SUPREME COUTRT SC.
SC. Decision of appeal Bench on criminal appeal would be
Q. Position and Power of Registrar of SC?
The Officers and Registrars are appointed by the SC with the
approval from the Chief Justices of HCs and the President and
may make rules providing for the appointment by for their
terms and conditions of employment that is granted by the
Constitution.
REGISTRAR HAS FOLLOWING ADDITIONAL POWERS:
a) To require any plaint petition of appeal, petition for leave to
appeal or other matter presented to the Court to be amended
in accordance with practice and procedure of SC or to be re-
presented after such requisition as Registrar thinks proper,
has been complied with. b) To fix the dates of hearing of appeal,
petition or other matters and issue notice thereof. c) To settle
index. d) To direct any formal amendment of records.
JUDICIAL POWER OF REGISTRAR: Under Rule 1 Order V, SC
Rules, Powers of SC in relation to following matters has been
delegated by SC to the Registrar and may be exercised by him.
i) Application for reviver or substation. ii) Application for
discovery and inspection. iii) Application for delivery of
interrogatories. iv) Certifying of cases as fit for employment of
advocates. v) Application for substituted service. vi)
Registration of petitions, appeal, suits and other matters. vii)
Application for time to plea and for production of documents.
viii) Approval of translator. ix) Approval of interpreter. x)
Application for payment into court. xi) Application for change of
advocate on record. xii) Application by advocate on records for
leave to withdraw. xiii) Application for search, inspection or
getting copies of any record. xiv) Application for return of
documents. xv) Documentation of quantum of court fee payable
in respect of any document. xvi) Application for issue of a
refund certificate in respect of access Court Fee paid by
mistake. xvii) Application for transcript records instead of
printed record. xviii) Application for production of documents
outside Court premises. xix) Application for further
particulars,, better statement of plaint for defence. xx)
Application for payment of money out of Court or handing over
or discharge of security. xxi) Application for enforcing payment
of costs. xxii) Application for taxation and delivery of bill of
costs. xxiii) Application for extending returnable dates of
warrants. xxiv) Application for bringing on record legal
representative of a deceased party. xxv) Application for Show-
cause notice to parties who failed to prosecute or defend
appeals or matters pending before court with due diligence.
xxvi) Application for permission to exhibit or use documents in
a language other than Urdu or English. xxvii) Application for
permission to get proper books repaired outside the court.
xxvii) Application for extension of time limit for filling of
affidavits. xxix) Application for security for costs. xxx)
Application for assignment of security bonds. xxxi) Setting
down costs, appeal or mater ex-parte.
POWER OF SINGLE JUDGE OF SC:
Under Rule 1, Order V, SC Rule, Powers of SC in Elation to
following matters may be exercised by single judge of SC
sitting in chambers. Exercise of these powers by single judge
of SC is subject to appeal by aggrieved party to a bench of SC,
which may include the Judge who dealt with the matter as a
single Judge. i) Application for leave to compromise or
discontinue a pauper appeal. ii) Application for striking out or
adding a party. iii) Application for separate trust of cause of
action. iv) Application for separate trials to avoid
embarrassment. v) Application for rejection of plaint. vi)
Application for setting down for judgment in default of written
statement. vii) Application for striking out any matter in the
pleading. viii) Application for amendment of pleading. ix)
Application for enlargement of time to amend pleadings. x)
Application for withdrawal of suit, appeal, or petition for
residing leave to appeal and for dismissal for non-prosecution.
xi) Application to tax bills returned by taxing officer. xii)
Application for costs of taxation where 1/6 is taxed off. xiii)
Application for review of taxation by Court. xiv) Application for
enlargement or abridgment of time prescribed for filing of
petitions or appeals in SC. xv) Application for issue of
commissions. xvi) Application for order against clients of
payment of costs. xvii) Application for production of evidence
by affidavit. xviii) Application for stay of execution of decree or
order in civil proceedings. xix) Application for stay of execution
of decree or order in criminal proceedings. xx) Application for
grant of bail. xxi) Application to set aside ex-parte decree. xxii)
Consent petitions.
Q. Appeal to SC against Judgment of HC in Civil Matter?
APPEAL AS MATTER OF RIGHT: Appeal against judgment,
order, decisions, findings or sentences of any of the HC would
lie to SC as a matter of right in the following cases. a) Under
Art. 185 (2) when value of subject-matter in dispute is fifty
thousand rupees. b) When judgment, decree or final order HC
has varied or set aside judgment, decree or final order of
court below in dispute of the value of Rs.50000/- c) When HC
finally decided a matter under companies Ordinance and case
is covered by Section 10 Companies Ordinance, 1984. d) When
Election Tribunal constituted under Representative of People
Ac 1976, or Senate (Election). Act, 1975 has given a decision on
elections petition filed before it. e) When HC certifies under
Art. 185 (2) (f) that case involves of law and is fit for appeal to
SC (this is also known as certificated appeal).
APPEAL WITH LEVE OF SC: In case where appeal doesn’t lie to
SC as a matter off right, appeal to SC against judgment,
decree, decision, finding or sentence o HC would be competent
only when SC grants under Ar. 185 (3). Limitation time for filing
leave petition against judgment of HC is sixty days. This
limitation time would exclude the time spent in obtaining
certified copies of judgments and records of the HC, leave
petition in the SC shall be drafted by ASC in the format
prescribed by SC Rules.
Q. Appeal to SC against Judgment of HC in Criminal
Matter?
APPEAL AS MATTER OF RIGHT: Appeal lies to SC under Art
185(2) as a matter of right in the following cases. a) When HC
has reversed acquittal and has sentenced accused to death. b)
When HC has sentenced accused to death after with-drawing
case from subordinate criminal court and trying it as its
original side. c) When HC has imposed sentence of punishment
on any person for contempt of HC. d) When HC certifies under
Art. 185(2) (f) that case involves question of public importance
relating to interpretation of constitution. This kind of appeal is
also called as certificated appeal.
In all above cases, appeal is entertained by SC as criminal
appeal with number and year of filing. The appeal is laid before
appeal bench of SC consisting of not less than three Judges of
refer them for trial where the lower court has omitted to
subject to review by he SC.
APPEAL WITH LEAVE OF SC: A. Practice as to appeal with
leave of SC. Appeal in any criminal case which is not covered
by Art. 185(2) would lie only when SC grants leave to appeal in
a petition filed for leave of SC. According to Order XXIII of SC
Rules procedure prescribed in order XII SC Rules for filing of
petition of or leave to appeal in Civil Cases would also apply to
petitions for leave to appeal in criminal cases. Criminal petition
for leave to appeal is heard and decided by petition bench of
not less than two judges of SC. If SC doesn’t fee inclined to
grant it leave
B. Leave to appeal in Acquittal Cases: Acquittal case is a
case where HC on appeal against conviction/sentence has
acquittal the accused, or when HC has upheld acquittal
recorded by trial court. Criminal petition for leave to appeal
against such acquittal is treated as acquittal case. In such cse,
SC would grant its leave to appeal only when acquittal order is
manifestly wrong or preserve or is based on view of evidence
which no judicial officer would take or when HC has misread
evidence or has ignored important evidence. SC would refuse
its leave to appeal against acquittal by HC when leave is
sought on ground that HC while ordering acquittal had formed
a different opinion on appraisal of evidence other than that
arrived at by trial court in convicting accused. Non-
interference by SC in acquittal cases is the general rule by
interference is an exception. This is for the reason that an
accused person is presumption that an accused person is
presumed to be innocent unless proved guilty, secondly,
presumption of innocence arising from his acquittal by trial
court.
C. Leave to appeal in Conviction Case: Conviction sentence
recorded by trial court. By filing petition for leaves to appeal,
convict challenges judgment of the HC. It is in rare cases that
SC grants its leave to appeal in a conviction cases. Generally
as a matter of practice SC upholds concurrent judgments of
trial court and HC and refuses its leave by dismissing petition
for leave to appeal.
D. Leave to appeal in other Criminal Cases: Other criminal
cases are the cases relating to any judgment, order, sentence
or findings given by HC in exercise of its criminal Jurisdiction.
Such cases are cases of refusal of bail by HC, cancellation of
bail by HC, refusal by HC to quash criminal case etc. These
cases relate to exercise of discretionary power by the HC. As a
matte of rule, SC does not interfere with exercise of discretion
by HC, whether it has been exercised rightly or wrongly.
Generally SC refuses its leave in such cases and dismisses
petition for leave to appeal. It is in a very rare case when
exercise of discretion by HC would result in miscarriage of
justice, That the SC fee inclined to interfere by granting its
leave to appeal.
Q. Appeal to SC from Judgments of Federal Shariat Court?
1. Constitutional Provisions relating to Federal Shariate
Court: Chapter III-A consisting of articles 203-A, 303-J added
in the constitution in 1980 deals with composition, powers and
jurisdiction of Federal Shariate Court. Art. 203-F regulates
appeals to SC from judgment, order, decision or sentence of
Federal Shariate Court (FSC). No Court-Fee is payable on
appeal in SC against judgment by FSC. Appeal is to be filed by
aggrieved party within sixty days of decision by FSC while
appeal by Federation of Pakistan r any Province may be filed
within six months of decision by FSC. This limitation time for
filing of appeal to SC from decision of FSC under Proviso to Art.
203-D(2) effect and operation of decision/records of FSC shall
remain suspended till disposal of appeal by SC. By virtue of this
provision, decision of SC declaring “Riba” as repugnant to
injunctions of Islam remains suspended in view appeal filed in
SC against decision of FSC. The decision of FSC declaring
“Riba” as repugnant to injunctions of Islam.
2. Appeal to SC as a matter of Right: An appeal to SC against
decision of FSC shall lie under Art. 203-F(2-A) as a ,matter of
right in the following cases with in sixty days from decision of
FSC. a) From final decision of FSC on petition field before FSC
under Art. 203-D, relating to Islamisation of any law. b) When
FSC has set aside acquittal recorded by trial court and has
sentenced accused to death, life imprisonment or term
exceeding fourteen years. c) When FSC has enhanced sentence
in exercise of its Provisional jurisdiction under Art. 203-DD. d)
When FSC has convicted a person for contempt of court.
3. Appeal with leave of SC: a) Provision & Practice for
leave to appeal: In any case where appeal does not lie to SC
as a matter of right, an appeal shall lie only when SC grants
under Art.203-F (@-B), its leave to appeal against judgment of
FSC. Petition single leave to appeal shall be entertained by SC
as criminal petition for leave to appeal. It would be heard by
petition Bench of not less than two judges of SC. Petition would
due dismissed if SC refuses to grant its leave to appeal.
Petition would be converted into criminal appeal, if SC grants
its leave to appeal against decision of FSC. The criminal appeal
shall be given a new number with year. b) Exercise of
Appellate Jurisdiction by SC against Judgment of Federal
Shariate Court: Petition for leave to appeal or criminal appeal
against judgment of FSC are heard and decided by Shariat
Appellate Bench of SC. It comprises of three Muslim Judges of
SC and two “Ulemas” appointed by President as ad-hoc
members of Shariate Appellate Bench.
Q. In which cases an appeal o SC is competent? State the
procedure for such appeal?
Appeal to the SC: An appeal from judgment, decree or final
order of a HC shall lie to the SC. (1) If the amount or value of
the subject-matter of the dispute in the court of first instance
was and also in appeal is (unless varied by an Act of
Parliament) fifty thousand rupees or upward and the judgment,
decree or final order appealed from has varied or set aside the
judgment, decree, or final order for the Court immediately
below. (2) If the judgment, decree or final order involves,
directly or indirectly, some claim or question respecting
property of the like amount or value and the judgment, decree
or final order appealed from has varied or set aside the
judgment, decree or final order of the court immediately below,
or (3) If the HC certifies that the case involves a substantial
question of law as to the interpretation of the Constitution. No
appeal lies to SC under section 109 after the enforcement of
the Constitution of Pakistan.
Power of the Appellate Court: Under the provisions of
Section 17 of the Code of Civil Procedure and Appellate Court
has power:- 1) To determine a case finally where the evidence
on the record is sufficient. 2) To remand a case where the
lower Court has disposed of the suit upon a preliminary point
and the decree is reversed in appeal. 3) To frame issues and
frame or try any issue or o determine any question of fact,
which appears to the Appellate Court essential to the right
decision of the suit upon the merits; and 4) To take additional
evidence or to require such evidence to be taken when the
lower court has refused to admit evidence with ought to have
been admitted to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other substantial
reason. I addition to the above the Appellate Court has the
same powers and shall perform the same duties as are
conferred and imposed by this Code on courts of original
jurisdiction in respect of suits instituted therein.
Q. Define the composition of SC and constitution of
benches?
Composition of the SC: The SC of Pakistan is headed by a
Chief Justice who is called as Chief Justice of Pakistan. He is
assisted by other judges of the SC. The Registrar of the SC is
executive head of the SC. The principle seat of the SC is at
Islamabad. It has its Registrar in Lahore, Karachi, Peshawar
and Quetta which entertain matters filed in the SC.
Constitution of Benches of SC:- Under Order XI SC Rules, the
Chief Justice of Pakistan may constitute benches of the SC
under this order. 1) Every appeal shall be heard and disposed
of by a bench consisting of not less than three judges to be
nominated by Chief Justice. Matter involving questions of
constitutional interpretation may be directed to be heard and
disposed of by Full bench of SC. Cases reported as Benazir
Bhutto V/s President of Pakistan (PLD 19888 (SC) P.416) and
Mian Nawaz Sharif V/s President of Pakistan (PLD 1993 (SC)
involved question of interpretation of article 58 (2) (b). 2)
Petitions for leave to appeal and appeals from appellate or
Revisions, Judgment/orders made by single judge in HC may
be heard and disposed of by a bench of two nominated by Chief
Justice.
Q. Define the original constitutional jurisdiction of SC?
Article 184 (3) confers upon SC original constitutional
jurisdiction in the following words. Article 184 (3): without
prejudice to Article 199. The SC shall, if it considers that a
question of public importance with reference to enforcement
of fundamental rights conferred by Chapter-1, Part-2 is
involved shall have power to make orders mentioned in the said
articles. For filing direct petition to SC under Article 184 (3) the
following two conditions should be fulfilled: a) Matters should
be of public importance. b) It should involve enforcement of
fundamental rights contained in Article 9-28.
Q. Define the contempt jurisdiction of SC?
Article 204 (2) has conferred upon SC Jurisdiction which is
known as contempt jurisdiction under Article 204 (2) the SC
shall have power to punish any person who. A) Abuses,
interferes with or obstructs in any way or disobeys order of
court. B)Scandalizes the Court or otherwise does anything
which tends to bring the court or a judge of the court into
hatred ridicule or contempt’s. C) Does anything which tends to
prejudice the determination of the mater pending before the
court or does anything which by law constitutes contempt of
Court.
According to Articles 204 (3) the exercise of powers conferred
on SC may be regulated by law or rules framed by SC. In
pursuance of Articles 204(3) the Parliament has framed the
law known as contempt of Court Act, 1996 which SC has framed
rules contained Order XXVII SCMR 1980.
Q. State the Inherent Powers of SC. 1) Meaning of Inherent
jurisdiction: Inherent jurisdiction means additional or residuary
jurisdiction which is not expressly confeered by statue or
Rules. It is exercisable to prevent abuse of process off Court
or for securing ends of justice. 2) Inherent Jurisdiction of SC
under Constitution: Article 187 gives power to the SC issue
complete justice in any case or matter pending before the SC.
The condition necessary for exercise of jurisdiction under
Article 187 is that the case or matter should be pending before
the SC. It cannot be exercised if it relates to a case or matter
which is not pending before SC. 3) Inherent Jurisdiction under
SC rules; Order XXXI Rule 7, SC Rules gives power to the SC to
make such orders as may be necessary for seeking ends of
justice or to prevent abuse of process of court. The inherent
power/jurisdiction is expressly conferred but case involves
abuse of process of court. 4) Procedure for invoking inherent
jurisdiction: the inherent jurisdiction of the SC is invoked by
filing miscellaneous petitions in the matters pending before the
SC by giving title of the parties. The miscellaneous petition
shall be headed.. The above miscellaneous petition shall be
accompanied by the Court Fee Stamp of Rs. 5/- along with
affidavit of facts and affidavit of service by advocate on record
(AOR) in support of petition. 5) Exercise of inherent
jurisdiction:- The inherent jurisdiction under Article 187 read
with ordinance XXXIII Rule 6 has been exercised by the SC to
relax requirement of rule 8 order XXIII, SC Rules. According to
this rule, petition for leave to appeal by fugitive from justice
would not be entertained unless he surrenders himself to the
police. The SC has exercised its inherent jurisdiction, has
relaxed requirement of Rule and Order XXII and has held that
petition by fugitive from justice would be entertained even if he
does not surrender himself to the police.
Q. What Qualification are required for an advocate to be
enrolled as advocate of SC? Explain the procedure for
such enrollment?
Qualification as Advocate of SC: Under Rule 4, Order IV, SC
Rules 1980 a person shall be entitled and qualified for being
enrolled as an advocate of SC if. A) He has been for a period
not less than 10 years an advocate in HC. B) he produces
certified in a duly authenticated from the Chief Justice and
judges of the HC that he is a fit and proper person to be
enrolled as advocate of SC and to appear and plead before SC.
C) He pay the required admission fee and signs rolls of
advocates SC maintained by SC.
Q. Define the advisory Jurisdiction of SC and Transfer
power of the SC?
Advisory Jurisdiction of SC: Art. 186 of Constitution confers
upon SC advisory jurisdiction under this Article may, when he
consider that it is desirable to obtain opinion of SC on any
question of law of public importance, refer the question to SC
for consideration. The SC on such reference by President shall
consider the question referred to it and report its opinion on
question to the President. The advisory opinion of he SC on
reference under Ar.186 is not under Ar.186 to the SC on the
Question arising from HC. The President in his reference has
desired that reference should be heard by full SC consisting of
sixteen judges of SC. This reference is still pending for hearing
by the SC.
Transfer power of SC: New Article 186-A was added to the
constitution through amendment in 1985. This new article 186-A
empowers SC to transfer suo motu or on application any case,
appeal or other proceeding pending before one HC to another
HC. The transfer power under Article 186-A would be exercised
only when exercise of this power is in interest of justice.
Q. What are the requirement for being enrolled as an
advocate-on-record?
Advocate on record means advocate admitted to roll of SC
which contains names and addresses of advocates who are
entitled to act for parties before the SC. He would assume this
status on signing roll of Senior Advocate maintained by
SC,1980. An Advocate SC is entitled to appear and plead before
SC under Rule VI, Order IV, he cannot appear or plead in any
matter unless he is instructed by an advocate on record.
Under Rule 2 Order IV, SC Rules 1980, an advocate SC after
signing rolls of advocate SC is entitled to appear and plead
before SC under Rule 6, Order IV, he cannot appear and plead
in any matter a part y coming to SC engages advocate SC but
signs power of attorney in favour of Advocate on record who
on basis of this power of attorney would instruct advocate SC
to SC and advocate on records occupies position of barrister
and solicitor in legal profession of England. Drafting of petition,
appeals, concise statements etc is done by advocate SC but
they are field in SC through advocate on records. Under Rule
15, Order SC Rules 1980, an advocate of five years standing in
SC shall be qualified to be enrolled as advocate on records on
making application and paying required admission fees.
HIGH COURT
Q. Who is taxing officer and what his powers if he feel that
the maximum fees allowed?
Meaning and interpretation of Tax Laws: Tax Laws are also
as fiscal laws. They are source of contribution to the
exchequer of a Country. In Pakistan the prominent tax laws are
Income Tax Ordinance, Sales Tax Act and Wealth Tax Act, 1963.
The y are all Federal Laws framed by Federal legislature alone.
They are usually amended by Finance Act passed each year
after approval of annual budget by the National assembly. They
strict rule of interpretation of these tax laws. The important
rule of interpretation of fiscal laws is that benefit of any
ambiguity should be given to the tax payer who pays the tax
and to the state that collects the tax.
Tax Reference in High Court under Income Tax Ordinance,
1979:- The Income Tax Ordinance 1979 has levied and charged
tax on income of persons and companies residing in Pakistan.
In this Ordinance, the following words have meaning given
against them.
“Assesses” means a person who pays income tax. “Financial
Year” means year between 30th June and 1st July. Assessment
Proceedings” means proceedings under Income Tax
Ordinance against Assesses. “Gross Income” means income
declared by the Assesses in his income tax return. “Total
Income” means gross income less deductions allowed by
Income Tax Ordinance. “Taxable Income” means total income
less basic exemptions allowed by Income Tax Ordinance. Tax
Liability” means total income less basic exemptions liability of
Assessed to pay Income Tax on payable income at the rate
specified in Income Tax Ordinance.
Q. Define the Binding value of decision of High Court?
Under rule of Sttar decisis (stand by decision) decision by
single judge of HC is not binding upon another single bench of
the HC. It carries only a persuasive value. A single judge may
descent from the decision on the same point given by another
single judge. A single judge is bound by decision of division
bench consisting of two judges. A division bench is not bound
by the decision of another decision bench on the same point a
subsequent division bench may is bound by Full bench
consisting of three or more judges. A Full Bench consisting of
three judges. Full Bench consisting of three judges is bound by
Full bench consisting of five are more judges Single Judge,
division bench and full Bench of HC are bound under Art. 189 of
1973 constitution by decision of Supreme Court on the same
point, whether it is decision of single judge, division bench full
bench or full bench of SC.
Q. Define Kinds of Jurisdictions of HC?
The HC has conferred upon it, the following kinds of
jurisdiction:- 1) Writ jurisdiction under Art. 199 of 1973
Constitution. 2) Original Civil & Criminal Jurisdiction. 3) Civil,
Appellate and Revision, Review Jurisdiction. 4) Criminal
Appellate and Revisional Jurisdiction 5) Reference
Jurisdiction under Income tax Ordinance, Sales Tax and Wealth
Tax Act. 6) Inherent jurisdiction under Section 561-A Cr.P.C and
Section 151 Cr.P.C. 7) Bail jurisdiction under 497, 498 Cr.P.C. 8)
Company Law Jurisdiction under companies Ordinance, 1984.
9) Disciplinary Jurisdiction over subordinate judiciary. 10)
Supervisory jurisdiction of the courts. 11) Jurisdiction of
Habeas Corpus in Criminal Cases under Section 491 Cr.P.C. 12)
Transfer of cases under Section 24 Cr.P.C and Section 526 of
Cr.P.C.
Q. Define Writ Jurisdiction of High Court?
Writ jurisdiction exercise by High Court in Pakistan is judicial
review recognized for the first time in the American case
Marbury V/s Madison (1803). Section 223-A added to the Govt:
of India Act, 1935 by Govt: of India (Amendment) Act, 1954
conferred for the first time upon HC in Pakistan Jurisdiction to
issue writs in the nature of Prohibition, mandamus, certiorari,
habeas corpus and quo-warranto Art, 1970 of 1956 Constitution
continued with writ jurisdiction of HC. Art .98 of 1962
Constitution. Art,201 of Interim Constitution 1972 and Art.199 of
Constitution of 1973 as continued with writ jurisdiction of HC
without using the technical names of the writs.
Source of Writ Jurisdiction: At present Art. 199 of 1973
constitution confers writ jurisdiction upon a HC in Pakistan. The
relevant Portion of Art. 199 is as follow: Article 199:
Jurisdiction of HC. A HC may if it is satisfied that there is no
other adequate remedy provided by law. a) On the application
of an aggrieved party make an order. I) Directing a person to
refrain from doing anything he is not permitted by law to do
(writ of prohibition) or to do anything which is a required by
law to do (writ of mandamus). II) Declaring that any act done
or proceeding, taken is without lawful authority and of no legal
effect (writ of certiorari) b) On the application of any person
make an order. I) Directing that a person in custody may be
brought before it so that court may satisfy that he is not being
held in custody without lawful authority or in unlawful manner
(writ of habeas corpus). II) Requiring a person to show under
what authority of law he holds office (writ of quo-waarranto).
In this article person includes a body politic or corporate any
authority or under Federal Govt: or Provincial Govt: and any
Court or Tribunal.
Function of Writ Issued under Art.199: The writ issued b the
HC in exercise of is writ jurisdiction under Art.199 of the
Constitution is as follows: Habeas Corpus: To bring body of
person in person on the criminal charges or in civil detention
before the court for satisfying of his detention. Prohibition: To
prevent inferior Courts and tribunals from going beyond
jurisdiction assigned to them by law which created them.
Mandamus: To compel performance of a public duty like
direction to SHO of Police Station to register a case for
cognizable offence in performance of his duties under Section
154 Cr.P.C. Certiorari: To review Orders and convictions of
inferior courts or tribunals to satisfy that they are done with
lawful authority. Quo-Warranto: Injunction no refrain user
patent of public office by requiring a person to show law under
which he holds office.
PROCEDURE FOR FILLING OF WRIT PETITION: Chapter 4 HC
Rules and Orders, Volume 5 prescribes special procedure for
filing of writ petitions for judicial review of administrative
action. According to Chapter 4 a writ petition shall:- a) Set out
concisely in numbered paragraphs facts upon which petitioner
relies. b) Mention grounds upon which HC is asked to make an
order in the nature of writ. c) State exactly nature of relief
sought. d) Be accompanied by an affidavit in roof of facts
mentioned is writ petition. i) State whether petitioner has
moved to HC previously for same relief and if so with what
result. b) Be accompanied by stamp paper off Rs.100. c) Be
placed in prescribed folder.
Conditions necessary for invocation and exercise of writ
jurisdiction: Writ jurisdiction under Art.199 can be invoked by
a party and can be exercised by HC only when following
conditions are fulfilled. A) Petitioner should be an aggrieved
party. A person is an aggrieved party if omission or refusal to
do statuary duties /act adversely effects him in property or
some personal right. B) Petitioner should hear “locus standi”
to file writ petition. The law for determining whether or not a
person has locus standi to file writ petition has been laid down
by the Supreme Court in the case Mian Fazal Din V/s Lahore
Improvement Trust (PLD 1974 1969 S.C 223) C) Petitioner
should show that order impugned by him in the writ petition
suffers from jurisdictional error as per the law laid down by
Supreme Court in the case M. Hussain Muir V/s Sikander (PLD
1974 S.C 139) D) Petitioner should show that he has no
adequate remedy available to him provided by law against the
orders challenged by him in the writ petition. The Supreme
Court has held that adequate remedy would be a bar to
exercise of writ jurisdiction only when adequate remedy
provided by law is equally effected and efficacious (PLD 1979
S.C p.272)
Supremacy of Writ Jurisdiction: The writ jurisdiction of the
HC is constitutional extra-ordinary jurisdiction provided by
Art.199 of the Constitution. It cannot be abridged curtailed or
taken away by ordinary legislation like Act of Parliament. It can
be abridged, curtailed or taken away by a provision made in the
constitution itself Art.212(3) of the constitution constitutes a
bar to the writ jurisdiction of the HC in service matter which
are made appealable by service tribunals created in
furtherance of Art. 212(1) of the Constitution. Any provision in
the statue taking away the provisions of the Constitution with
confers writ jurisdiction upon the C.
Q. Define the Civil Original Jurisdiction, Appellate
Jurisdiction, Revisional Jurisdiction, Reviewable
Jurisdiction and Inherent Jurisdiction of HC?
(1) Civil Original Jurisdiction: Civil original Jurisdiction
means jurisdiction to try a case as trial court or original side.
HC my exercise civil original jurisdiction in following cases: a)
By transfer under clause 9 Letters Patent of the suit to its
original side from a lower court. b) Any matter under
Companies Ordinance 1984. (2) Civil Appellate Jurisdiction:
Civil Appellate Jurisdiction means jurisdiction to set aside,
modify or very judgment, orders or decrees in maters under
civil law. It would include following kinds of Appeal. A) Intra
Court Appeal: (ICA) Appeal filed under Sec: 3 of Law Reforms
Ordinance 1972 from judgment of single judge of HC passed in
writ jurisdiction is called Intra Court Appeal. It is heard and
decided by Divisional Bench of HC consisting of two judges. It
would be competent only when order challenged in writ petition
before single judge was not open to challenge in appeal,
revision or review. Intra Court Appeal would also be competent
under Sec: 15 CPC (Amendment) order, 1980 against interim
order passed by company judge of HC under Companies
Ordinance 1984. B) Regular or Fist Appeal: An appeal filed
under sec: 96 CPC direct to HC is called regular first appeal. It
would be entertained by HC when jurisdiction and court fee
value of suit before trial court was more than Rs.200,000/-
and District Court under Sec: 18 Civil Courts. Ordinance 1952
lacked pecuniary jurisdiction in the matter Regular First Appeal
would be decided by the HC in accordance with procedure laid
down in Rule 1-37 Order XLI CPC. C) Second Appeal: Appeal
filed under sec: 100 CPC against decree of District Court is
called Regular Second Appeal. Appellate decree means decree
of District Court by which either it accepted or dismissed the
appeal filed to challenge decree passed by trial court. Regular
Second Appeal would be decided according to Rules 1-37 Order
XLVII, CPC Regular Second Appeal under Section 100 would be
competent only when a) Decision is contrary to law or some
usage having force of law. b) Decision has failed to determine
some material issue of law or usage having force of law. c) A
substantial error or defect in procedure is shown in the order
appealed against.
As a general rule concurrent finding of facts given by two
lower court would not be open to interference in regular
second appeal before HC. Concurrent finding of facts means
finding on question of acts given by trial court which have been
upheld by lover appellate court. Concurrent finding of fact
would be open to interference in regular second appeal before
HC, when it is based on erroneous view of admissibility of
documents or suffers from misreading/non-reading of
evidence on record. D) Execution First Appeal: Execution
First Appeal is a direct appeal to the HC arising from execution
proceedings in a case involving jurisdiction and court fee value
of R.200000/- or more. The Execution First Appeal shall be
decided by the HC by following procedure for appeal laid down
in Rules 1-37 Order XLI CPC. E) Execution Second Appeal:
Execution second appeal is an appeal against order of District
Court passed in a case arising in execution proceedings
pending before execution court. The hearsay shall be decided in
accordance with procedure for appeals laid down in Rules 1-37,
Order XLI CPC. F) Firs Appeal From Order: First appeal from
order is an appeal under Section 28 Cantonments Rent
Restriction Act,