ARTICLE 199

Article 199: Jurisdiction of High Court:

1. Subject to the Constitution, a High Court may, if it is satisfied that no other adequate
remedy is provided by law:
a. On the application of an aggrieved party, make an order:
i. Directing a person performing, within the territorial jurisdiction of the Court,
functions in connection with the affairs of the Federation, a Province or local
authority, to refrain from doing anything he is not permitted by law to do, or
to do anything that he is required by law to do; or permitted by law to do, or to
do anything he is required by law to do, or
ii. Declaring that any act done or proceeding taken within the territorial
jurisdiction of the Court by a person performing the functions in connection
with the affairs of the Federation, a Province or a local authority has been
done or taken without lawful authority and is of no legal effect; or
b. On the application of any person, make an order:
i. Directing that a person in custody within the territorial jurisdiction of the
Court be brought before it so that the Court may satisfy itself that he is not
being held in custody without lawful authority or in an unlawful manner; or
ii. Requiring a person within the territorial jurisdiction of the Court holding or
purporting to hold a public office to show under what authority of law he
claims to hold that office; or1

1
c. On such application of any aggrieved person, make an order giving such directions to any person
or authority, including any Government exercising any power or performing any function in, or in relation to, any
territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental
Rights conferred by Chapter I of Part II.
2. Subject to the constitution, the right to move a High Court for the enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II shall not be abridged.
[3. An order shall not made under clause (1) on application made by or in relation to a person who is a member
of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in
respect of his terms and conditions of service, in respect of any matter arising out of his service, in respect of any
action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.]
[(3A. ***]
4. Where:
a. An application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause
(1), and
b. The making of an interim order would have the effect of prejudicing or interfering with the
carrying out of public work or of otherwise being harmful to public interest [or State property] of or impeding the
assessment or collection of public revenues,
the court shall not make an interim order unless the prescribed law officer has given notice of the
application and he or any person authorised by him in this behalf has had an opportunity of being heard and the
Court, for reasons to be recorded in writing, is satisfied that the interim order:
i. Would not have such effect as aforesaid; or
ii. Would have the effect of suspending an order or proceeding which on the face of the
record is without jurisdiction.
[4A. An interim order made by a High Court on an application made to it to question the validity or legal effect
of any order made, proceedings taken or act done by any authority or person, which has been made, taken or done or

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 COMMENTS

Article 199 of the Constitution of Pakistan confers wide powers of judicial review on the High
Courts in Pakistan. The powers of the High Court under this particular article are wider and
varied as compared to the powers of the Supreme Court under Article 184 (3). It may be noted at
this juncture that in cases falling under the ambit of Article 184 (3) of the Constitution, the
Supreme Court can only interfere in those cases where there has been a violation of Fundamental
Rights which are of a public importance, whereas, no such precondition is necessary under
Article 199 of the Constitution. The powers under Article 199 cover more areas that a mere
enforcement of Fundamental Rights or judicial scrutiny of grievance which may contain
violation of Fundamental Rights. The language of Article 199 has been drafted in such a manner
that it is clear that the jurisdiction is discretionary with the High Court and is exercised observing
the limitations laid down in Article 199 itself. A High Court can take cognizance/judicial review
of a cases which discloses a violation of any of the fundamental rights irrespective of the fact
whether it is a question of public importance or not. The High Court can also set aside an
executive, judicial or quasi-judicial order which violates the principles of natural justice, i.e. an
order passed without giving a party a right of fair hearing, etc. The powers bestowed on the High
Courts in Pakistan are a useful check on the mischief or arbitrary use of powers of Government
functionaries. These powers are also called extra-ordinary remedies.

The orders which a High Court may issue under Article 199 are also called writs. These are the
writs of Prohibition, Mandamus, Certiorari, Habeas Corpus and Quo Warranto. Rustam Kayani,
J. was a great admirer of the writs. In 1958, he stated the importance of these writs in the
following words:

“Mandamus and Certiorari are the flowers of paradise and the whole length and breadth
of Pakistan is not wide enough to contain their perfume. God fulfils Himself in many ways and
that we [judges] are the humble instruments of His fulfilment.”2

According to the judge, the writ jurisdiction is the modern manifestation of God’s pleasure and
that God’s pleasure dwells in the High Court.

purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates
to, or is connected with [State Property or] assessment or collection of public revenues shall cease to have effect on
the expiration of the period of [six months] following the day on which it is made, unless the case is finally decided.,
or the interim order is withdrawn, by the Court earlier.]
[4B. Every case in which, on an application under clause (1), the High Court has made an interim order shall be
disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court
is prevented from doing so for sufficient cause to be recorded.]
5. In this Article, unless the context otherwise requires:
“person” includes any body politic or corporate, any authority of or under the control of the Federal
Government or of a Provincial Government, and any Court or Tribunal , other than the Supreme Court, a High Court
or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and
“prescribed law officer” means:
a. In relation to an application affecting the Federal Government or an authority of or under the control of
the Federal Government, the Attorney – General, and
b. In any other case, the Advocate – General for the Province in which the application is made.
2
Chief Justice Cornelius of Pakistan by Ralph Branbiti, published by Oxford in 1999 at p. 42 – 43;

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Article 199 cl. (1): This sub-clause provides that the High Court may, within limitations
provided by the Constitution itself, make an order it is satisfied that no other adequate remedy is
available or provided by law. This clause further provides that the High Court exercises its
powers of passing appropriate orders under Article 199 when it is approached by an interested
party.

Before discussing the scope of the writs enshrined in the Constitution and in order to
comprehend the true intent of clause (1), it is important to consider the import of the words and
phrases employed in clause (1). These are:

1. Subject to the constitution;

2. May;
3. if is satisfied that no other adequate remedy is available; &
4. To the Person / party or aggrieved party / person.

SUBJECT TO THE CONSTITUTION

The words “subject to the constitution” mentioned in Article 199 clause (1) of the Constitution
means two things:

Firstly, that this jurisdiction is subject only to the Constitution and this jurisdiction is not subject
to an ordinary statute or enacted law. A difference, therefore, ought to be drawn between the
constitutional jurisdiction of the High Courts, which falls within the ambit of Article 199 and
statutory jurisdiction of the courts (including High Courts), which may fall under other laws.
Whilst the statutory jurisdiction may be curtailed or limited by ordinary statutes, the jurisdiction
under this particular Article cannot be curtailed by an ordinary law. This position is best
illustrated in Muhammad Baran v. Member (Settlement and Rehabilitation), Board of Revenue,
Punjab,3 where the Supreme Court observed as follows:

“Admittedly the legislation in question is not of Constitutional nature through which the
power of the High Court (this court also) under Article 199 could be curtailed. The legislation is
question to that extent would be ultra vires the Constitution. Article 199 of the Constitution is not
subject to any law but is only subject to the Constitution.”4

The second thing, which is a corollary of the first, is that although an ordinary statute is
incapable of limiting or curtailing the scope of Article 199, the Constitution may itself do so.

In the light of what has been stated above, it has to be borne in mind that the superior courts
cannot ignore the limitations placed by the Constitution and has to conform itself to the
limitations provided in the Constitution itself.5 This is of crucial importance because all the
Constitutional provisions carry the same weight and deserve equal contention of the Courts. The

3
PLD 1991 SC 691;
4
Ibid.
5
PLD 1988 Lahore 49;

Page 3 of 20
provisions have to be read in a harmonious manner so that no conflicts should arise between the
various provisions provided in the Constitution.

Reference can be made to Article 233 (2), 245 and 212 of the Constitution which place a bar on
the powers of the High Court and forbids it to exercises its power under Article 199.

DISCRETIONARY POWER OF THE HIGH COURTS

An order in the nature of a writ is a discretionary order. Its object is to foster justice and right a
wrong. Therefore, before a person can be permitted to invoke this discretionary power of the
court, it must be shown that the order sought to be set aside had occasioned some kind of
injustice to the party. In Rehmatullah v. Mst. Hameeda Begum,6 the Supreme Court held:

“Undoubtedly, the constitutional jurisdiction under Article 199 of the Constitution is

discretionary. Even when an order impugned before High Court is found to be lacking in some
legal, or jurisdictional requirements, the constitutional provision does not compel the High
Court to issue a writ much less that of certiorari or mandamus. The merits of the case have also
been in order to examine whether the discretion is to be exercised or not in favour of the party
successfully challenging the legality of the order impugned in writ jurisdiction. If the result is
that by setting aside such an order another order would be revived which is unjust or unfair or is
otherwise also illegal, then before setting aside the first mentioned order the court will have to
examine more carefully the question of exercise of discretion and in proper cases would decline
to exercise the discretion and would thus not set aside an order even if it is illegal provided that
the setting aside of such an order would result, inter alia, in injustice or revive another illegal
order.”7

Similarly, in Dr. Mrs. Zahida Mir v. The Punjab Police Service Commission, Lahore,8 the
Lahore High Court took the following view:

“Clearly, an order under Article 199 of the constitution of Islamic Republic of Pakistan is
a discretionary order to be exercised on sound judicial principles and not arbitrarily or
capriciously. Its object is to foster justice not to re-open controversies and create complications,
where substantial justice has already been done to the parties notwithstanding the initial defect
in the order impugned before the Court.”9

GROUNDS ON WHICH RELIEF MAY BE WITHHELD

CONDUCT OF APPLICANT:

1. Although, there is no period of time within which an application under Article 199 must
be made, the application may suffer from laches and may be dismissed on that ground.

6
1986 SCMR 1561;
7
Ibid.
8
1992 PLC (C. S.) 1010;
9
Ibid.

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 Laches operates as a bar in equity. In the case of laches, the dictates of justice and equity
and balance of legitimate rights are to be weighed. The delay or the question of laches is
to be examined on equitable principles for the reason that the grant of the constitutional
relief is a discretionary relief and the court may decline the relief if it would be
inequitable keeping in view the conduct of the petitioner.10
2. Where granting the constitutional relief would be in aid of injustice, the High Court may
refuse to grant such relief. The leading case is Raunaq Ali v. Chief Settlement
Commissioner,11 wherein the relief was not granted because by the orders impugned
before the High Court, no injustice had been done to any party; rather, those orders had
cured a manifest injustice and to grant the discretionary relief under Article 98 of the
former constitution would have perpetuated injustice with the blessing of the court and
would have allowed unjust enrichment, which it is the policy of the law to avoid. In
another case,12 relief was refused as granting it would have otherwise allowed a party to
retain an ill-gotten gain.
3. Where the petitioner has been guilty of fraud and the order impugned before the High
Court had removed the effects of his fraud, the High Court will refuse to intervene.13 In
addition, relief will be refused where the court is not satisfied with the bona fides of the
grievance,14 or where it is felt that the applicant “is not entirely playing his own game for
high altruistic motives”.15
4. The principle upon which the writ is refused in cases of waiver or acquiescence is not that
jurisdiction has been conferred on the tribunal concerned by waiver or acquiescence but
that even though the impugned order is without jurisdiction the person seeking to have it
quashed would not be granted that discretionary relief as he had stood by and allowed the
tribunal to usurp a jurisdiction which it did not possess knowing that the tribunal
concerned was committing such an illegality in consequence of something done by the
person himself.16

CIRCUMSTANCES OF THE CASE:

The exercise of the court’s discretion depends upon the circumstances of each case. In Lahore
Central Co – operative Bank v. Saif Ullah Shah,17 it was said that the Court may refuse the order
not only upon the merits of the case, but also by reason of the special circumstances of the case.
Each case turns on its own facts and circumstances, and the court is not bound by any precedent
is exercising such discretion. All cases entail their own objective conditions and the relief is
granted or refused on the basis of such conditions. In Muhammad Sharif v. Federation of

10
1999 SCMR 2883;
11
PLD 1973 SC 236;
12
PLD 1974 sc 106;
13
PLD 1975 SC 331;
14
PLD 1986 Lahore 310;
15
PLD 1969 SC 42;
16
1978 SCMR 367;
17
PLD 1959 SC (Pak) 210;

Page 5 of 20
Pakistan,18 the Court said the nature of writ jurisdiction is discretionary and even if the Court
finds that a party has a good case, it may refrain from giving him the relief if greater harm is
likely to be caused thereby that the one sought to be remedied. It is well settled that the
individual interest must be subordinated to the collective good.19

WHEN RELIEF WILL BE FUTILE:

When the judicial relief, if granted, would amount to a futility,20 or where the controversy no
longer exists, the court will refuse to grant relief.

PRE-MATURE CASES:

If a case is not yet ripe for adjudication, constitutional remedy will be refused.21

ALTERNATE ADEQUATE REMEDY

Under Article 199 of the Constitution, the non – existence of another adequate remedy is a
condition to the High Court’s power of judicial review; it is also a limitation upon the
Applicant’s right to relief under the Article. In other words, to bring a case within the ambit of
this Article, the “satisfaction” of the High Court that an alternate remedy does not exist is a pre -
requisite for the exercise of jurisdiction under this Article. In Adamjee Insurance Company Ltd.
v. Pakistan,22 the Supreme Court of Pakistan observed the following:

“It will be seen that under Article 199 the High Court is empowered to issue a writ, if as
borne out from sub – Article (1) “it is satisfied that no other adequate remedy is provided by
law”. Sub – Article (1) thus, confers on the High Court a discretion of fairly wide amplitude but
at the same time it imposes a responsibility on the High Court to exercise the jurisdiction with
some circumspection. The satisfaction of the High Court envisaged by Article 199 clause (1) that
no other adequate remedy provided by law is available to the aggrieved party, is condition
precedent for exercise of jurisdiction under Article 199.”23

The Lahore High Court, whilst considering the exercise of jurisdiction granted to it under Article
199, took the view that the purpose of Article 199 is not to supersede and render redundant other
alternate remedies already provided by law. The constitutional jurisdiction of the High Court is
not meant as an alternate jurisdiction.24 Similarly, the Supreme Court of Pakistan has held that
the High Court can exercise the constitutional jurisdiction only on proof of non – availability of
adequate remedy.25

18
PLD 1988 Lahore 725 FB;
19
Ibid.
20
PLD 1966 SC 650;
21
PLD 1985 SC 429;
22
1993 SCMR 1798;
23
Ibid.
24
1997 MLD 1198;
25
PLD 1983 SC 21; also see PLD 2004 SC 600;

Page 6 of 20
At this juncture, it becomes necessary as to what is meant by the word “satisfaction” in the
context of the above discussion and highlight its importance. The Courts have held that
“satisfaction” is the existence of a state of mental persuasion much higher than information and
when used in the context of judicial proceedings has to be arrived at within the prescribed
statutory provisions. To be satisfied is to be honestly convinced.26 In other words, the phrase
“satisfied” means simply to make up its mind. That means a mind not troubled by doubt or a
mind which has reached a clear conclusion.27

The condition of other adequate remedy applies to all the reliefs available as Article 199 does not
make any distinction between the reliefs available to a party under the Article.28

What precisely is an “another adequate remedy” available to an aggrieved party depends on the
facts and circumstances of the case.29 The Courts have taken the view that this matter is left
entirely to the discretion of the Courts to consider whether the remedy available is adequate or
not. The courts further agree that in some cases even if the alternate remedy is adequate, even
then interference under Article 199 may be done if the impugned order is patently mala fide,
illegal and without jurisdiction. The Sindh High Court expressed itself on the above point as
under:

“The last objection is with regard to the maintainability of the petitions. It was contended
by the learned counsel for the respondents that rule 20 of the Rules given a right to the
petitioners to appeal to the Board against the decision of the sub – committee holding them
guilty of using unfair means; and not having availed that relief, which they can invoke even now,
in spite of the time limit having expired which could have been extended, they should not be
allowed to invoke the constitutional jurisdiction of this court. It has been held by the highest
judicial authority that is not a rule of law barring jurisdiction but a rule, by which the court
regulates its jurisdiction. It is, therefore, a rule not without exceptions and time and again it has
been held that where an order is without jurisdiction or a functionary acts mala fide or in a
perverse, unjust and oppressive manner or where the filing of an appeal is futile exercise on the
party of the individual that a petition can be entertained in spite of the alternate remedy being
available. I am inclined to view in the background as aforestated that the filing of the appeals to
the Board would be a futile exercise on the part of the petitioners and therefore, this objection
will not come in the way of the maintainability of the petitions. The objection has, therefor, no
substance.”30

In Mahboob Ali Malik,31 Manzoor Qadir, C. J., was considering the expression in Article 98 of
the Constitution of 1962. Speaking for the Full Bench, he said:

26
PLD 1976 SC 6; also see 1994 CLC 2041;
27
1989 MLD 584;
28
PLD 1968 Peshawar 30;
29
NLR 1983 Revenue 87;
30
PLD 1976 Karachi 481;
31
PLD 1963 Lahore 575 F. B.; also see 1988 MLD 1863 (a case before the Sindh High Court illustrating the same
point);

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 “The word “adequate” signifies a concept of a relative nature. It can be comprehended
only as a state of correspondence between one thing and another. A thing can be “adequate” or
“not adequate” to something else. When something is being described as “adequate without
indicating what it is adequate to, the context must supply that which has been left unstated. The
first question in construing the meaning of “adequate remedy”, therefore, is to what has the
remedy to be adequate. In the context, we think the answer must be that the remedy has to be
adequate to the requisite relief, i.e. the removal, or lessening of the cause of distress or anxiety;
the deliverance from that which was burdensome. It is evident that the trouble, expense and
delay in getting what is wanted are all as much ingredients of the sum total of that what can be
described as relief as the substance of that which is wanted… Taken in this light, the adequacy of
the remedy must be judged in relation to three separate considerations…

a. The nature and extent of relief;

b. The point of time when the relief would be available; and
c. The conditions on which that relief would be available particularly the conditions
relating to the expense and inconvenience involved in obtaining it.”32

The correct position seems to be that the adequacy of an alternative remedy is to be judged in
relation to the requisite relief:

a. “If the relief available through the alternative remedy, in its nature and extent, is what is
necessary to give the requisite relief, the alternative remedy is not another adequate
remedy within the meaning of Article 98.
b. If the relief available through the alternative remedy, in its nature and extent, is what is
necessary to give the requisite relief, the adequacy of the alternative remedy must further
be judged with reference to a comparison of the speed, expense or convenience of
obtaining that relief through the alternative remedy, with the speed, expense or
convenience of obtaining it under Article 98. But in making this comparison those factors
must not be taken in account which would themselves alter if the remedy under Article 98
were used as a substitute for the other remedy.”33

In Noori Trading Corporation v. Federation of Pakistan,34 the Baluchistan High Court said that
the alternate remedy has to be meaningful and effective; otherwise suggesting litigants to avail
alternate remedy would be an exercise in futility as the alternate remedy would not be efficacious
and that it would only serve to delay and protract the proceedings. Similarly, in Baluchistan
Textile Mills Ltd. v. Central Board of Revenue, etc,35 it was held by the Sindh High Court that
when the alternate remedy is found to be illusory in nature, the High Court can ignore the
existence of availability of alternate remedy and can exercise its discretionary power under
Article 199.

32
Ibid.
33
Ibid.
34
PLD 1989 Quetta 74;
35
NLR 1983 Tax 153;

Page 8 of 20
 LOCUS STANDI OF THE PARTY

An individual citizen (an aggrieved party) is aggrieved by the actions of another (public
authority) whereby his freedoms or rights have been violated. Thus, there are two parties, one
who sins and the other, who is sinned against, and this clearly contemplates adversarial litigation.
This is the general scheme of Article 199 of the constitution.

The doctrine of locus standi has two features and both are jurisdictional; they are, first, that the
courts cannot act on their own initiative, or, in other words, cannot act suo motu; secondly, that
the applicant must be an aggrieved person. The words “on the application of” give legislative
effect to the well-established principle that the High Court cannot, in the exercise of their
constitutional jurisdiction conferred by Article 199, act on their own initiative or suo motu. The
leading case in this respect is Shehnaz Begum v. The Hon’ble Judges of the High Courts of Sindh
High Court and Baluchistan,36 wherein Chief Justice Hamood-ur-Rahman said:

“Under this constitution, a High Court has been given the power of judicial review of
executive actions by Article 98 in certain specified circumstances but even in such a case, the
High Court cannot move suo motu for, it is specifically provided in each of the sub – clauses (a),
(b) and (c) of clause (2) of Article 98 that only on the application of an “aggrieved party” or of
any person, the High Court may make the orders or issue the directions therein specified. It is
clear; therefore, that under Article 98 there is no scope for any suo motu action by the High
Court.”37

This view has been consistently followed, so far as the High Courts’ judicial review jurisdiction
under Article 199 of the Constitution is concerned.38 In Fazal-e-Haq v. State,39 where the High
Court had moved against the Accountant General West Pakistan suo motu, the Supreme Court
held that the entire proceedings were misconceived and void inter alia because of the violation of
the important judicial principle that the constitutional jurisdiction relating to a writ can only be
exercised by the High Court when moved by party whose legal rights have been denied or an
interested party.

The foregoing discussion raises the question as to whether or not the suo motu principle extends
to those cases in which a relief has not been expressly claimed. It has sometimes been said that a
relief not prayed for in the judicial review application should be refused on the ground that the
High Court has no suo motu power under its constitutional jurisdiction. The case usually cited in
this respect is that of Pakistan v. Khondakar Ali Afzal.40 In the case of Khondakar Ali Afzal, it
was said to “of the very essence of judicial proceedings that the relief to be granted should
follow as a legal result from the right alleged and found” and the error is fundamental “where
the relief granted is different from the one prayed and flows not from the right alleged but from a

36
PLD 1971 SC 677;
37
Ibid.
38
1982 SCMR 549;
39
PLD 1960 SC (Pak) 295;
40
PLD 1960 SC (Pak) 1;

Page 9 of 20
right which has not been pleaded and as to which the court has never heard the parties”. This
would, however, seem to be an approach too technical. Kaikaus, J., in the case of Imtiaz Ahmed
v. Ghulam Ali,41 said:

“I must confess that having dealt with technicalities for more than forty years, out of
which thirty years are at the Bar, I do not feel impressed with them. I think the proper place of
procedure in any system of administration of justice is to help and not to thwart the grant to the
people of their rights. All technicalities have to be avoided unless it is essential to comply with
them on grounds of public policy. The English system of administration of justice on which our
own is based may be to a certain extent technical but we are not to take from that system its
defects. Any system which by giving effect to the form and not to the substance defeats
substantive rights is defective to that extent. The ideal must always be a system that gives to
every person what is his.”42

In Syed Abul-ala Maudoodi v. Government of West Pakistan,43 Hamood-ur-Rahman, J. found

“no difficulty in granting the relief because of any defect in the form of the prayer in the
petition”. The relief as framed in the case was sufficiently wide but the judge took the view that
the “court is not powerless to grant the relief that the justice of the cause requires to the same
extent as if it had been asked for”.

In Salahuddin v. Frontier Sugar Mills,44 the issue on this particular point was laid to rest as the
court took the view that the appellants’ failure to ask for the reliefs claimed did not relieve the
High Court of its constitutional duties to afford relief where it was lawfully due. It said that to
deny relief to the party on such a hyper-technical ground would amount to a negation of the
beneficial jurisdiction conferred on the High Court in the larger public interest. Furthermore, in
Sharaf Faridi,45 the then Chief Justice of the Sindh High Court said that “there can be no doubt
that a court having jurisdiction to adjudicate upon a matter, has the power to provide a relief
according to the circumstances of the case, if dictates of justice so demand even if such relief has
not been expressly claimed provided the relief to be given is within the compass of the
jurisdiction of the court”.46

In the light of the above discussion, it is clear that a petition under Article 199 would only be
deemed maintainable if it is filed by an aggrieved party. In Fazal Din v. Lahore Development
Trust,47 the Supreme Court held that it is not necessary that the right must be in the strict juristic
sense for a petition’s maintainability under Article 199. It would be sufficient enough it is shown
that the applicant has a personal interest in the performance of the legal duty which if not

41
PLD 1963 SC 382;
42
Ibid.
43
PLD 1964 SC 673;
44
PLD 1975 SC 244;
45
PLD 1989 Karachi 404;
46
Ibid.
47
PLD 1969 SC 223;

Page 10 of 20
performed or performed in a manner not in accordance in law would result in the loss of some
personal benefit or advantage or the curtailment of a liberty or privilege.

In Begum Nair Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior,
Division Islamabad,48 an order was passed confining a retired General to his house and he was
forbidden from meeting anyone else other than the inmates of the house. This order was
challenged by his wife under Article 199, which raised the question as to whether or not the wife
could be treated as an “aggrieved person” within the meaning of Article 199. The court,
following the dictum in Fazal Din,49 said:

“Even if it be assumed that the General was not in custody or detention and that only
movements had been restricted in his house and that in such circumstances only a petition could
be filed by an aggrieved person under sub – clause (a) of clause (1) of Article 199, we have no
doubt that the petitioner being his wife will be an aggrieved person. There are mutual legal
rights and obligations between the husband and wife. It is the duty of the husband to maintain his
wife and also to perform marital obligations which include a reasonable company the husband
to the wife and the wife to the husband. If the wife falls ill and is to be removed to a hospital, it is
not only moral and social obligation but a legal obligation of a husband to make necessary
arrangements for her treatment. If her state of health calls for an immediate removal to the
hospital, failure on his part may amount to a cruelty. If the movements of the husband are
restricted in a house it is, of course, not possible for him to perform his obligation. This, no
doubt, will affect the right and interest of the wife and to be an aggrieved person within the
meaning of sub – clause (a) of clause (1) of Article 199, it is not necessary that she must
establish right in strict juristic sense.”50

THE WRITS

Sub – article (1) is divided into (a), (b) and (c). Sub – clause (1)(a) is further divided into (i) and
(ii) and so is sub – clause (1)(b). Under sub – clause (1)(a), only an aggrieved person can invoke
the constitutional jurisdiction of the High Courts and under sub – clause (1)(b), any person can
invoke the constitutional jurisdiction of the High Courts.

WRIT OF PROHIBITION

It is an order of the High Court directing a person or preventing a person from usurping
jurisdiction with which he is not legally vested. In other words, it is issued to compel such
persons to keep within the limits of their jurisdiction. The objective of this writ is prevention and
is issued before an unauthorized action is taken by a person who is not empowered under the
law. Following are the grounds on which a writ of prohibition is issued:

Absence and excess of jurisdiction:

48
PLD 1974 Lahore 7;
49
Supra note 47;
50
Supra note 48;

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The writ of prohibition is available where both an authority lacks initial jurisdiction to deal with
the subject matter of the proceedings before it as well as when, having such initial jurisdiction, in
the exercise thereof, it exceeds its limits as imposed by the law.

When, at the inception of a proceeding before an authority of limited jurisdiction, a challenge is

made to its jurisdiction it must determine that question before assuming jurisdiction to enter upon
the inquiry. In this sense, every authority is, of necessity, empowered to determine, in the first
instance whether or not the conditions of assumption of jurisdiction exist.

It should be noted that in the case of absence of jurisdiction, the writ would wholly forbid the
authority to exercise jurisdiction; but in the case of excess of jurisdiction, the prohibition would
be partial, that is, to the extent of the excess of jurisdiction, allowing the authority to proceed as
to the extent which is within its jurisdiction. In other words, where there is complete want of
jurisdiction ab initio, prohibition is available at once; but in case of excess of jurisdiction, it is
obvious, that the court cannot interfere unless and until the authority does not act in a manner
which exceeds its jurisdiction. The application would only be considered mature if it is submitted
at the stage where the excess of jurisdiction occurs. Furthermore, where it is proven that an
authority is acting without jurisdiction or in excess of jurisdiction, its good intent or bonafide in
so doing is of no importance, for the purposes of the writ of prohibition.

Violation of the principles of natural justice:

Where the principles of natural justice have been violated, one finds that both the writ of
prohibition as well as certiorari is applicable to such cases. It must be noted that since the
violation of the requirements of natural justice is seldom apparent to a party until a decision has
been given and the party is affected by it, there are more cases of certiorari on this ground than
prohibition. However, where a party is apprised of the fact that the principles of natural justice
have been violated, as in the case of bias, an objection ought to be promptly raised and the writ
of prohibition be invoked.

Unconstitutionality of law or proceedings:

Prohibition would also be available where the law that gives jurisdiction to an authority is
unconstitutional or ultra vires the competence of the Legislature.

Violation of Fundamental Rights:

A writ of prohibition can also be sought where some Fundamental Rights of a party have been
violated. Where an order or law is passed that is found to violate Fundamental Rights, the courts
are constitutionally bound to issue a writ of prohibition to quash the proceedings and restrain
further proceedings.

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In Messrs Tharparkar Sugar Mills Ltd. v. Federation of Pakistan,51 the Sindh High Court was of
the view that under Article 199, a High Court has not only the power to pass a corrective order
curing a defect in an existing order but it also has the power to prohibit a functionary from
passing an illegal order. In other words, the High Court has the power to pass a prohibitory order
of restraint against a threatened action as well.

Gul Muhammad Khan, J., in Subedar Major (Retd) Gul Zaman v. The Settlement Commissioner /
Officer Incharge, Border Area Committee, Lahore,52 observed that the provisions of Article 199
(1) (a) (i) are in the nature of writ of prohibition and any functionary, who oversteps the limits of
law and exercising a power not vested in it, can be restrained from acting in that manner. He
stated that the exercise of jurisdiction in this regard is amiable to public policy as it would not
only save the time, expense and inconvenience to the parties but would save public time and
expense and discourage unnecessary litigation.

WRIT OF MANDAMUS

The literal meaning of “mandamus” is command. It differs from prohibition or certiorari in it

demands for some activity on part of the body or person to whom it is addressed, for the
performance of public duty. The writ of mandamus is a high prerogative writ of a most extensive
remedial nature, and is, in form, a command issuing from a High Court of justice. It commands
the person to whom it is addressed to perform some public or quasi-public legal duty which he
has refused to perform, and the performance of which, cannot be enforced by any other adequate
legal remedy. Where any tribunal, inferior court or body of persons charged with the
performance of a public duty do not discharge that duty, mandamus lies to compel him to do it.53
In other words, the petitioner must establish that the omission or refusal of the public functionary
is adversely affecting some property, franchise or personal right of the petitioner. A mandamus
will not issue where not duty of a public nature is involved and the right claimed is merely a
private right, as for instance, where there is a dispute between two rival groups of the
shareholders of a company.54

In Capt (Retd) Naqiullah v. Chairman, State Engineering Corporation Ltd.,55 it was observed
that the jurisdiction of the High Court in issuing the writ of mandamus has the following
features:

a. “That since the High Court has the power, and therefore, a discretion to make the order,
the order cannot be asked as of right;
b. That since the person who is directed by the order must be one who is performing
functions in connection with the affairs of the Centre, a Province or a Local Authority,
the order can issue only against a class of public functionaries;

51
1996 MLD 122;
52
PLD 1976 Lahore 1454;
53
PLD 1961 SC 178;
54
PLD 1960 Lahore 609;
55
1989 CLC 2384;

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 c. That since the order directs a public functionary to do what he is required by law to do,
such functionary must have a legal duty to do what he is directed to do;
d. That the court’s jurisdiction to make an order is dependent on the non – existence of an
alternative adequate remedy; &
e. That to give it jurisdiction, the court must be moved by a party aggrieved i.e. by a person
whose rights are being adversely affected by the inaction or refusal of the public
functionary. “Right” means right recognised by law and capable of being enforced by the
power of the State.”56

In Syed Aftab Mehdi v. Secretary General Establishment Division etc,57 it was held that where a
public functionary makes an inordinate delay in implementation of the orders of a higher
authority, that is tantamount to not doing something it is required by law to do, therefore, a writ
of mandamus may be issued under Article 199.

However, in Muhammad Azam Khan v. Government of N. W. F. P. etc,58 the Peshawar High

Court held that for the issuance of mandamus, the parties must show that they have a clear and
defined legal right conferred by law. A mandamus cannot be issued in the absence of such right.
The person applying for a mandamus must show that he has a legal right to the performance of a
legal duty by the other party against whom the relief is sought. Mandamus cannot be sought to
enforce obligations of a contractual nature.59 The Court’s opinion was that the appointment of
the petitioners on contractual basis furnished no legal right on them to seek their appointment on
regular basis. This decision was challenged in the Supreme Court, which was also dismissed by
the Supreme Court.60 In the Supreme Court’s view, a writ in the nature of mandamus is not a writ
of course or of right. It cannot be claimed as a matter of right. There has to be a legal right
existing in the petitioners and a corresponding legal duty imposed upon the public officer or the
authority for the issuance of a direction in the nature of mandamus.61

WRIT OF CERTIORARI

According to Article 199(1)(a)(ii) if any act is done or proceedings are taken without jurisdiction
or in excess in jurisdiction, such act or proceedings are without any legal effect. With the
development of law, the concept of act done without lawful authority includes, any act or
proceedings which are taken without observing the principles of natural justice.

The Supreme Court of Pakistan has observed as follows regarding the writ of certiorari: 62

“In certiorari the initial question is whether the official whose action is called into
question was acting under a law. If, however, the public functionary has acted in exercise of a

56
Ibid.
57
NLR 1994 Civil 486;
58
PLJ 1997 Peshawar 248;
59
Ibid.
60
1998 SCMR 204;
61
Ibid.
62
PLD 1958 SC (Pakistan) 437;

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statutory authority and under an obligation to find the facts in a judicial or specially prescribed
manner, a material departure from the procedure which has adversely affected the rights of a
party would render his action liable to judicial review.”63

The Lahore High Court has observed the same in similar words: 64

“It is a settled prinicple of law that wherever this court finds order by any tribunal, court
or authority as without jurisdiction or in excess of jurisdiction or in manifest breach of some
law, this court has a jurisdiction to come to the help of the petitioner and set aside such orders in
constitutional jurisdiction.”65

The Supreme Court has held that certiorari provides a supervisory control that extends only to
see that the inferior authority keep within their jurisdiction, but also to see that they observe law.
The Supreme Court also observed that the jurisdiction of a High Court in writ jurisdiction cannot
be equated with the jurisdiction in appeal.66 The scope of interference in writ jurisdiction by the
High Court is limited to the inquiry whether the tribunal or authority has in doing an act or
undertaking proceedings acted in accordance with law or not. If the answer be in the affirmative,
the High Court will not interfere or substitute its own findings for the findings by the authority
whose order is under challenge. Furthermore, it has observed that cases of bad faith, no evidence,
misdirection or failure to adhere to judicial procedure, etc. are treated as acts done without lawful
authority and vitiated on the same grounds.67

The general principle is that courts will not interfere in matters in its writ jurisdiction when an
appropriate remedy is available. However, it has time and again been stated in numerous
decisions that the preceding line is not a rule of law barring the jurisdiction of the court. It is
actually a rule by which the court regulates exercise of its own discretion.68 It is wrong on
principle to entertain writ petitions except in very exceptional circumstances when a law
provides a remedy by way of appeal to another tribunal fully competent to award the requisite
relief. As an exception in cases of absence or excess of jurisdiction or where the impugned order
suffers from illegality on the face of the record a certiorari may be granted even though the right
of statutory appeal has not been availed of. In most cases the court would act on general common
law rule that writ of certiorari will not be available when an adequate remedy is available by way
of appeal; but in a proper case, where the question of jurisdiction is raised, the High Court may
successfully issue a writ of certiorari.69

63
Ibid.
64
1993 CLC 63;
65
Ibid.
66
PLD 1973 SC 24;
67
Ibid.
68
PLD 1961 SC Court 119;
69
PLD 1959 SC (Pakistan) 177;

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 CONSTITUTIONAL DIFFERENCE BETWEEN PROHIBITION AND CERTIORARI

Under the former, a person is prohibited from doing something which he is not permitted by law
to do; the latter has the effect of declaring that something done by him is without lawful
authority and of legal effect. Thus, while an order under the former provision can issue before
the act intended to be done, and under the latter, it is issued only after the act has been done. This
corresponds to the English rule, while a prohibition will lie at an earlier stage of the proceedings;
a certiorari will lie on after the proceedings have resulted in an order.

WRIT OF HABEAS CORPUS

Under this clause, the High Court can pass an order on the application of any person directing
that a person in custody within the territorial jurisdiction of the court be brought and produced
before it; so that the court may satisfy itself that such person is not being held without lawful
authority or in an unlawful manner.

This clause provides that the person submitting an application for issuance of habeas corpus need
not necessarily be an aggrieved party. Any person can make an application for habeas corpus. In
addition, the person detained may be in the custody of a public functionary or a private person.
The court, having a vast jurisdiction and responsibility once it has been approached to issue a
writ of habeas corpus, must satisfy itself that the custody or detention is in accordance with law
or not.

In Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi
and others,70 the Supreme Court held that a duty has been cast upon the High Court that
whenever a person detained in custody is brought before the court, the court must satisfy itself
that he is not being held in custody without lawful authority or in an unlawful manner. In this
regard, the High Court must not discharge this constitutional duty by relying on the satisfaction
of the detaining authorities as that is not sufficient enough to decide a writ of habeas corpus. If
this were the case, then the result would be that the judicial power of the courts would be
reduced to a nullity and those provisions in the Constitution which guarantee Fundamental
Rights would be rendered meaningless.71 The Supreme Court also observed that it is not the
purpose of the judicial authority reviewing executive actions to sit on appeal over the executive
or to substitute the discretion of the court for that of the administrative agency. What the court is
concerned with is to see that the executive or administrative authority had before it sufficient
materials upon which a reasonable person could have concluded that the requirements of law
were satisfied and that the court’s insistence for disclosure of the material upon which the
authority so acted is unreasonable.72

70
PLD 1968 SC 313;
71
Ibid.
72
Ibid.

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In Abdul Baqi,73 the phrases “without lawful authority” and “in an unlawful manner” used in the
habeas corpus clause were brought up. It was observed that the two expressions are not
tautologous. A definite meaning had, therefore, to be given to each of them. The Constitution, it
appears, casts a heavy duty upon the court to satisfy itself with regard to both these expressions
and that the question for determination is as to what these matters really are.

“Without lawful authority” comprises all questions of vires of the statute itself as also of the
person or persons acting under the statute, i.e., there must be a competent law authorising the
detention and the officer issuing such an order must have been lawfully vested with the power. In
Shazia Perveen v. District Magistrate,74 an officer issued an order of detention even though he
was not lawfully vested with that power. In that case, an Additional District Magistrate issued an
order of detention, but the Court held that he was not authorised to do so and that the detention
order was without lawful authority and of no legal effect. Another example is the case of
Muhammad Azam Malik,75 wherein the person authorised to make an enquiry was the District
Magistrate, but the enquiry was held by an Assistant Commissioner, hence, it was held that the
proceedings were without any lawful authority.

The question as to what is meant by “in an unlawful manner” was posed in the case of
Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri,76 wherein the
Court made the following observation:

“In my view, the words “in an unlawful manner” in sub – clause (b) of Article 98(2) have
been used deliberately to give meaning and content of the solemn declaration under Article 2 of
the Constitution itself that it is the inalienable right of every citizen to be treated in accordance
with law. To my mind, therefore, in determining as to how and in what circumstances a detention
would be detention in an unlawful manner one would inevitably have first to see whether the
action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not
confined to statute law alone but is used in its generic sense as connoting all that is treated as
law in this country including even the judicial principles laid down from time to time by the
Superior Courts. It means according to the accepted forms of legal process and postulates a
strict performance of all the functions and duties laid down by law. It may well be, as has been
suggested in some quarters, that in this sense it is as comprehensive as the American due process
clause in a new garb. It is in this sense that an action which is mala fide or colourable is not
regarded as action in accordance with law. Action taken upon no ground at all or without
proper application of the mind of the detaining authority would also not qualify as action in
accordance with law and would, therefore, have to be struck down as being action taken in an
unlawful manner.”77

73
Ibid.
74
PLD 1988 Lahore 611;
75
PLD 1989 SC 266;
76
PLD 1969 SC 14;
77
Ibid.

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Where cases of private detention arise, the question usually is whether or not the detention is
without lawful authority. Where it is shown that the custody is illegal, e.g., when it is obtained by
use of force or deceitful means, the remedy of habeas corpus is available.78 The Sindh High
Court has taken the view that if a wife is being kept or detained by her husband without her free
will, it would amount to illegal detention, therefore, she would be released.79 In the said case, the
wife stated on oath that she was being kept / confined involuntarily by her husband and was not
even permitted to see her parents and relatives, hence, the wife was freed by the High Court, who
took the view that she, being sui juris, could not be confined against her will.80

WRIT OF QUO WARRANTO

Quo warranto is the remedy or proceeding whereby the State inquires into the legality of the
claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the
claim be not well founded, or to have same declared forfeited, and recover it, having once been
rightfully possessed and enjoyed; it has become forfeited for mis-user or non-user. In
Muhammad Khan v. Lahore Cantonment Board,81 the Court said that the proceeding in nature of
quo warranto is initiated to test the validity of an appointment to a public office, and a petitioner
does not seek to enforce any right of his as such, nor does he complain of non – performance of
any duty towards him. What is in question is the right of the respondent to hold an office of
public nature.

The remedy of quo warranto is available only against a person holding or purporting to hold a
public office; it is not available against the holder of a private office. The expression “public
office” is not defined in the present Constitution of Pakistan. What then is meant by this
expression? Ferris defines it as “the right, authority and duty created and conferred by law, by
which an individual is vested with some portion of the sovereign functions of the government to
be exercised by him for the benefit of the public, for the term and by the tenure prescribed by
law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public
authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties. A
public office is thus to be distinguished from a mere employment or agency resting on contract,
to which such powers and functions are not attached… The determining factor, the test is,
whether the office involves a delegation of some of the sovereign functions of government, either
executive, legislative or judicial to be exercised by the holder for the public benefit. Unless his
powers are of this nature, he is not a public officer”.82

78
PLD 1987 Karachi 442;
79
1997 P. Cr. L. J. 194;
80
Ibid.
81
PLD 1964 Lahore 125;
82
Extraordinary Legal Remedies by Ferris (1926) Edition, p. 145;

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The above definition of public office has been adopted by the Pakistani courts.83 As pointed out
in Masudul Hasan v. Khadim Hussain,84 a public office is an office created by the State, by
charter or by statute, when the duties attached to the office are of a public nature.

In Abrar Hasan v. Federation of Pakistan85 Gul Muhammad, J., held that a writ of quo warranto
is maintainable against the appointment of a judge of a High Court. He said:

“I am also for the view and I say so with the greatest respect, that it would not be right to
lay down that to preserve the high degree of comity in the superior judiciary, the plain meaning
of Article 199 (1)(ii) of the Constitution should be curtailed or abridged. Maintenance of comity
among the superior judiciary is t the highest, a rule of propriety and not a rule of law and
therefore cannot erode a constitutional provision, more so when it is germane to the jurisdiction
of the High Court. It is also important to observe that quo warranto has never been a writ of
right. The court may in exercise of its discretion, refuse it, if the application is not bona fide or is
made for a collateral purpose.”86

Salahuddin Ahmad, J., in the same case, observed as follows:87

“The present petition does not seek any writ against the act or order of a judge of High
Court as a court, but questions his authority or right to act as such judge. While the former is not
permissible under Article 199, the latter is. It seems now well settled that this is the only way
permitted to challenge the appointment of a judge made in contravention of the clear provisions
of the Constitution laying down meticulously the qualifications of such appointment. The
language of Article 199(1)(b)(ii) is plain and unambiguous, and it entitles any person to seek
information in the nature of quo warranto against a person holding or purporting a public
office. The provisions of the Constitution are clear and need no support from decisions of any
other country which either has no written Constitution, or has a written Constitution, which does
not make the point clear and beyond dispute. Nevertheless, the following extract from 46
American Jurisprudence 2nd Edition, section 246 supports the view that information in the nature
of quo warranto lies in such a matter and that the validity of the appointment of such a judge
cannot be challenged in collateral proceeding… Take the case of a person who is not a citizen of
Pakistan, appointed through inadvertence or deliberately as a judge of a High Court in utter
disregard of the express provisions of Article 193(2), which, inter alia, provides that a person
shall not appointed a judge of a High Court unless he is a citizen of Pakistan, etc. It is difficult to
conceive that such an appointment cannot be challenged or remedied, and the mischief is
allowed to be perpetuated. Or is left to the off – chance of an aggrieved litigant questioning the
particular judge’s act as manifest in the decision of his case, and thus incidentally furnishing an
occasion to challenge the validity of the judges’ appointment. The learned Attorney General has
rather bluntly said that there is no remedy against such an unconstitutional appointment. I am

83
Supra note 32;
84
PLD 1963 SC 203; also see PLD 1974 SC 228;
85
PLD 1976 SC 315; see also PLD 1998 SC 161;
86
Ibid.
87
Ibid.

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definitely of the opinion that such unconstitutional appointment can be challenged and remedied
only by way of a constitutional petition under Article 199(1)(b)(ii) of the constitution and not in
any collateral proceeding.”88

The remedy of quo warranto may be sought on one of the following grounds:

a. That the law under which the respondent holds the office is constitutionally invalid or is
ultra vires;
b. That the respondent was not eligible for the office, i.e, he did not possess the
qualifications prescribed by the law;
c. That he was eligible for the office but subsequently became disqualified to hold it;
d. That he was appointed by a person not competent in law to appoint him.

88
Ibid.

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