Q.

Explain the writ jurisdiction of High Court under Article 199 of

the Constitution of Islamic Republic of Pakistan 1973?

Writ Jurisdiction {Article 199 (1-2)} : Powers of the

High Court to issue Orders and Directions.
The Constitution of 1956 had expressly recognized the Writ
jurisdiction of the High Court in its Article 170 and had classified the Writ as
writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto
and Certiorari. Under that Article, the High Court was given the power to
issue these writs to any person or authority including any Government. The
present Constitution (1973) has made no mention of writs. Instead of it, it
gives the High Court the power to give directions and orders. It is, therefore,
obvious that it has substituted the word order or directions, for writs of
various kinds mentioned above. In fact, this change is in keeping with the
changes in the British Judicial system, in which writs of the various kinds
have been abolished.

The reason is that these writs had become so

restricted in their meanings and application that they did not meet the needs
of the developing and complex society of the present times.

The term

orders or directions are so wide and flexible as to be applicable to all

needs and changes in the present day life. However, we have continued to
use the term writ to means these orders and directions, because of its past
use and convenience.
Under the Article 199 of the Constitution, the High Court may
(a) on the application of any aggrieved party, make an Order:(i)
directing a person performing in the Province functions in
connection with the affairs of the Federation, the Province or
local authority to refrain from doing that which he is not
permitted by law to do, or to do that which he is required by law
to do, or

(ii)

declaring that any act done or proceedings taken in the Province

by a person performing functions in connection with that affairs
of the Federation, the Province or a local authority has been
done or taken without lawful authority , and is of no legal effect;
or

(b) on the applicati0on of any person make an order:(i)

directing that a person in custody in the Province be brought
before the High Court so that the Court may satisfy itself that he
is not being held in custody without lawful authority or in an
(ii)

unlawful manner; or
requiring a person in the province holding or purporting to hold a
public office to show under what authority of law he claims to
hold that office.

(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 is or in relation to, any
territory within the jurisdiction of the court as may be appropriate for
the enforcement of any of the Fundamental Rights.
Subject to the constitution, the right to move a High Court for the
enforcement of the Fundamental Rights cannot be abridged.
It is clear from this provision that the High Court has the power to issue
orders in five kinds of cases.
1. Where a public servant or office has done something which he is
not permitted by law to do or has failed to do that which he is
required by law to do.
2. Any act done or proceeding taken by a person without lawful
authority.
3. He has held someone in custody without lawful authority or in an
unlawful manner.

4. He holds an office for which he has no authority of law to do so,

and
5. Any person of authority, including the government violates any
of the Fundamental Rights.
It should be noted that the High Court will make these orders only on
the application of an aggrieved party or person and not of its own account,
even if a matter of injustice otherwise comes into its knowledge. But in the
third category of cases, relating to unlawful arrest and custody application
can be made by any person. Moreover, the High Court will issue these orders
only when it is satisfied that no other adequate remedy is provided to the
aggrieved person or party by law. Furthermore, this order issuing power of
the High Court can be exercised in those cases in which any officer or agency
of the Federal Provincial or Local Government has done or not done
something under the law, as the case may be.
Restrictions on the jurisdiction of the High Courts (Article 199 (3-5)):
But three restrictions have been placed on its writ jurisdiction.
1. If the petitioner applies to the Court for an interim order against the
proceedings taken by these officers, and such an interim order would
prejudice or interfere with the carrying out of a public duty or is harmful to
the public interest, the High Court will not make such an order without first
giving a notice of application to the law officers of the Federal of Provincial
Government, that is, to the Attorney-General or the Advocate General
respectively, and after hearing them. This restriction has been placed so that
the work of the Government departments and officers may not be
unnecessarily obstructed by the stay orders or interim orders of the High
Court on the application of private citizen.

2.

Persons in the Defence Services of Pakistan cannot apply for the

writs or orders of the High Courts. Their jurisdiction has been expressly

barred by the Constitution to the matters pertaining to the Defence Services

are under the discipline of military laws and have military courts to regulate
their discipline, which will be weakened under the writ jurisdiction.

3.

The High Court cannot make an order on the application of

person, employed in the Civil Services of Pakistan in respect of the terms and
conditions of his service, except when he is dismissed by a subordinate
authority other than the appointing authority or when he is dismissed
without showing of the action taken against him. This provision is made to
ensure efficiency and discipline in the Civil Service of Pakistan.
Under Article 199 of the Constitution, there provisions are commonly
known as writs:(1)Mandamus,
(2)

(To give an order or direction). The aggrieved

person can
file writ petition.
Certiorari, (To set aside illegal/unconstitutional order that has
been

(3)

writ petition.
Prohibitions,

passed).

The aggrieved person can file

(To forbid to work which is not done as yet

Stay

Order). The aggrieved person can

file writ petition.

(4)
Habeas Corpus, and (To bring the person before the Court).
Aggrieved
(5)

or

any

other

person can file writ.

Quo Warranto (Under what authority you are holding the
public

office). Aggrieved or any other

person can file writ.

Objectives of Writs
a. To maintain supremacy of the Constitution.
b. To establish Rule of Law.

c. To ensure the governance is according to law to protect rights

d.
e.
f.
g.
h.

of the people.
To control abuse of power in order to control authorities.
To control the abuse of discretionary powers.
To maintain independence of judiciary.
To protect and enforce fundamental rights.
Expeditious and inexpensive justice.

Case Law

Badar-ul-Haq Khan Versus Election Tribunal Dacca

The following conditions were given in the case:1.
2.

No other adequate remedy is available,

Action of the public authority should be without

authority.
3.
Writ can be field against Public Functionary for his
official actions.
Aggrieved party approaches to the court in Quo-warranto,
Mandamus, Prohibition and Certiorari.

Case Law

Public Small Industries Limited

Cheema
2002 SCMR 549

Versus Ahmad Akhtar

1. The court held that if an alternative remedy is available it

must be exhausted first.
2.

If there is a self-contained statute then that remedy

should be exhausted first.

Law of limitation does not apply on writ petitions but not

inordinate delay (reasonable time).

Case Law (Writs)

1. Anwar Shaukat Versus Federation of Pakistan
1981 PLC 15

It was held that all officials acts and orders must be in

writing for the purpose of not only reference and record but also
responsibility and accountability.
2. Ghulam Dastgir Versus Salah-ud-Din
PLD 1987 Lahore 39
It was held that the constitutional jurisdiction under Article
199 is subject to other provisions of Constitution and cannot be
exercised in derogation of Article 225 which contains prohibition
that validity of election could not be called in question except the
proc3edure provided in the law.
3. Daud Versus Jamil-ur-Rehman
PLD 1985 Quetta 29
It was held that Supreme Court, High Court and military
Tribunals have been excluded from the definition of word person
in Article 199.
4. Sabir Shah Versus Federatioin of Pakistan
PLD 1994 Supreme Court 738
It was held that even if impugned act or action have been
protected by a constitutional provision by ouster clause, the
superior court still have the jurisdiction to interfere with three
categories of cases namely:
a. Without jurisdiction
b. Coram Non-judice and
c. Malafide actions
5. Capri Cinema Versus Government of Sindh
1985 CLC 1766
It was held that in order to constitute a person an
aggrieved person within the ambit of Article 199 it is not
necessary that he should have in strict juristic sense particular
rights but it is sufficient that he should have personal interest in
the performance of legal duty which if performed in manner not
permitted by law would result in loss of some personal benefit or
advantage to him.

Leading & Latest Cases on Article 199 of the Constitution of

Pakistan, 1973 :
AIR 1952 SC 64

THE RETURNING OFFICER NAMAKKAL

CONSTITUENCY

N.P. PONNUSWAMI

P L D 1973 SC 49

P L D 1977 SC 397

STATE
FEDERATION
OTHERS

OF

PAKISTAN

ZIA-UR-REHMAN AND OTHERS

AND UNITED
SUGAR
MILLS
LIMITED,
KARACHI

P L D 1977 SC 657

BEGUM NUSRAT BHUTTO

CHIEF
OF
ARMY
STAFF
FEDERATION OF PAKISTAN

AND

P L D 1988 SC 416

BENAZIR BHUTTO

FEDERATION
OTHERS

AND

OF

PAKISTAN

DARSHAN MASIH AND OTHERS

P L D 1990 SC 513

STATE

P L D 1992 LAHORE 462

NATIONAL
INDUSTRIAL
COOPERATIVE CREDIT CORPORATION PROVINCE OF PUNJAB AND ANOTHER
AND ANOTHER

1995 CLC 1687

M.D. TAHIR, ADVOCATE

CHIEF SECRETARY, GOVERNMENT OF

THE PUNJAB, LAHORE AND ANOTHER

P L D 1996 KARACHI 1

ZOHRA AND 5 OTHERS

THE GOVERNMENT OF SINDH, HEALTH

DEPARTMENT AND ANOTHER

1999 SCMR 2883

ARDESHIR
OTHERS

P L D 2000 LAHORE 508

2000 CLC 471

2001 YLR 1139

2004 CLD 905

COWASJEE

AND

MRS. SHAHIDA FAISAL

STATE

10

KARACHI
BUILDING
CONTROL
AUTHORITY (KMC), KARACHI AND 4
OTHERS
FEDERATION
OTHERS

OF

PAKISTAN

AND

M.D., WASA AND OTHERS

SHEHRI AND OTHERS

JAVED HUSSAIN DAR

PROVINCE OF SINDH AND OTHERS

LAHORE CHAMBER OF COMMERCE
AND INDUSTRY AND OTHERS

P L D 2005 SC 806

PAKISTAN RED CRESCENT SOCIETY

SYED NAZIR GILLANI
AND ANOTHER

2006 YLR 229

SHEHZAD RIAZ

P L D 2007 LAHORE 346

MUHAMMAD
AND
AHMAD
GOVERNMENT OF PAKISTAN THROUGH
(CORPORATE AND TAX COUNSEL)
SECRETARY HOME AND 6 OTHERS
THROUGH MUHAMMAD AZHAR

P L D 2009 SC 644

FEDERATION
OTHERS

P L D 2011 KARACHI 177

2013 MLD 433

FEDERATION OF PAKISTAN THROUGH

SECRETARY CABINET DIVISION

OF

PAKISTAN

MUHAMMAD MASOOD BUTT

AND MIAN MUHAMMAD NAWAZ SHARIF AND

OTHERS
S.M. CORPORATION (PVT)LTD AND 5
OTHERS

MIRPURKHAS SUGAR MILLS LTD

FEDERATION OF PAKISTAN THROUGH
THROUGH WASIF KHALID AND 22
SECRETARY
OTHERS

..