JUDGMENT Syed Mansoor Ali Shah, J.- (For himself and Jamal Khan Mandokhail, J.)
Preface
The jurisdiction of a court is determined by the Constitution and laws, not by caprice or convenience of the judges. And, it is the nature of the controversy that determines the jurisdiction of a court and not the magnitude of the interests involved. When caprice and convenience of the judges takes over, we enter the era of an “imperial Supreme Court”. According to Professor Mark A. Lemley, the U.S. Supreme Court has by its decisions given in the past few years, restricted the power of the Congress, the administration and the lower federal courts, and has concentrated the power in itself. The immediate danger of the imperial Supreme Court, writes Professor Lemley, is that it will damage the constitutional system by usurping the power that doesn’t belong to it; but the longer-term danger may be the opposite. The Court, by turning it in the minds of the public into just another political institution, may ultimately undermine its legitimacy and credibility of its judgments. We must ensure that our Supreme Court does not assume the role of an imperial Supreme Court with its judicial decisions restricting the power of the Parliament, the Government and the provincial High Courts assuming all the powers to itself, and must remember that “we have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”
2. The present suo motu proceedings and the connected constitutional petitions invite the Court to exercise its original jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (“Constitituion”) inspite of the fact that the matters involved are already pending adjudication before the provincial High Courts and the question of law involved in one case has been decided by the High Court of the Province concerned. It is, therefore, crucial that before embarking upon its original jurisdiction under Article 184(3) of the Constitution, this Court carefully assesses that such an exercise of discretionary jurisdiction does not border on judicial overreach, painting the Court, in the words of Professor Lemley, as an “imperial Supreme Court”. The original jurisdiction of this Court under Article 184(3) of the Constitution is not only “discretionary” but also “special” and “extraordinary”, which is to be exercised “with circumspection” only in the “exceptional cases” of public importance relating to the enforcement of fundamental rights that are considered “fit” for being dealt with under this jurisdiction by the Court. This jurisdiction of the Court is special and extraordinary, for in the exercise of it the Court acts as the first and the final arbiter, which leaves a party aggrieved of the determination made by the Court with no remedy of appeal to any higher court. This jurisdiction must not, therefore, be frequently and incautiously exercised, lest it damages the public image of the Court as an impartial judicial institution. Foundations of a judicial institution stand on, and its real strength lies, in the public trust and without such public trust and public acceptance, a court loses the legitimacy it requires to perform its functions. A court’s concern with legitimacy is therefore not for its own sake but for the sake of the people to which it is responsible.
Background facts
3. In the context of the dissolution of the Provincial Assembly of the Province of Punjab on 14.01.2023, a dispute arose in regard to appointing a date for the election, which involved the question of law: Who has the constitutional power and duty to appoint a date for the holding of a general election to a Provincial Assembly that stands dissolved under the second part of clause (1) of Article 112 of the Constitution at the expiration of forty-eight hours after the Chief Minister has advised the Governor to dissolve the Assembly but the Governor has not made any express order thereon? A political party, Pakistan Tehreek-i-Insaaf (“PTI”), through its Secretary General moved the Provincial High Court concerned, i.e., the Lahore High Court, by filing a writ petition under Article 199 of the Constitution for determination of the said question. A Single Bench of the Lahore High Court decided the said writ petition, along with other connected writ petitions, by its judgment dated 10.02.2023, holding that it is the Election Commission of Pakistan (“ECP”) which is to appoint a date for the holding of a general election when a Provincial Assembly stands dissolved under the second part of clause (1) of Article 112 of the Constitution and consequently directed the ECP to immediately announce the date of the election, after consultation with the Governor of Punjab. 4. The ECP and the Governor of Punjab preferred intra-court appeals (“ICAs”) before the Division Bench of the Lahore High Court against the Single Bench judgment dated 10.02.2023, which are pending adjudication. In the ICA, the Governor prayed for the suspension of the impugned judgment as an interim relief, which was however not granted by the Division Bench, and for the implementation of the judgment of the Single Bench, PTI filed a contempt petition, which is also pending adjudication. Suo motu proceedings and constitution petitions in this Court 5. Meanwhile, on 16.02.2023 a two-member Bench of this Court while hearing a service matter of a civil servant, surprisingly apprehended delay in the holding of the general election to the Provincial Assembly of Punjab and took suo motu notice of the matter, with the following observations: 7. We note that the Provincial Assembly of Punjab stood dissolved on 14.01.2023 pursuant to the Advice of the Chief Minister, Punjab dated 12.01.2023. As such, elections to the Punjab Provincial Assembly are required to be held within 90 days of the said date in terms of Article 224(2) of the Constitution. However, no progress appears to have taken place in this regard and there is a real and eminent danger of violation of a clear and unambiguous constitutional command.
The Hon’ble Members of the said Bench expressed their view on the matter and referred the same to the Hon’ble Chief Justice of Pakistan to invoke the suo motu jurisdiction of this Court under Article 184(3) of the Constitution, thus: 8………..We are, however, of the view that the matter brought to our notice during these proceedings raises a serious question of public importance with reference to enforcement of Fundamental Rights conferred by Chapter-1 of Part-II of the Constitution. Considering the fact that unless timely steps are taken to remedy the situation, there is an eminent danger of violation of the Constitution which we are under a constitutional, legal and moral duty to defend. We therefore consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction of this Court under Article 184(3) of the Constitution, who may if he considers appropriate after invoking jurisdiction under the said Article constitute a Bench to take up the matter. Let the office place this file before the Hon’ble CJP for appropriate orders.
After two days, on 18.02.2023, Mr. Muhammad Sibtain Khan, the Speaker of the Provincial Assembly of Punjab (a member of PTI before his election as Speaker) and some prominent members of PTI, like Mian Mahmood ur Rashid etc., filed Constitution Petition No.2 of 2023 in this Court under Article 184(3) of the Constitution, agitating the same grievance as recorded in the order of the two-member Bench. The Speaker of the Provincial Assembly of Khyber Pakhtunkhwa also joined in Constitution Petition No.2 of 2023 for agitating the grievance as to not appointing the date of the election by the Governor of the Province of Khyber Pakhtunkhwa. It may also be pertinent to mention here that earlier to the said suo motu notice taken by the two-member Bench, the President of the Islamabad High Court Bar Association had also filed Constitution Petition No.1 of 2023 in this Court under Article 184(3) of the Constitution on the same matter, on 09.02.2023, but the same had not been fixed for hearing till then.
6. Upon the recommendation of the two-member Bench, the Hon’ble Chief Justice of Pakistan invoked the suo motu jurisdiction of this Court under Article 184(3) of the Constitution, by his administrative order dated 22.02.2023, and constituted a nine-member Bench to consider the questions of law framed therein; his lordship also fixed the connected Constitution Petitions No.1 and 2 of 2023 for hearing before the nine-member Bench.
Our reservations on the invocation of suo motu jurisdiction and constitution of the Bench
7. We had serious reservations on the mode and manner how the original jurisdiction of this Court under Article 184(3) was invoked suo motu in the present matter as well as on the constitution of the ninemember Bench, which we expressed in our orders dated 23.02.2023 and the details thereof need not be reiterated here. Our reservations were regarding the administrative decision of the Hon’ble Chief Justice invoking the suo motu jurisdiction in the matter, after having noticed the mode and manner in which the issue arose out of an unrelated service matter of a civil servant being heard by a two-member Bench, nuanced by the surfacing of audio leaks involving one of the Hon’ble Judges of that two-member Bench and thereafter the constitution of the nine-member Bench that included the said two Hon’ble Judges. It is clarified that the actual sitting of the said two Hon’ble Judges on the Bench or their recusal from the Bench is of little concern to us, as it is a matter between the Judges and their conscience, only to be adjudged by history. Our reservations, however, remain to the extent of the administrative powers exercised by the Hon’ble Chief Justice and have been elaborated upon later in the judgment.
Decision by two Hon’ble Judges and recusal by two Hon’ble Judges and further hearing by the remaining five Judges
8. On the first date of hearing, i.e., 23.02.2023, at the very outset one of us (Jamal Khan Mandokhail, J.) read a note in Court expressing his opinion that the present suo motu proceedings were not justified. Two Hon’ble Judges of the nine-member Bench (Yahya Afridi and Athar Minallah, JJ.) dismissed the suo motu proceedings as well as the connected constitution petitions, by their orders dated 23.02.2023,1 inter alia holding: While the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction that is not affected by the pendency of any matter on the same subject matter before any other court or forum, the decision already rendered by the Lahore High Court in Writ Petition No.6093/2023, pending challenge in Intra-Court Appeal No.11096 of 2023, and the peculiarly charged and unflinching contested political stances taken by the parties, warrant this Court to show judicial restraint to bolster the principle of propriety. This is to avoid any adverse reflection on this Court’s judicial pre-emptive eagerness to decide.
On the second date of hearing, i.e., 24.02.2023, an application was filed by three political parties, namely, Pakistan Muslim League (N), Pakistan Peoples’ Party and Jamiat Ulema-e-Islam, requesting that the two Hon’ble Judges of the nine-member Bench (Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ.) may recuse themselves from hearing this case, for the reasons stated in the said application. Taking stock of the situation, the Hon’ble Chief Justice called a meeting of the Judges of the ninemember Bench, which took place on 27.02.2023.
9. In the meeting, the two Hon’ble Judges (Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ.) after deliberations decided to recuse themselves from the Bench. It was also considered that the two Hon’ble Judges (Yahya Afridi and Athar Minallah, JJ.), who had already made and announced their final decision of dismissing the constitution petitions and the suo motu proceedings on 23.02.2023 and had in their order left it to the Hon’ble Chief Justice to decide if they were required to sit through the remaining proceedings in the following words – “However, I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions.” Therefore, a Bench comprising the remaining five Judges of the nine-member Bench was reconstituted by the Hon’ble Chief Justice, to simply further hear the case and no specific order was passed to exclude the two Hon’ble Judges.
10. In the said backdrop, the remaining five members of the Bench heard the arguments of the learned counsel for the parties to the constitution petitions as well as the other major political parties including Pakistan Muslim League (N), Pakistan Peoples’ Party and Jamiat Ulemae-Islam, and examined the record of the case.
Scope of jurisdiction of this Court under Article 184(3) during pendency of the same matter before the High Courts
11. As the constitutional petitions involving the same matter are pending adjudication before the respective High Courts, we think it appropriate to first take up the question regarding the scope of jurisdiction of this Court under Article 184(3) of the Constitution during pendency of the same matter before the High Courts.
12. After the coming into force of the Constitution in 1973, it did not take much time that the question as to the nature and scope of the original jurisdiction conferred on this Court under Article 184(3), came for consideration before this Court in Manzoor Elahi. The Court not only elaborated the meaning and scope of the phrase “question of public importance with reference to the enforcement of any of the Fundamental Rights” as used in Article 184(3) but also explained the different contours of this jurisdiction, which so far as are relevant for the present case may be stated briefly as follows.
13. The original jurisdiction of this Court under Article 184(3) is an “extraordinary” jurisdiction, which is to be exercised “with circumspection”. It confers the “enabling powers”, and the Court is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the Fundamental Rights. Before exercising this extraordinary jurisdiction, the Court is to see whether the facts and circumstances of the case justify the exercise of it and whether the case is “fit” for being dealt with by the Court under this jurisdiction. As the jurisdiction of this Court under Article 184(3) is concurrent with that of the High Courts under Article 199, if the jurisdiction of any of the High Courts has already been invoked under Article 199 and the matter is pending adjudication, then the two well-established principles are also to be considered before exercising its jurisdiction under Article 184(3) by this Court: First, where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts then he is bound by his choice of forum and must pursue his remedy in that court; and second, if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed and is pending adjudication in the lower court, otherwise it would deprive one of the parties, of his right of appeal. Even where no similar petition on the same facts has already been filed in any of the High Courts, this Court can decline to exercise its extraordinary jurisdiction if it finds that sufficient justification has not been shown for bypassing, and not invoking, the concurrent jurisdiction of the High Court concerned.
14. We may add a third principle, i.e., the principle of forum non conveniens (inconvenient forum), which can also be usefully considered by this Court while deciding upon its discretion to exercise or not to exercise its jurisdiction under Article 184(3) in a particular matter. This principle of forum non conveniens is a legal doctrine in common law jurisdictions that allows a court to decline jurisdiction over a case if it determines that another court would be more appropriate or convenient for the parties involved. This principle aims to promote fairness and efficiency in the judicial system by ensuring that cases are heard in the most suitable venue. In other words, when a court is satisfied that there is some other court having the competent jurisdiction in which the case may be heard and decided more suitably for the interests of all the parties and the ends of justice, this principle allows it to decline the exercise of its jurisdiction despite having the same. This principle is generally applied in matters where courts of two or more countries have concurrent jurisdiction, and the court whose jurisdiction is invoked by one of the parties, is of the view that a court in another jurisdiction is more suitable to adjudicate the case and thus waives its jurisdiction over the case. The rationale of this principle can, however, be applied by the courts of concurrent jurisdiction that are situated in one and the same country also. Given this principle, this Court if, after considering the convenience of the parties and the nature of the matter involved, finds that the case may be heard and decided more suitably by a High Court under Article 199 of the Constitution, it may decline to exercise its jurisdiction under Article 184(3) of the Constitution.
15. The scope of original jurisdiction of the Court was again examined by an 11-Member Full Court Bench of this Court in Benazir Bhutto. The Court, in that case, considered and further explained the principles enunciated in Manzoor Elahi in regard to the exercise of this jurisdiction. No principle enunciated in Manzoor Elahi was dissented to or overruled. The Court simply found it proper to exercise its original jurisdiction under Article 184(3) in the facts and circumstances of the case before it.
16. In Benazir Bhutto, the Court endorsed the principle enunciated in Manzoor Elahi, that in matters of concurrent jurisdiction, the lower court should normally be approached in the first instance, by holding that it is no doubt correct that ordinarily the forum of the court in the lower hierarchy should be invoked but the principle is not inviolable and there may be genuine exceptions to it, such as the case before it where there had been a denial of justice as a result of the proceedings before the High Courts being dilatory and when the High Courts had not exercised its judicial power in the matter by making an order admitting the petitions for regular hearing and were thus not seized of the dispute. The Court also cautioned that the applicability of this principle is to be judged in the light of the particular facts and circumstances of each case, as there can be an abuse of this principle if there is an indiscriminate filing of petitions by persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. The Court explained that the petitioner before it was not bound by the choice of the forum made by another person who had filed a similar petition in a High Court in his individual capacity without there being any authorisation from the petitioner, the co-chairperson of the aggrieved political party, and held that the element of "common interest" of the two petitioners would strike at the choice of selecting the forum only when there is a proof to elicit a common design between them. The Court finally held that the facts of Manzoor Elahi and that of the petition before it were distinguishable, and thus proceeded to exercise its jurisdiction under Article 184(3) of the Constitution, without superseding in any manner the principles enunciated in Manzoor Elahi. Nor any other judgment of this Court has come or brought to our notice, which has overruled the principles enunciated in Manzoor Elahi. Thus, the principles enunciated in Manzoor Elahi and explained in Benazir Bhutto as to the nature and scope of the original jurisdiction of this Court under Article 184(3) of the Constitution is the law of the land till today, which should therefore be applied and followed by this Court unless a Bench of this Court larger than an 11-member Bench overrules the same.
17. Given the above legal position, this Court declined to exercise its jurisdiction under Article 184(3) of the Constitution in a later case of Farough Siddiqi, after considering the case of Benazir Bhutto, and held that it saw no reason whatsoever to deprive the High Court, of hearing the identical petition which was pending there, particularly when the facts and questions of law are same and when no dilatory tactics had been adopted in the High Court. The Court held that in the circumstances of the case, the direct petition before it under Article 184(3) was not maintainable on the ground that on the same subject-matter, a petition under Article 199 was pending in the Sindh High Court and dismissed the petition under Article 184(3) with the observation that the High Court would take up the petition under Article 199 pending before it for hearing in the first week after vacation. Similarly, in Wukala Mahaz this Court reiterated that there is no doubt that the Court cannot, as a matter of course, entertain a constitution petition under Article 184(3) of the Constitution and allow a party to bypass a High Court which has jurisdiction under Article 199 of the Constitution, inter alia, to enforce the Fundamental Rights under clause (2) thereof, and that the Court should be discreet in selecting cases for entertaining under Article 184(3) of the Constitution.
18. In the light of the above principles enunciated in Manzoor Elahi and explained in Benazir Bhutto, when we examine the facts and circumstances of the present case, we find that the writ petitions filed in the Lahore High Court by PTI and others cannot be said to have been filed to “stultify” the exercise of original jurisdiction by this Court under Article 184(3) nor is there any inordinate delay in the proceedings being conducted in that High Court, which could have justified the exercise of extraordinary jurisdiction by this Court under Article 184(3). The delay, if any, has in fact been caused by the present proceedings and, as observed by Justice Anwarul Haq in Manzoor Elahi that the “High Court…would have proceeded to examine the allegations…, if the matter had not been brought to this Court”, we find that the Division Bench of the Lahore High Court would have decided the ICAs pending before it and the Peshawar High Court would have decided the writ petition pending before it if the present proceedings had not been taken up by this Court. Further, we find the principle of choice of forum, as enunciated in Manzoor Elahi and explained in Benazir Bhutto, is also applicable to the present case as the writ petitions filed by PTI and others in the Lahore High Court and the constitution petitions, particularly C.P. No.2 of 2023 filed in this Court by the Speaker of the Provincial Assembly of Punjab and others, involve the element of "common interest" of the petitioners. We are, therefore, of the opinion that in view of the principles settled in Manzoor Ilahi and Benzair Bhutto, the present suo motu proceedings and the connected constitution petitions do not constitute a fit case to exercise the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution.
High Court judgment already in the field – how can original jurisdiction under Article 184(3) be exercised against a judicial pronouncement of a High Court, directly or indirectly
19. As aforementioned, the question of law involved in the present matter, is: who has the constitutional power and duty to appoint a date for the holding of a general election to a Provincial Assembly that stands dissolved under the second part of clause (1) of Article 112 of the Constitution, at the expiration of forty-eight hours after the Chief Minister has advised the Governor to dissolve the Assembly but the Governor has not made any express order thereon? And, this question has already been decided by a Single Bench of the Lahore High Court in the exercise of its constitutional jurisdiction under Article 199 of the Constitution by its judgment dated 10.02.2023, which judgment having not been set aside or suspended by any higher forum is in the field and is thus fully operative and binding on the parties to the writ petitions wherein the same was passed.
20. In view of the above position, the question as to the maintainability of the present suo motu proceedings and constitution petitions, falls for our determination: whether this Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution has the power to make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a High Court, directly or indirectly.
21. We are aware of certain judgments of this Court wherein this Court has exercised its jurisdiction under Article 184(3) of the Constitution, in the peculiar facts and circumstances of the cases, notwithstanding the pendency of writ petitions under Article 199 of the Constitution before the High Courts, but we could not lay our hands on any judgment wherein this Court has specifically taken up and decided the said question, and exercised its jurisdiction under Article 184(3) of the Constitution despite there being a judgment of a High Court passed under Article 199 of the Constitution in the matter taken up by this Court. The present case, therefore, appears to be one of first impression. And, before delving into the said question, we find it appropriate to reproduce here the relevant provisions of Article 199 and Article 184 of the Constitution for ease of reference:
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) ……………………………
(b) ……………………………
(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.
(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;
184. Original Jurisdiction of Supreme Court.
(1) …………………………
(2) …………………………
(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. (Emphasis added)
From the bare reading of the above-cited provisions of Articles 199(1)(c) and 184(3) of the Constitution, it is evident that the jurisdiction of a High Court under Article 199(1)(c) and that of this Court under Article 184(3) of the Constitution are concurrent, in so far as they relate to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution.
22. Article 184(3) of the Constitution empowers this Court “to make an order of the nature mentioned in the said Article”, i.e., Article 199, and as per clause (5) of Article 199 a High Court and this Court are excluded from the definition of the term “person” to whom any order or direction can be made, or whose any act or proceeding can be declared to have been done or taken without lawful authority, in the exercise of jurisdiction under Article 199. Thus, a petition under Article 199 of the Constitution is not maintainable before a High Court, nor can any order, direction or declaration under the Article be made, against itself or any other High Court or this Court, or in regard to any act done or proceeding taken by such Courts. The bar created by clause (5) of Article 199, which affects the jurisdiction of the High Courts conferred under that Article, being a substantive provision is also applicable to the exercise of its jurisdiction by this Court under Article 184(3) of the Constitution. Therefore, neither a High Court nor this Court can exercise its respective jurisdiction under Articles 199 and 184(3), against a High Court or this Court or against any act or proceeding of a High Court or this Court. We are fortified in our this view by the following opinion of a five-member Bench of this Court delivered in Ikram Chaudhry:
5. We tried to impress upon them that the above facts would not attract Article 184(3) of the Constitution if otherwise the aforesaid petitions are not sustainable in view of well-settled proposition of law; firstly, that a Bench of this Court cannot sit as a Court of Appeal over an order or a judgment of another Bench of this Court and, secondly, Article 184(3) confers jurisdiction on this Court of the nature contained in Article 199 of the Constitution, clause (5) of which excludes inter alia the Supreme Court and the High Courts. In other words, no writ can be issued by a High Court or the Supreme Court against itself or against each other or its Judges in exercise of jurisdiction under Article 199 of the Constitution, subject to two exceptions, namely, (i) where a High Court Judge or a Supreme Court Judge acts as persona designata or as a Tribunal or (ii) where a quo warranto is prayed for and a case is made out. (Emphsis added)
Because of the above legal position, a seven-member Bench of this Court has categorically and firmly held in Shabbar Raza that a judgment or an order of this Court “can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution”; such course is “absolutely impermissible”.
23. There is another legal aspect of the matter, which bars the interference by this Court with any judgment, decree or order of a High Court, in its jurisdiction under Article 184(3) of the Constitution. The jurisdiction conferred on this Court under Article 184 is its original jurisdiction, as mentioned in the title of this Article, in contrast to its appellate jurisdiction under Article 185 of the Constitution, which denotes that this Court is to exercise it in a matter that has not already been heard and decided by a High Court. This Court can examine the legality of any judgment, decree or order passed by a High Court and can set it aside, if the same is found to have been passed otherwise than in accordance with law, only in the exercise of its appellate jurisdiction conferred on it under Article 185 of the Constitution or by or under any law and not in the exercise of its original jurisdiction under Article 184(3) of the Constitution.
24. A similar view has been pronounced by the Indian Supreme Court in Naresh Mirajkar and Daryao in the context of its original writ jurisdiction under Article 32 of the Indian Constitution, which jurisdiction is similar to that of this Court under Article 184(3) of our Constitution. A nine-member Bench of the Indian Supreme Court held in Naresh Mirajkar that the correctness of a judicial order passed by a High Court can be challenged only by appeal and not by writ proceedings before it under Article 32 of the Indian Constitution. And in Daryao, a five-member Bench held that an original petition for a writ under Article 32 of the Indian Constitution cannot take the place of an appeal against an order passed by a High Court under Article 226 of the Indian Constitution (which is similar to Article 199 of our Constitution), and that there can be little doubt that the jurisdiction of the Court to entertain applications under Article 32, which are original, cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of the High Courts pronounced in writ petitions under Article 226 of the Indian Constitution.
25. It is a well-settled principle of law that what cannot be done "per directum” (directly) is not permissible to be done “per obliquum" (indirectly). When anything is prohibited, everything by which it is reached is prohibited also (quando aliquid prohibetur, prohibetur et omne per quod devinetur ad illud). Article 175(2) of the Constitution unequivocally declares that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. No court, including this Court, can evade this constitutional command by indirect or circuitous means. Thus, when a High Court or this Court cannot directly entertain a constitution petition under Article 199 or Article 184(3) of the Constitution against itself or each other or against any act done or proceeding taken by them, either of them cannot do it indirectly or impliedly by giving a decision contrary to the decision already given by any of them on the same facts and in the same matter, in the exercise of their respective jurisdiction under the said Articles. We can, therefore, safely conclude that this Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution does not have the power to make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a High Court, directly or indirectly. Hence, the present suo motu proceedings initiated, and the connected constitution petitions filed, under Article 184(3) of the Constitution are not maintainable in view of the constitutional bar of Article 199(5) read with Article 175(2) of the Constitution, in so far as they relate to the matter already decided by the Single Bench of the Lahore High Court in exercise of its jurisdiction under Article 199 of the Constitution.
To be continued…
