control and be made
responsible for proper functioning of the subordinate Courts. On the other hand, there is
no provision of the Constitution burdening the executive with such a responsibility.
Further, it is not only relevant to the concept of separation of judiciary from the
executive, it is essential to inspire confidence in the public mind about the independence
of judiciary.
48. This power of superintendence is not new to our system of law. According to
Common Law every appellate and superior Court possessed it as its inherent power. The
Government of India Act, 1915, vide section 107 conferred on every High Court the
power of superintendence over all Courts, for the time being subject to its appellate
jurisdiction. Earlier, section 15 of the High Courts Act, 1861, also gave the same power to
all the High Courts. Subsequently, by section 224 of the Government of India Act, 1935,
every High Court was given the power of superintendence over all Courts for the time
being subject to their respective appellate jurisdiction. The subsection (2) was, however,
added to it in order to take away the power of judicial superintendence over the
subordinate Courts which the High Courts already enjoyed, in addition to the powers of
revision conferred by the ordinary law. The Calcutta High Court in Sakal v.,lswar ((1941)
2 Cal. 366), Jahaabi v. Basudeb ((1949) 54 C W N 626), and also in Ryots of Garabandhu
v. Parlakimedi ((1943) 70 I A 129), noted the change made by section 224(2) of the 1935
Act to say that it expressly barred the already available power of judicial interference in
exercise of its power of superintendence.
49. The Article 227 of the Constitution of India, however, reproduced the section 224 of
the Government of India Act, 1935, without the limitation of "appellate jurisdiction" and
dropped the subsection (2) also. The result is that the Indian High Courts have unabridged
and unlimited power of superintendence over ail Courts and Tribunals in their respective
territorial jurisdiction. The same position has been brought in by Article 203 of our
Constitution though this power has not been extended to the tribunals. Consequently, the
position as it obtained under section 107 of the Government of India Act, 1915, has not
only been restored but improved. The relevant part of-section 107 read as under: -
"Each of the High Courts has superintendence over all Courts for the time being
subject to its appellate jurisdiction and may do any of the following acts that is to
say…."
The relevant portion of Article 227 of the Constitution of India runs as follows:-
"(1) Every High Court shall have superintendence over all Courts and Tribunals
throughout the territories in relation to which it exercises jurisdiction.
……………………………………………………………….
Page No. 25 of 2
(4) Nothing in this Article shall be deemed to confer on a High Court powers of
superintendence over any Court or Tribunal constituted by or under any law
relating to the armed force."
Article 203 of the Constitution 1973, may also be reproduced for ready
reference:-
"203. Each High Court shall supervise and control all Courts subordinate to it."
50. So, by omitting to incorporate the contents or spirit of subsection (2) of section 224 of
the Government of India Act, 1935, in its Article 227, the Indian Constitution also
restored the judicial superintendence of the High Courts as it existed after the
Government of India Act, 1915. The Indian Courts have also taken same view in their
subsequent pronouncements. Reference may be made to the cases of Satyanarayan v.
Mallikarjun (A I R 1960 S C 137), Waryam Singh v. Amarnath (A I R 1954 S C 215), as
well as Hari Vishnu v. Ahmad (A I R 1955 S C 233). Section 107 of the Government of
India Act, 1915, was similarly interpreted in a number or cases. In Sholapur Municipality
v. Tuljaram (A I R 1931 Dom. 582), Emperor v. Jamnadas (A I R 1937 Dom. 153), and a
Full Bench of the same High Court in Balkrishna v. Emperor (A I R 1933 Born. 1), held
that the word superintendence meant to include judicial as well as administrative superin-
teridence and the High Court would intervene by revision in proper cases even where
section 115 of the C. P. C. or section 439 of the Criminal Procedure Code did not apply.
51. The meaning and the scope of the word 'superintendence' was considered by the
Indian Supreme Court in Waryam Singh v. Amar Nath referred to above, which ruled that
Article 227 conferred a general power to control all subordinate Courts administratively
as well as judicially. In Sandal v. Kedar (A I R 1935 All. 519), it was held that it includes
the power of the High Court to direct the subordinate Courts and Tribunals to carry out its
orders. In Rajkumar v. Ramsundar (A I R 1932 P C 69), the Privy Council opined that the
Court could direct inquiry with a view to take disciplinary action for cases of flagrant
maladministration of justice under that power. The power to stay proceedings before a
Tribunal till the disposal of the suit pending before a civil, Court was also found to lie in
this power. In re: Pattisam (A I R 1954 Mad. 573). It was further noticed in Faqir v. Gopi
(A I R 1962 Pb. 117), and Barrow v. State of U. P. (A I R1958 All.154), that the power
under Article 227 could be exercised suo motu in proper cases even without any
application from the party aggrieved. The Indian Courts, however, in some cases refused
to give relief under that Article in cases where alternative relief could be granted under
some other jurisdiction. In Carlstill v. State of Bihar (A I R1961 S C 1615), the Indian
Supreme Court held that the power of general superintendence, conferred by Article 227,
involves a duty on the part of the High Court, to keep, all Courts and Tribunals, in its
territorial jurisdiction within the bounds of their authority and to see that they do what
their duty requires and they do it in a legal manner.
52. The scope of this Article as enunciated by the Indian Courts in various cases can
further be summed up as under:-
“The High Court can interfere in cases of-
(a) erroneous assumption or excess of jurisdiction;
(b) refusal to exercise jurisdiction;
(c) error apparent on the face of the record;
(d) violation of the principles of natural justice;
(e) fraud on the part of the prosecutor;
(f) arbitrary or capricious exercise of authority; or discretion;
(g) perverse finding e, g., where it is based on no material- whatsoever;
Page No. 26 of 2
(h) deciding contrary to the law laid down by the High Court or refusal to comply
with the decision of the High Court;
Those Courts further held that this power will be restricted to:
(i) cases of grave dereliction of duty, or flagrant violation of law,1 where grave
injustice would result unless the High Court interferes;
(ii) be exercised only to do justice between the parties and not even to remove an
illegality if the result may be to perpetuate some other illegality or injustice;
(iii) not be exercised to correct an error of fact, or of law, nor being an error of law
apparent on the face of the record, unless such error affects the jurisdiction of the
inferior tribunal;
(iv) will not proceed to reappraise the evidence on which the conclusion of the Court
is based, or to go into the evidence' for any other purpose except in exceptional
cases e. g., to see whether its own order of remand has been carried out;
(v) intervene to correct an error as to the interpretation of the Constitution.
(vi) not substitute its own judgment for that of the inferior Court, whether on a
question of fact or law or interfere -with the intra vires exercise of a discretionary
power, unless it is àrbitrary or capricious'; or perverse e. g., where it is based on
no material whatsoever.
The power under Article 227 has also been held to be wider than that under section 115,
C. P. C.
53: Thus,-the position in the prepartition India before 1935 and after the enforcement of
its Constitution in 1950 has been that the High Courts had both the administrative and
judicial superintendence over the Courts subordinate to it. The power under Article 227
of the Constitution was thought to be superior but co-extensive with the ordinary
revisional power, wherever it was available. The Courts in Pakistan as discussed above,
therefore, also rightly treated the similar powers given to them under (Article 177 of the
1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution
as conferring right of administrative' as well as judicial superintendence over its
subordinate Courts. The result] is that this application is maintainable under Article 203
of the Constitution, but as the Special Court. withdrew its previous order on the commit
merit of the petitioner that he will, pay the balance amount in lump sum within the period
specified and there is no miscarriage of justice or are illegality calling for interference,
this application has no merit.
The parties to bear their own costs.
M. Z. M. Order accordingly.
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Contempt of Court

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2010 S C M R 594

[Supreme Court of Pakistan]

KAMRAN LASHARI, Chairman, C.D.A., Islamabad and others----Respondents

(a) Constitution of Pakistan (1973)---

(b) Constitution of Pakistan (1973)---

(c) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Change of master plan or creation of plots in open

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner.

(i) The respondents Nos. 1 to 7 be punished for contempt of Court.

By consent adjourned to 15-9-2008."

Order dated 18-11-2008

Order dated 2-12-2008

2. Learned counsel for the petitioners submits as under:

The ratio of the afore-said cases is as follows:---

N.H.Q./K-11/SC Petition dismissed.

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq , JJ

Cr.P.L.A. No.176 of 2008

Syed MASOOD ALAM RIZVI and others----Petitioners

Dr. MUHAMMAD SAEED----Respondent

Cr. P.L.A. No.219 of 2008

Dr. MUHAMMAD SAEED----Petitioner

Syed MASOOD ALAM RIZVI----Respondent

(a) Constitution of Pakistan (1973)---

(b) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt of Court---

(c) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt petition-

Date of hearing: 1st December, 2008.

N.H.Q./M-11/SC Order accordingly.

[Supreme Court of Pakistan]

CRIMINAL MISCELLANEOUS APPLICATION NO.296 OF 2008 IN/AND

Criminal Original Petition No.38 of 2008, decided on 30th July, 2008.

(a) Constitution of Pakistan (1973)---

(b) Constitution of Pakistan (1973)---

5. Moot question in the instant case is as to whether the tendering of unconditional

N.H.Q./S-12/SC Contempt proceedings dropped.

Before Hasnat Ahmad Khan, J

MASKEEN ALI and others---Respondents

(a) Constitution of Pakistan (1973)---

(b) Constitution of Pakistan (1973)---

(c) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

(d) Constitution of Pakistan (1973)---

(e) Constitution of Pakistan (1973)---

---Art. 204---Contempt of Court Act (LXIV of 1976), S. 4--Contempt of Court---

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

(f) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

(g) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---

Ch. Aamir A. Rehman, Addl. A.G./Prosecutor for the State/Petitioner.

S. Hammad Raza for Private Respondents.

Saiful Malook for Police Officials.

N.H.Q./S-4/L Order accordingly.

[Northern Areas Chief Court]

Before Sahib Khan, J

Ch. FAZAL HUSSAIN and another----Respondents

Criminal Miscellaneous No.1 of 2007, decided on 5th March, 2007.

(a) Contempt of Court Act (LXIV of 1976)----

----Ss. 3/4---Contempt of Court---Non-compliance of order of Civil Court---Petition not