Law of Writs System in Pakistan History,Concept, Nature and Scope

INTRODUCTION

The Law relating to Writs System of Pakistan has been enacted in

articles 184 and 199 of the Constitution of Islamic Republic of Pakistan

1973 which has encapsulated and provided the the schemic procedure of

issuing writs by the Supreme Court of Pakistan and High Courts of Pakistan.

There are so many Writs apart from the Writs in the nature of habeas

corpus,mandamus and prohibition,certiorari and quo warranto, that are writ

of acceleration, writs of assistance, Writ of error(Error coram nobis), The

Writs of Amparo and Habeas Data etc.

The Law of Writs provides sure and speedy relief and protection to

the citizens from the infringement of their fundamental rights by the

capricious actions of public functionaries and beaurocracy.

The law is that the Supreme Court and High Courts cannot refuse

relief under the Articles 184 and 199 on the ground of alternative remedy if

the person complains of violation of his fundamental rights.

Part II Chapter 1 of the Constitution of Pakistan deals with the

fundamental rights of a person. This part is also called the heart of the

Constitution, which provides right to life and liberty, equality before law,

freedom of speech and expression, liberty of thought belief and worship,

cultural & educational right, fair trial and right against discrimination, etc. A

writ can be filed before High Court or Supreme Court in case of

infringement of the fundamental rights under Article 199 & Article 185 of

the constitution of Pakistan respectively.

Supreme Court entertain writ only in those cases where there is

violation of fundamental rights, however under Article 199 a writ petition

can be filed in High Court even in case of infringement of legal rights. Any

citizen of Pakistan can file a writ petition, however, a foreigner can also file

writ petition for enforcing his right to life and equality before law. Court can

also issue writ in the interest of justice and public interest.

Writ petitions are divided into two categories according to its nature,

i.e. Civil Writ Petition and Criminal Writ Petition. A writ is granted when

there is violation of fundamental right or legal rights of person and when the

inferior court, tribunal, board, or public officer has acted illegally or

exceeded its jurisdiction or have no jurisdiction or there is violation of

principle of natural justice i.e. the petitioner has not been grant opportunity

to be heard or the allegations against him has not been disclosed to him and

there is no other equally speedy and adequate remedy is available. Writ of

habeas corpus can be filed for illegal detention if a person is illegally

detained for more than 24 hours without producing him before a magistrate

within 24 hours. The issues are resolved in the writ when there is only

disputed question of law. The issues of pure facts which need trial are not

resolved in the writ.

The courts at all levels are required, through proceedings in proper

form, to scrutinize the exercise of public power. They enjoy full protection

under the Judicial Officers (Protections) Act, 1950, for their actions in their

judicial capacity. There is also in Pakistan a jurisdiction provided to the

High Courts under Article 199 of the Constitution which is similar in

character or quality to that of the British High Court of Justice in the

prerogative jurisdiction. Article 199 is intended to replace the writs of

habeas corpus, certiorari, mandamus,prohibition and quo warrants which are

in use in England. In Part-II of our Constitution those writs have been

enshrined in Articles 8 to 28. The citizens of Pakistan appear to be making,

within their means, the maximum possible use of the facility scrutiny by the

Courts of the exercise of public power is called the judicial review of

administrative actions.

Issuance of a writ is an exercise of an extraordinary jurisdiction of

the superior courts in Pakistan. In Law a writ is a formal written order

issued by a body with administrative or judicial jurisdiction; in modern

usage, this public body is generally a court.

Therefore I am intended to have a research study to complete my

LLM on Law of writs system in Pakistan and its history,concept, nature and

scope, and judicial review in Pakistan.

Muhammad Asghar Advocate, Mardan

Definition of Writ: a writ is a formal written order issued by a body

with administrative or judicial jurisdiction; in modern usage, this public

body is generally a court. Warrants, prerogative writs and subpoenas are

different types of writs; there are many others.

A “writ” is an order from a higher court ordering a lower court

to do something too.

writ - Bouvier's Law Dictionary, Revised 6th Ed (1856) :

WRIT, practice. A mandatory precept issued by the authority, and in the

name of the sovereign or the state, for the purpose of compelling the

defendant to do something mentioned therein.

2. It is issued by a court or other competent jurisdiction, and is

returnable to the same. It is to be under seal and tested by the proper

officer, and is directed to the sheriff, or other officer lawfully

authorized to execute the same. Writs are divided into, 1. Original. 2. Of

mesne process. 3. Of execution. Vide 3 Bl. Com. 273; 1 Tidd, Pr. 93;

Gould on Pl. c. 2, s. 1. There are several kinds of writs, some of which are

mentioned below.

An instrument in writing, under seal, in an epistolary form, issued from the

proper authority, commanding the performance or nonperformance of some

act by the person to whom it is directed; as, a writ of entry, of error, of

execution, of injunction, of mandamus, of return, of summons, and the like.

[1913 Webster]

Writ: A past tense and a past participle of write.

A written order issued by a court, commanding the party to whom it is

addressed to perform or cease performing a specified act. A document under

seal, issued in the name of the Crown or a court, commanding the person to

whom it is addressed to do or refrain from doing some specified act Official

name claim. In modern practice, a writ is a formal written order of a court

commanding someone to do something or refrain from doing something. In common law, an order issued in the name of a sovereign or court

commanding a person to perform or refrain from performing a specified act.

It was a vital official instrument in Old English law. A plaintiff would

commence a suit by choosing the proper form of action and obtaining a writ

appropriate to the remedy sought; its issuance forced the defendant to

comply or to appear in court. Writs were also constantly in use for financial

and political purposes of government. Though the writ no longer governs

civil pleading and has lost many of its applications, the extraordinary writs,

especially of habeas corpus, mandamus (commanding the performance of a

ministerial act), prohibition (commanding an inferior court to stay within its

jurisdiction), and certiorari, reflect its historical importance as an instrument

of judicial authority. Britannica Concise Encyclopedia

Writ, in law, written order issued in the name of the sovereign or the state

in connection with a judicial or an administrative proceeding. Usually the

writ requires the person to whom the command is issued to report at a fixed

time (the return day) with proof of compliance or a justification for

disobedience. Apparently the exchequer was the first royal office in England

to issue writs in transacting its business. The common-law courts, which

administered justice for the king, found their required authorization to take a

case in the original writ issued out of the chancery. The original writ (or

original process) was essentially an order to the defendant to satisfy the

plaintiff's demand or stand trial. Orders issued in the course of the trial (e.g.,

to produce a witness) were writs of mesne (middle) process. At the end of

the case the successful plaintiff would be awarded a writ of execution (a type

of final process) to carry the judgment into effect. The original writs were

extremely limited in number. The Statute of Westminster (1285), which

permitted the chancery to vary the terms of the existent writs slightly but

forbade the issuance of new writs, in time worked great hardships. However,

the principle, "no writ, no right" was at least partially overcome by the

development of equity as a separate system of justice. By the 18th cent. the

use of original writs fell into disuse and cases were initiated by service of a

summons. Several of the prerogative writs (writs issued as a matter of

sovereign right) still survive, notably habeas corpus and mandamus. The

term writ usually is not applied to other types of compulsory process in

current use.

Columbia Encyclopedia

An order issued by a court requiring that something be done or giving

authority to do a specified act.

The development of English common law relied on the courts to issue writs

that allowed persons to proceed with a legal action. Over time the courts also

used writs to direct other courts, sheriffs, and attorneys to perform certain

actions. In modern law, courts primarily use writs to grant extraordinary

relief, to grant the right of appeal, or to grant the sheriff authority to seize

property. Most other common-law writs were discarded in U.S. law, as the

courts moved to simpler and more general methods of starting civil actions.

U.S. courts commonly use several extraordinary writs, which are issued only

when the courts believe that usual remedies have failed. The writ of habeas

corpus, sometimes called the "great writ," is probably the best-known

example of a writ. A writ of habeas corpus is a legal document ordering

anyone who is officially holding the petitioner (the person requesting the

writ) to bring him into court to determine whether the detention is unlawful.

A federal court can hear an application for a writ of habeas corpus by a state

prisoner who is being held in custody, allegedly in violation of the U.S.

Constitution or the laws of the United States.

The writ of mandamus is an extraordinary writ that directs a public official

or government department to take an action. It may be sent to the executive

branch, the legislative branch, or a lower court. The famous case of Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), which established the

right of judicial review of congressional statutes, was an action for a writ of

mandamus. William Marbury asked the court to issue the writ to Secretary

of State James Madison, commanding him to deliver his judicial

commission. The Court, however, refused to issue the writ of mandamus.

The writ of prohibition is another extraordinary writ and is the opposite of a

writ of mandamus, because it commands a government official not to take a

specified action. The most common use of the writ is by an appellate court to

a lower court, commanding the lower court to refrain from a proposed

action. For example, a trial court might grant a request by the news media to

release information from a court file. A defendant who objects to the release

could petition for a writ of prohibition from the court of appeals. If the

appellate court issues the writ, the trial court may not release the

information.

The writ of certiorari is an extraordinary writ issued by an appellate court

that is used by that court when it has discretion on whether to hear an appeal

from a lower court. If the writ is denied, the lower court decision remains

unchanged. The U.S. Supreme Court has used the petition and writ of

certiorari to control its caseload since 1925.

The extraordinary writ of quo warranto starts a proceeding in which the state

challenges the legality of the use of an office, franchise, charter, or other

right that can be held or used under authority of the state. For example, a

writ of quo warranto would be used to remove a person who illegally holds

public office, or to nullify an illegal amendment to a municipal charter.

A writ of attachment is a court order used to force obedience to another

order or a judgment of the court. It was originally used to order a sheriff or

law enforcement officer to take a disobedient party into custody and to bring

her before the court to answer for the contempt. In modern law, a writ of

attachment orders seizure of the defendant's property rather than the

defendant's person to secure the satisfaction of a judgment that has not yet

been secured. Modern law limits the scope and effect of attachment

procedures to safeguard the defendant's rights to liberty and process of law.

A writ of execution may be issued after a plaintiff wins a judgment in a civil

case and is awarded damages. The writ directs the sheriff to take the

property of the defendant in satisfaction of the court-imposed debt.

A writ of entry is an instrument used in an action brought to recover land

wrongfully withheld from the true owner or tenant entitled to possession and

use of the land. It establishes who is entitled to possession of a parcel of land

but does not settle the issue of who is the true owner. The central inquiry is

which of the two individuals has the superior right of possession and use of

the land at the time of the action.

To determine the priority of the rights of the parties fighting over land, the

court must consider how and when each individual acquired ownership or

possession. In general, modern laws permit the recovery of monetary

damages for rent or abuse of property, as well as recovery of possession of

the land. The individual who has been in possession of the land may be

compensated for any improvements he has made in the property.

The writ of entry is used in only a few states to recover the possession of

land. It has been replaced by the action to recover possession of real

property.

A writ of error is an order issued from an appellate court directed to the

judge of a lower court, mandating the judge to release the trial record of an

action in which the judge has entered a final judgment. The appellate court

issues the writ so that it may review the case and either reverse, correct, or

affirm the lower-court decision. Most states have replaced the writ of error

with a simpler appellate document, usually called the notice of appeal. Law

Encyclopedia.

Writ, in law, documentary court orders issued to authorize actions in specific

legal situations. Writs variously prescribe or forbid certain acts, enforce

rights, or redress wrongs. A writ of habeas corpus, for example, safeguards

individuals from being unlawfully taken into custody, and a writ of error

from a superior court orders an inferior court to provide records of legal

proceedings in order to ascertain whether the law has been erroneously

applied. The term writ was formerly applied in Anglo-Saxon England to any

written, sealed pronouncements by the king.

WRIT - A judicial order. A formal written command, issued from the court,

requiring the performance of a specific act. A mandatory precept issued by

the authority, and in the name of the sovereign or the state, for the purpose

of compelling the defendant to do something therein mentioned.

It is issued by a court or other competent jurisdiction, and is return-able to

the same. It is to be under seal and tested by the proper officer, and is

directed to the sheriff, or other officer lawfully authorized to execute the

same. Writs are divided into, 1. Original. 2. Of mesne process. 3. Of

execution. There are several kinds of writs.

The writ was originally an administrative command issued by the king to a

subject, often an official such as the sheriff. After the Norman Conquest, and

especially after the reign of Henry I, the king might issue a writ to permit a

subject.

An official court document, signed by a judge or bearing an official court

seal, which commands the person to whom it is addressed, to do something

specific.

A written order from a judge requiring specific action by the person or entity

to whom the writ is directed. Writs can be directed to other, lower court

judges (writ of mandamus); to prison officials (writ of habeas corpus); and

others. Nolo’s Dictionary.

A writ is the written order issued by a judge usually before the proclamation

of judgment or ruling , directing a person or entity to perform certain act or

abstain from doing certain acts till such pendency of the writ.

A writ is a legal document that orders a person to do a particular thing. He

issued a writ against one of his accusers. A past tense and a past participle of

write. a document from a court that orders someone to do or not to do

something. writ large a) very easy to notice. In common law, an order issued

in the name of a sovereign or court commanding a person to perform or

refrain from performing a specified act. It was a vital official instrument in

Old English law. A plaintiff would commence a suit by choosing the proper

form of action and obtaining a writ appropriate to the remedy sought; its

issuance forced the defendant to comply or to appear in court. Writs were

also constantly in use for financial and political purposes of government.

Though the writ no longer governs civil pleading and has lost many of its

applications, the extraordinary writs, especially of habeas corpus, mandamus

(commanding the performance of a ministerial act), prohibition

(commanding an inferior court to stay within its jurisdiction), and certiorari,

reflect its historical importance as an instrument of judicial authority.

Judicial Writs, * Eng. practice. The capias and all other writs subsequent to

the original writ not issuing out of chancery, but from the court into which

the original was returnable, and being grounded on what had passed in that

court in consequence of the sheriff's return, were called judicial writs, in

contradistinction to the writs issued out of chancery, which were called

original writs. 3 Bl. Com. 282.

According to Osborn’s Law Dictionary the “Writ” means a document

in the Kings name and under the seal of the Crown, a court or an officer the

crown, commanding the person to whom it is addressed to do or forbear

from doing some act. In Blacks law dictionary ‘writ’ is described, among

others, as a judicial order to perform specified act or giving authority to have

it done.

In Maitland’s “History of English Law” ‘writ’ has been defined as

Kings order to his liege written on parchment and sealed with the Royal seal

and disobedience of which was contempt of the Royal authority and

punishable as such. (Carter)[MAITLAND,History of English Law,p.25.]

In Blackstone’s Dictionary it is stated that writ is a mandatory letter

from the King in Parliament, sealed with his seal and directed to the Sheriff

of the country wherein the wrong is committed or supposed to be, requiring

him to command the wrongdoer or party accused, either to do justice to the

complaintant or else to appear in court and answer the allegations against

him.[BLACKSTONE, commentries(iii), C.18.]

Stroud: A writ is the process by which civil proceedings in the High

Court are generally commenced. There are many other kinds of writ, e.g.

writ of execution, writ of error, writ for the election of a Member of

parliament, etc, issued in the name of the reigning monarch, for the doing, or

not doing, of some act or thing.[ Judicial Dictionary of Words and

Phrases,Vol.IV, p.3346]

In Concise Oxford Dictionary the word “Writ” is defined intera alia

as a form of written command in name of sovereign, state or court, issued to

an official or other person and directing him to act or abstain from acting in

some way.

I will take meaning of ‘Writ” as a legal document issued by the court

to an official or state functionaries or other persons directing to act or abstain

from acting in the manner mentioned therein or a court's written order, in the

name of a state or other competent legal authority, commanding the

addressee to do or refrain from doing some specified act.

of the sovereign or the state, for the purpose of compelling the defendant History and Development of Writs: To discuss about the history and

development of writs in undivided India we will will have to go back to the

days of East India Company. In 1618, Sir Thomas Roe, the Ambassador, of

James I, the King of England to Mogul India, had secured from King

Jehangir, the concession that the disputes between the englishmen at the

factory at Surat, which they have established there with his permission,

should be decided by themselves alone. Later on the East India Company

with the permission of the Moghul Emperor, had built fortifications at

madras and Calcutta. Qazis were sent to administer justice to the Indians

alone as the British had already been permitted to be adjudged under their

own laws but these Qazis were corrupt and could not perform their duties

properly. It created the necessity to constitute a regular judicial authority to

dispense justice to the public living within the territorial limits of the East

India Company’s possession. This was the start of the introduction of

english system of Law in some parts of India. Then King Charles-II

authorised the estblishment of the Court of adjudicature within the

Company limits, consisting of one judge and two merchants. All those

persons living within the territorial limits of the company were administered

justice under the laws of England. It was how the common law of England in

vogue in England, came to be introduced and established in some parts of

this sub-continent.

In 1726 Mayor’s Courts were established at Madras, Bombay, and

Calcutta by Letter Patent,which were considered as the King's Court. In

1753 the Mayer’s Courts were substituted by courts of requests at Madras,

Bombay and Calcutta with certain amendments by the new Charter. The

establishment of Mayer’s courts or the Courts of requests did not mean that

the native courts were altogether abolished in the territories under the

Companys control. In 1765 the East India Company obtained the grant of the

Dewani from the Moghal Emperor for consideration of payment of rupees

sixty five lacs annually for the territories constituting Bihar, bengal and

orissa. It authorised the Company to collect the revenues and administer

civil justice in the said territories. In 1772, Lord Warren Hastings devised a

scheme which placed entire administration of justice and collection of

revenues under the supervision of Engliah officers and thus made the

company actual Dewan. Each district was placed in the charge of Collector

assisted by native Dewan. The Collector and Dewan constituted a court of

civil justice called the Dewani Adalat from which an appeal lay to the

Saddar Dewani Adalat at Calcutta composed of the Governor and Council.

They were assisted by Native Officers. Similarly a court of Faujdari Adalat

was established consisting of a Qazi, a Mufti and two Moulvis with whom

the Collector sat to authenticate the proceedings. From which an appeal lay

to the Saddar Nizamat which consisted of a Daroga, a Qazi, a Mufti and

three Moulvis. British Parliament progulmated Regulating Act, 1773 and

intervened for the first time to control the administration of the East India

Company.Consequently, in place of that court, Supreme Court of Bengal

was established which was in fact the attempts to introduce the English ideas

and principles in administration. Clause 21 of a royal charter, dated 26th

March of 1774 authorized the Supreme Court of Calcutta to issue the

prerogative writs of Mandamus, Certiorari, Procedendo and error.In British

India a Supreme Court was first established in 1774 under the Regulating

Act of 1773.This court was first empowered to issue prerogative writs. Later

two Supreme Court were established in Madras and Bombay. These two

courts were also given writ power. Due to some differences with the

Executive authorities of the Company, did not work well. The British

Parliament, therefore again intervened and enacted Statute of 1781. The

statute gave the Supreme Court authority over British subjects

in Bengal and power to hear suits and complaints against persons in the

East India Company's service. The then Governor General's Council

resisted and complained to the authorities in England with the result that a

Statute of 1781 considerably restricted the powers and jurisdiction of the

Supreme Court, the original jurisdiction of the Court was confined to

Calcutta; it was deprived of jurisdiction in revenue matters; the official acts

of the Governor General's Council were exempted from its jurisdiction.1

In 1800 the Supreme Court of Madras like the charter of the Supreme court

in Calcutta, gave the judges the same limited jurisdiction and authority. A

similar situation was created in Bombay when the charter of the Supreme

Court was issued in 1823. The three Supreme Courts amalgamated with the Sadar Adalats to form the High Courts in the Presidency Towns under the

provisions of the Indian High Courts Act, 1861, which provided that these

should exercise such jurisdiction, powers and authority as would be

granted by their Letters Patent. The effect was the former jurisdiction of

the Supreme Court over "British Subjects" outside the Presidency Town

was not transferred to the High Courts, so that it was held that the Calcutta

High Court had no power to grant an information in the nature of quo

warranto against a person residing outside and exercising the powers of an

office outside the town of Calcutta. The powers vested in the High Courts by the Indian High Courts Act were

preserved by subsequent legislation of the Parliament of the United

Kingdom, and though the ban imposed in 1781 on interference in revenue

matters was retained throughout the British period.

The High courts, created under the Indian High Courts Act and subsequent

legislation were not given powers of the presidency High Courts to issue

prerogative writs. The Code of Criminal Procedure 1872 gave European

British subject detained in custody, within or outside the limits of the

territorial Jurisdiction of a Presidency High Court, a right to apply for an

order in the nature of habeas corpus. Subsequently section 148 of the High

Courts Criminal Procedure Act, 1857 set out various purposes for which an

order in the nature of habeas corpus might be made, empowered thePresidency Towns High Courts to make such order within their original

jurisdiction, and forbade the issue of the common law writ of habeas

corpus for any of the specified purposes. The statues of 1872, and 1857

were repealed by the Code of Criminal Procedure of 1882. Under the Act

of 1882 as under Section 491 of the Code of Criminal Procedure, 1898, as

originally enacted, a Presidency High Court could issue a writ of Habeas

Corpus.

The effect of this legislation was that for any of the purposes

mentioned in section 491 of the Code of Criminal Procedure 1898, it was no

longer possible to apply for the common law writ of habeas corpus.

Section 491 of the Code of Criminal Procedure, 1898 was amended in

in relation to persons within the limits of their appellate criminal

jurisdiction. Until 1793, the judicial policy of the Company's Government in Bengal was

guided only by expediency and tradition. The tradition was that of the

Moghul government which entrusted the management of civil justice to the

Executive and those in charge of collection of revenue; and the

expediency—that of discharging the responsibilities of the Diwani with as

little spending from the profits as possible. This is clearly visible in Warren

Hastings's administrative arrangements of 1772 under which the civil

judiciary in the mofussil was consigned to the District Collectors of revenue.

With few interruptions marked by Hastings's administrative experiments, the

practice of keeping the revenue and judicial functions united continued for

the following twenty years. In 1790, when for the first time the Company

took over the administration of criminal justice, the District Magistracy was

also vested with the Collector. He thus became the Judge, Magistrate and

Collector, all in one. This single officers′ plan for the Districts had been

advocated by Sir John Shore as being in conformity with the tradition with

the Indians looking up to a single despotic authority for the redress of all

their grievances, and had found favour with the Directors for the economy

involved.

The India Act of 1784 is occasionally described as the "half-loaf

system" because it sought to intervene between Parliament and the company

directors. This act enhanced the authority of the parliament by establishing

the Board of Control, whose members were elected from the cabinet. The

Charter Act of 1813 acknowledged British moral liability by introducing just

and humanitarian laws in India, portending future social legislative

measures, and banning a number of conventional practices such as sati and

thagi (or thugee, robbery coupled with ritual murder).

As governor general from 1786 to 1793, Charles Cornwallis (the Marquis of

Cornwallis) made the company`s administration more professional, more

bureaucratic, and more Europeanized. He also barred private trade by

company employees, made a distinction between the commercial and

administrative functions, and payed the company servants with generous

graduated salaries. Since revenue collection became the company`s most

crucial managerial function, Cornwallis made a contract with Bengali

zamindars, which were regarded as the Indian counterparts to the British

landed gentry. The Permanent Settlement system, also known as the

zamindari system, fixed taxes for a perpetual time in return for ownership of

large estates.

The High Court at Calcutta, formerly known as the High

Court of Judicature at Fort William, was brought into existence by the

Letters Patent dated 14th May, 1862, issued under the High Court's Act,

1861, which provided that the jurisdiction and powers of the High Court

were to be defined by Letters Patent. The High Court of Judicature at Fort

William was formally opened on 1st July, 1862, with Sir Barnes Peacock as

its first Chief Justice.

The Indian High Courts Act, 1862 is one of the major landmarks in

the growth and development of British system of administration of justice in

this Indo-Pak Sub-Continent. This Act credited for establishment of High

Courts at Calcutta, Madras and Bombay in which the Supreme Courts, Sadar

Dewani Adalat and Sadar Nizamat Adalat were merged. A High Court at

Allahabad was also established in 1866.

The Indian High Court Act, 1861 empowered her majesty Queen

Victoria to issue letters patent establishing High Courts in places of existing

Supreme Court. The jurisdiction and powers of the High Court were

provided under section 9 of the Act. These provisions reproduced with slight

modification in section 106 of the Government of the Government of India

Act, 1915. High Courts of Patna and Lahore were established at Lahore and

Patna under the Indian High Courts Act, 1911. A Chief Court was also

established at Oudh and judicial Commisssioner’s Courts were established in

Central Provinces and Sindh. The High Court of Nagpur was constituted by

Order-in Council in 1936. And later, the Government of India Act, 1935

gives the power to issue writs under the section 223, to be exercised in a

limited manner to the three presidencies only. Government of India Act,

1935 has provided the bedrock to all succeeding Constitutions in India and

Pakistan. A Fedral Court of India was established under the Act consisting

of the Chief Justice of India and such number of other judges as His Majesty

might find necessary.

Before the conferment of powers on High Courts under the

Government of India Act, 1935, the only provision in the law for the issue of

the Writ was section 45 of the Specific Relief Act, which by its expression,

was confined to Presidency towns alone where, by a fiction of Law, the High

Court occupied, in certain circumstances, the similar as the superior courts

of Record in London. In the Government of India Act, 1935, as it was

originally enacted, there was no provision conferring power on High Courts

to issue a writ. It was in 1954 that a new section 223-A was inserted in the

Act which vested High Courts in Pakistan with powers to issue writs which

is read :

“223-A. Power of High Courts.--- Every High Court shall have power

throughout the territories in relation to which it exercises jurisdiction, to

issue to any person or authority, including in appropriate cases any

Government within those territories, Writs including writs in the nature of

habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of

them.”

It was the first time this act conferred power on the High Courts to

issue writs. The language of the section 223-A clearly implied the power of

High Courts to issue Writs was not confined to the writs in the nature of

habeas corpus, mandamus etc.

Afterwards the constitution of the India adopted in 1949, has

empowered the Supreme Court (article 32) and all the High Courts (article

226) of India to issue writs in the nature of habeas corpus, mandamus,

prohibition, quo-warranto, and certiorari. Accordingly the constitution of

1956 of Pakistan gave the power to issue writs both the Supreme Court

(under article 22) and High Court (under article 170) with the specific name.

The powers of High Court in issuing writs were wider under Article 170 of

the 1956 Constitution than under section 223-A of the Government of India

Act, 1935. Another important point is that while under section 223-A of

1935 Act the word used is only writ the phraseology employed in Article

170 of the 1956 Constitution is wider as the words used are “directions,

orders or writs.” But in the 1962's constitution of the Pakistan, Writ

jurisdiction was given to the only High Courts under article 98 with no

particular name at all in words. Article 201 of the Interim Constitution of

Islamic Republic of Pakistan, 1972 contained the provision regarding issue

of writs and was subsequently repealed by Article 266 of the Constitution of

Islamic Republic of Pakistan, 1973. The High Court has such jurisdiction as is conferred on them by the

Constitution or by law (Art. 175(2) of the 1973 Constitution). Article 199 of

the Constitution of 1973 deals with the extra-ordinary jurisdiction of the

High Courts. It provides for the issuing of directions and orders by the High

Courts to any person or authority in the country, prohibiting, commanding,

calling in question acts done or intended to be done by such person or

authority, in specified circumstances. In fact, the jurisdiction to issue these

orders is analogous to the jurisdiction of issuing the well-known prerogative

writs, which have not been mentioned by their traditional names of the writs

of mandamus, certiorari, prohibition, quo warranto and habeas corpus. The

system of writs derives its origin from Common Law, but since 1938, in

England the word “writ” has been replaced by “order” and the same

precedent has been followed in the Constitution of 1973. The effect of

omission of the traditional names of the writs has been calculated to give to

the court a wider scope to issue a particular direction, because the court

would not be bound in the issuance of such direction to restrict itself to the

rigid rules applicable to prerogative writs. This is all about the history and development of system of

writs in Pakistan from the british era in Sub-Continent from 1618 to 1973

and having wider scope than the Writs issued in India.

Different Kinds of Writs: 1.The writ of prohibition is issued

by a higher court to a lower court prohibiting it from taking up a case

because it falls outside the jurisdiction of the lower court. In doing so, the

higher court seeks a transfer of the case to itself

2.The writ of habeas corpus means 'let us have the body'. It is a writ

issued to a detaining authority to produce the detained person in court to

know cause for detention. If the detention is found to be illegal, the court

issues an order to set the person free.

3.The writ of certiaurari is one of the writs issued by the High Court or

the Supreme court to protect the Fundamental rights of the citizens. It is

issued to a lower court directing it that the record of a case be sent up for

review with all the files, evidence and documents with an aim to overrule

the judgement of the lower court.

4.The writ of mandamus is an order of a court of law issued to a

subordinate court or an officer of government or a corporation or any

other institution commanding the performance of certain acts or duties.

5.The writ of quo warranto is issued against a person who claims or

usurps a public office. Through this writ the court inquires 'by what

authority' the person supports his or her claim.

Other writs:

i).writ of attachment - for the arrest of a person or the seizing of property

ii).writ of capias - directs an officer to take into custody the person

named in the writ or order

iii).writ of elegit - ordering the seizure of a moiety of a debtor's lands and

all his goods (except work animals) towards satisfying a creditor until the

debt was paid off.

iv).writ of error - writ issued by appellate court directing lower court of

record to submit its record of the case laid for appeal.

v).writ of exigent (or exigend) - commands a sheriff to summon a

defendant indicted of a felony, who had failed to appear in court, to

deliver himself up upon pain of outlawry or forfeiture of his goods

vi).writ of fieri facias - commands a sheriff to take and auction off

enough property from a losing party to pay the debt (plus interest and

costs) owed by a judgment debtor.

vii).writ of mittimus - orders either (1) a court to send its record to

another or (2) a jailor to receive the accused in his or her custody at any

point during the investigative or trial process

viii).writ of ne exeat - restrains defendant if he/she is shown to flee the

country where he/she is being tried

ix).writ of praemunire - instructs a sheriff to order someone to appear in

court to answer for a number of different crimes

x).writ of supersedeas - contains a command to stay the proceedings at

law.

xi).writ of venire facias - used to summons jurors to appear in court

xii). court order (a writ issued by a court of law requiring a person to do

somethong or to refrain from doing something)

xiii). subpoena; subpoena ad testificandum (a writ issued by court

authority to compel the attendance of a witness at a judicial proceeding;

disobedience may be punishable as a contempt of court)

xiv). process; summons (a writ issued by authority of law; usually

compels the defendant's attendance in a civil suit; failure to appear results

in a default judgment against the defendant)

xv). writ of detinue (a writ ordering the release of goods that have been

unlawfully detained)

xvi). sequestration (a writ that authorizes the seizure of property)

xvii). scire facias (a judicial writ based on some record and requiring the

party against whom it is brought to show cause why the record should not be

enforced or annulled)

xviii). subpoena duces tecum (a writ issued by a court at the request of one

of the parties to a suit; it requires a witness to bring to court or to a

deposition any relevant documents under the witness's control)

Writ Jurisdiction of Supreme Court: Article 184 (3) of the Constitution

of Islamic Republic of Pakistan confers power on Supreme Court to make

an order like by High Courts in exercise of their writ jurisdiction under

Article 199, where it considers that a question of public importance with

reference to the enforcement of any of the Fundamenat Rights guaranteed by

the Constitution is violated.

Clause (3) of Article says:

“(3) Without prejudice to the provisions of Article 199, the

Supreme Court shall, if it considers that a question of public importance with

reference to the enforcement of any of the Fundamental Rights conferred by

Chapter I of Part II is involved have the power to make an order of the

nature mentioned in the said Article.”

This clause bags the following four essential ingredients for the

purpose of issuance of writs similar to those issued by High Court under

Article 199:

I).The matter in which the writ is sought must be of public

importance means thereby it should not be a mere private grievance against

the government or a public functionary without having impact on general

public.

II). Its up to the satisfaction of the Supreme Court that the matter

involved in the petition is of Public importance.

III). The matter so brought before the Supreme Court must be with

reference to the enforcement of any of the Fundamental Rights as provided

in part II of the Chapter I of the Constitution.

IV). The order that the Supreme Court can make under this Article

must be in the nature as mentioned in Artcle 199. Fundamental Rights which could be enforced by Supreme Court

through Writs: Following are the fundamental rights which can be enforced

by Supreme Court by excercising its writ jurisdiction if the question

involved is of public importance:

i). Security of person (Article 9). No person shall be deprived of life

or liberty save in accordance with law.

ii). Safeguards as to arrest and detention (Article 10). No person who

is arrested shall be detained in custody without being informed, as soon as

may be, of the grounds for such arrest, nor shall he be denied the right to

consult and be defended by a lawyer of his choice and such arrested person

shall be produced before a magistrate within a period of twenty-four hours

of such arrest, excluding the time necessary for the journey from the place of

arrest to the court of the nearest magistrate, and no such person shall be

detained in custody beyond the said period without the authority of a

magistrate. Certain exceptions like preventive detentions have been made in

the Article.

iii). Fundamental Right regarding safegaurds against Slavery, forced

labour, etc.

iv). Protection against retrospective punishment ( Artcle 12).

v). Protection against double punishment and self incrimination

(Article 13).

vi). Inviolability of dignity of man and privacy of home and no

person shall be subjected to torture for the purpose of extracting evidence.

vii). Freedom of movement, etc: Every citizen shall have the right to

remain in, and, subject to any reasonable restriction imposed by law in the

public interest, enter and move freely throughout Pakistan and to reside and

settle in any part thereof (Artcle 15).

viii). Right to freedom of assembly: Every citizen has the right to

assemble peacefully and without arms, subject to any reasonable restrictions

imposed by law in the interest of public order (Artcle 16)

xi). Freedom of association under this Fundamental Right: Every

citizen has a right to form an association or unions, and if he is not in the

service of Pakistan, he shall also have right to form or be a member of

poltical party, these rights are subjected to reasonable restrictions in the

interest of sovereignity or integrity of Pakistan, public order or morality

(Artcle 17).

x). Freedom of trade, business or profession : every citizen has the

right to enter upon any lawful profession or occupation, and to conduct any

lawful trade or business provided he fulfils the requesit qualification for such

profession or occupation as are presented by law (Artcle 18).

xi). Freedom of speech, etc: Every citizen shall have the right to

freedom of speech and expression, and there shall be freedom of the press,

subject to any reasonable restrictions imposed by law (Artcle 19).

xii). Freedom to profess religion and to manage religious institutions:

Subject to law, public order and morality:- every citizen shall have the right

to profess, practise and propagate his religion; and every religious

denomination and every sect thereof shall have the right to establish,

maintain and manage its religious institutions (Artcle 20).

xiii). Safeguard against taxation for purposes of any particular religion:

No person shall be compelled to pay any special tax the proceeds of which

are to be spent on the propagation or maintenance of any religion other than

his own (Article 21). xiv). Safeguards as to educational institutions in respect of religion, etc:

No person attending any educational institution shall be required to receive

religious instruction and worship if such instruction, ceremony or worship

relates to a religion other than his own (Artcle 22).

xv). Provision as to property: Every citizen shall have the right to

acquire, hold and dispose of property in any part of Pakistan, subject to the

Constitution and any reasonable restrictions imposed by law in the public

interest (Article 23).

xvi). Protection of property rights: No person shall be compulsorily

deprived of his property save in accordance with law (Artcle 24).

xvii). Equality of citizens: All citizens are equal before law and are

entitled to equal protection of law and there shall be no discrimination on the

basis of sex alone but State could make any special provision for the

protection of women and children (Artcle 25).

xviii). Non-discrimination in respect of access to public places: There

shall be no discrimination against any citizen in respect of access to places

of public entertainment or resort not intended for religious purposes (Artcle

26).

xix). Safeguard against discrimination in services: There shall be no

disrimination in respect of appointment in the service of Pakistan for citizens

if otherwise qualified for appointment, on the ground only of race, rekigion,

caste, sex, residence or place of birth provided that for a period not

exceeding twent years from the commencing day, posts may be reserved for

persons belonging to any class or area to secure their adequate representation

in the service of Pakistan and it is further provided that in the interest of the

said service, specified posts or services may be reserved for members of

either sex if such posts or services entail the performance of duties and

functions which cannot be adequately performed by members of the other

sex (Article 27).

xx). Preservation of language, script and culture : Subject to Article

251 any section of citizens having a distinct language, script or culture shall

have the right to preserve and promote the same and subject to law, establish

institutions for that purpose (Artcle 28).

The jurisdiction of the Supreme Court to issue writs under the

Constitution of Islamic Republic of Pakistan 1973 is thus confined to the

matters relating to Fundamental Rights where the question of public

importance is involved.

Salient Features of the writ Jurisdiction of the Supreme Court: 1). Locus standi : The Court does not insist of locus standi of the

applicant whereas under Artcle 199 the applicant must be an aggrieved

person for the issuance of orders in the nature of writs of prohibition,

mandamus and certiorari, there is nothing in clause 3 of Article 184 which

could suggest that only an aggrieved person can approach Supreme Court for

the issuance of orders for the enforcement of Fundamental Rights. It has no

power to make orders in cases relating to other legal rights or excess of

jurisdiction committed by public or statutory functionaries unless such

ommission or commission or other impuned acts are relatable to the

enforcement of Fundamental Rights.

2). Public interest or human rights litigation: Article 184(3) has

assumed great value in recent times as the Supreme Court, giving liberal

construction to clause 3 of the Artcle 184, has taken cognizance of serious

violation of Fundamental Rights of the peoples in many cases and acting on

its own, thats suo moto action on receiving letters or fax or newspapers have

provided relief and redress to the needy or aggrieved persons.

3). Question of public imortance: Its not mere violation of a

Fundamental Right of a person which will entitle him to come to the

Supreme Court for issuance of a writ; such violation must be of public

importance. Its for the Court to consider whether or not the question

involving enforcement of Fundamental Right is of public importance. It is

however, evident that for a case to be of public importance it must, prima

facie, raise a question which is of interest to or affects the whole mass of

the people or entire community and it should apparently be affecting the

legal rights and/or liablities of the public at large though the applicant

himself may be of no particular consequence.

In case of Miss BENAZIR BHUTTO – Petitioner Vs. FEDERATION OF

PAKISTAN and another –Respondents, P L D 1988 Supreme Court 416.

Supreme Court, can exercise its power to issue the writ only when element

of "public importance" is involved while Art.199(1)(c) has a wider scope as

there is no such limitation-Trappings of Art.199(1)(a) and (1)(c) need not be

read into Art.184 (3)--Exercise of power of Supreme Court under Art.184(3)

is not dependent only at the instance of the "aggrieved party" in the context

of adversary proceedings --Traditional rule of locus standi can be dispensed

with and procedure available in public interest litigation can be made use of,

if it is brought to the Court by the person acting bona fide--Provisions of Art

.184(3), therefore, have provided abundant scope for the enforcement of the

Fundamental Rights of an individual or a group or class of persons in the

event of their infraction and it would be for the Supreme Court to lay down

the contours generally in order to regulate the proceedings of group or class

actions from case to case.

It is only when the element of "public importance" is involved that the

Supreme Court can exercise its power to issue the writ while sub-Article

1(c) of Article 199 has a wider scope as there is no such limitation therein.

4). Without prejudices to the provisions of Article 199: The opening

words "without prejudice" in Article 184(3) mean only not affecting, saving

or excepting and when read with the words following thereafter, "to the

provisions of Article 199", the expression means no more than to save the

provisions of Article 199 without, in any way, superimposing itself on the

power of the Supreme Court to decide a question of public importance

relating to the enforcement of any of the Fundamental Rights. What it aims

at is that it leaves the power of the High Court under Article 199 intact. It is

for the party who is affected to choose which of the two forums it wishes to

invoke, and if it be the Supreme Court then the power exerciseable is subject

to the limitation under Article 184(3), that is, that the element of "public

importance" must be involved in the enforcement of Fundamental Rights.

The power conferred on the Supreme Court by Article 184(3) is distinct and

has its origin in Article 22 of the 1956 Constitution and is exerciseable on its

own terminology. The impression, that the trappings of sub-Articles 1(a) and

1(c) of Article 199 are also to be read into this Article appears to be without

substance as there are no words in Article 184(3) to incorporate them except,

of course, the words "make an order of the nature mentioned in the said

Article", which are specifically referable to the nature of the order in

sub-Article 1(c) of Article 199 giving such directions as may be appropriate

for the enforcement of any of the Fundamental Rights. The nature of the

order, however, is the end-product of the judicial power exercised.

Therefore, it ,will not control or regulate, in any way, the exercise of power

so as to make it exerciseable only at the instance of the "aggrieved party" in

the context of adversary proceedings.

In this view of the matter the words “without prejudice to the

provisions of Article 199” appearing in the biginning of clause 3 of Article

184 means no more than to save the powers to conferred on High Courts

under Article 199, without in any way superimposing its provision on the

powers of Supreme Court to decide a question of public importance relating

to the enforcement of any of the Fundamental Rights.

Now as to the nature of the order, Article 184(3) is worded to

incorporate the order of the nature which the High Court can pass under

Article 199(1)(c). Referring to it, it is worded in the widest possible terms

which is a clear manifestation of the intention of the framers of the

Constitution not to place any procedural technicalities in the way of the

enforcement of Fundamental Rights, be it of an individual or group or class

of persons.

Lastly is the consideration of the connotation of the expression

"public importance" which is tagged to the enforcement of the Fundamental

Rights as a precondition of the exercise of the power. This should not be

understood in a limited sense, but in the gamut of the constitutional rights of

freedoms and liberties, their protection and invasion of such freedoms in a

manner which raises a serious question regarding their enforcement. Such

matters can be viewed as of public importance, whether they arise from an

individual's case touching his humor, rights of liberty and freedom, or of a

class or a group of persons as they would also be legitimately covered by

this expression.

In order to acquire public importance, the case must obviously raise a

question which is of interest to, or affects, the whole body of people or an

entire community. In other words, the case must be such as gives rise to

questions affecting the legal rights or liabilities of the public or the

community at large, even though the individual, who is the subject-matter of

the case, may be of no particular consequence.

Having regard to the connotation of the words "public importance" it

will be for the Supreme court to consider in each case whether the element

of "public importance" is involved in the enforcement of the Fundamental

Rights irrespective of the individual's violations or the infractions of a group

or a class of persons.

As provisions of Article 184(3) is open-ended, the proceedings could

either be maintained by an individual whose Fundamental Rights are

infracted or by a person bona fide alleging infraction of the Fundamental

Rights of a class or a group of persons, as there is no rigid incorporation of

the notion of "aggrieved person.''

It is not correct that it is only an aggrieved party who can activise the

proceedings for the enforcement of the Fundamental Rights under Articles

184(3) of the Constitution as by reason of the fact that the two provisions [

Art _184(3) and Art.199 1(a) 1(c)] are co terminus.

There are two essential conditions for invoking the jurisdiction of Supreme

Court of Pakistan under Article 184(3) of the Constitution. The first

condition is that subject matter of the petition under this Article must be of

public importance and second condition is that it must relate to the

enforcement of any of the fundamental rights conferred by Part-II Chapter-1

of the Constitution.

Original jurisdiction of Supreme Court under Article 184 (3) of the

Constitution cannot be exercised in a matter brought before it unless it is of

public importance involving the enforcement of fundamental rights

conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in

absence of any of the above conditions, Supreme Court is not supposed to

entertain a petition under Article 184 (3) of the Constitution. The object of

Article 184(3) of the Constitution is the enforcement of the fundamental

rights referred therein and no question, other than relating to the

enforcement of a fundamental right, can be brought before Supreme Court

for determination in its original jurisdiction and' an aggrieved person may

avail other remedies open to, him under the law. Supreme Court will not

entertain a petition under Article 184(3) if infringement of any of the

fundamental rights conferred by Part II Chapter 1 of the Constitution is not

involved as the remedy under this Article is only for the enforcement of

fundamental rights. The validity of any law or a provision of Statue if is

challenged on the ground other than being in contravention of fundamental

rights, the Supreme Court would not entertain such challenge in the

proceedings under Article 184(3) of the Constitution, even if the law is

found in contravention of some provisions of the Constitution. The rule is

that Supreme Court will not interfere under this Article unless it is satisfied

that infringement of the right being complained is the fundamental right and

there is a breach of such right. The constitutional jurisdiction of the Supreme

Court under Article 184(3) of the Constitution also cannot be invoked for the

correctness of a judgment of Supreme Court in which a question of law was

decided unless it is established that in consequence to the judgment of

Supreme Court, a fundamental right falling in Part II Chapter 1 of the

Constitution has been violated. The Supreme Court indeed has power to

rectify its own mistake but the provision of Article 184(3) of the

Constitution is invocable only in the matter of public importance relating to

the enforcement of fundamental rights. The question relating to the

determination of the legislative competence or vires of a particular

enactment can only be gone into in the jurisdiction under Article 184(3) of

the Constitution if a case is made out for interference of Supreme Court by

establishing that the law 'enacted was beyond the competence of the

legislature which was not covered by the legislative list and also has invaded

the fundamental rights guaranteed in Part-II, Chapter-1 of the Constitution.

There is always presumption in favour of constitutionality of an enactment

and Courts are not supposed to strike down a law merely on technical

grounds, therefore, a question relating to the correctness or validity of an

order and judgment of the Supreme Court which has otherwise attained

finality, cannot be entertained in the proceedings under Article 184(3) of the

Constitution but the Court may, in an appropriate case, in which a

fundamental right is being infringed, can entertain an original petition as

right to move the Supreme Court in a case of violation of fundamental right

is itself a fundamental right. It is thus essential that existence of a

fundamental right and its breach actual or threatened; must be established to

entertain a petition under Article 184(3) of the Constitution. The power of

the Supreme Court under Article 184(3) of the Constitution for enforcement

of fundamental right is not confined to the extent of issue of prerogative

writs and also is not necessarily circumscribed by the conditions to limit the

exercise of power, rather this Article is wide enough to consider the question

of public importance relating to the violation of fundamental rights.

The scope of judicial review of the Supreme Court perhaps is most extensive

known to the world of law as the Supreme Court, in exercise of this power,

can examine the validity even of an amendment in the Constitution which is

violative of the basic structure of the Constitution. However, the Supreme

Court in its original jurisdiction under Article 184(3) of the Constitution is

not supposed to give a declaration which has no useful purpose so far as the

public interest is concerned and this power is also not invocable in absence

of a direct and casual violation of fundamental right guaranteed under the

Constitution. The right to vote or right to contest the election is a statutory

right and is subject to the limitation imposed by the Statutes, therefore, the

provision of law relating to such rights may not be challengeable with

reference to the fundamental rights as the right to file a petition under Article

184(3) of the Constitution arises only in a case of infringement of the

fundamental right or a serious threat to infringe such a right but mere

apprehension of breach of fundamental right is not enough to invoke these

extraordinary provisions. Under this provision the Court will not answer a

hypothetical question even if such a question, in its substantial context, may

be of public importance relating to the fundamental rights and similarly the

Supreme Court may refuse to grant relief in exercise of its original

jurisdiction in a case, filed with delay although delay does not take away the

jurisdiction of the Court.

There can be no departure from the constitutional mandate that unless a

matter of public importance concerning with the enforcement of

fundamental rights conferred by Part II, Chapter-1 of the Constitution is

involved in a petition under Article 184(3) of the Constitution, it is not

entertainable.

Unless the matter is of public importance relating to the enforcement of any

of the fundamental rights conferred by Part II Chapter 1 of the Constitution

(Articles 8 to 28), the jurisdiction of the Supreme Court under Article 184

(3) of the Constitution, cannot be invoked. The mere importance of a matter,

without enforcement of any fundamental right or reference to a fundamental

right without any public importance, will not attract the jurisdiction of

Supreme Court under Article 184(3) of the Constitution.

In the light of constitutional mandate as contemplated in Article 184(3) of

the Constitution, Supreme Court may not entertain a direct petition under

Article 184(3) in a matter not involving the enforcement of any of

fundamental rights mentioned therein.

In matters which do not involve enforcement of the fundamental rights of

the public at large as envisaged in Article 184 (3) of the Constitution, a

direct petition in original jurisdiction is not entertainable.

The exercise of jurisdiction under Article 184 (3) of the Constitution is

certainly subject to the condition that matter is of public importance and is

also related to the enforcement of fundamental rights conferred by Part II

Chapter 1 of the Constitution. P L D 2009 Supreme Court 549

Part II Chapter 1 of the Constitution of The Islamic Republic of Pakistan deals with the fundamental rights of a person. This part is also called the heart of the Constitution, which provides right to life and liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship, cultural & educational right, fair trial and right against discrimination, etc.

A writ can be filed before High Court or Supreme Court in case of infringement of the fundamental rights under Article 199 & Article 185 of the constitution of The Islamic Republic of Pakistan respectively.

Supreme Court entertain writ only in those cases where there is violation of fundamental rights, however under Article 199 a writ petition can be filed in High Court even in case of infringement of legal rights.

Who can file a writ: Any citizen of Pakistan can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality

before law. Court can also issue writ in the interest of justice and public interest.

Types of Writs:

1. Habeas Corpus

2. Mandamus

3. Prohibition

4. Certiorari

5. quo warranto

Habeas Corpus

Writ of Habeas Corpus is sought to enforce the right to life. When the life of a person is in peril this writ is sought. Normally this writ is issued in case of illegal detention. This writ can be issued even on a post card sent to the Judge by victim or his relatives.

Mandamus

Mandamus is sought for direction to the subordinate court/tribunal or government officer to perform mandatory duties correctly. Writ of mandamus is most popular writ, which is issued against the arbitrary/illegal acts of government officials including police officers, municipal bodies etc.

Prohibition

Prohibition is an extraordinary writ usually sought requesting an order from the Appellate Court that an inferior court/ tribunal be prohibited from undertaking further action on a case pending before it; commonly know as stay of proceeding.

Certiorari

Certiorari is sough to review/quash the decision of an inferior court/ tribunal or other statutory body where such decision/order is passed in utter violation of principle of natural justice or without jurisdiction. This writ is also sought in case of service related matter for quashing the decision of departmental enquiry proceeding and punishment imposed upon the delinquent employee.

Warranto

The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when (a) the office is of public and of a substantive nature; (b) created by statute or by the Constitution itself, and (b) the respondent has asserted his claim to the office.

Apart from this classification the writ petitions are also divided into two categories according to its nature, ie. Civil Writ Petition and Criminal Writ Petition.

Civil Writ Petition is filed in those case where the issue is of civil nature, ie. Writ for direction to municipal bodies to provide sanitation and water facilities etc. If issue is relating to criminal nature criminal writ is filed, ie. Writ for quashing of FIR, registration of FIR, further investigation of transfer of investigation.

Against whom a writ can be filed:

A writ can be filed only against State and the same is not maintainable against private individual or corporations. However, a private individual or corporation can be a party in the writ partition if relief sought in the writ petition affects his interest.

Who is “State”: “State” has been defined under Part III of the Constitution as "the State" includes the Governmental and Parliament of Pakistan and the Government and the Legislature of each of the States and all local or other authorities within the territory of Pakistan or under the control of the Government of Pakistan. All those organizations/organs where, Government has control in the appointment/removal of office bearer/employees, funding and functions of such authorities. Now the societies registered under societies Act, Universities, Boards etc. are “state”.

Grounds for granting Writ:

A writ is granted when there is violation of fundamental right or legal rights of person and when the inferior court, tribunal, board, or public officer has acted illegally or exceeded its jurisdiction or have no jurisdiction or there is violation of principle of natural justice i.e. the petitioner has not been grant opportunity to be heard or the allegations against him has not been disclosed to him and there is no other equally speedy and adequate remedy is available. Writ of habeas corpus can be filed for illegal detention if a person is illegally detained for more than 24 hours without producing him before a magistrate within 24 hours. The issues are resolved in the writ when there is only disputed question of law. The issues of pure facts which need trial are not resolved in the writ.

Writ jurisdiction of High Court: Article 199 confers powers pn High

Court to issue writs and make such other appt orders which are necessary to

meet the ends of justice and also for the enforcement of Fundamental Rights

provided the petitioner satisfies certain conditions since the present law of

writs is mostly based on Article 199 of the Constitution, which is reproduced

below:

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 any aggrieved party, make

(b) 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 a local authority, to refrain from doing

anything he is not 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 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

(c) 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 ; or

(c) on the 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 1 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 be made under clause (1) on application made by or in relation to a member of the Armed Forces of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan.

(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 a public work or of otherwise being harmful to the public interest or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that 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.

(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.

Nature of writ Jurisdiction : The powers conferred under this article are

popularly called Constitutional Jurisdiction or writ Jurisdiction. Article 199

provides five kinds of orders in nature of writs, viz., habeas corpus,

mandamus, prohibition, quo warranto and certiorari. In English law these

writs are called prerogative writs because they lied within the King’s

prerogative power of control and superintendence over the due observance

of law by his officers. Prerogative writs are considered extraordinary

remedies for the purpose of granting relief in exceptional cases where

ordinary legal remedies are not adequate. Justice Muhammad Munir,

Constitution of the Islamic Republic of Pakistan, A Commentary on the

Constitution of Pakistan, 1973, PLD Publishers, 1996, vol. II, pp901-1109.

Scope of writ Jurisdiction : Writ jurisdiction or constitutional

jurisdiction under Article 199 of the Constitution is paramount and supreme

and every form of limitation which normally restricts the exercise of other

remedies does not in any manner controls or limits its scope. The writ order

or direction issued by a High Court under this Article, subject to correction

by Supreme Court in appeal, is final and binding on all concerned bodies

including statutory functionaries and the relevant government departments.

Functionaries of State, statuatory bodies are required to act strictly within

the defined spheres of their authority conferred by law. Any transgression or

abuse of power exercise thereof by such functionaries is open to be

challenged in High Court in its writ jurisdiction. Cases of no evidence,

misdirection or failure to follow judicial procedure are acts without lawful

authority and vitiate proceedings undertaken by such Courts and tribunals.

Statutory bodies were amenable to the constitutional jurisdiction---

Constitution was the supreme law and provisions of Art.199 of the

Constitution could be invoked against a "person"---No clog or bar existed in

Art.199, which could restrain the High Court to exercise its jurisdiction

under Art.199 of the Constitution---Article 199 was the fundamental

provision enunciating the jurisdiction of the High Court and it was

mandatory upon the High Court to confine itself within its jurisdiction as

provided in the Article---Plain reading of Article 199, contemplated that writ

by the employees or by any aggrieved party against any statutory body

irrespective of their rules whether statutory or non-statutory, the High Court

could assume and exercise its jurisdiction and no lacuna or other

technicalities, should come in the way of providing efficacious and speedy

justice; because if technicalities of law were allowed to prevail over those

who were subject to the law, the end of justice would become impossible to

meet---Article 199 of the Constitution conferred jurisdiction upon the High

Court to intervene and give directions on the application of "any aggrieved

party" as laid down in its paragraph (a) of clause (1) and also as provided in

paragraph (c) of clause (1)---Such was a right ensured to every person under

the Constitution. Article 199 of the Constitution relates to jurisdiction

conferred by the Constitution upon High Court---All other legislated or

framed laws fall within the encompass of sub-constitutional legislation and

they cannot claim superiority over the constitutional powers and jurisdiction

vested under Art.199 of the Constitution upon High Court, as it has got vast

powers and jurisdiction to deal with all the situations which have been

brought to its notice through the institution or filing of the writ petition. Art.

199 of the Constitution is discretionary---High Court has to be satisfied for

issuance of an appropriate writ, which cannot be issued in every case as a

matter of policy or routine---Every case has to be adjudged on its own merits

and facts. Availability of alternate remedy would not constitute a bar upon

jurisdiction of High Court to entertain constitutional petition and to exercise

constitutional jurisdiction, if the circumstances so warrant---Article 199 of

the Constitution was more a regulatory provision than rule of law. High

Court was not justified in dismissing the constitutional petition under

Art.199 of the Constitution where fundamental rights guaranteed, inter alia,

under Arts.11, 14 & 15 of the Constitution were sought---Apart from the

jurisdiction vesting in the High Court by virtue of cls. (a) & (b) of

Art.199(1) of the Constitution a special jurisdiction is conferred by cl-(c) of

Art.199 which a High Court shares with the original jurisdiction of Supreme

Court under Art. 184(3). Jurisdiction of High Court is wider than that available

under cls. (a) & (b) of Art.199(1) of the Constitution --"Enforcement of

fundamental rights"---Meaning---Power to enforce fundamental rights has

been conferred upon the superior courts through Art.199(1)(c) of the

Constitution---Even in the absence of cl. (c) of Art.199(1) any action by a

person performing functions in connection with the affairs of the Federation,

a Province or Local Authority, inconsistent with fundamental rights, is to he

declared without lawful authority under Art.199(1)(a) of the Constitution---

Reach of Art.199(1)(c), however, is wider, it not merely enables a court to

declare an action of State functionary inconsistent with fundamental rights to

be unlawful but also enables a court to declare an action of a State

functionary inconsistent with fundamental rights to be unlawful but also

enables the courts to practically enforce such rights by issuing appropriate

directives as is evident from its language.

The language of Article 199 of 1973 Constitution for the purpose of

examining its extent and limits is though comparable to the British writ

jurisdiction but Article 199 of 1973 Constitution is significantly different

from that jurisdiction. Nonetheless the judgments of English Courts on writ

jurisdiction on their extent and limits may serve as a historical background.

In fact, those judgments are constantly being called in aid of th interpretation

of Article 199 ipid. Reference may be made to the precedents of (1)

Presiding Officer V. Sadruddin (PLD 1967 SC 569) (2) Muhammad Hussain

V. Sikandar(PLD 1974 SC 139) (3) Jamal Shah’s case (PLD 1966 S.C.I) and

Rahim Shah’s case (PLD 1973 SC 24)

In the case of JAHAN KHAN---Petitioner Vs. ADDITIONAL DISTRICT

JUDGE, MIANWALI and 5 others ---Respondents at Lahore High Court,

Justice Syed Zahid Hussain dismissed the writ petition. Findings recorded

by Courts below on due appreciation and appraisal of evidence on record,

could not be reopened as re-appreciation and reappraisal of evidence was not

the function of High Court in constitutional jurisdiction---Decision of Courts

below with respect to possession of respondent/plaintiff and their

dispossession by petitioner/defendant was purely a question of fact,

interference with which was not called for in constitutional jurisdiction---

Scope of writ jurisdiction was restricted and limited, which could not be

converted into an appellate forum to appreciate the evidence over-again or to

substitute the findings of the lower forum--No illegality had been committed

by either of Courts below, in the matter which could warrant interference by

High Court---Constitutional petition was dismissed. 2006 Y L R 1096

[Lahore].

The scope of writ jurisdiction is limited only to ascertain whether the

impugned award has caused miscarriage of justice to one or the other party

to a lis.

LOCUS STANDI

General rule is that judicial redress is available only to a person who has

sufferd a legal injury by reason of violation of his legal right or personally

protected interest by the impunged action of the State or a public authority or

any other person who is likely to suffer a legal injury by reason of threatened

violation of his legal right or legally protected interest by any such action.

Of late, by various judicial courts have interfered with various State actions

which infringe the fundamental rights of citizens, even though there is no

direct injury caused to the applicant. Where a person who has suffered a

legal wrong or a legal injury or whose legal right or legally protected interest

is violated, is unable to approach the court on account of some disability or it

is not practicable for him to move the court for some other sufficient

reasons, such as his socially and economically disadvantaged position, some

other person can invoke assistance of the court for the purpose of providing

judicial redress to the person wronged or injured, so that the legal wrong or

injury caused to such person does not go unredressed and justice is done to

him.

RES JUDICATA

The general principles of res judicata apply even to writ petitions filed

under Article 119 of the Constitution of Pakistan. Once the petition filed

under Article 119 of the Constitution is dismissed by the Court, a subsequent

petition is barred. Similarly if a writ petition filed by a party under Article

119 is considered on merits as a contested matter and is dismissed, the

decision thus pronounced would continue to bind the parties.

JURISDICTIONAL PRINCIPLES – ULTRA VIRES DOCTRINE

Acting without jurisdiction and acting ultra vires have basically the

same meaning that when we speak of vires, normally it is attributed to

administrative action and jurisdiction refers to decisions having judicial

flavour. A public authority may exceed his

power while exercising it in an incorrect manner, or adopting an improper

procedure or going wrong on a matter of substantial ultravires may relate to

matters of law or fact or matters of discretion. Discretionary powers may be

exercised for the purpose for which they were granted. Relevant

considerations must be taken into account and irrelevant considerations

disregarded. They must be exercised in good- faith and not arbitrarily and/or

capriciously. An authority exercising his power without complying with

those requirements is acting ultra vires. Court also may inquire into ulterior

motives of the authority in order to ascertain the fact that he has acted

outside the jurisdiction.

Modern Approach

The proposition that a Tribunal or a quasi- judicial authority has freedom

to err within the ambit of its jurisdiction has been subject to erosion

considerably. If a Tribunal or a quasi-judicial makes a palpable error the

Courts could simply act on the assumption that the said authority has

misused its powers. Consequently that erroneous finding goes to the root of

the jurisdiction. In respect of administrative bodies, the distinction between

error of law that went to jurisdiction and error of law that did not was for

practical purposes abolished. Well accepted principle is that any

misdirection or error or law made by an administrative tribunal or inferior

court in reaching its decision can be quashed for error of law. Constitutional

Courts early adopted a functional or pragmatic approach to the question of

jurisdiction; foundation of judicial review should no longer be regarded as

ultra vires. An application for judicial review is no longer of any

significance whether the source of alleged invalidity of administrative action

is based upon an excess of jurisdiction or error of law within jurisdiction.

The power can be reviewed today under what might be described as the

principles of lawful or legitimate administration. An earlier principle that a

distinction has to be drawn between judicial errors and non-judicial errors

has since been eroded. So also the distinction between void and voidable

decisions.

REVIEW OF FINDINGS OF LAW AND FINDINGS OF FACT

Courts at times find it difficult to distinguish between findings of fact

and findings of law. The criteria adopted by the Court between questions of

fact and questions of law are also not uniform. When a matter is held to be

one of degree, a reasonable person may at times reach different conclusions

on the basis of evidence. In a case where there is an alternative remedy, it is

possible for a writ Court to re-appreciate the evidence and to find out as to

whether any gross illegality has been committed by the authorities on the

basis of fact themselves. Generally, Courts do leave the assessments of facts

to bodies which are primarily suited to assessing and gathering evidence.

However, taking note of the mistaken facts which is so crucial it is

possible for the writ Court to review the same on the ground that the

authority has taken into consideration irrelevant consideration or acted in an

improper manner, probably on this limited context, even a gross error of fact

may also be open to judicial intervention. But, by and large, writ Courts may

not re-appreciate the evidence. Modern Approach

Generally Court would leave the assessment of facts to the bodies which

are primarily suited to gathering and assessing evidence. Judicial review can

now be equated with that of appellate function. If a decision of an

administrative authority is unsupported by substantial evidence, or clearly

based on erroneous inference of fact, even a factual decision may be

interfered with by a writ Court. It is pertinent to note that in Unites States,

Court have supplemented evidence rule ‘with hard lock doctrine’ under

which an agency making rules must be prepared to show the Court the

factual and empirical data on which the rule was based so that the opposing

party and the Court judges the rigour of the decision making process.

JUDICIAL REVIEW OF DISCRETIONARY POWERS

Uncontrolled discretion by administrative authority may lead to illegal

interference with the rights of citizens. However, discretion is not open to

objection, when the circumstances and the grounds are stated or the decision

lays down a policy of discretion or if there are adequate procedural safe

guards against possible abuse of discretion. Justifiability of substantive

discretion has made possible the constitutional framework of judicial control

of administrative action.

ABUSE OF DISCRETION An administrative authority is ostensibly authorized by a statute, but he

might be prompted by motives or considerations that are not pertinent to

authorized purposes. The said action can be judicially reviewed. Some

motives are considerations that lie deep in the minds of the administrators

who will very often try to hide them in order to avoid being caught in the

eye of law. It is the function of the effective judicial control to develop tools

and techniques to lay bear those hidden motives that prompted the

administrator to take impunged action to see whether they are pertinent to

authorized purpose. Main restriction on the part of the person challenging

the action on the ground of improper motives lies in his ability to have

access to the information on the basis of which administrator has acted. Only

by innovative method he has to unearth the same and place it before the

court to establish a prima facie case for him.

by innovative method he has to unearth the same and place it before the

court to establish a prima facie case.

NATURAL JUSTICE

Natural justice is often said to be a branch of ultra vires. However, in

modern administrative law, natural justice finds expression in two principles

that a judge must not be biased in his adjudication and that the party be

given an opportunity to be heard. The word ‘bias’ has multiplicity of

meanings which must be distinguished in order to ascertain the true position

regarding the disqualification of deciding persons. Rule against bias is

increasingly to be limited to judicial or quasi- judicial decisions as

distinguished from administrative decision. However, question of personal

bias has assumed prominence. There may be abnormal desire to uphold the

departmental policy, which would prevent impartial adjudication of the

dispute. Minister may be entitled to act on the basis of the said policy.

However, at present bias can be established from a variety of circumstances

including personal relationship. Generally Court applies the rule against bias

strictly when a personal prejudice or ill- motive is proved in the proceedings

or from the conduct of the parties. Courts have also to apply reasonable

likelihood test rather than reasonable suspicion test or bias. Pecuniary

interest may also disqualify an adjudicator. In the case of pecuniary interests,

Courts do not inquire into reasonable likelihood test or suspicion test, reason

of law raises a conclusive presumption of bias.

RIGHT TO HEARING

Generally right to hearing is a statutory obligation, when the statute has

provided so. But there will be occasions where right to hearing may be held

to be an essential requirement, when ultimately the result of the decision

making process may cause civil consequences. But there are occasions

where the right to hearing may be denied depending upon the circumstances

of each case and also the order to be passed by the authority concerned.

Right to oral hearing does not in all cases confer a right to be personally

present when his case is conducted by representative. Oral hearing in some

cases involves right to oral representation untrammeled by rules of evidence

or right to produce or cross- examine witnesses. Right to give reasons is also

part of principles of natural justice. As a general proposition, law does not

presently require a general duty to give reasons not only for administrator

but also for the citizen. Courts have not developed a preference for using the

term ‘fairness’ to that of natural justice and invariably the requirement of

fairness in the decision making process, in the absence of equality and

contrary internment in relevant statute. In this connection it is pertinent to

point out that as already stated judicial review is a part of constitutional duty

of writ courts.

Modern Approach

Recent judicial decisions would tend to give a hearing to persons affected, if

the terms of the statute confirm the inference of a fair- hearing, if the

inference of a fair hearing is confirmed by the need to safe-guard a right or

interest or if the inference of a fair hearing is confirmed by the need to safe-

guard a expectation induced by the decision maker.

How the scope of Article 199 of the Constitution 1973, particularly in the

cases of writs of habeas corpus has been narrowed down by the recent

decisions of the Superior Court, is reflected in one of the case of Javed

Ibrahim Paracha. The said petitioner was a former member of National

Assembly from Kohat District, NWFP who filed a Constitution Petition

under Article 199 of the Constitution challenging illegal arrest and detention

of some 57 foreigners mainly from Arab countries and 145 Pakistani citizens

mainly from tribal areas. This writ petition was dismissed by Peshawar High

Court mainly on the grounds, inter alia, that the petitioner was not an

aggrieved party. Strangely, the Supreme Court of Pakistan also adopted the

same view and dismissed the appeal against the decision of the Peshawar

High Court, inter alia, on the grounds that the petitioner was not an

aggrieved party and that such petition does not amount to a public interest

litigation. (PLD 2004 SC 482). This decision was given contrary to the

settled law in respect of “aggrieved person” in the matters of writ of habeas

corpus and ignoring the rule laid down by the Supreme Court of Pakistan in

the case of Begum Nusrat Bhutto (PLD 1977 SC 657). In the said report a

bench of Supreme Court consisting of nine (9) Judges held that “………it is

true that in the case before us the petitioner is not alleging any contravention

of her own Fundamental Rights, but she has moved the present petition in

two capacities, namely, as wife of one of the detenues and as Acting

Chairman of the Pakistan Peoples Party, to which all the detenues belong. In

the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat

Bhutto is not an aggrieved person within the meaning of Article,

199……….”. (Please see page 675 of the report) Reliance was placed on the

case of Manzoor Illahi (PLD 1975 SC-66). The petitioner, Javed Paracha,

was not acting as “probono publico” but was acting as a friend of the

detenues, which was sufficient compliance of the term “any person” as used

in the Article 199 of the Constitution of Pakistan.

Comparative Study of Writ Jurisdiction:

The Article 226 empowers High Courts to issue directions, orders or writs in

the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari. Such directions, orders or writs may be issued for the enforcement

of fundamental rights or for any other purpose. It is well established that the

remedy provided for in Article 226 of the Constitution of India is a

discretionary remedy and the High Court has always the discretion to refuse

to grant such a relief in certain circumstances even though a legal right

might have been infringed. Availability of an alternative remedy is one of

such considerations which the High Court may take into account to refuse to

exercise its jurisdiction, but this principle does not apply to the enforcement

of fundamental rights either under Article 32 or under Article 226 of the

Constitution.

The Supreme Court in Mohd. Yasin v Town Area Committee (AIR 1952 SC

115) held that an alternative remedy is not a bar to move a writ petition in

the High Court to enforce a fundamental right. This is the only exception.

In all other cases where no fundamental right is involved, it has been ruled

that the High Court would not exercise its jurisdiction under Article 226

when an alternative, adequate, and efficacious legal remedy is available and

the petitioner has not availed of the same before coming to the High Court.

Of course, Article 226 is silent on this point; it does not say in so many

words anything about this matter, but the Courts have themselves evolved

this rule as a kind of self imposed restriction on their jurisdiction under

Article 226.

The rule of exhaustion of a remedy before invoking jurisdiction under

Article 226 has been characterised as a rule of policy, convenience and

discretion rather than a rule of law, as per decision of the Supreme Court in

State of Uttar Pradesh v Md. Nooh (AIR 1958 SC 86) and Baburam Prakash

Chandra Maheshwari v Antarim Zila Parishad (AIR 1969 SC 556). The rule

has been justified on the ground that persons should not be encouraged to

circumvent the provisions made by a statute, providing for a mechanism and

procedure to challenge administrative or quasi-judicial actions taken

thereunder (Union of India v TR Varma (AIR 1957 SC 882)).

The Income-tax Act is a code in itself as regards legal remedies too. Against

impugned orders, petitioners have effective and comprehensive...

In the Constitution of Islamic Republic of Pakistan 1956 the Constitution

makers, while empowering the high Courts under its Article 170 adopted

almost the same pattern as was employed in section 223-A of the

Government of India Act, 1935 with the difference that words “directions

and orders” were also added alongwith the word writs, including writs in the

nature of habeas corpus etc. Annother significant departure from section

223-A of the Government of India Act was thatwhile under this provision

there was no specific limitation provided on the power of High Court to

issue writs, in Article 170 of the 1956 Constitution the jurisdiction was

restricted to “ for the performance of any rights conferred by Part II (

Fundamental Rights) and for any other purpose.

t may be clarified that, in the aftermath of constitutional safeguards though

Articles 32 and 226 of the Indian Constitution; Section 491 was omitted

from their newly enacted Code of Criminal Procedure 1973. The Indian

precedent, however, may not be followed in Pakistan for the reason that the

scope and extent of writ jurisdiction of the Indian High Courts (under Article

226) is wider compared to the jurisdiction of the High Courts (under Article

199) in Pakistan. Indeed, Article 226 empowers the Indian High Courts to

issue the 5 prerogative writs “in the nature of” habeas corpus, mandamus,

prohibition, quo warranto and certiorari, or any of them, for the enforcement

of fundamental rights and “for any other purpose”. As per the Supreme

Court of India, the use of expression “nature” indicates that the scope of the

prerogative writs is wider in India compared to the scope of such prerogative

writs in England.1 Another important difference lies in the fact that the

prerogative writs may be issued not just for the enforcement of Fundamental

Rights but also for “any other purpose”.2 It is therefore desirable that in

Pakistan, Section 491 is retained.

A perusal of case law suggests that in view of Article 199, the provision of

Section 491 is sparingly used for issuing directions of the nature of habeas

corpus. As per statistics from reported cases, in two years period i.e. 1996 –

97, some 70 cases were decided in 1997 and 66 in 1996. Among such cases,

a large number i.e. 90% relates to cases of custody of children. Another 5%

of the cases relate to the alleged detention of ‘sui juris’ (e.g. detention of

married woman by parents and/or husband). Indeed only 5% cases relate to

illegal/improper detention by the police. For the same period (as per record

of reported cases), the High Courts disposed of a total of 16 writ petitions

under Article 199 of the Constitution including 11 in 1997 and 5 in 1996.

The power conferred upon High Courts under Section 491 is an important

safeguard against the abuse of authority or illegal/improper exercise of

power by a public functionary or private person. Furthermore, it helps in the

efficacious and expeditious disposal of pending cases as prisoners or

detainees or defendants may be caused to be produced before the court. The

remedy, though efficacious and expeditious, is somewhat costly and also

involves considerable hassle and inconvenience, especially to people in rural

areas, as the complainant has to travel long distances to file petitions in the

High Court. To that extent the remedy, at times, is neither inexpensive nor

effective and expeditious.

The Constitution of Pakistan obliges the State to “ensure inexpensive and

expeditious justice”.3 So is the policy of the incumbent as well as previous

governments. It is, therefore, proposed that the power of issuing directions

of the nature of habeas corpus may also be conferred upon the Court of

Session. This measure will relieve the High Courts of some of the workload.

It would also be convenient and beneficial for the general public in as much

as justice would be made available to them at the district level, thereby

saving them from undue hassle, travel expenses and heavy fee being charged

by High Court lawyers.

In British India a Supreme Court was first established in 1774 under the

Regulating Act of 1773.This court was first empowered to issue prerogative

writs. Later two Supreme Court were established in Madras and Bombay.

These two courts were also given writ power.

In 1862 three Supreme Court were abolished and in their place three high

court were established. These three High Courts were empowered to issue

prerogative writs.

After the partition in 1947 India & Pakistan became two independent

Dominions. Indian Constitution was adopted in 1949 and these constitutions

gave power the Supreme Court and High Court to issue writs and specific

names of all writs were included in both Article of 32 (for the Supreme

Court) & 226 (for the High Court).

Under the 1956 Constitution of Pakistan gave power the Supreme Court and

High Court to issue writs and specific names of all writs were included in

both Article of 22 (for the Supreme Court) & 170 (for the High Court).

It was 1962 Constitution of Pakistan, where for the first time a change was

introduced in writ matters that, writ provision were made instead where true

contains of each of the major writs had been set out in self-contained

propositions.

The Constitution maker of our country also did not include the specific

names of various writs in Article 102 of the Constitution rather true contains

of each of the major writs had been set out in self-contained propositions.

No specific reason but two reasons assumed that why the specific names of

all writs were not included.

First, in Britain the Administration of Justice Acts, 1933 and 1938 were

passed whereby mandamus, prohibition, certiorari and quo-warranto were

abolished as writ. Of these mandamus, prohibition, certiorari have turned

into orders and quo-warranto into injunction. Now in Britain there is only

one writ and it is Haveas corpus. This might be influenced the Constitution

maker of Bangladesh to not using the specific names of various writs.

Secondly, some writs have limited scope in their application. For instance,

prohibition and certiorari these two writs are basically judicial writs and

applicable only in respect of judicial and quasi-judicial bodies. If the specific

names of prohibition and certiorari are used, then the court will not be able

to apply them to control administrative actions. To avoid this inconvenience

the specific names of various writs have been not include.

Now we will investigate Article 102 of our Constitution to see how the true

contents of each of major writs have been set out in self-contained

preposition

Sub Article 102(2) (a) ( ) states,

The High court Division may, if

satisfied that no other equally efficacious remedy is provided by law. On the

application of any person aggrieved, make an order, directing a person

performing any function in connection with the affairs of the Republic or of

a local authority to refrain form doing that which he is not permitted by law

to do. It’s a concept of prohibition.

And the same sub Article, to do that which he is required by law to do. It’s a

concept of mandamus.

Sub Article 102(2) (b) ( ) states,

On the application of any person,

make an order, directing that a person in custody be brought before it so that

it may satisfy itself that he is not being held in custody without lawful

authority or in an unlawful manner. It’s a concept of Haveas corpus.

Sub Article 102 (2) (a) ( ) states,

Declaring that any act done or

proceeding taken by a person performing functions on connection with the

affairs of the Republic or a local authority has been done or taken without

lawful authority and is of no legal affect. It’s a concept of certiorari.

Sub Article 102(2) (b) ( ) states,

Requiring a person holding or

purporting to hold a public office to show under what authority he claims to

hold that office. It’s a concept of quo-warranto. Error of fact can’t be corrected by a writ: apex court of India.

High Court can’t convert itself into court of appeal

Discretionary power governed by dictates of judicial conscience.

High Courts cannot exercise writ jurisdiction under Article 226 of the

Constitution to correct errors of fact or law except in cases causing a grave

miscarriage of justice, the Supreme Court has held.

“It is settled law that a writ of certiorari can be issued only in exercise of

extraordinary jurisdiction which is different from appellate jurisdiction. The

writ jurisdiction extends only to cases where orders are passed by inferior

courts or tribunals or authorities in excess of their jurisdiction or as a result

of their refusal to exercise jurisdiction vested in them or [when] they act

illegally or improperly in the exercise of their jurisdiction, causing grave

miscarriage of justice,” said a Bench consisting of Justices Tarun Chatterjee

and P. Sathasivam.

On a finding of fact recorded by an authority, “a writ of certiorari could be

issued only if the authority had acted on evidence which was legally

inadmissible; the error is manifest and apparent on the face of the

proceedings such as when it is based on clear ignorance or [in] utter

disregard of the provisions of law. It is needless to mention that a pure error

of fact, however grave, cannot be corrected by a writ.”

Writing the judgment, Justice Sathasivam said: “The High Court in exercise

of the certiorari or supervisory jurisdiction will not convert itself into a court

of appeal and indulge in a re-appreciation or evaluation of evidence or

correct errors in drawing inferences or correct errors of a mere formal or

technical character.”

The Bench said though the High Court had the power, its exercise was

discretionary governed solely by the dictates of judicial conscience enriched

by the judicial experience and practical wisdom of the judge.

In the instant case, B.K. Muniraju and others were aggrieved at a Karnataka

High Court judgment refusing to issue a writ of certiorari to interfere with

the factual decision of ownership of disputed land arrived at by revenue

authorities. The apex court dismissed the appeal against that judgment.

Another point of distinction between the government of India Act, 1935 and

1956 Constitution was that under the former 9Act1935) there was no power

with the ferderal court to issue writs in any case while in the latter

Constitution (1956) there was specific Article 22 conferring power on

Supreme Court to issue to any person or authority including in appropriate

cases any government directions, orders or writs including writs in the

nature of habeas corpus etc. For the enforcement of Fundamental Rights

gauranteed in that Constitution.

Another significant feature which distinguishes the present and 1962

Constitutions from earlier Constitutions is that while there were

nopreconditions or restrictions imposed under Government of India Act,

1935 and 1956 Constitution on the petitioner for seeking relief of writs

under their respective provisions, the 1962, 1972 and 1973 Constitutions

made it obligatory in certain cases that petitioner shall be an aggrieved

person and that there should be no other adequate remedy available to him.

There were number of other limitations imposed on the powers of High

Courts in the matters of interim relief etc. In the later 1962, 1972 and 1973

Constitutions which did not exist in the previous Constitutions (1935 and

1956).

Specific Writs derived from the Constitutional Provisions:

WRIT OF PROHIBITION:

First part of clause (1), sub-clause(a), paragraph (i) of Article 199 provides

that on the application of an aggrieved person,, if there is no adequate

remedy available, a High Court may make an order “directing a person

performing within the territorial jurisdiction of the Court, functions in

connection with the affairs of the Federation, a Province, or a Local body to

refrain from doing anything he is not permitted by Law”. This part of

paragraph (i) of sub-clause (a) of clause (1) of the Article confers a

jurisdiction which closely resembles to : “Writ of Prohibition”. Writ of

Prohibition is an order directing an inferior tribunal to refrain from

continuing with certain proceedings for the reason that such proceedings are

without or in excess of jurisdiction vesting in that Tribunal or are contrary to

the laws of land or they contravene some enactment or princiles of natural

justice. An order from a superior court to a lower court or tribunal directing

the judge and the parties to cease the litigation because the lower court does

not have proper jurisdiction to hear or determine the matters before it. An

order from a higher court to a lower one to cease hearing or prosecuting some

matter outside its jurisdiction. The name of a writ issued by a superior court,

directed to the judge and parties of a suit in an inferior court, commanding

them to cease from the prosecution of the same, upon a suggestion that the

cause originally, or some collateral matter arising therein, does not belong to

that jurisdiction, but to the cognizance of some other court.

The writ of prohibition may also be issued when, having jurisdiction, the

court has attempted to proceed by rules differing from those which ought to

be observed or when, by the exercise of its jurisdiction, the inferior court

would defeat a legal right.

"Prohibition is a process by which a superior court prevents an

inferior court or tribunal possessing judicial or quasi-judicial

powers from exceeding it's jurisdiction in matters over which it

has cognizance or usurping matters not within it's jurisdiction to

hear or determine. A means of restraint on judicial personnel or

bodies to prevent usurpation of judicial power, and it's essential

function is to confine inferior courts to their proper

jurisdiction and to prevent them from acting without or in excess

of their jurisdiction; it is preventive in nature rather than

corrective." Black Law Dictionary Sixth Edition id 842

The writ of Prohibition is an extraordinary judicial writ issuing out of a court

of superior jurisdiction and directed to an inferior tribunal, or to an inferior

ministerial tribunal possessing incidentally judicial powers and known as

quasi judicial tribunal or even in extreme cases to a purely ministerial body,

commanding it to cease abusing or usurping judicial function.

A Writ of Prohibition is to prevent the exercise of jurisdiction by a tribunal

possessing judicial powers over matter not within its cognizance, or

exceeding its jurisdiction in matters of which it has cognizance, and is a

proper remedy in a case where the court having its jurisdiction assumed to

exercise its unauthorized powers. When a person or body of persons, is

clothed with power to determine questions and decide issues, affecting the

rights of private citizens or of the public, the King’s Bench Division in

England and likewise the High Courts in India, will interfere by the

prohibition to prevent the legal exercise of such power. (AIR 1934 Cal 725)

issue of Writs of Prohibition.

The above definitions are taken from “The Law of Lexicon” by P. Ramanatha

Aiyer, Wadhwa Nagpur.

Quasi judicial: When the law commits to an officer t he duty of looking into

certain facts not in a way which it specially directs, but after discretion in its

nature judicial, the function is quasi judicial. “Sharing the qualities of and

approximating to what is judicial; not within the judicial power or function

nor belonging to the judiciary a s constitutionally defined. The Office of a

Writ of Prohibition was to prevent courts from going beyond their

jurisdiction and it is seldom, if ever, granted to restrain the proceedings of

other bodies or officers.

Formerly these Writs were issued only to judicial and quasi judicial bodies.

The writ of prohibition arrests the proceedings of any

tribunal, corporation, board, or person exercising judicial

functions, when such proceedings are without or in excess of the

jurisdiction of such tribunal, corporation, board, or person.

A writ of prohibition may be issued by any court to an

inferior tribunal or to a corporation, board, or person, in all cases

where there is not a plain, speedy, and adequate remedy in the

ordinary course of law. It is issued upon the verified petition of

the person beneficially interested.

Superior court may grant a writ of prohibition directed to the superior court in

a limited civil case or in a misdemeanor or infraction case. Where the

appellate division grants a writ of review directed to the superior court, the

superior court is an inferior tribunal for purposes of this chapter.

The writ must be either alternative or peremptory. The

alternative writ must command the party to whom it is directed to

desist or refrain from further proceedings in the action or matter

specified therein, until the further order of the court from which it

is issued, and to show cause before such court at a time and place

then or thereafter specified by court order why such party should not

be absolutely restrained from any further proceedings in such action

or matter. The peremptory writ must be in a similar form, except

that the words requiring the party to show cause why he should not be

absolutely restrained must be omitted.

The Article gives to the High Court jurisdiction to issue an order of

prohibition where a Court or Tribunal other than the Supreme Court of

Pakistan, the High Court or a Tribunal established under the law relating to

Defence Services acts in excess of or without jurisdiction. In case of quasi-

judicial proceedings generally an order of prohibition does not issue. It is

issued only against a Court or a judicial body which though may not be called

a Court but has been created specifically under a statute.

The office of an order of prohibition is primarily supervisory having for its

object the confinement of courts and tribunals of peculiar, limited or inferior

jurisdiction within their bounds. Usurpation of power will be restrained by it.

Therefore order of prohibition can issue to an inferior tribunal when it is

proceeding with a matter which is beyond the jurisdiction of that Tribunal.

Prohibition, writ of -- when issued -- purpose of. -- A writ of prohibition is

issued to prevent or prohibit the lower court from acting wholly without

jurisdiction; the purpose of the writ of prohibition is to prevent a court from

exercising a power not authorized by law when there is no adequate remedy

by appeal or otherwise; prohibition should issue only in such cases of extreme

necessity. Writ of Prohibition is more complicated than Writ of Habeas

Corpus and Writ of Mandamus. Nevertheless, some jurisdiction regarding

Writ of Prohibition can be delegated to District Judges, where it involves an

order upon a statutory public authority of a lesser status. In Abdul Latif vs.

Govt. of West Pakistan, PLD 1962 (SC) 384, a Deputy Commissioner was

prohibited from proceeding further with recovery of amounts as arrears of

land revenue, since the action was found to be in violation of the principle of

natural justice.

Writ jurisdictions which should not be delegated to district judges

There are some writ jurisdictions which can never be delegated to District

Judges.

Prohibition, writ of -- narrow in scope -- lies as matter of sound judicial

discretion. -- Writs of prohibition are prerogative writs, extremely narrow in

scope and operation, and they are to be used with great caution and

forbearance; a characteristic of prohibition is that it does not lie as a matter of

right but as a matter of sound judicial discretion.

Prohibition, writ of -- jurisdiction tested on pleadings --when writ

appropriate. -- When considering a petition for writ of prohibition, jurisdiction

is tested on the pleadings, not the proof; a writ of prohibition is appropriate

only whenthere is no other remedy, such as an appeal, available.

Writ of prohibition means to forbid or to stop and it is popularly known as

'Stay Order'. This writ is issued when a lower court or a body tries to

transgress the limits or powers vested in it. It is a writ issued by a superior

court to lower court or a tribunal forbidding it to perform an act outside its

jurisdiction. After the issue of this writ, proceedings in the lower court etc.

come to a stop. Prohibition is an extraordinary writ usually sought requesting

an order from the Appellate Court that an inferior court/ tribunal be prohibited

from undertaking further action on a case pending before it; commonly know

as stay of proceeding. A writ can be filed only against State and the same is

not maintainable against private individual or corporations. However, a

private individual or corporation can be a party in the writ partition if relief

sought in the writ petition affects his interest.

Scope and object of writ: All the necessary ingredients and elements of writ

of prohibition have been provided in clause (1) (a) (i) of Article 199.

Paragraph (i) has two parts. First part deals with the essential features of writ

of prohibition while the second part pertains to writ of mandamus. Writ of

prohibition is issued by High Court to prohibit a public officer, a statutory

functionary or Tribunal from continuing to act in relation to matter which

falls beyond its jurisdiction conferred by law. Writ of prohibition lies not only

to prevent a statutory functionary from acting in access or absence of

jurisdiction but also where there is contravention of some statute or principle

of natural justice. Where there is lack of jurisdiction on the face of record the

High Court is bound to issue a writ of prohibition preventing the inferior

court, Tribunal or statutory functionary from continuing the proceedings,

although the writ petiotioner has consented to or aquiesced in the exercise of

such jurisdiction by such Court or Tribunal.

Persons against whom prohibition may be issued: Clause (1) (a) (i) of

Article 199 provides that High Court may make an order directing “ a person

performing, within the territorial jurisdiction of the Court, functions in

connection with the affairs of the federation, a Province or a local authority to

refrain.” In clause (5) of Article 199 the word “person” has been explained to

include, 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

estblished under a law relating to the Armed Forces.

GROUNDS FOR THE ISSUANCE OF WRIT OF PROHIBITION

• When an authority is acting or has acted under an invalid law; •

Jurisdictional error; •

Error apparent on the face of record;

• Finding of fact not supported by evidence;

• Failure of natural justice

• ERROR OF LAW APPARENT ON THE FACE OF THE RECORD

Meaning:

In Seetaram v. Smt. Ramabaian, AIR 1958 MP 221,223. An error of law

apparent o n the face of the record exists where a tribunal or court states a

proposition of law which is fundamental to the decision of the case and on

which, on examining it was a proposition of law, you can say is erroneous.

If there is a general error in the appl ication of the law and the

chain of reasoning has to be examined to find out the error then there is not

an error on the face of the record.

An error is apparent on the face of the record if it can be ascertained merely

by examining the record without having to have recourse to other evidence.

Whether or not an error is an error of law apparent on the face of record,

must always depend on the facts and circumstances of each case

and upon the nature and scope of the legal provision set to have

been misconstr ued or contravened.

GENERAL TEST:

In Satya Narayan v. Malikarjun, AIR 1960 SC 137 the Supreme

Court has categorically established that: No error of law can be said to be

apparent on the face of the record if:

• it is not self - evident or manifest:

• or if it requires an examination or argument to establish it;

• Or if it has to be established by a long drawn out process

of reasoning on points where they may conceivably be two opinions.

On the other hand in Syed Yakoob v. Radhakrishnan , AIR 1964 SC 477, the

Supreme Court made it clear that where the conclusion of law recorded by an

inferior tribunal is based on:

• an obvious misinterpretation of the relevant statutory provision;

• or in ignorance of it;

• or in disregard of it;

• or expressly founded on reasons which are wrong in law;

• Or the tribunal has disregarded the rulings of the High Court

(not reversed by the Supreme Court),

The tribunal’s decision can be quashed by the Court through Certiorari.

There is no patent error of law if of the two possible reas onable

interpretations of the law, the tribunal adopts one. In such a situation the

Court will not interfere with the tribunal’s decision on the grounds that it has

adopted one interpretation but not the other interpretation favoring

the individual, or the view adopted by the tribunal appears to a court to be

less reasonable than the alternative construction.

Where two opinions are possible as regards error complained of it cannot be

said that there is an error apparent on the face of record.

However the court may interfere if only one interpretation of the law is

possible and the body has not adopted the same, or if the constitution adopted

by it is perverse i.e. which no reasonable person would adopt.

In AZAD GOVERNMENT---Appellant Vs. Ch. MUHAMMAD MANSHA

and 10 others---Respondents, on appeal from the judgment of the High Court,

Issuance of scheme of building of primary school was approved by concerned

Authority and nothing was on record to show that any policy was made by

Government that more than two lacs of rupees could not be sanctioned for

construction of building of primary school---Government could sanction a

larger amount for construction of a primary school building or sanction an

amount more than rupees two lacs for such construction---Authorities having

not acted illegally, in the absence of any allegation of mala fides writ of

prohibition could not be issued. Sardar Said Muhammad Khan, C. J., and

Muhammad Yunus Surakhvi, J gave the verdict , that no violation of 'law' has

been committed by allocating Rs.5,09,000 for the construction of primary

school building at Nehala and, thus, the impugned judgment of the High Court

is not sustainable. Therefore, accepting the appeal, we set aside the,

impugned judgment of the High Court and dismiss the writ petition filed by

the respondents. 2004 M L D 948 [Supreme Court (AJ&K)]

In the case of MUHAMMAD ASLAM and another---Petitioners Vs. Malik

MUHAMMAD SARFRAZ KHAN and others---Respondents in a writ

petition in Lahore High Court petition was accepted by Mian Ghulam Ahmad,

J declared that Where a functionary was likely to transgress limits of his

authority or act in disregard of an order of Court, such functionary could be

restrained from doing so and exercise of Constitutional jurisdiction in such a

case would be congenial and conducive to public policy and peace----Prayer

for issuance of appropriate writ against a threatened action would not be

premature and existence of alternative remedy, would be an irrelevant

consideration in granting a writ of prohibition.

In another case of Lahore High court before the Gul Zarin Kiani, J dismissed

the petition in ZAR BADSHAH MASOOD—Petitioner Vs.

COMMANDANT /MAGISTRATE 1ST CLASS and another—Respondents,

in writ of prohibition petition, Accused invoking constitutional jurisdiction for

a writ of prohibition against restart of proceedings against him--Trial Court

not lacking jurisdiction and no justification existing for stopping

proceedings--Petition suffering from lack of merits--No case made out for

interference.

There is yet another hurdle which the petitioner has to cros before he

succeeds in invoking the constitutional jurisdiction of this Court. An order

passed as result of the trial under section 20 of the Rangers Ordinance, 1959

is subject to special appeal under section 20(4) of the Ordinance. Before a

writ of porohibition is issued, suspending and quashing proceedings before

the trial Magistrate against the petitioner it should be manifestly clear that

want of jurisdiction in the Court trying was apparent on the surface of the

record. This important consideration, I am afraid, is conspicuously absent in

the case under consideration. Therefore, no legal justification has been shown

for stopping proceedings against the petitioner. Admittedly, prosecution

evidence has already been recorded. After the statement o the petitioner

accused is recorded, defence evidence is to follow. In the circumstances of

the case, availability of a right of appeal under section 20(4) of the West

Pakistan Rangers Ordinance, 1959, and that the two offences are materially

different, the petitioner has not made out a case for issue of a writ of

certiorari and prohibition, quashing the proceedings already taken and their

further continuance. The petition, therefore, suffers from lack of merit and is

dismissed in limine. Petition dismissed. 1985 P Cr. L J 499 [Lahore].

WRIT OF MANDAMUS:

Article 199 Clause (1) (A) (i)

Second part of paragraph (i) of Clause (1) (a) provides for the writ of

mandamus in the following words:

“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 any 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 a local authority... or to do anything he is required by law

to do; or...”

[Latin, We comand.] A writ or order that is issued from a court of superior

jurisdiction that commands an inferior tribunal, corporation, Municipal

Corporation, or individual to perform, or refrain from performing, a particular

act, the performance or omission of which is required by law as an obligation.

A writ or order of mandamus is an extraordinary court order because it is

made without the benefit of full judicial process, or before a case has

concluded. It may be issued by a court at any time that it is appropriate, but it

is usually issued in a case that has already begun.

A writ of mandamus or mandamus (which means "we command" in Latin), or

sometimes mandate, is the name of one of the prerogative writs in the

common law, and is "issued by a superior court to compel a lower court or a

government officer to perform mandatory or purely ministerial duties

correctly".

Mandamus is a judicial remedy which is in the form of an order from a

superior court to any government, subordinate court, corporation or public

authority to do or forbear from doing some specific act which that body is

obliged under law to do or refrain from doing, as the case may be, and which

is in the nature of public duty and in certain cases of a statutory duty. It

cannot be issued to compel an authority to do something against statutory

provision.

Mandamus may be a command to do an administrative action or not to take a

particular action, and it is supplemented by legal rights. It must be a judicially

enforceable and legally protected right before one suffering a grievance can

ask for a mandamus. A person can be said to be aggrieved only when he is

denied a legal right by someone who has a legal duty to do something and

abstains from doing it.

Nature of the writ of Mandamus :

The applicant pleading for the writ of mandamus to be enforced should be

able to show that he has a legal right to compel the respondent to do or refrain

from doing the specific act. The duty sought to be enforced must have two

qualities: It must be a duty of public nature and the duty must be imperative

and should not be discretionary.

Normally, a writ of mandamus does not issue to, or an order in the nature of

mandamus is not made against, the private individual. It is not necessary that

the person or the authority on whom the statutory duty is imposed be a public

official or an official body. A mandamus can issue, for instance, to an official

of a society to compel him to carry out the terms of the statute by which the

society is constituted or governed and also to companies or corporations to

carry out duties placed on them by statutes. A mandamus would be equally

applicable for a company constituted by a statute for the purposes of fulfilling

public responsibilities. The court to which the application for the issue of

mandamus is made will not constitute itself a court of appeal from the

decision of the administrative authority and will not examine the correctness

or otherwise of a decision on merits. The exercise of administrative discretion

is not interfered upon by the court, but it will do so if there has been an illegal

exercise of the discretion. There is an illegal exercise of discretion where:

1. The order is made without, or in excess of, jurisdiction

2. The order is made in bad faith, or

3. The authority is influenced by extraneous consideration.

Purpose:

The purpose of mandamus is to remedy defects of justice. It lies in the cases

where there is a specific right but no specific legal remedy for enforcing that

right. It also lies in cases where there is an alternative remedy but the mode of

redress is less convenient, less beneficial or less effectual .Generally, it is not

available in anticipation of any injury except when the petitioner is likely to

be affected by an official act in contravention of a statutory duty or where an

illegal or unconstitutional order is made. The grant of mandamus is therefore

an equitable remedy; a matter for the discretion of the court, the exercise of

which is governed by well-settled principles.

Mandamus, being a discretionary remedy, the application for that must be

made in good faith and not for indirect purposes. Acquiescence cannot,

however, bar the issue of mandamus. The petitioner must, of course, satisfy

the Court that he has the legal right to the performance of the legal duty as

distinct from mere discretion of authority. A mandamus is normally issued

when an officer or an authority by compulsion of statute is required to

perform a duty and which despite demand in writing has not been performed.

In no other case will a writ of mandamus issue unless it be to quash an illegal

order.

An order of mandamus is a direction issued to any natural person, corporation

or inferior court within the jurisdiction of the High Court requiring them to do

some specific thing therein particularised, and which appertains to their office

of duty. Its object usually is to enforce a plain, positive, specific and

ministerial duty presently existing and imposed by law upon officers when

there is no other adequate and specific legal remedy and without which there

would be a failure of justice. A mandamus could not confer a new authority

and is neither a law nor a source of law. The person claiming a mandamus, in

order to be entitled to receive it must at least have a clear legal right to the

performance by the respondent of the particular duty sought to be enforced

and in the case of a public officer the duty must be one which is clearly

defined, imposed or enjoined by law as a duty resulting from the office. A

right found purely on private contract, however clear it might be, is not

enforceable by mandamus.

Its object usually is to enforce a plain, positive, specific and ministerial duty

presently existing and imposed by law upon officers when there is no other

adequate and specific legal remedy and without which there would be a

failure of justice. A mandamus could not confer a new authority and is neither

a law nor a source of law.

As to who can claim the order of Mandamus, it has been explained in the

following words :--

"The person claiming a mandamus, in order to be entitled to receive it must at

least have a clear legal right to the performance by the respondent of the

particular duty sought to be enforced and a right founded purely on private

contract, however, clear it might be, is no enforceable by mandamus"

About the duties which are to be enforced through order of Mandamus it has

been clarified in the following words :

"In the case of a public officer the duty must be one which is clearly defined,

imposed or enjoined by law as a duty resulting from the office". [p. 738] D

From the above dictum, the following facts are required to be proved to exist

before an order of mandamus can be issued :

(i) Petitioner must have a legal right to the performance by the public officer

of the particular duty sought to be enforced.

(ii) The duty of public officer which is to be enforced, is plain, positive,

specific and ministerial duty present existing and imposed by law upon

officer.

(ii) No other adequate or specific legal remedy available without which there

would be a failure of justice.

Scope of Mandamus:

Writ of Mandamus is a judicial remedy which in the form of an order is

issued by high Court on an application of an aggrieved person directing any

subordinate court, tribunal, Corporation, public authority, Government or any

other person as defined in the article who is performing functions withib the

territorial jursidiction of the High Court to do anything he is required by law

to do. This jurisdiction is pressed to invoke in cases where subordinate

Courts or statutory functionaries refuse to exercise jurisdiction vesting in

them under the law.

Object of Mandamus:

The main object odf mandamus is to compel the performance of public duties

prescribed by statute and to prevent inferior Tribunal, subordinate courts and

other public bodies performing public functions from refusing to excercise the

power and authority which they possessed under the law. The purpose of

mandamus is to demand some action on the part of the person which he is

obliged to take under the law and not to control or review its action.

Mandamus is discretionary in nature:

Relief by mandamus is discretionary in nature . It can not be claimed either as

of right or of course. The petion for mandamus may be rejected on grounds of

inordinate delay or on some fault in the conduct of petitioner viz. Supperssion

of material facts or not coming to Court with clean hands, acquiescence in

illegal assumption of jurisdiction or other irregularity in the procedure.

However these cases have no estoppel against the Constitution or clear

provision of law.

Writ of mandamus is invoked in the case of MUHAMMAD ASHRAF---

petitioner Vs. UNITED BANK LIMITED through President and 3 others---

Respondents, in Lahore High Court befor the Syed Hamid Ali Shah, J.

Withdrawal of rate of profit at agreed rate and unilateral reduction of return

by Bankers on Profit Schemes---In the present case, determination of factual

controversy was not involved and the only question raised by the depositors

was legality or otherwise of the reduction of agreed profit---Such question

being legal, had direct bearing on the investment of large number of

depositors, therefore; its resolution through invoking constitutional

jurisdiction of High Court, was proper and imperative---Present situation was

not the breach of contract which was complained of, rather the issue involved

was breach of statutory obligation and breach of public trust---Writ of

mandamus would lie to compel the performance of public duty, no matter

what was the source, it could be statute, contract or charter etc.---

Construction of a written contract involved the question of law, true

construction of contract was to be decided by courts and none else---

Objection to maintainability of constitutional petition, in the present case, was

thus, overruled as constitutional jurisdiction of High Court was rightly

invoked. For what has been held above, these petitions are accepted and

impugned action of the respondents (U.B.L. and IDBP) whereby the rate of

return/profit on Mahana Monafa Certificates and Uni-Sona Certificates, has

been reduced unilaterally, is declared to be without lawful authority and of

no-legal effect. Respondents are held legally bound to pay the depositors the

profits, on the agreed terms, as expressly incorporated in the certificates. The

petitioners are entitled to profit at the agreed rate, till final payment in respect

of their investments. 2009 C L D 1250 [Lahore].

In another writ petition Jamshed Rahmat Ullah, J dismissed the writ of

mandamus in the case of Mst. KANEEZ NARGIS---Petitioner Vs. MILLAT

TRACTORS LTD., SHEIKHUPURA ROAD through Chief Executive and 3

others---Respondents in which Petitioner being owner of landed property got

booked 10 new tractors through respondent, a dealer of tractor company---

Dealer promised to supply/ deliver said booked tractors within four to five

months of the booking date, but failed to supply/deliver tractors to the

petitioner despite the petitioner had deposited enhanced price of said tractors

as demanded by the dealer---On failure of the dealer to supply/deliver the

tractors, the petitioner filed constitutional petition praying to issue writ of

mandamus to the dealer and tractor company---Maintainability of

constitutional petition was objected to by the dealer and tractor company on

the ground that dealer was a private company and was not a "person" within

the purview of Art.199 of the Constitution---Validity---Writ of mandamus

could be issued against a person performing functions in connection with the

affairs of the Federation, a Province or Local Authority and it could not be

issued to someone who did not fall within the purview of "Person" defined in

Art.199 of the Constitution---Absolute control over the management of a

body/an organization by the Federation etc., was a condition most important

for declaring it to be a "person" performing its functions in connection with

the affairs of the Federation etc., which should have a complete domination to

do and undo whatever it decided in running the affairs of such a body and

should have the exclusive, complete and final authority to take the vital policy

decision---Such control, must be absolute, unfettered, unbridled and

exclusive; besides, the State must also have the financial control of the

organization---When both the "administrative" and the "financial" control of

the Federation over dealer was lacking, same was not a "person" within the

meaning of Art.199 of the Constitution which could be held to be performing

the duties in connection with the affairs of the Federation or the Province---

Constitutional petition being not maintainable, was dismissed. 2009 Y L R

1462 [Lahore].

In the case of MUHAMMAD YASIN BUTT Versus GOVERNMENT OF

THE PUNJAB through Chief Secretary Punjab Civil Secretariat, Lahore and

6 others, before the Justice. Hafiz Tariq Nasim, J, the writ of mandamus

allowed in which Petitioner, who was appointed as Deputy Director BS-17 in

the year 1996 on regular basis in Punjab Highway Authority, was declared

surplus on the abolition of said Authority---Case of the petitioner for

absorption under R.3(1) of Punjab Civil Servants (Appointment and

Conditions of Service) Rules, 1974 along with two other colleagues were sent

to Punjab Public Service Commission, through letter, but the petitioner was

waiting the outcome of result of the said letter for the last. more than 10

years---Such type of conduct of the Departmental Authority smacked of

arbitrariness, maladministration, slackness resulting into inhuman attitude---

High Court had ample power to interfere and issue a writ of mandamus in

circumstances---If something was required to be done in a particular manner,

it must be done in that manner and not otherwise---Due to the lapses/inaction

of the Departmental Authorities the individuals/ government officials should

not suffer, rather the persons responsible for such lapse must be taken to

task---Petitioner though could not insist for his absorption against a particular

post, but he had lawful right to be assessed/determined for his permanent

absorption against a vacant post of his own status---Authorities, in

circumstances, were directed to send a requisition to the Public Service

Commission following the provisions of R.3(1) of the Punjab Civil Servants

(Appointment and Conditions of Service) Rules, 1974 against any existing

vacancy including advertised posts of B.S.-17 and Public Service

Commission was directed to finalize case of the petitioner fairly, justly

without being influenced by any extraneous matter within specified period.

2009 P L C (C.S.) 297 [Lahore].

Justice. Maulvi Anwarul Haq, J of Lahore High Court allowed writ petition in

the case of Mst. JAMEEL FATIMA and another---Petitioners Vs. S.H.O.

P.S. GULGHAST, MULTAN and 5 others---Respondents in which

Petitioners who were tenants in the premises in question owned by

predecessor-in-interest of respondent were in legal possession on the date

when they were forcibly dispossessed with the help of police in violation of

law and particularly all provisions protecting rights of tenants of urban

property---Mandamus had been sought directing respondent to restore

possession of petitioner, which was taken illegally---If petitioners being

tenants had committed default in payment of rent of premises in question or

that premises was personally required bona fide by respondent, she could file

ejectment proceedings against petitioners with Rent Controller under S.13 of

West Pakistan Urban Rent Restriction Ordinance, 1959---Allowing

constitutional petition, respondent Police concerned was directed to take

steps for delivering back possession of premises to the petitioners within

stipulated time and to file a report in the High Court accordingly. 2006

M L D 1269 [Lahore].

Writ of mandamus dismissed in the AL-ABBAS SUGAR MILLS

LIMITED---Petitioners Vs. MANAGING DIRECTOR, KARACHI WATER

AND SEWERAGE BOARD and 2 others---Respondents before the Justice.

Mushir Alam and Amir Hani Muslim, JJ in which Petitioner-Company was

declared pre-qualified for bid of the project and after short-listing, petitioner

and respondent-Company submitted their bids with necessary documents---

After evaluation of the documents by the consultants of the project, contract

was awarded to respondent-Company---Plea raised by petitioner was that tt

was the lowest bidder and specific clauses of post bid process were

completely overlooked by the Authorities while awarding contract to

respondent-Company---Validity---Word used in the relevant paragraph of the

guidelines for bidding was 'may' which did not make it obligatory on the part

of the Authorities to hold post bid meeting with the contesting parties---

Authorities had rightly relied upon evaluation report, which dealt with all

aspects and opinion of the Authorities---After evaluation report of committee,

holding post bid meeting was insignificant for want of technical expertise---

Report of Evaluation Committee ran into 50 to 60 pages and each and every

aspect of bid documents submitted by the parties was examined---Mere non-

inviting petitioner to post bid meeting would not nullify recommendations of

Evaluation Committee---Even otherwise nature of the terms contained in bid

were procedural/directory in nature and would, in no way, be termed as

mandatory in nature to nullify award of contract in favour of respondent-

Company---Project of such nature was dependent on expertise and

professionalism which could only be examined by experts---Consultant had

sufficient experience in such projects and it having recommended award of

contract in favour of respondent-Company, High Court, in writ of mandamus,

would not nullify such award of contract for want of compliance of the terms,

which ex facie, were procedural in nature and had no substantial bearing on

award of contract---High Court did not find lack of transparency in the award

of contract to respondent-Company---Petition was dismissed in

circumstances. 2006 C L D 674 [Karachi].

Justice. Muhammad Nawaz Bhatti, J dismissed the writ in the case of

SULTAN SHAH---Petitioner Vs. DISTRICT PUBLIC SAFETY

COMMISSION and others---Respondents in which a verdict comes out as

“Person could not be said to be an aggrieved, unless he had aright in the

performance of statutory duty by a person performing functions in respect of

any right which he could have in relation to performance of such functions---

Petitioners, in the present case, had not stated as to how they were aggrieved

persons pressing for issuance of a writ of mandamus---People who come to

Courts with a non-serious approach and without doing their homework while

they endeavor to point out impressive issues, would not add anything in the

positive sense for the benefit of society---Such people not coming to the

Court with clean hands deserve to be discouraged---Petition was dismissed.”

2005 C L C 1778 [Karachi].

In the case of JEHANZEB KHAN Vs. GOVERNMENT OF THE PUNJAB

through Secretary, Education, Civil Secretariat, Lahore and 5 others, before

the Justice. Syed Zahid Hussain, J of Lahore High Court in which Petitioners

were appointed on ad hoc basis; their services were terminated and they were

re-inducted in service pursuant to orders of Supreme Court of Pakistan---

Petitioners who were treated as fresh recruits, claimed to have been

regularized with retrospective effect from the date of their induction in service

and had contended that period of their termination from service be treated as

extraordinary leave Validity---Clause(1) of Article 212 of the Constitution

visualized Service Tribunals and scope of relevant clauses of Article 212 of

the Constitution is all pervasive and extensive with overriding effect---

Petitioners had earlier approached High Court under Article 199 of the

Constitution qua their termination where their petition was held to be hit by

the bar contained in Article 212 of the Constitution, as their remedy lay

before the Service Tribunal---Exclusionary clauses of Article 212 of the

Constitution had ousted jurisdiction of High Court. Binding nature of the

judgment/orders of Supreme Court---All executive and judicial authorities

throughout the country are ordained to act in aid of Supreme Court---High

Court would get, the order of Supreme Court complied with if same contained

direction of absolute nature without more to be done for its implementation---

Where the matter was of interpretation and a process was to be undertaken

and parties had variant approaches as to its true import, writ of mandamus

could not be issued by High Court. 2005 P L C (C.S.) 205

Writ of Certiorari:

Article 199 Clause (2) (a) (ii) empowers a High Court to make a declaration

in the nature of writ of certiorari on the application of an aggrieved person, if

there is no other adequate remedy available to him, declaring that any act

done or proceeding taken within the territorial jurisdiction of the Court by a

person performing 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.

Though the words ‘Writ of Certiorari’ is not used in the Article but the

paragraph (ii) of Clause (1) (a) has been so worded as to confer on the High

Courts a jurisdiction similar to that which is excercised by the King’s Bench

Division of the High Court in England in certiorari. The principle underlying

the writ of certiorari is that all cases of abuse or excess of jurisdiction by

subordinate Courts, or Tribunals are liable to be corrected by writ of

certiorari issued by the King’s Bench Division of High Court. Certiorari in

England was based on the concept that the High Court, as a supreme judicial

authority from the soveriegn, is responsible for keeping subordinate Courts or

Tribunals exercising judicial powers within the limits of their jurisdiction.

Latin, To be informed of.] At Common Law, an original writ or order issued

by the Chancery or King's Bench, commanding officers of inferior courts to

submit the record of a cause pending before them to give the party more

certain and speedy justice.

A writ that a superior appellate court issues in its discretion to an inferior

court, ordering it to produce a certified record of a particular case it has tried,

in order to determine whether any irregularities or errors occurred that justify

review of the case.

Order of certiorari is of two kinds (1) for removal and adjudication; and (2)

for quashing the proceedings. Order will be issued (1) for correcting errors of

jurisdiction as when an inferior Court or Tribunal acts without jurisdiction or

in excess of it or fails to exercise it; or (2) When the Court or Tribunal acts

illegally in the exercise of its undoubted jurisdiction, as when it decides

without giving an opportunity to the parties, to be heard, or violates the

principles of natural justice. An order under this article may be issued only to

a body acting judicially or quasi judicially because Certiorari lies in all cases

where there is a duty to act judicially or where there is a judicial act or order

or when the proceedings are judicial or quasi-judicial.

Constitutional jurisdiction, exercise of -- Writ of certiorari, issuance of --

Requirements -- High Court, held, had jurisdiction to issue writ of certiorari if

functionary proceeded against takes an action or proceedings within territorial

jurisdiction of High Court -- Where however, no such action or proceeding

were challenged there would be no ground for exercise of such jurisdiction.

A writ of certiorari cannot be granted to quash the decision of an inferior

court within its jurisdiction on the ground that the decision is wrong. It must

be shown before such a writ is issued that the authority which passed the

order acted without jurisdiction or in excess of it, or in violation of the

principles of natural justice. Want of jurisdiction may arise from the nature of

the subject-matter, so that the inferior court might not have authority to enter

on the inquiry .

it. It may also arise from the absence of some essential preliminary or upon

the existence of some particular facts collateral to the actual matter which the

court has to try and which are conditions precedent to the assumption of

jurisdiction by it. But once it is held that the court has jurisdiction but while

exercising it, it made a mistake, the wronged party can only take the course

prescribed by law for setting matters right inasmuch as a court has jurisdiction

to decide rightly as well as wrongly.

When an inferior court or tribunal which has the power of deciding facts is

established by the legislature. it may in effect say that, if a certain state of

facts exists and is shown to such tribunal or body before it proceeds to do

certain things, it shall have jurisdiction to do such things but not otherwise.

There, it is not for them conclusively to decide whether that state of facts

exists, and, if they exercise the jurisdiction without its existence, what they do

may be questioned, and it will be held that they have acted without

jurisdiction. But the legislature may entrust the court or tribunal itself with a

jurisdiction which includes the jurisdiction to determine whether the prelimi-

nary state of facts exists and on finding that it does exist, to proceed further or

do something more. In the second case the rule that a tribunal cannot give

itself jurisdiction by wrongly deciding certain facts to exist does not apply.

Ordinarily, a court of appeal has not only jurisdiction to determine the

soundness of the decision of the inferior court as a court of error, but by the

very nature of things it has also jurisdiction to determine any points raised

before it in the nature of preliminary issues by the parties. Such jurisdiction is

inherent in its very constitu- tion as a court of appeal. Whether an appeal is

competent, whether a party has locus standi to prefer it, whether the appeal in

substance is from one or another order and whether it has been preferred in

proper form and within the time prescribed, are all matters for the decision of

the appellate court so constituted. Historically, in England and Wales,

certiorari was issued to bring the record of an inferior court into the King's

Bench for review or to remove indictments for trial in that court. It evolves

now as a general remedy to bring decisions of an inferior court or tribunal or

public authority before the superior court for review so that the court can

determine whether to quash such decisions.

Object, Scope and nature of Certiorari:

The object of certiorari as enbodied in clause (1) (a) (ii) is to bring for

examination before a High Court, the proceedings, orders or judgements of

subordinate Courts and Tribunals having duty to act judicially, where they

have exceeded the jurisdiction or authority assigned to them, and declare the

same as without lawful authority and no legal effect. The basic question

before a High Court in certiorari proceedings would be whether the

jurisdiction cesting in the lower Court or Tribunal has been exceeded. It is not

a writ of right but its grant is dendent upon the discretion of the Court which

is excercised in accordance with sound public policy to meet the ends of

justice. Writ of certiorari may issue not merely for non-compliance of

statutory provisions but also when record showed manifest failure of justice

needed correction. Want of jurisdiction may arise from the nature of subject-

matters, so that inferior Court or Tribunal might not have authority to enter on

the enquiry. Want of jurisdiction may arise from the absence of some

essential preliminaries or upon the existence of some particular fact collateral

to the actual matter which the Court has to try and which are conditions

precendents to the assumption of jurisdiction by it. But once it is held that the

Court has jursidiction but while exercising it, it made a mistake, the party

aggrieved by its order can only take the course prescribed by law for setting

matters right in as much as a Court has jurisdiction to decide rightly as well

as wrongly. Certiorari is not available against a private individual or a

domestic Tribunal. It is issued when any inferior Court or Tribunal or a body

of persons having a statutory authority to determine questions affecting rights

of people, acts in excess of jurisdiction. A body which does not determine

the right of parties, would not be amenable to certiorari. Proceedings in the

writ of certiorari are ordinarily summary in their nature and complicated

questions of fact not gone into nor any detailed inquiry into title of the

property etc is undertaken. Certiorari will not be entertained where the right

itself must first be determined after an elaborate investigation into facts.

It is now fairly well settled that superior courts can issue a WRIT OF

CERTIORARI where there is an error of law which is apparent on the face of

record as these are akin to errors of jurisdiction as against mere errors of law.

The statement of law in HALSBURYS LAWS OF ENGLAND (4th Edition.

Vol.1 ( 1) Para 73 Page 127) best captures the accepted position in law.

UNQUOTE

Order of certiorari is of two kinds

(1) for removal and adjudication; and

(2) for quashing the proceedings.

The order of certiorari may be issued

a. for correcting errors of jurisdiction as when an inferior Court or Tribunal

acts without jurisdiction or in excess of it or fails to exercise it; or

b. when the Court or Tribunal acts illegally in the exercise of its undoubted

jurisdiction, as when it decides without giving an opportunity to the parties, to

be heard, or violates the principles of natural justice. An order under this

article may be issued only to a body acting judicially or quasi judicially

because Certiorari lies in all cases where there is a duty to act judicially or

where there is a judicial act or order or when the proceedings are judicial or

quasi-judicial.

The writ of Certiorari is basically issued against the statutory bodies

exercising judicial or quasi judicial powers. Such writ is issued against the

authorities namely the government and the courts or other statutory bodies

who have power to determine and decide the lis between the parties. In

deciding such issues if the decision making order is passed without any

authority or has passed the order in exercise of such authority or has

committed an error of law and facts the high court is empowered to correct

such error of the lower court or government authorities. Certiorari may apply

when the administrative or executive authority fails to observe their duty to

act fairly with respect to the administrative functions. The writ of Certiorari

may also be issued against a subordinate tribunal even if the decision

impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar

of Parlakimedi , was the first decision on the writ of Certiorari in indian

subcontinent.

A writ (order) of a higher court to a lower court to send all the documents in a

case to it so the higher court can review the lower court's decision. The U.S.

Supreme Court most commonly uses certiorari, which is selective about

which cases it will hear on appeal. To appeal to the Supreme Court one

applies to the Supreme Court for a writ of certiorari, which it grants at its

discretion and only when at least three members believe that the case involves

a sufficiently significant federal question in the public interest. By denying

such a writ the Supreme Court says it will let the lower court decision stand,

particularly if it conforms to accepted precedents (previously decided cases).

The writ of CERTIORARI is one of the writs issued by the High Court or the

Supreme court to protect the Fundamental rights of the citizens. It is issued to

a lower court directing it that the record of a case be sent up for review with

all the files, evidence and documents with an aim to overrule the judgement of

the lower court.

Literally, Certiorari means to be certified. The writ of certiorari can be issued

by the Supreme Court or any High Court for quashing the order already

passed by an inferior court, tribunal or quasi judicial authority. . There are

several conditions necessary for the issue of writ of certiorari (a) There

should be court, tribunal or an officer having legal authority to determine the

question with a duty to act judicially. (b) Such a court,

tribunal or officer must have passed an order acting without jurisdiction or in

excess of the judicial authority vested by law in such court, tribunal or officer.

(c) The order could also be against the principles of natural justice or (d) it

could contain an error of judgment in appreciating the facts of the case.

Alternate remedy, when no bar to Certiorari:

The availabilty of alternate remedy, however will be no bar to relief in the

shape ofwrit of certiorari where inferior Court or Tribunal has, prima facie, or

on disputed facts, has acted without jurisdiction or in excess of jurisdiction.

Likewise existence of alternate remedy will not stand in the way of petitioner

if the subordinate court or Tribunal has taken the inpugned action under a law

which is ultra vires or it has acted in violation of principle of natural justice or

it has infringed any Fundamental right of the petitioner. Its the inadequacy

and not the mere absence of another remedy that determines the right to

certiorari.

Against whom certiorari may issue:

JJurisdiction conferred on High Court under paragraph (ii) of sub-clause (1)

of clause (1) of Article 199 in the matter of grant of certiorari is much wider

in scope than in the case of prohibition and mandamus. Paragraph (ii), clause

(1) (a) draws no attention between the persons performing and those not

performing judicial or qausi-judicial functions. This part of Article 199

confers on a High Court the jurisdiction, to interfere in all cases of excess of

jurisdiction, whether the person excceeding the jurisdiction is a Court, a

judicial or a quasi-judicial tribunal or purely executive or administrative

tribunal or officer. The only condition imposed in the provision is that

certiorari can not be issued against persons who are not performing functions

in connection with affairs of the Centre or a province or a statutory Local

Authority. Certiorari thus can be issued against all statutory functionaries.

Certiorari has thus been issued against all sorts of statutory functionaries and

public departments viz. Board of education and examinations, various

educational authorities, universities, statutory banks etc.

Necessary parties to certiorari proceedings:

Following are the necessary parties to certiorari proceedings:

1. The public functionaries, executives or statutory authority or tribunal

whose order has been assailed in the proceedings.

2. Any person who would be affected by the decision given on the petition.

3. Any authority or person in whose possession the recoed remains.

4. If a final order has been passed in appeal or revision which is in question

in certiorari proceedings, the authority passing that order will also be a

necessary party.

Act in excess of lawful Authorty:

A proceeding or an order can be quashed and declared as void without

lawful authority and of no legal effect by writ of certiorari only if such

proceedings or order were taken or passed in excess of the lawful authority.

Ordinarily there should not be much difficulty in finding out the absence or

excess of jurisdiction.

A person may have no lawful authority if:--

1. he has no jurisdiction on the subject-matter: or

2. he has no jurisdiction over the party; or

3. he has no jurisdiction over the territory< or

4. his own appointment under the statute is illegal, or

5. he had no jurisdiction to make the kind of order he actually made.

Certiorari—Essential requirement:

Paramount consideration for exercise of power ti issue is whether setting

aside of order which suffered from legal infirmity would advance the cause of

justice or perpetuate an injustice. Main considerations on which certiorari

would lie are:

1. Absence or access of jurisdiction.

2. Breach of the principles of natural justice committed by the inferior Court

or Tribunal during the proceedings or by the public functionary during the

performance of his statutory duty.

3. An error of law apparent on the face of record.

Doctorine of acquiescence:

If a person submits to the jurisdiction of an inferior Court and take parts in the

proceedings without objection, he can not, after having failed in such

proceedings, turn round and question the jurisdiction of that Court in

certiorari under Artcle 199. If an order under a statute infringes petitioner’s

fundamental right, he can not be said to have lost his right to challenge its

Constitutional validity simply because he had moved under that statute earlier

for the redress of his complaint.

Order doing substantial justice not to be disturbed:

It should be noticed that it is not each and every order passed without

jurisdiction by the Courts or Tribunals below that would be declared in

certiorari proceedings as without lawful authority and of no legal effect. If the

order challenged in certiorari is such that it is just, equitable and has gone

substantial justice between the parties, then notwithstanding the fact that it

was passed without jursidiction, the High Court excersing its discretionary

powers under Article 199 will not disturb the same in certiorari proceedings.

Bias in a Judge vitiates Proceedings:

The personal interest of a Judge in the dispute befor him creats a bias in him

which causes paralysis, complete or partial, of the judicial faculties. No

person can be a judge in his own cause. The justice must not only done but

seem to be done

Jusice. J. Ortcheson and Sardar Muhammad Iqbal, JJ in the case of

SHAUKAT ALI-Petitioner Vs. COMMISSIONER, LAHORE DIVISION

AND OTHERS Respondents issued writ of certiorari to quash order

cancelling licence (beef). P L D 1963 (W. P.) Lahore 127

In another case Justice Mushtaq Hussain, J in the case of ABDUR RAZZAQ

MALIK-Petitioner Vs. THE WATER AND POWER DEVELOPMENT

AUTHORITY THROUGH ITS CHAIRMAN AND 3 OTHERS-

Respondents granted writ of certiorari declared doctrine of ultra viram-

Applies to all statutory persons Court may declare any executive act of a

corporation as Illegal if such act not within its statutory powers expressly or

by necessary implication.

By reason of the doctrine of ultra viram applicable to all statutory persons, the

Court may declare illegal any executive act of a corporation which is not

expressly or by necessary implication within its statutory powers.

In the case of MUHAMMAD YOUSAF—Petitioner Vs. Malik KARAM

DAD KHAN AND OTHERS-----Respondents writ of certiorari granted on

The basis of discrestion of High Court to grant writ of certiorari by Justice. S.

A. Mahmood and Attaullah Sajjad, JJ

Constitution of Pakistan (1962)-----Art. 98(2) (b) (ii)--Prayer for removal of

person from office as member of Union Council can be made by any person -

Grant of relief is discretionary with Court. Constitution of Pakistan

(1962)-----Art. 98(2) (b) (ii)Election not challenged by election petition-

Petition under Art. 98(2) (b)(ii) still competent. P L D 1968 Lahore 30

Jusice. Hamoodur Rehman, C. J., Muhammad Yaqub Ali and Muhammad

Gul, JJ in the case of MUHAMMAD HUSAIN MUNIR AND OTHERS

Appellants Vs. SIKANDAR AND OTHERS-Respondents. On appeal from

the judgment and order, dated 11-4-1972 of the Lahore High Court, Lahore,

passed in Writ Petitions accepted the appeal “Art. 98(1) (a) (ii) and

Constitution of Pakistan (1973), Art. 199(1)(a)(ii)Jurisdiction-Expression

"without lawful authority and of no legal effect" - An expression of art and

refers to jurisdictional defects as distinguished from a mere erroneous

decision whether on question, of fact or even of law - High Court, in exercise

of its writ jurisdiction, concerned only with question whether Court or

Tribunal below had acted within its jurisdiction - Tribunal having jurisdiction

to decide a matter is competent to decide it rightly or wrongly and mere fact

that decision is incorrect does not render the decision as "without lawful

authority"-High Court, in writ jurisdiction, not competent to interfere with

order of Tribunal on purely equitable considerations..

It was not controverted that the matter before the High Court fell to be dealt

with under paragraph (ii) of sub-clause (a) of clause (1), Article 98 of the

1962 Constitution. That being so, the High Court could have set aside the

order, if it had reached the conclusion that the revisional order of the Board of

Revenue was "without lawful authority and of no legal effect." These are

expressions of art and refer to jurisdictional defects as distinguished from a

mere erroneous decision whether on a question of fact or even of law. It is

well-settled that where a Court or a tribunal has jurisdiction and it determines

that question, it cannot be said that .it acted illegally or with material

irregularity merely because it came to an erroneous decision on a question of

fact or even of law.

It is wholly wrong to consider that the constitutional provision was designed

to empower the High Court to interfere with the decision of a Court or

tribunal of inferior jurisdiction, merely because in its opinion the decision is

wrong. In that case, it would make the High Court's jurisdiction

indistinguishable from that exerciseable in a full-fledged appeal, which plainly

is not the intention of the Constitution-makers. When there is jurisdiction to

decide a particular matter then there is jurisdiction to decide it rightly or

wrongly and the fact that the decision is incorrect does not render the decision

without jurisdiction”. PLD 1964 SC 673

In the case of WALI MUHAMMAD AND others-Appellants Vs. SAKHI

MUHAMMAD AND OTHERS-Respondents on the appeal from the

judgment of the former High Court of West Pakistan, Lahore, dated 1st

March 1966, passed in Letters Patent Appeal, the Justice. Muhammad Yaqub

Ali, Anwarul Haq and Muhammad Gut, JJ accepted appeal and gave verdict,

Art. 98-Relief in writ jurisdiction being discretionary cannot be invoked to

help retention of ill-gotten gains by a party even if because of any technical

reason an order passed by a Tribunal below is not found strictly justifiable.

Grant of relief in writ jurisdiction being entirely discretionary with the High

Court, the Judge would have certainly acted in aid of justice in refusing any

relief to the respondents on the facts of the case, even if because of any

technical reason, the order of the tribunal below was not strictly found

justifiable. It is well settled principle that the High Court's writ jurisdiction

can be invoked in aid of justice and not to help retention of ill-cotton gains.

PLD 1974 SC 106

Justice. Imam Ali Kazi, J in the case of SULTAN INDUSTRIES Vs. THE

AUTHORITY UNDER PAYMENT OF WAGES ACT and another

dismissed the petition on ground of time barred. M/s. Sultan Industries, the

petitioners in C.P. No. S-45 of 1988 and C.P. S-46 of 1988 had employed

Gul Marjan and Hayat Shah as weaver and as a permanent worker

respectively in their factory. Each of them by separate applications filed under

section 15 of the Payment of Wages Act, 1936 before the Authority under

that Act at Karachi, claimed payment of certain amount towards the gratuity,

leave encashment, bonus, 5% Workers Participation Fund and over time. The

petitioners resisted such applications mainly on the ground that the

applications were not maintainable as being barred by time.

Constitution of Pakistan (1973)--

---Art. 199—Jurisdiction---Objection regarding jurisdiction of any Court,

Authority or Tribunal must of necessity be taken by a party at earliest

possible time---If a party fails to take such an objection at relevant time due

to any reason or omits to do so, it cannot after an adverse order was passed

against it, be permitted to take such an objection before higher forums

including a High Court by way of a petition under Art. 199 of Constitution.

Payment of Wages Act (IV of 1936)--

---Ss. 15 & 17---Constitution of Pakistan (1973), Art. 199—Wages--

Employees claiming amount in respect of gratuity, leave encashment, bonus,

5% workers' Participation Fund and overtime but his claim was resisted by

employer mainly on ground that their applications before Authority under

Payment of Wages Act were -not maintainable under law---Authority allowed

claim of employees--Employer instead of filing appeals within prescribed

period, preferred to file Constitutional petition after lapse of three months---

Employers who as a matter of their own choice omitted to avail of alternate

remedy by way of appeal, held, could not be permitted to approach High

Court under Art. 199 of Constitution--Party, who was allowed time

prescribed for filing appeal to lapse, could not after expiry of period of

limitation turn round and file a petition under Constitution--On expiry of

period of limitation employees in fact acquired a vested right to have order of

Authority in their favour executed---Such a right could not be taken away

even by way of Constitutional petition. 1990 P L C 357 [Karachi High

Court].

Justice. Ajmal Mian, CJ. and Mukhtar Ahmed Junejo, J in the case of

MUHAMMAD IQBAL SHAIKH ---Petitioner Vs. KARACHI

DEVELOPMENT AUTHORITY through Chairman and another---

Respondents allowed the writ petition and ordered accordingly as Allottee of

property in dispute, after making payment of full occupancy charges, got

possession of property---Property was duly purchased by petitioner from

allottee who got mutation effected in his favour---Property subsequently was

ordered by Authority to be cancelled from name of original allottee and

transferred to another respondent without first issuing any show-cause notice

to petitioner and without providing him opportunity of being heard---

Petitioner who was vendee of property and in whose favour mutation was

duly effected, having been condemned unheard, order passed by Authority

was declared to be illegal. 1990 C L C 879 [Karachi].

Writ of Habeas Corpus:

Article 199 Clause (1) (b) (i)

Paragraph (i) of sub-clause (b) of Clause (1) confers jurisdiction on high

Court to make an order on the application of any person, make an order in

the nature of writ of habeas corpus 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. It will be noted that the words “writ of Habeas

Corpus” have not been used in this paragraph but all the ingridients and

essential of the writ of habeas corpus as it is technically known in the English

Law have been provided in the provision. The provision is similar to but

wider in scope than Section 491 of the Cr.P.C and it being a Constitutional

provision, is of higher status and authority. Application for writ of habeas

corpus can be moved by any person.

Under the concept of habeas corpus as developed in Anglo-American

jurisprudence, persons who are deprived of their liberty have the right to

challenge through judicial inquiry the legality of their arrest or detention.

The right to challenge one’s arrest or detention is now incorporated in

international human rights standards.[1] This right may be exercised through

the extraordinary process of habeas corpus in the countries which belong to

the Common Law system, or through the normal procedural process,

including appeals and motions for retrial in the civil law countries.

The writ of habeas corpus is available in Canada, Japan, Pakistan, and the

United Kingdom. In the United Kingdom the importance and use of the writ

has diminished considerably due to extensive statutory protections. In

Pakistan the writ is recognized under Article 99 of the 1973 Constitution,

which gives the High Court the jurisdiction to hear and dispose of the writ. In

Japan the writ was introduced in the Constitution under the influence of the

United States following World War II, but the United Nations Human Rights

Committee has criticized Japan for Habeas Corpus Rules that impair its

effectiveness. In Canada the Supreme Court ruled that the law requiring

detention of persons deemed inadmissible to Canada on national security

grounds must be amended to recognize the right of such persons to petition

for habeas corpus relief.

The reports analyzing German and French constitutional and statutory

guarantees against arbitrary detention conclude that such guarantees can be

considered as comparable or equivalent to writs of habeas corpus.

The remaining countries have different constitutional and statutory provisions

that allow the courts to review the legality of a person’s arrest or detention.

The implementation and enforcement of such provisions are not fully

discussed in this report.

Issuance of a writ is an exercise of an extraordinary jurisdiction of the

superior courts in Pakistan. A writ of habeas corpus may be issued by any

High Court of a province in Pakistan. Article 99 of the 1973 Constitution of

the Islamic Republic of Pakistan, specifically provides for the issuance of a

writ of habeas corpus, empowering the courts to exercise this prerogative:

Article 199. Jurisdiction of High Court.—Subject to the Constitution, a High

Court may, if it is satisfied that no other adequate remedy is provided by

law,--

1. . . .

2. on the application of any person, make an order –

1. 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; . . .

The hallmark of extraordinary constitutional jurisdiction is to keep various

functionaries of State within the ambit of their authority. Once a High Court

has assumed jurisdiction to adjudicate the matter before it, justiciability of the

issue raised before it is beyond question. The Supreme Court of Pakistan has

stated clearly that the use of words “in an unlawful manner” implies that the

court may examine, if a statute has allowed such detention, whether it was a

colorable exercise of the power of authority. Thus, the court can examine the

mala fides of the action taken.

In another leading case, the Supreme Court stated that in exercising

constitutional jurisdiction relating to a detention, the court was under an

unconditional duty to satisfy itself with regard to the lawfulness of authority

of detention and the manner of detention. The scope of the inquiry is not in

any way fettered by any rules of procedure of the write of habeas corpus.

Once the attention of the court is properly drawn to a case of detention, the

onus immediately shifts to the detaining authority to show the lawfulness of

its authority in detaining the detainee. The duties, therefore, are specifically

that of the court and the detaining authority. The applicant may come to the

forefront in such situations incidentally.

Writ of Habeas Corpus is sought to enforce the right to life. When the life of

a person is in peril this writ is sought. Normally this writ is issued in case of

illegal detention. This writ can be issued even on a post card sent to the Judge

by victim or his relatives.

This provides that the privilege of the writ of habeas corpus

shall not be suspended except in times of rebellion or invasion, when the

public safety requires

suspension of the writ. [Note: A person who believes that he or she is being

illegally imprisoned

by the government can petition a court for a writ of habeas corpus. If the

court finds that the

person has been illegally imprisoned, it can order that the government free the

person.]

Defendants who want to challenge the legality of their imprisonment -- or the

conditions in which they are being imprisoned -- may seek help from a court

by filing an application for what is known as a "writ of habeas corpus.

A writ of habeas corpus (literally to "produce the body") is a court order to a

person (prison warden) or agency (institution) holding someone in custody to

deliver the imprisoned individual to the court issuing the order. Many state

constitutions provide for writs of habeas corpus.

Known as "the Great Writ," habeas corpus gives citizens the power to get

help from courts to keep government and any other institutions that may

imprison people in check. In many countries, police and military personnel,

for example, may take people and lock them up for months -- even years --

without charging them, and those imprisoned have no avenue, no legal

channel, by which to protest or challenge the imprisonment.

The writ of habeas corpus gives jailed suspects the right to ask an appellate

judge to set them free or order an end to improper jail conditions, and thereby

ensures that people in this country will not be held for long times in prison in

violation of their rights.

Origin and history of habeas corpus:

The writ of habeas corpus is an ancient writ. A fundamental legal safeguard

of freedom and the most important English common law writ, the writ of

habeas corpus is a court order commanding that an imprisoned person be

personally produced in court and that an explanation be provided as to why

that person is detained. The writ of habeas corpus provides a judicial remedy

for enforcing a fundamental individual right, the right to personal

liberty, which may be defined as the right to be free of physical restraint that

is not justified by law. Whenever imprisonment violates a constitutional or

fundamental right, there is an infringement of the right to personal liberty.

The writ of habeas corpus receives its name because originally it was written

in Latin and contained language which commanded the production of the

imprisoned

person by emphatically requiring the custodian (the person holding the

imprisoned person in custody) to whom it was directed to habeas corpus

[have the body] of the imprisoned person before the court at the time

specified in the writ.

At common law in England a habeas corpus proceeding was summary and

peremptory in nature and not subject to trial by jury or the elaborate rules of

pleading and procedure that governed most common law civil and criminal

actions. An imprisoned person seeking a writ of habeas corpus would,

through counsel, file an informal written motion in the Court of Chancery or

in one of the three great common law courts, the Court of King’s Bench, the

Court of Common Pleas, or the Court of Exchequer. The motion, usually

styled “Petition for a Writ of Habeas Corpus,” had to show on its face that

there was probable cause to believe the petitioner was unlawfully imprisoned,

and it had to be accompanied by an affidavit, under oath, supporting the

allegations in the petition. If the petition

did not make such a probable cause showing, or if the petition was not

supported by a sworn affidavit, it would be dismissed without a hearing by

the court. Otherwise the court would promptly issue a writ of habeas corpus

directed to the petitioner’s custodian and requiring the custodian to bring the

petitioner into court and to explain the cause of the imprisonment. If the

custodian, after being served with the writ, disobeyed it, he could be arrested

for contempt of court. Once the petitioner was brought into court and the

reason for the petitioner’s imprisonment explained, the court would conduct a

hearing and promptly make a determination whether the imprisonment was

lawful. If it was not, the court would, depending on the circumstances,

discharge the petitioner from custody, admit the petitioner to bail, or reduce

the petitioner’s bail. If the court determined that the petitioner was lawfully

in custody, the petitioner would be remanded to custody. An order granting

habeas corpus relief was final and unappealable. If the order denied relief,

the imprisoned person was permitted to file another habeas corpus petition in

another court, which was required to decide whether to grant or deny relief

without deferring to the denial of the previous habeas relief.

Beginning around 1800 English courts established a practice, instead of

issuing a writ of habeas corpus, of issuing an order to show cause why a writ

of habeas corpus should not be granted. This procedure permitted a habeas

corpus proceeding to be decided without actually bringing the imprisoned

person into court, and allowed habeas corpus relief to be granted or denied

without a writ of habeas corpus ever having been issued. Because of

widespread adoption of the show cause procedure and other procedural

changes in habeas corpus practice over

the years, at present many habeas proceedings the United Kingdom and the

United States are litigated from beginning to end without a writ of habeas

corpus ever actually issuing.

Historians disagree as to the time and circumstances of its earliest use, but the

writ of habeas corpus undoubtedly originated in medieval times. In the 1200s

and 1300s writs using the term habeas corpus were being issued by English

courts and the Council to transfer prisoners from one prison to another, or to

order the arrest of persons not in custody whose presence in court was

required. Around 1350 we have the earliest examples of prisoners petitioning

courts to bring them into court for the purpose of challenging their

imprisonment, and of courts, in response to a habeas corpus petition, ordering

jailors to produce a particular prisoner and to explain the cause of the

imprisonment. From 1350-1400 practically all habeas corpus petitions

seeking release from custody appear to have been filed in the Court of

Chancery. The earliest known habeas corpus proceedings in the common

law courts, instituted by prisoners filing habeas corpus petitions, were in the

Court of King’s Bench during the period 1450-1500. By the 1600s the writ

of habeas corpus was well-established.

The writ of habeas corpus remains available in the United Kingdom (except

Scotland where it has never existed). The writ is an available remedy in the

major Western democracies with a common law heritage–the United States,

Canada, Australia, and New Zealand. The writ is available in numerous

countries formerly part of the British Empire, including the Bahamas,

Bangladesh, Brunei, Ghana, India, Ireland, Israel, Fiji, Kenya, Malaysia,

Mauritius, Nigeria, Pakistan, Sri Lanka, Singapore, Tanganyika, and

Tanzania. The writ of habeas corpus is also available in Japan (where it was

introduced in 1948 by Gen. Douglas MacArthur as Supreme Commander of

American occupying forces), and in the Philippines (where it was introduced

by Gen. MacArthur’s father, the American military governor, in 1901).

The writ of habeas corpus provides relief from unlawful custody. The writ

itself does not, however, tell us what constitutes unlawful custody. The

effectiveness of habeas corpus in a given jurisdiction depends on the extent to

which that jurisdiction guarantees the rights of individuals. If the jurisdiction

provides few or narrow rights protections, or if habeas proceedings are

hobbled by procedural technicalities, the likelihood that habeas relief will be

granted is small.

Even nations which broadly guarantee individual rights may in times of

national emergency restrict habeas corpus relief by suspending the writ or by

declaring martial law or in some other way legalizing imprisonment which in

ordinary times would be unlawful. In England between 1689 and 1882,

during times of actual or likely invasion or rebellion, Parliament enacted more

than forty habeas corpus suspension statutes. These statutes, which typically

lasted only one year unless renewed by another 1-year suspension statute,

would typically prohibit courts, while the current suspension statute was in

effect, from trying, releasing, or bailing persons jailed on certain specified

charges (usually treason or treason-related offenses). In both World War I

and World War II, Parliament enacted statutes authorizing, during the war,

internment without trial of persons suspected of “hostile origins” or “hostile

associations,” or suspected of having committed “acts

prejudicial to the national defense.” With very few exceptions the English

courts denied habeas relief to persons detained under these wartime statutes.

During the American Civil War Congress suspended habeas corpus, and as a

result in 1861-1865 thousands of Americans were imprisoned without trial in

various Union fortresses and prisons for suspected “disloyalty”.

Traditionally habeas corpus relief could not be granted to persons unless their

custody involved physical confinement. Today, however, many jurisdictions

have relaxed the custody requirement and permit habeas relief to be granted

not only to the incarcerated, but also to persons on probation or parole or at

large on bail or recognizance, or otherwise subject to restraints on their

freedom of movement not shared by the public generally.

In the United Kingdom the writ of habeas corpus remains a common law writ,

and is principally used to challenge pretrial custody on criminal charges, or

custody pursuant to immigration or deportation statutes or extradition

agreements, or military custody or detention in mental hospitals.

The statutory introduction of Habeas Corpus was made in Indo-Pak sub-

continent when the present Code of Criminal Procedure was passed in 1898

containing section 491.

Object and nature of Habeas Corpus:

The object of writ of habeas corpus as enshrined in Article 199 (1) (b) (i) of

the Constitution is to preserve the liberty of the subject the security of which

has been gauranteed in Article 9 as a Fundamental Right of every person in

Pakistan. The basic purpose of of the writ is to provide a quick and effective

remedy to a person against his illegal, arbitrary and capricious arrest or

detention. The jurisdiction of high Court is invoked to secure speedy release

of the person illegally detained. The writ of habeas corpus is available for

release from unlawful detention or illegal retraint of an individual not only by

the State but also some private person. AIR 1964 SC 1625.

Scope of habeas corpus:

The scope of habeas corpus as provided in Article 199 (1) (b) (i) of of the

Constitution is much wider than that provided by section 491 of the Cr. P.C

and remedy of habeas corpus having been provided in the Constitution it is

subject to no restraints or fetters imposed by any other law. Since the basic

the basic question before the Court in habeas corpus proceedings is the

legality of the detention of the prisoner, the Court can go into contitutionality

of the law under which the detention was made and the Court has the power

to give finding on validity or otherwise of such law. If the action of the

detaining authority is tainted with malafides or such authority has not

complied with statutory requirements while making the order of detention of

prisoner or has not arrived at a satisfaction required under the relavant law,

the Court will interfere and will set the prisoner at liberty.

Main Salient Features of the Habeas corpus:

Main salient features of the writ of habeas corpus as as follows:

1. Any person can file a petition for habeas corpus under Article 199 of the

Constitution on behalf of the person allegedly confined wrongfully

without lawful authority or in an unlawful manner. Prisoner himself can

file habeas corpus petition through jail authorities or by other means if so

provided by the Rules and regulations of the High court concerned. It

deserves notice that under the proceedings for habeas corpus the person

who applies and the person who is detained need not be identical and the

restriction of petitioner being an aggrieved person does not exist in the

relevant clause. Such application should be accompanied where possible

with affidavit and other relevant documents showing the illegality of the

detention.

2. Habeas corpus will lie on the grounds of malice and ulterior motives. The

onus to prove and establish malafides will be on the petitioner.

3. Principle of res judicata will be applicable on a fresh petition if previous

petition was decided on merits. But where the previous application was

dismissed on technical defects viz. Inordinate delay non availing of

alternate remedy etc; the following application will not be hit by res

judicata.

4. Successsive petitions for habeas corpus to different judges of the same

Court will not be entertained.

5. Habeas corpus will ordinaily not lie for the release of a person who has

been sentenced to imprisonment by Court after trial on the ground that

there was no legal conviction.

6. Habeas corpus petitions will not generally be granted as a matter of course

in family disputes between parents for the custody of minors. Court

however, will not hesitate to issuae habeas corpus against a parent who

snatches away a child from the lawful custody of other parent.

Habeas Corpus Proceedings will be Civil in Nature:

Habeas corpus is closely related to Fundamental Right provided in article 9 of

the Constitution which gaurantee that no person shall be deprived of life or

liberty save in accordance with law. The proceedings in habeas corpus are

thus civil in nature as they are in essence for the enforcement of civil rights

of personal liberty. It is immaterial whether the restraint on the liberty of an

individual is is put thrugh civil or criminal process. The nature and character

of such proceedings will remain civil notwithstanding the position that the

petition for habeas corpus was filed to seek release of a person from custody

under a criminal prosecution.

In the case of MAJ.-GEN. (RETD.) Mian GHULAM JILANI-Petitioner

Vs. THE FEDERAL GOVERNMENT THROUGH THE SECRETARY,

GOVERNMENT OF PAKISTAN, INTERIOR DIVISION, ISLAMABAD-

Respondent in writ petition, Justice. Muhammad Siddiq and Javid Iqbal, JJ

accepted the petition on the grounds that Habeas corpus petition-Scope of

petition under Art. 199) of Constitution wider than that under S. 491, Cr. P.

C.-Petition for writ of habeas corpus filed under Art. 199 cover cases of

alleged illegal deprivation or curtailment of any liberty of citizens.

The scope of habeas corpus petition under the Constitution is much wider

than under section 491 of the Code of Criminal Procedure. A abeas corpus

petition under Article 199 of the Constitution is not restricted only to cases of

actual detention or confinement, but this writ is applicable as an effective

remedy in all cases of wrongful deprivation of personal liberty. Thus, if any

branch or part of civil liberty is taken away or abridged in an illegal manner,

that can be made the subject-matter of a writ of habeas corpus under the

Constitution. It is admitted that now-a-days great importance is attached to

personal liberty of citizens throughout the civilised world.

Held : A writ of habeas corpus filed under Article 199 of the Constitution will

cover the case of alleged illegal deprivation or curtailment of any liberty of

citizens. P L D 1975 Lahore 65

In another case Justice. Shamim Hussain Kadri and Muhammad Siddiq, JJ in

BEGUM SHAMIM AFRIDI-Petitioner vs. THE PROVINCE OF PUNJAB

THROUGH THE SECRETARY, PUNJAB HOME DEPARTMENT,

GOVERNMENT OF THE PUNJAB declared that Prisoners are to be treated

like human beings and they have to be looked after for physical and mental

health. Facilities of good food and humanly treatment is envisaged by the

provisions of the law. The modern development of criminology -has

revolutionized the system of treatment of convicted prisoners. The old brutal

treatment has given place to more humane one. The concept of vengeance by

society and of deterrence is in fact disappearing and is being replaced by the

concept of correction and rehabilitation. Though our jail administration is

moving with times, it is not keeping pace with advanced countries. A statute

may reflect the modern trend and may contain salutary provisions for fair

teatment of prisoners ; but in practice much depends upon the Superintendent,

who is expected to implement them in the spirit in which they are conceived.

A Superintendent of Jail may be a good disciplinarian, but it is not enough ;

he should also be a humanitarian possessing conscience and having an

awareness that to his care is entrusted an abnormal class of society deserving

a more sympathetic approach and sincere attempt at rehabilitation than that of

vindictiveness. Accepted the petition of habeas corpus. P L D 1974 Lahore

120

So long as it is the duty of the court to protect freedom of a citizen and his

immunity from illegal detention the court cannot decline to exercise its

jurisdiction merely because a dispute has arisen on the issue of the detention.

“It is wrong to think that in Habeas Corpus proceedings the court is

prohibited from ordering an inquiry into a fact. All procedure is always open

to a court which is not expressly prohibited and no rule of the court has laid

down that evidence shall not be received if the court requires it.” AIR 1964

SC 1625; AIR 1972 SC. 1140.

In case of Fida Muhammad Vs. Province of NWFP through Home

Secretary, Peshawar, the Justice Shah Zaman Baber stated that it is

misconception to think either under the defence of Pakistan Ordinance or the

rules fromed thereunder any arbitrary, unguided, uncontrolled or naked power

has been given to any authority. These provisions only confer a power which

is coupled with duty. The power can only be excercised after the duty has

been discharged in accordance with the guidlines provided in the statute and

rules. This judgement released an unlawfullt detained prisoner in June, 1973.

PLD 1973 Pesh. 156.

Writ of Quo Warranto:

Article 199(1)(b)(ii)

Article 199(1)(b)(ii) impowers a High Court to make an order, on the

application of any person, if there is no other adequate remedy, requiring a

person within its territorial jurisdiction, holding or purporting to hold a public

office to show under what authority of law he claims to hold that office. As in

case of other writs the name of “ Quo Warranto” has been avoided in clause

(2) (b) (ii) of Article 199. It will suufice to add that writ of Quo warranto is in

its nature an information lying against a person who claims or usurps an

office, franchise or liberty and is intended to enquire from him by what

authority of law he supports his claim, in order that the right to the office,

franchise or liberty may be determined. Writ in the nature of certiorari, held,

could be issued only in respect of orders passed or proceedings taken within

territorial jurisdiction of High Court and not otherwise. The writ of quo

warranto enables enquiry into the legality of the claim which a person asserts,

to an office or franchise and to oust him from such position if he is a usurper.

The holder of the office has to show to the court under what authority he

holds the office. It is issued when (a) the office is of public and of a

substantive nature; (b) created by statute or by the Constitution itself, and (b)

the respondent has asserted his claim to the office. Quo warranto is the

remedy or proceeding whereby the Court 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 to have the same forfeited, and to

recover it if having once been rightfully possessed and enjoyed, it has become

forfeited for misuser or nonuser. Provided it is a substantive corporate office

of a public nature, and the person proceeded against is in actual possession

and use of the office in question. an extraordinary writ requiring a person or

corporation to show by what right or authority a public office or franchise is

held or exercised a proceeding in the nature of a writ of quo warranto for

determining by what authority or right an office or franchise is held or

exercised and seeking as an extraordinary remedy the discontinuance of an

unlawful exercise of office or franchise. Writ of Quo-Warranto involves,

challenging a person, who is holding a public office. Therefore, this

jurisdiction should remain only with the High Court Division and should not

be shared with District Courts.

Nature and Scope of Quo Warranto:

Writ of Quo warranto is an ancient writ in the name of the King against a

person who claimed or usruped any office, franchise or liberty to inquire by

what authority he supported his claim. It was in the nature of writ of right. It

also lay in a case of non-user or long neglected franchise.

Writ of Quo warranto may be granted by High Court under Article 199 (1) (b)

(ii) of the Constitution upon a petition against a person who claims or usurps

an office to inquire from him by what authority of law he claims to hold that

office. This paragraph of the article thus confers power on High Court to

control executive and administrative actions in making appointments to public

office and also affords protection to individuals from being deprived of a

public office to which they may have a legal right. The office alleged to be

usurped by respondent must be a public office by election or appointment

under some law. Any person may apply, as the inquiry initiates relates to

matter in which the public is interested. The other condition of ‘ no other

remedy is provided by law” would however , govern the exercise of

jurisdiction in Quo warranto. The other basic requirement for exercising the

jurisdiction to issue Quo warrant, which has to be strictly complied with is

that the office must be a statutory office or created under statutory powers or

chater when the duties attached to it are of a public character.

Main Salient Features of Quo Warranto:

1. It is of fundamental requirement of writ of Quo warranto that the office

challenged in the petition must be one created by the State by Constitution

or statute or by charter and that the duty should be of public nature and the

respondent should be in possession of the office.

2. The office must be substantive in character. In other words it must possess

an entity of its own and have an independent and separate status and title.

3. The question of laches or delay is not of much relevency in Quo Warranto

proceedings because every day that usurper acts in office to which he is

not lawfully entitled, provides a fresh cause of action.

4. It is not necessary that the petitioner for the issue of quo warranto himself

should be an aggrieved person. It is maintainable at the instance of any

person, the reason being that the petitioner in Quo warranto does not seek

to enforce any right of his own nor does he complain any non performance

of duty to himself.

5. The writ of quo Warranto is discretionary in nature. Thus in a case where

a person is holding an office for a long time without any complaint from

any quarter and issue of writ would be vexatious, the Court in its

discretion may refuse to issue writ. Similarly acquiescence on part of the

petitioner may, disentitle him to writ of Quo Warranto.

6. The absence of entitlement to the office challenged in Quo warranto writ

must be patent. It should not elaborate inquiry or involve lengthy

controversy on questions of fact and law.

Justice. Aamer Raza A. Khan, J in the case of ATHAR REHMAN-Petitioner

Vs. MUHAMMAD LATIF TAHIR ETC---Respondents

In writ petition accepted writ by declaring that Writ jurisdiction-Proceedings

in quo warranto-Validity of notification declaring respondent, a depot-holder,

elected as member-Can be questioned under Art. 199-Mere fact of elected

member being in possession of a notification declaring him to be elected,

held, cannot divest High Court of its jurisdiction to determine validity of

notification itself.

Writ Jurisdiction-Any resident of local area to which public office relate,

held, in law, possessed of locus standi to move High Court for proceedings in

quo warranto.

Quo warranto-Laches-Delay in proceedings in nature of quo warranto, held,

by itself never considered sufficient for purpose of defeating a petition.-

[Laches]. P L D 1981 Lahore 48

In the case of SHAH AHMAD KHAN---Petitioner Vs. GOVERNMENT

OF PUNJAB through Chief Secretary, Punjab and another---Respondents

Before the Justice. Mian Hamid Farooq, J the writ petition was accepted on

the base of Quo warranto, writ of---Locus Standi to file---Aggrieved

person---Scope---For issuing writ of quo warranto it was not necessary that a

person should be aggrieved and no such restriction could be placed which

was, in fact, contemplated under sub-clause (a) of clause 1 of Art.199 of the

Constitution and accordingly any person, irrespective of the fact whether he

was aggrieved or not, could invoke constitutional jurisdiction by way of writ

of quo warranto against usurpation of public office by a person without

having any lawful authority---Under Art.199(1)(b)(ii) of the Constitution any

person and not necessarily an aggrieved person could seek redress from High

Court against usurpation of public office by a person who was allegedly

holding it without lawful authority. P L D 2007 Lahore 191

Justice. Syed Jamshed Ali, J in the case of Dr. GHULAM SHABBIR

SAQIB, D.H.O. Vs. GOVERNMENT OF PUNJAB. through Secretary L.G.

and R.D. Department and others dismissed the petition of writ of Quo

Warranto on the ground of Posting and transfer of officers including petitioner

and respondent, was made in public interest---No public servant had vested

right to claim appointment to a particular post---Opinion as to public interest

formed by a public functionary, could not be substituted by High Court in

exercise of its extraordinary discretionary jurisdiction under Art. 199 of the

Constitution. 2005 P L C (C.S.) 993 [Lahore High Court]

In the case of Dr. MUJAHID ALI MANSOORI and others Vs.

UNIVERSITY OF THE PUNJAB and others, the Justice. Syed Zahid

Hussain, J dismissed the petition on the basis of “Disqualification to hold

public office must exist not only on date of institution of Constitutional

petition, but also at the time of its decision---Object of such writ stated.

The aim and object of a writ in the nature of quo warranto is to pose a

question to the person holding public office to show his authority as to under

what law he claims to hold such office, and if it is proved that pubic office is

being usurped, then the writ may be issued by the Court. In order to succeed

in a petition for quo warranto, it is to be shown that such a disqualification to

hold a public office must exist and persist not only on the date of institution of

the petition, but also at the time of decision by the Court. Writ of quo

warranto is not issued, if it is found that the issuance of such a writ will be

futile. If the holder of public office is ineligible for appointment to that office

and remains ineligible up to the date of the hearing of writ petition, he is

undoubtedly a usurper and the principle of futility of writ would not be

attracted”. 2005 P L C (C.S.) 694 [Lahore High Court].

Enforcement of Fundamental Rights:

Clause (1) (c) of article 199

Provisions for the enforcement of Fundamental Rights are invariably

incorporated in the Constitution. There was no provision in the Government

of India Act, 1935 in this behalf. Our Constitution had two articles namely 22

and 170, which empowered Supreme Court and High Courts respectively to

issue directions or writs in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, for the enforcement of Fundamental

Rights, conferred by that Constitution. Clause (1) (c) of article 199 of 1973

Constitution is verbatim copy of that provision and confers jurisdiction on

High courts to give directions for the enforcement of Fundamental Rights

mentioned in Chapter I of Partr II of the Constitution. This power to issue

writs is concurrent with the powers of the Supreme Court under article 184

(3) of the Constitution with this important difference that while a High Court

can issue writ on any violation of fundamental rights by the public

functionaries, Supreme Court can do so only in cases where it considers that a

question of public importance with reference to the enforcement of

fundamental rights provided in Chapter I, Part II of the Constitution is

involved.

It may be pertinently pointed out that sub-clause (c) of clause (1) of Article

1999 like clause (3) of article 184 ceases to operate whenever a Proclamation

of Emergency is made under Article 232. The right remains suspended during

the period of the Emergency if the fundamental right in question is one of the

rights specified by the President in his order under Article 233.

Fundamental Rights can only be taken away or curtailed in accordance with

specific legal provisions. A person can challenge any violation or curtailment

of the fundamental rights in the form of a writ to the High Court or even to the

Supreme Court~ On the application of any aggrieved person, the court can

order any authority within its territorial jurisdiction (for the High Court this

means within a particular province) to uphold fundamental rights.

For example, in 1995 Naseem Firdaus filed a writ petition in the Lahore High

Court against her department, the semi-government Punjab Small Industries

Corporation, alleging that she had been discriminated against on the grounds

of her sex (i.e., in contravention of Articles 25 and 27). PSIC had selected a

junior male colleague to a post Naseem was qualified to be selected for. The

judge agreed that the PSIC had acted ‘in clear violation’ of the Constftution

and Naseem won the case.

Female medical college students took a writ petition up to the Supreme Court

against the discriminatory quota system which meant that girls had to secure

higher marks than boys to get admission in coeducational medical colleges.

The Supreme Court agreed that in this instance the quota system was a gross

violation’ of Articles 25 and 22. It also pointed out that the Constitution

allows discrimination only when it is a protective measure in women’s favour.

I lqbal Bibi had been kept at the Multan Darul Aman against her will on the

orders of a Magistrate. Arguing her writ petition that Article 9 gave her the

right of freedom of life and liberty, lqbal Bibi was released on the orders of

the Lahore High Court. The court said that to hold her without lawful

authority ‘would be a sin against the fundamental right enshrined in the

Constitution.’

It is a positive trend in issues of fundamental rights that the superior courts in

recent years have been increasingly widening the definition and scope of

fundamental rights as well as accepting fewer and fewer restrictions as

necessary. When any of the other legal rights have been violated by a public

authority, the Federal or provincial governments or local authority, and when

no immediate and adequate remedy is available, you can file a writ in the

High Court in the following circumstances:

* when the concerned authority has acted in violation of law, or not acted

in the way it was required to act or in a manner which the law does not

empower it to do. The court can order the authority to refrain from doing that

which is not required by law or order it to do what is required by law, e.g., a

false case has been registered against you.

* when an authority has ordered something to be done which the authority

was not legally empowered to order. The court can declare such an act null

and void

* if a public authority’s appointment is disputed or the rounds for a person

holding a public office are not clear. The court can ask the authority to

explain under what law and authority the office is being held -e.g., a college

principal is appointed in violation of seniority.

when a person is being held in illegal confinement against their will by

a public authority or by a private person. The court can order the

production of the person in court and check the reasons for confinement

and set the person free if there is no legal authority - known as a habeas

corpus petition, this can be used to restore he custody of children

snatched by a parent away from the parent who has rightful custody or

to trace persons illegally held by the state agencies.

Judicial Review in Pakistan:

The power of the judiciary to control administrative and even legislative

actions derive their force from the law and the Constitution. Under Article

175 of the Constitution of Pakistan, 1973, there is Supreme Court of Pakistan,

the High Courts and such other courts, as may be established by law. Now

the rule of law in Pakistan is well established. The obligations of the Courts in

Pakistan are, therefore, exclusively and directly to the law and the

Constitution, and by large they have always conducted themselves

accordingly. During the Martial Law also the ordinary courts have been

providing relief to the common citizens generally with the aid of qualified

counsel on both sides.

The courts at all levels are required, through proceedings in proper form, to

scrutinize the exercise of public power. They enjoy full protection under the

Judicial Officers (Protections) Act, 1950, for their actions in their judicial

capacity. There is also in Pakistan a jurisdiction provided to the High Courts

under Article 199 of the Constitution which is akin to that of the British High

Court of Justice in the prerogative jurisdiction. Article 199 is intended to

replace the writs of habeas corpus, certiorari, mandamus, prohibition and quo

warrants which are in use in England. In Part-II of our Constitution

those writs have been enshrined in Articles 8 to 28. The citizens of Pakistan

appear to be making, within their means, the maximum possible use of the

facility scrutiny by the Courts of the exercise of public power is called the

judicial review of administrative actions.

The Supreme Court is vested with power to scrutinize, at the appellate stage,

all matters of complaint regarding the use or irregular use of public power by

any authority of state howhighsoever. Alongside this is the power given to the

High Courts to pronounce upon the constitutionality and validity of all laws,

and the guarantee that the executive authorities will act in aid of the courts by

giving effect to its orders.

It would thus be seen that in the broad context of the administrative process,

the role of judicial institutions appears to be sporadic and peripheral. The law,

in its unending task of reconciling the interests of government and governed,

demarcates sets

of relationships and areas of activities in which claim and controversies may

be resolved and grievances redressed through the medium of the Courts. The

issues thus committed to the jurisdiction of the Courts are likely to excluded,

many that are thought to be of paramount importance for the conduct of the

government, to the individual citizen who seeks to vindicate his own legal

claims against the Administration.

First in importance is the meaning of “Judicial” for the purposes of

availability of order of certiorari and prohibition and the duty to observe the

rules of natural justice. Breach of the rules of natural justice is a ground for

awarding an order of certiorari and prohibition. It may issue to the statutory

bodies on other grounds e.g. excess of jurisdiction allegations of breach of the

rules of natural justice may be raised in other forms of proceedings. The

courts might have chosen to adopt different definitions of “Judicial” for each

of these three purposes” one for determining when certiorari and prohibition

may issue on grounds other than violation of natural justice and; yet another

for determining when a body is under a duty to comply with natural justice in

cases where its conduct is impugned otherwise than certiorari or prohibition.

The Courts have not in fact been drawn into making such elaborate

refinements, and they have generally made the tacit assumption that

“Judicial” is to be defined uniformly for each of these purposes.

The conception of “Judicial” may be either narrow or broader in its effect. A

public authority may exceed its powers by adopting an improper procedure as

well as by going wrong on a matter of substance. Substantive ultra vires may

relate to matters of law and fact or to matters of discretion. Discretionary

powers must be exercised for the purposes for which they were granted;

relevant considerations must be taken into account and irrelevant

consideration disregarded. They must be exercised in good faith

and not arbitrarily or capriciously. If the repository of the power fails to

comply with these requirements, it acts ultra vires. These assumptions have

conditioned the scope of judicial review of questions of law and fact, on the

one hand, and question of discretion, on the other, and it is, therefore,

convenient to treat review of discretionary powers.

In considering the scope of judicial review, a further broad distinction must

be drawn: ministerial, legislative and executive or administrative powers, on

the one hand and judicial powers, on the other. The validity of exercise of

ministerial administrative, and legislative powers affecting the legal interest of

individuals is always open to challenge in the courts, unless judicial review

has been excluded, directly or indirectly, by the relevant statute. The

executive findings or orders cannot be upheld on the ground that they are res-

judicata. Nor, in general, can the consequence of the strict application

of ultra vires doctrine be avoided by invoking the law of estoppel.

The theory of jurisdiction may now be stated as follows: jurisdiction means

authority to decide. Whenever a judicial tribunal is empowered or required to

inquire into a question of law or fact for the purpose of giving a decision

thereon, its findings on it cannot be impeached collaterally or on an

application for certiorari but are binding until

reversed on appeal.

The term “Ultra Vires” was first generally used to denote excess of legal

authority by independent statutory bodies and railway companies in the

middle years of the nineteenth century, though the main features of the

doctrine to which the powers of common-law corporation. The term came to

be used in relation to municipal corporations, then to the other new types of

local government authorities, and finally to the crown and its servants and

even to inferior judicial bodies.

Judicial Review of Errors Arising out of Right of Hearing, Limitation

etc. The Concept of Natural Justice:

The English Law recognizes but two principles of natural justice: that an

“adjudicator be disinterested and unbiased” and that “Parties be given

adequate notice and opportunity to be heard”.

The Concept of “Audi Alteram Partem”

No proposition can be more clearly established than the one that a man

cannot incur the loss of liberty or property for an offence by judicial

proceedings until he has had a fair opportunity or answering the case against

him. This rule was perhaps first enunciated in R.V. Chancellor of University

of Cambridge (1723) and till date it holds as good as when it was enunciated.

This right may be provided by the statutory instrument or it may rest upon

natural justice. In Pakistan, in one of his celebrated judgments, Late Homood-

ur-Rehman, Chief Justice reiterated a very salutary rule of

natural justice that “Whenever any person or body of persons is empowered

to take decisions after ex-post facto investigation into facts which would

result in consequences affecting, property or other rights of any person, then

the absence of any express words in the enactment giving such power,

including the application of principles of natural justice, the courts of law are

inclined generally to imply that power so given is coupled with the duty to act

in accordance with such principles of natural justice as may be applicable in

the facts and circumstances of a given case (University of Dacca V. Zakir

Ahmad) (PLD 1965 SC 90). The rule applies to judicial as well as

administrative actions of these bodies, especially where proceedings taken

may affect the person or property or other rights of the parties concerned in

the dispute. The question is not whether the authority concerned is a judicial

or quasi-judicial authority; the true question is whether the act being

performed by the said authority is or is not a judicial function or function of

judicial nature.

Exclusion of Audi Alteram Partam:

By no means every act or decision affecting individuals rights has to be

preceded by notice and opportunity to be heard. British Parliament may, by

apt words, expressly dispense with the need for notice or hearing, as by

permitting the demolition of buildings “ without any ……………… notice or

other formality or alteration of educational scheme without notice to the

parties affected unless the competent authority thinks it desirable”.

The right to notice or hearing was held, in the context of Britain, to be wholly

or partly excluded by any of the following factors, or by a combination of two

or more ofthem:-

i) Where the functions of authority concerned are held not to be judicial.

ii) Where the authority in which is vested the power to decided is entrusted

with a wide discretion.

iii) Where legislation expressly provides for notice and hearing for certain

purposes but imposes no procedural requirement for other purposes.

iv) Where action taken constitutes disregard of a privilege as distinct from

interference with a right.

v) Where to impose an obligation to disclose relevant information to the

party affected would be prejudicial to the public interest.

vi) Where an obligation to give notice and a hearing would obstruct the

taking of prompt preventive remedial action.

vii) Where the conduct of the party affected makes it impracticable to give

him notice or opportunity to be heard.

viii) Where the matter in issue is the monetary value of interest at stake is too

trivial justify an implication that opportunity to be heard is not afforded

before action is taken.

Discretionary Powers --- Judicial Discretions

The concept of a judicial discretion, which was not confined to courts in the

strict sense in British legal system was later stated by Lord Mansfield to

import a duty to be “fair, candid and unprejudiced; not arbitrary, capricious or

biased; muchless, warped by resentment, or personal dislikes”.

It follows that a discretionary power which is prima facie unfettered may be

held to be subjected to implied limitation set by common law. The broad

principles of judicial discretion adumbrated in the dicta particularly relevant

to the scope of review of discretions vested in courts, or tribunals analogous

to courts, from which a right of appeal lies to the superior court. The scope of

review may be conditioned by a variety of factors: the working of

discretionary power, subject-matter to which it is conferred, the materials

available to the court and in the ultimate analysis, whether a court is of the

opinion that judicial influenced by the form of proceedings in which review is

sought.

A discretionary power must, in general, be exercised only by the authority to

which it has been committed. It is a well-known principle of law that when a

power has been confided to a person in circumstances indicating that court is

being placed in its individual judgment and discretion it must exercise that

power personally unless it has been expressly empowered to delegate it to

another.

Judicial Remedies Against the Administrative Actions.

The principal judicial remedies to be considered against the administrative

action to be only touched now are the order of certiorari, prohibition and

mandamus and the equitable remedies of injunction and declaration. These

can conjointly be in essence called as the prerogative writs.

Remedies for Failure to Perform Public Duties:

(A) Civil Action for Declaration

As has been stated above one who has an immediate personal interest in the

performance of a public duty may bring following actions for a declaration as

to the scope of that duty:-

(B) Action for Mandatory Injunction.

(C) Action for Specific Performance.

(D) Action for Damages.

(E) Action for Mandamus.

BIBLOGRAPHY

1. Black Stone Commentries (iii) c. 18

2. Maitland. History of english Law

3. Halsbury’s Law of England, 3rd Ed. Vol. I & II.

4. Bonvier’s Law Dictionary, 3rd Revision, Vol. 2

5. Dicey’s Law of Constitution, 1948 Ed.

6. Access to Justice in Pakistan, Pakistan Law House . By Justice (R) Fazal

Karim, Ist Ed. 2003.

7. Principles Of Judicial Review by de smith, Woolf & Jowell, 1999.

8. Principles of Administrative Law, By Hamid Khan, 2000. PLD Publishers.

9. Administrative Law, By I. P. Massey. 6th Edition, easter Book Company,

India.

10. The Constitution of The Islamic Republic of Pakistan, By Justice

Muhammad Munir, PLD Publishers.

11. Law of Writs , By Emmanuel Zafar, 21st Century Edition, Irfan Law

Book House, Lahore.

12. Law of Writs (judicial Review in Pakistan) by Mr. M. Farani, National

Law Book House, Lahore.

13. BIC Eight edition, Vo.3

14. Ferris . Extraordinary Legal Remedies.

15. Corpus Juris Secundum Vol.14

16. Markose; Judicial Review Through Writ Petions, India

17. L.L. Jaffe, Judicial Review : Question of Law, H.L.R, Vol.69

18. Short & Mellor, Crown Practice

19. Chalmer’s Constitution Law

20. Tapping, Law and Practice of the High Prerogative Writ of Mandamus

21. Baily, Habeas Corpus and others Prerogative Writs, Vol:II

22. Davis Administrative Law

23. RK Choudhary's Law of Writs; Mandamus.

24. Law of writ procedure, judicial review in Pakistan: containing historical

and uptodate account of the extraordinary legal remedies as developed by

our superior courts in controlling administrative actions with a fairly

detailed reference to English precedents and comparisons with American

and ... By. Merajuddin Farani, Lahore Law Times Publications, 1968

25. Law of writs in Pakistan, By Muhammad Farīdulhaq, Nadeem Law

Book House, 1994

26. Law of writs in Pakistan, By. M.Zubair Saeed, PLD Publishers, 1995

27. Fundamental rights and constitutional remedies in Pakistan, By By Syed

Sharifuddin Pirzada

28. The Constitution of Pakistan: (as amended upto date), by Shaukat

Mahmood

29. Judicial review of administrative discretion in Pakistan, By S. M. Haider

30. Constitutional law of Pakistan: text, case law and analytical ..., Volume

2, By Syed Shabbar Raza Rizvi