199

Article: 199 Jurisdiction of High Court

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, 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

(b) on the application of any person, make an order –

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; 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.

1[(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.]

2[(3A)] Omitted.
2[(3B)] Omitted.
2[(3C)] Omitted.

(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 3[or State property] 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.

4[(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in part 1 of the First Schedule or relates to, or is connected with, 5[State Property or] assessment or collection of public revenues shall cease to have effect on the expiration of a period of 5[six months] following the day on which it is made, 6[provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made.] ]

7[(4B)] Omitted
(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.

 

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Footnotes:

1. Section 9 of the Constitution (First Amendment) Act, 1974 (33 of 1974) substituted clause (3) of Art. 199, in its present form, (w.e.f. May 4, 1974), in place of the clause as adopted in 1973, that read:
“(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.”

2. Item 40 of the schedule to P.O. No. 14 of 1985, Omitted clauses (3A), (3B) and (3C) of Art. 199, (w.e.f. March 2, 1985). The said clauses, as amended by Section 2 of the Constitution (Amendment) Order, 1980, P.O. No. 1 of 1980, (w.e.f May 26, 1980), read :
“(3A) Notwithstanding any judgment of any court, including any judgment in respect of the powers of courts relating to judicial review, a High Court shall not, under this Article,—
(a) make an order relating to the validity or effect of any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken or intended to be done or taken, thereunder;
(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal;
(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal; or
(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.

(3B) Every such order, injunction or process as is referred to in clause (3A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgement of any court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any court, including the Supreme Court and a High Court, shall abate.
(3C) The proclamation of the fifth day of July, 1977, all President’s Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulation and Martial Law Orders made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made.”

Section 8 of the Constitution (Fourth Amendment) Act, 1975 (71 of 1975), inserted clause 3A to Article 199 (w.e.f. November 21, 1975). Clause 3A as inserted in 1975 read :
“(3A) A High Court shall not make an order under clause (1)-
(a) prohibiting the making of an order for the detention of a person, or
(b) for the grant of bail to a person detained, under any law providing for preventive detention.”

Section 11 of the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), substituted clause 3A of Art. 199 and further added clauses (3B) and (3C) (w.e.f. September 13, 1976). The clause (3A), as substituted and clauses (3B) and (3C) as added, at that time, read :
“(3A) A High Court shall not make under this Article:—
(a) an order prohibiting the making, or suspending the operation, of an order for the detention of any person under any law providing for preventive detention;
(b) an order for the release on bail of any person detained under any law providing for preventive detention;
(c) an order for the release on bail, or an order suspending the operation of an order for the custody, of any person against whom a report or complaint has been made before any court or tribunal, or against whom a case has been registered at any police station, in respect of an offence, or who has been convicted by any court or tribunal;
(d) an order prohibiting the registration of a case at a police station, or the making of a report or complaint before any court or tribunal, in respect of an offence; or
(e) any other interim order in respect of any person referred to in any of the preceding paragraphs.
(3B) Every such order as is referred to in clause (3A) made at any time after the commencement of the Constitution (Fourth Amendment) Act, 1975, shall cease to have effect and all applications for the making of any such order that may be pending before any High Court shall abate.
(3C) The provisions of clauses (3A) and (3B) shall also apply to the disposal of an application in a petition for leave to appeal, or in an appeal, from an order such as is referred to in the said clause (3A) that may be pending before the Supreme Court immediately before the commencement of the Constitution (Fifth Amendment) Act, 1976.”

3. Item 40 of the schedule to P.O. No. 14 of 1985, inserted the said words in paragraph (b) of clause (4) of Art. 199, (w.e.f. March 2, 1985).

4. Section 8(c) of the Constitution (Fourth Amendment) Act, 1975 (71 of 1975), inserted clause (4A) to Art. 199 (w.e.f. November 21, 1975).

5. Item 40 of the schedule to P.O. No. 14 of 1985, inserted the said words in clause (4A) of Art. 199, and also substituted the said words, in place of the words “sixty days” therein, (w.e.f. March 2, 1985).

6. Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), validated the substitution in clause (4A) of Art. 199, (w.e.f. December 31, 2003). Item 18 of the schedule to C.E.O. No. 24 of 2002, substituted the said comma and words, in place of the words and commas “unless the case is finally decided, or the interim order is withdrawn, by the Court earlier” in clause (4A) of Art. 199, (w.e.f. August 21, 2002).

7. Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), validated the omission of clause (4B) of Art. 199, (w.e.f. December 31, 2003). Item 18 of the schedule to C.E.O. No. 24 of 2002, omitted clause (4B) of Art. 199, (w.e.f. August 21, 2002), that was added by item 40 of the schedule to P.O. No. 14 of 1985, (w.e.f. March 2, 1985). The deleted clause (4B) of Art. 199, read :
“(4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.”