http://www.supremecourt.gov.pk/web/user_files/File/const.p.1_%202012_etc.pdf

Justice of Peace, section 22-A/22-B CrPC, ex-officio justice of peace, FIR, change of

investigation, non-registration of case by police, police order 2002

Justice of Peace' in the Light of Khizer Hayat Case - PLD 2005 Lahore 470

s. 22-A, 154 & 155Power and procedure of Justice of Peace in registration of case---Scope---Whenever Justice of Peace would seize of a complaint/petition under S.22-A, Cr.P.C., same principle and procedure would be applicable as provided under Ss.154 & 155, Cr.P.C. and Justice of Peace had to apply the same test by applying prudent mind in ascertaining as to whether the facts constituted a cognizable offence or not.

however, keeping in view the language of all the three clauses of subsection (6) of S.22-A, Cr.P.C., Justice of Peace, while issuing such directions, would refrain from giving directions to the Police to register the case under one or the other section of penal law.Our criminal justice system has been divided into three phases. The first one is called investigation phase followed by inquiry phase and the final and the 3rd stage relates to the trial phase. For all the three phases, different authorities like police, Illaqa Magistrate and Sessions Courts have been constituted and established by the law and their respective authorities/powers have been clearly defined and a line of demarcation in-between the three phases has been drawn with much clarity. The object and intent of the Legislature behind such scheme is that all the three authorities shall not interfere into the allotted field of jurisdiction of one another.Of course during investigation phase, the police have no unbridled powers and the Illaqa Magistrate and in some cases, the trial Court/Sessions Courts have been invested with authority to oversee and check this process but to the extent of well-defined limits. For example, after arrest of an accused, police cannot detain an accused person for more than 24 hours and for the extension of custody, it has to obtain the sanction of the local Magistrate. Similarly, the period for investigation has been fixed by the provisions of section 344 and section 167 of the Code and each extension must emanate from the Illaqa Magistrate or trial/inquiry Court. However, the police has been invested with powers to form its own opinion at the conclusion of investigation and if on the basis of evidence/material collected by it, case is made

out against an accused person, it may file a charge-sheet against him while to the contrary, if the evidence is deficient in all aspects, then it may file a cancellation report. However, the final decision to approve or disapprove the police opinion is to be given by the Illaqa Magistrate or the Court competent to take cognizance of the case. This process cannot be interfered with by Ex-officio Justice of Peace nor it can dictate to the police as to under what provisions of penal law, the charge-sheet against an accused shall be filed because while doing so, it will definitely trespass into the field of the police exercising statutory authority and the judicial authority of the Court or Magistrate who have been conferred upon such powers under sections 190 and 193 of the Code.

Keeping in view the provisions of section 155 read with section 154 of the Code, whenever the police (O.I.P.S.) refuses to register a case on the ground that the information given does not constitute cognizable offence or in his opinion, the dispute is of a civil nature, then the report must be recorded by it in the daily diary register and copy thereof shall be supplied to the complainant/informer which shall be annexed with the petition to be filed under section 22-A of the Code and in such a case, it would be more appropriate to ask for the written comments of the police (O.I.P.S.) to ascertain the reasons made basis for refusal to register a case. In some case, the Ex-officio Justice of Peace while giving directions to the police for registration of cognizable cases, deep assessment/appreciation of evidence is made with definite opinion which is unwarranted in law. At such a stage, the Justice of Peace shall make tentative assessment of the facts/material placed before him because in such capacity they, act as administrative officers but after all, they hold judicial office and if after the registration of the case and at the conclusion of investigation, charge-sheet is filed before the same Court presided over by the Justice of Peace which has rendered such an opinion earlier, then it would be difficult for him to wriggle out from that. The cardinal principle of justice also requires that each accused shall be deemed to be innocent unless proved guilty at the trial before a competent Court, therefore, in all circumstances, the Ex-officio Justice of Peace shall not express conclusive opinion on the facts before it while giving directions to the police to register a case.2010 P Cr. L J45

http://www.pja.gov.pk/constitution

A petition is a request to do something, most commonly addressed to a government

official or public entity. Petitions to adeity are a form of prayer called supplication.

In the colloquial sense, a petition is a document addressed to some official and

signed by numerous individuals. A petition may be oral rather than written, and in

this era may be transmitted via the Internet.

Powers of High Court Under A-199

1. INTRODUCTION: 

According to the constitution of 1973 of Islamic republic of Pakistan a high court is the highest court

in a province. Normally the jurisdiction of a High court is limited to its respective province. There are

five high courts in Pakistan. Out of these high courts one is based in capital city of country and other

four are based in capital cities of Punjab, sindh, balochistan and Khybar Phukton Kha. 

2. FORMATION AND APPOINTMENT OF HIGH COURT:

High court shall consist of a chief justice and so many other judges as may be fixed by law.

President of Pakistan makes appointment of chief justices and other judges of high courts from

those names, which are recommended by judicial commission of Pakistan. 

3. CONSTITUTIONAL JURISDICTION OF HIGH COURT:

The constitutional jurisdiction of the high court is defined in the constitution but unlike the Supreme

Court, it jurisdiction extends to both judicial and authoritative matters. It is most important part

because a high court is the highest court in the province and supervises the work of the subordinate

courts in it.  

4. MEANING OF WRIT: 

A written judicial order to perform a indicated act, or offering power to have it done. 

5. ESSENTIALS ELEMENTS OF WRITS: 

It is necessary to issue the writ that:- i. The court has complete satisfaction that a legal right has

violated. ii. No other adequate and speedy remedy is available iii. The petitioner has locus Standi to

invoke the jurisdiction of the court. iv. Petitioners came to the court with clean hand. v. Court has the

territorial jurisdiction. 

6. ANALYSIS OF ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN 1973: 

Under article 199 of the constitution the high court may make the following writs or order:- 

6.1 WRIT OF MANDAMUS:

 Following are the important point regarding writ of prohibition:- 

6.1.1 MEANING OF MANDAMUS: 

A writ of mandamus is a command issuing from the high court of justice, directing any person to do

any particular act therein specified which appertains to his office and is in nature of a public duty. 

6.1.2 HISTORICAL BACKGROUND:

Mandamus is a common law writ of extra ordinary character, sometimes referred to as the highest

judicial writ known to the law. It is also called one of the flowers of the crown. It seems originally to

have been one of that large class of writ or mandate by which the sovereign of England guided, the

execution of any wanted demonstration by his subjects

6.1.3 PURPOSE:

It is issued for the purposed that justice may be done in all cases where there is a specific legal right

and no specific legal remedy is available for enforcing such rights. It may also issue in cases where

although there is an alternative lawful cure, yet such mode of review is less advantageous, gainful

and powerful. 

6.1.4 CONDITIONS FOR THE WRIT OF MANDAMUS: 

There are some conditions for the writ of mandamus:- i. There must be a public duty. ii. There must

be a specific demand and refusal. iii. There must be clear right to enforce the duty. 

6.1.5 WHO MAY APPLY?

An aggrieved person may apply for the writ or order of mandamus.

6.1.6 AGAINST WHOM IT MAY BE ISSUED:

Writ of mandamus may be issued against a person performing functions in connection with the

affairs of federation or province or a province or a local authority to do any thin which he is required

by law to do. 

6.2 WRIT OF PROHIBITION: 

Following are the important point regarding writ of prohibition:- 

6.2.1 MEANING OF PROHIBITION: 

A writ of prohibition is an order which is issued to inferior court to discontinue a processing pending

before it on the ground that it has no jurisdiction to hold the said proceeding.

6.2.2 OBJECT OF WRIT OF PROHIBITION:

Following are the object of the writ of prohibition:- i. To prohibit any public functionary from doing an

act which is beyond its jurisdiction. ii. To restrain authorities from exercising extra jurisdictional

powers. 

6.2.3 WHO MAY APPLY FOR WRIT OF PROHIBITION:

Only an aggrieved person may apply for the writ of prohibition. Traditional view of Locus Standi is

applicable on the writ of prohibition.

6.2.4 GROUNDS ON WHICH A PROHIBITION MAY BE ISSUED: 

Following are the grounds on which a prohibition may be issued:-

i. Want of jurisdiction: The writ of prohibition lies only when it is intended to restrain a tribunal or a

court which assumes or threatens to assume a jurisdiction which it does not possess.

ii. Violation of principles of natural justice: A prohibition may issue when it is found that the action

was in violation of principles of natural justice. 

iii. Limits of Prohibition: There are some limits of prohibition:- unlawful jurisdiction Pending

proceedings. Proceeding party without jurisdiction. 

6.2.5 EXCEPTIONS: 

This writ cannot be issued against legislative body, political leaders and parties and private

organization etc. 

6.3 WRIT OF CERTIORARI: 

Following are the important point regarding writ of prohibition:- 

6.3.1 MEANING OF CERTIORARI: 

Certiorari means to certify. A writ of certiorari is a writ which is issued from superior court to call up

the record of a proceeding in an inferior court for review.

6.3.2 NATURE AND SCOPE:

It is an order issued by the Supreme Court or by a high court under the constitution to an inferior

court or any authority exercising judicial or quasi judicial functions to transmit to the court the record

of proceeding pending therein for scrutiny and decided the legality and validity of the orders passed

by them. 

6.3.3 OBJECT: 

The object of this writ is to keep all subordinate court/tribunal, quasi judicial authorities within the

limit of jurisdiction if they excess then their decision would be quashed by superior court by issuing

this writ.

6.3.4 WHO MAY APPLY FOR WRIT OF CERTIORARI:

An aggrieved person can apply for the writ of certiorari. It means that Traditional view of Locus

Standi is applicable on the writ of prohibition.

6.3.5 AGAINST WHOM CERTIORARI IS ISSUED:

The writ of certiorari is issued against:- Court. Judicial body. Quasi judicial body. Purely executive or

administrative tribunal. 

6.3.6 GROUNDS FOR THE ISSUES OF WRIT OF CERTIORARI:

The grounds on which a writ of certiorari may be issued usually are as under:- i. Where the inferior

court or tribunal acts without or in excess of the jurisdiction granted. ii. Where the order of the inferior

court or a tribunal is erroneous on the face of the record. iii. Where the order of the inferior court is

tainted with fraud, mala fide, corruption or collusion. iv. Where the inferior court or tribunal has

erroneously decided a collateral question or assuming jurisdiction which is does not possess. v.

Where a procedure is followed which is contrary to the principles of natural justice.

6.4 HABEAS CORPUS: 

Following are the important point regarding writ of prohibition:-

6.4.1 MEANING:

The writ of habeas corpus is the most ancient writ in the common law of England. Habeas corpus

means have the body before the court.

6.4.2 NATURE AND SCOPE:

This is the writ in the nature of an order calling upon the person who has detained another to

produce the latter before the court, in order to let the court know on what judicial grounds he has

been confined and to set him free if there is no legal justification for the imprisonment. 

6.4.3 OBJECTS:

The object of this writ is to provide a prompt remedy against illegal confinement. The object of the

writ of habeas corpus is to release a person from illegal detention. 

6.4.4 WHO MAY APPLY: 

Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply

for writ of habeas corpus against the detention of another provided he is bona fide interested in the

detenue.

6.4.5 AGAINST WHOM IT MAY BE ISSUED: 

This writ of habeas corpus may be issued against any person whether private or natural person. 

6.4.6 CONDITIONS:

There are some conditions on the writ of habeas corpus:- There must be detention. Detention must

be actual and illegal. Confinement should be in improper and unauthorized place.

6.4.7 EXCEPTIONS:

Preventive detention law and article 10 of constitution are the exception to this writ. Another thing is

Res-Judicata. This principle is not applicable in writ of habeas corpus since the liberty of person is

very much important than anything else. For even former application has been dismissed on other

ground fresh application may be filed on any fresh ground. 

6.5 QUO WARRANTO: 

Following are the important point regarding writ of prohibition:-

6.5.1 MEANING: 

A writ of Quo warranto is a writ issued by a superior court against a person who claims or who usurp

any office, franchise or liberty to enquire by what authority he supports his claim.

6.5.2 NATURE AND SCOPE:

Quo warranto is a judicial remedy against an occupier or usurper of an independent substantive

public office or establishment or freedom, the usurper is asked by what power quo warranto he is in

such office, franchise or liberty. If the answer is not satisfactory to the court, the usurper can be

ousted by an order of quo warranto. 

6.5.3 WHO MAY APPLY: 

Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply

for writ of quo warranto. 

6.5.4 OFFICE IN RESPECT OF WHICH WRIT IS ISSUED: 

It is a public office, in respect of which order or writ of quo warranto is issued, for example, The office

of speaker of national or provincial assembly. The office of advocate general of a province. 

6.5.5 CONDITIONS: 

There are some conditions on the writ of quo warranto:- That office must be created by statute, by

charter, or by constitution. The office must be public nature. The office must be some substantive

character. The holder must have been in actual occupation and under of the office in question.

6.5.6 RELIEF IN WRIT OF QUO WARRANTO:

Relief must be given by issuance of injunction to a person not to act therein. To declare the office

vacant.

7. CONCLUSION: 

Writ jurisdiction of high court under article 199 is available only when no other adequate remedy is

available. The high court can issue writs on mandamus, prohibition and certiorari on the application

of the aggrieved person and it can also issue writ of habeas corpus and writ on the application of

interested party. In case of public interest the Supreme Court also has the some power under article

199.

THE DOCTRINE OF “ALTERNATIVE REMEDY” WITH REFERENCE TO WRIT

JURISDICTION UNDER THE CONSTITUTION OFPAKISTAN, 1973

Abstract

The present paper would explore the legal principles with reference to the

doctrine of alternate remedy in relation with writ jurisdiction of High

Courts under the constitution of the Islamic Republic of Pakistan,1973. Inthe

light of relevant case law, the scope of the doctrine has been discussed in detail.

The doctrine has been established not to deprive a person from justice but to

give him a chance to exhaust the ordinary remedies. But this is not a static

principle; it has its exceptions too.

Introduction:

The basic and main purpose of framing the law is to maintain justice. If

a principle of law does not serve this purpose, it would cause the system failure.

It is necessary to maintain balance while applying a principle of law to a certain

state of facts, which would lead to upheld the justice. One of the reasons for

introducing the doctrine of alternate remedy is to avoid/reduce the number of

petitions to be filed directly in the High Courts. Secondly, if a person comes in

the High Court without exhausting a remedy available at a lower forum, the

purpose of establishing that forum would also be defeated which is against the

principle of justice. Thus, it is a matter which requires extra care so that the

rights of the individuals must be protected at any cost.

Meaning:

Alternate remedy as it has been held in Rizwan Ullah v. Registrar/President,

Cooperative Societies, N.W.F.P. Peshawar and three others, means a remedy,

which is adequate, efficacious, expeditious, inexpensive, speedy, prompt,

appropriate, exclusive, convenient, beneficial and effective.However, the test of

aforesaid connotation of alternate remedy depends upon the relevant facts and

law in each case.[1]

Before going onward, the distinction between alternative remedy and adequate

remedy must be kept in mind. Both must not be considered the same. When a

constitutional petition is filed in the High Court or Supreme Court, the first

question which may arise is that whether an alternative remedy is available with

reference to the said case or not. If the answer is “No”, the court may proceed

and decide the petition. But if the answer is “Yes”, then the second question

would arise and that is whether the available alternative remedy is adequate or

not. The answer to this question is answered by the Court itself. If the answer to

this question is “No”, the Court may proceed further otherwise the Court may

refuse the relief.

The first case whereby the concept of alternate remedy has been discussed by

the superior courts of Pakistanis the case of Mehboob Ali Malik[2] This case was

heard by a Full Bench of five Judges, and the judgment was delivered by Mr.

Justice Manzur Qadir. In regard to the principles, governing the grant of relief in

cases where alternate remedy was available, criterion was laid down in

paragraph 13 of the judgment appearing at page 581.

It provides that if the relief available through the alternative remedy, in its

nature or extent is not what is necessary to give the requisite relief, the

alternative remedy is not an adequate remedy.[3]

It further provides that if the relief available is equal to what is necessary to give

the requisite relief, the adequacy of the alternative remedy must further be

judged with reference to a comparison of the speed, expense or convenience of

obtaining that relief through the alternative remedy.[4]

Alternate   Remedy when bars Writ Jurisdiction:

The Constitution of Pakistan 1973 provides that the writ jurisdiction can be

invoked if alternate remedy is not available to the aggrieved party under the

relevant law.[5] It can be exercised only on proof of non-availability of alternate

remedy. It is, therefore, clear that if an alternate and adequate remedy is

available under the relevant law, the jurisdiction as provided under section 199

cannot be invoked.[6]However, in the absence of availability of alternate and

adequate remedy the constitutional jurisdiction ofSuperior Courts may be called

upon through the writ petition.[7]

Sometime, an alternate remedy is available but the petition is accepted. At

another time, alternate remedy is not available but the petition is not accepted.

It is only because of the circumstances of each case. Generally, when an

alternate and adequate remedy is available to a person, the High Court does not

interfere with the matter. In The Tariq Transport Company Lahorev. The 

Sargodha-Bhera Bus Service, Sargodha, etc.[8] the Supreme Court observed:

“Where a statute creates a right and also provides a machinery for the

enforcement of that right, the party complaining of a breach of the statute must

first avail himself of the remedy provided by the statute for such breach before

he applies for a writ or an order in the nature of a writ.”

In the same case, it was further observed:

“It is wrong on principle to entertain petitions for writs, except in very

exceptional circumstances, when the law provides a remedy by appeal to

another Tribunal fully competent to award the requisite relief. Any indulgence to

the contrary is calculated to create distrust in statutory tribunals of competent

jurisdiction and to cast an undeserved reflection on their honesty and

competency and thus to defeat the legislative intent.”

The extra-ordinary constitutional writ jurisdiction is entirely discretionary which

cannot be exercised in an ordinary course and it must be exercised with great

care. It cannot be exercised for “deciding the disputed facts and thwart the

procedural law”.[9]

If the remedy sought for, is in substance a remedy, which is available under the

ordinary law, then a suit should be the appropriate remedy instead of filing a

writ petition, because the remedy provided by the constitution is not intended to

be a substitute for the ordinary forms of legal action. However, where this is not

the case, the remedy by way of a suit can hardly be considered as an alternate

adequate remedy. In such a case, the writ petition may be competent.

The purpose of writ jurisdiction is not to create a competing remedy. It is an

additional remedy in the absence of an alternate adequate remedy subject to

the satisfaction of the higher court.[10] If the alternate adequate remedy has

not been exhausted or if a case requires detailed inquiry, the writ petition may

not be allowed.[11] Nevertheless, to exclude the constitutional writ jurisdiction

the alternate remedy should be meaningful, effective and adequate otherwise, it

would delay the proceedings and it would be a useless exercise, which is equal

to denial of justice (justice delayed, justice denied).[12]

If a statute creates a right and provides a remedy in shape of a machinery for

enforcement of that right, the party (complaining of breach of the statute)

should avail that remedy before invoking writ jurisdiction.[13] For example, in

case of a dispute relating to private contract the proper course would be

arbitration or institution of suit and not the writ petition.[14] The existence of

another remedy does not affect the jurisdiction of the court to issue a writ. It is a

thing to be taken into consideration while granting writs and if such remedy is

not exhausted, it will be a sound exercise of discretion to refuse to interfere

through a constitutional petition unless there are good grounds.[15]

As a rule, a higher court using its discretion may refuse an order of mandamus if

an alternative specific remedy at law, which is not less convenient, beneficial,

effective or adequate, and such remedy includes an appeal to an appellate

tribunal.[16]

In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj

Wadhwani & another, it has held that even where a party has approached the

alternative forum, a straight jacket formula cannot be formulated to decide that

whether the Court should entertain a writ petition or not. The Court may

examine the facts and circumstances of the case and decide as to whether it

was to entertain the petition or not. However, where the petitioner has already

approached the alternative forum for appropriate relief, it is not appropriate that

the writ petition should be entertained. The rule is based on public policy and

the motivating factor is that of existence of the parallel jurisdiction in another

Court.[17]

Alternate   Remedy when does not bar Writ Jurisdiction:

The rule that a higher court may not entertain a writ petition if any other

appropriate remedy is yet available, is not a rule of law barring jurisdiction but a

rule by which the court regulates its jurisdiction.[18] Hence, the adequacy of the

remedy is not considered as a rule of law and it is dependent on certain factors

like discretion of the court, the circumstances, etc.

In the following cases an alternate remedy does not bar the writ jurisdiction:

(i)                 Violation of fundamental rights  

The writ jurisdiction cannot be refused on the ground that alternative remedy is

available if there is violation of fundamental rights.[19] But if a person invokes

jurisdiction of the High Court for any other purpose, the court may refuse the

relief in its discretion.[20]

(ii)               Order malafide or unjust, etc.

Even if the remedy is available, the court will decide the adequacy of the

alternate remedy. It has been held that the writ jurisdiction will be available in

the following cases even if alternate remedy is available:

(i)                  Orders passed arbitrarily[21]

(ii)                Orders passed without lawful authority[22];

(iii)               Orders based on Malafide[23]; and

(iv)              Perverse, unjust and oppressive orders[24].

It is obvious that no inflexible rules can be laid down for the exercise of

discretion in this regard. The broad policy behind the doctrine is that the writ

jurisdiction is not meant to short-circuit or circumvent statutory procedures. It is

only where statutory remedies are entirely ill-suited to meet the demands of

extraordinary situations. However, even then the Court must have good and

sufficient reasons to bypass the alternative remedy provided by the statute.[25]

(iii)             Alternative remedy inadequate or illusory, etc.

If the alternative remedy is either inadequate,[26] less convenient[27], illusory,

[28] meaningless,[29]time consuming,[30] or involves delay,[31] or was lost for

no fault of the person,[32] the High Court may grant relief. In Digital World

Pakistan (Pvt.) Ltd. through Chief Executive v. Samsung Gulf Electronics FZE

through Managing Director/Chief Executive Officer and another, damages were

also held as inadequate remedy.[33] In Mian Ayaz Anwar v. Federation of

Pakistan through Secretary Interior and 3 others, the remedy of review was also

considered as inadequate.[34]

(iv)             Lack or abuse of jurisdiction

In a case where the order has been passed without jurisdiction or is unlawful, it

cannot bar the filing of writ petition under Article 199 of the Constitution.[35]

Generally, the High Court, in cases of lack or abuse of jurisdiction, would not

hesitate in entertaining constitutional petition although an alternate remedy is

available.[36]The same principle would apply in a case of excess of jurisdiction.

[37]

An aggrieved party can invoke the constitutional writ jurisdiction where the

impugned action is completely without jurisdiction, mala fide, unlawful and

passed in disregard of the law and principles of natural justice. It is not

necessary to avail alternate remedy in such matters.[38]

(v)               Question of law involved

Where decision of the petition depends upon the resolution of a question of law

or interpretation of a law, a writ petition would be maintainable even if the

alternate remedy has not been availed.[39]

(vi)             Illegitimate order

In Vincent and others v. Karachi Development Authority and others[40], it was

held thatthe mere fact that the right of appeal has been provided under the

relevant law, cannot divest jurisdiction of the High Court to entertain a

constitutional petition if the circumstances requires so. In this case, the

premises in occupation of petitioners was declared to be dangerous on the

report of inspection committee without notice to petitioners. The alternate

remedy was to file an appeal which could prolong the matter. Thus, it was not

proper to dismiss the case.

“Where alternate remedy was not equally efficacious or speedily or where

impugned order, as on face of it, is patently, illegal and without lawful authority

or suffers from such legal infirmities which are apparent on the face of the

record, the court may, in spite the existence of alternate remedy, exercise its

jurisdiction under Art.199 of the Constitution.”[41]

In error cases, if the error is apparent on the record, the writ petition may be

admitted. For example, a family judge passing an order to evict a tenant.

(vii)           Violation of principles of natural justice

When the constitutionality of an act is challenged or the case involves violation

of principles of natural justice, the writ petition may be admitted.[42]

(viii)         Violation of Legal Principles

It was held in a number of cases that where—

(i)                  an order, act or omission is erroneous, autocratic, capricious,

[43] or

(ii)                there is total lack of jurisdiction,[44] or

(iii)               a mandatory provision is ignored, or

(iv)              available material evidence is ignored, or

(v)                an action is arbitrary, or

(vi)              an order is tainted with illegality, etc.

(vii)             an order is wholly without authority[45]

the writ petition may be allowed.

(xi)               Mere availability of alternative forum

In M/S. S.J.S. Business Enterprises Ltd. v. State of Bihar (2004 Supp 2 SC 601),

the Court has held that mere availability of alternative forum for appropriate

relief does not impinge upon the jurisdiction of the High Court to deal with the

matter.[46]

It is, thus, clear from the above discussion that in appropriate cases,

constitutional jurisdiction can be exercised by High Court even where alternate

remedy was available.[47]

Well Recognized   Adequate Alternate   Remedies:

The following alternative remedies are considered as adequate remedies:

(i)                 Remedy of suit

If the remedy sought for, is in substance a remedy, which is available under the

ordinary law, then a suit should be the appropriate remedy instead of the

extraordinary remedy under Article 199.[48]Similarly, if the Petitioner had

already availed the remedy of civil suit which had already been finally

concluded, he is not entitled to invoke constitutional jurisdiction of High Court.

[49]

(ii)               Remedy of Representation

A representation has been considered as an adequate remedy.In WAPDA v.

Commissioner Hazara Division, where a person filed a writ petition against the

order of ombudsman without availing the remedy of representation before the

President of Pakistan, it was held that since the writ jurisdiction was a

discretionary remedy, the courts were not inclined to exercise it in the cases

where statutory remedy of representation before the president had not been

availed.[50]

(iii)             Amendment of the suit or pleadings

If the amendment of the pleadings is allowed by the law and it is sufficient to

meet the circumstance, it is adequate remedy. Thus, Circumvention of normal

processes of law cannot be permitted by accepting writ petition.[51]

(iv)             Remedy of appeal

Normally, appeal is considered as an adequate remedy. Thus, a writ Petition

filed against an appealable and revisable order would be rejected[52]

(v)               Appeal before special authority

Sometimes, a right of appeal is available before a special authority. It may

operate as an adequate remedy.[53]

(vi)             Remedy through ordinary criminal courts

The availability of remedy under Cr. P. C. operates as a bar to exercise

constitutional jurisdiction under Art. 199.[54] Similarly, The filing of a direct

complaint under Section 220, Cr. P. C. has been found to be an adequate

remedy in the case of Ghanwa Bhutto.[55] It provides:

“Remedy by way of a private complaint is equally an effective and a practical

remedy as against the registration of F.I.R. and is thus an adequate remedy.”

With respect to criminal cases, a magistrate is empowered to direct the police to

investigate the case and is authorized to exercise all powers of Criminal

Procedure Code available to him for investigating the case including the power

to arrest.[56] Similarly, a magistrate may also be asked to exercise powers

under Section 156(3) to direct the Police to register the FIR and investigate the

case.[57] Further, a magistrate is also empowered to take action against any

police officer who fails to perform his duties and there is no need to file a

constitutional petition in this respect.[58]

Presently, after insertion of sub-section (6) to Section 22-A, Cr. P. C. a Session

Judge as an Ex Officio Justice of Peace can issue appropriate directions to the

concerned Police Authorities, on the complaint of non-registration of FIR, by

directing them to register the FIR if cognizable offence is found to have been

committed.[59]

Remedies not recognized as Adequate

The following alternate remedies have been considered inadequate under the

relevant  circumstances:

(i)                 Mere Revision

Mere fact that a revision is competent, would not bar High Court from exercising

constitutional jurisdiction[60] if an impugned order is without jurisdiction or in

violation of some law.[61]

In Ghazi Fabrics International Limited, Gulberg-Iii, Lahorev. Water and Power

Development Authority, Lahore, it was held that failure to have recourse to the

revisional remedy does not necessarily operate as a bar for invocation of writ

jurisdiction.[62]

The availability of a revision may not be fatal to maintainability of petition since

revision in law sometimes is not reckoned to be an efficacious or alternate

remedy. For example, where the assessing officer is acting under the dictate

and control of his superiors, resort to departmental remedies may be an

exercise in futility.[63]

(ii)               Mere Review

Mere review is also not considered as an adequate remedy.[64]

Conclusion:

It is very clear from the aforesaid discussion that apart from certain principles,

the situation and the facts of each case are basis for determining whether

alternate remedy is available or not and that it is adequate or not in the given

circumstances.

Sometime one may feel that the High Court is performing the functions like a

lower civil court. The relief which a lower court may grant is being granted by

the High Court. The very common example, in this respect, is issuing

injunctions. This practice may be avoided. In this regard certain instructions may

be issued to the lower courts.

While considering different factors, the economic position of the petitioner

should also be considered. If he is unable to afford the expense of proceedings

at the ordinary/preliminary level, it may be assumed as equal to inadequate

remedy.

It must be admitted that the Higher Courts of Pakistan have been using their

discretion and deciding the issue of alternate remedy judiciously in a way to

upheld justice only although there may be some examples where an error has

been discovered. It is, because, sometimes merely considering the facts may

lead to injustice.

[1] PLD 2003Peshawar 203

[2] Mehboob Ali Malik v. TheProvince ofWest Pakistan, PLD 1963 Lah. 575

[3] Ibid.

[4] Ibid.

[5] Article 199, The Constitution of Islamic Republic of Pakistan, 1973; Ghulam

Abbas v. Executive District Officer (Health), Gujrat and another, 2010 P L C

(C.S.) 744

[6] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri Ghulam Shah and 2

others,  2003 YLR 1316

[7] Allah Nawaz & another v. The State, 2010 MLD 1412; Suo Motu

Case No.13 of 2007, PLD 2009 SC 217

[8] PLD 1958 SC (Pakistan) 437

[9] Rizwan Ullah v. Registrar/President, Cooperative Societies, N.W.F.P., PLD

2003Peshawar 203

[10] Naeem Jaffar  v. Senior Superintendent of Policeand 2 others, 1997 MLD

1198

[11] Asif Ali and others  v. K.M.C. through its Administrator and 6 others, 1995

CLC 1659

[12] Noori Trading Corporation (PVT.) LTD. and others v. Federation Of Pakistan,

PLD 1989Quetta 74

[13] Pakistan National Shipping Corporation v. Rent Controller,Lahore and 2

others, PLD 1992Lahore 305

[14] State ofU.P. v. Bridge and Proof Co., (1996) 6 SCC 31

[15] Union ofIndia & v. T.R. Verma,  AIR 1957 SC 882

[16] Tariq Transport CompanyLahore v. The Sargodha-Bhera Bus Service, PLD

1958 SC (Pak) 437

[17] AIR 1961 SC 1506

[18] The Murree Brewery Co. Ltd. v.Pakistan through the Secretary to Govt.

ofPakistan, PLD 1972 SC 279

[19] All Gilgit Baltistan Workers v. Federation ofPakistan, 2010 GBLR 1 Mian

Ayaz Anwar v. Federation ofPakistan, PLD 2010 Lah. 230

[20] Lal Harsh Deo Narain Singh & another v. State ofU.P. & others, AIR 1961 SC

1506

[21] Hayat Khatoon v. Allah Dino, 1985 CLC 1343

[22] Mst. Baghul and 17 others v. Deputy Commissioner, Tharparkar and 13

others, 2004 CLD 1220

[23] Ibid.

[24] Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) LTD, 2009

PTD 1392; Wattan Party through President v. Federation of Pakistan, P L D 2006

SC 697; Ghulam Ali Shah v. Deputy Commissioner & Incharge, Settlement

Cell,Sanghar, 1984 CLC 1729

[25] Assistant Collector Central Excise v. Dunlop India Ltd., AIR 1985 SC 330

[26] Himmatlal v. State of M.P., AIR 1954 SC 403; Ganpat Roy v. Addl. D.M., AIR

1985 SC 1635; Akhtar Abbas v. Administrator, Municipal Committee, Pattoki,

1996 PLC (C. S.) 429 Muhammad Aslam and others v. Municipal Committee and

others, 1998 P L C (C.S.) 93

[27] Wattan Party through President v. Federation ofPakistan, P L D 2006 SC 697

[28] B.E.S. Co. Ltd. v. Commrl. Tax Officer, AIR 1956 Cal 299; Ram & Shyam Co.

v. State ofHaryana, AIR 1985 SC 1147; Muhammad Aslam and others v.

Municipal Committee and others, 1998 P L C (C.S.) 93

[29] Mian Ayaz Anwar v. Federation ofPakistan, PLD 2010 Lah. 230

[30] Abid Hussain v. Government of Sind Through Chief Secretary, PLD 1984

Karachi 269 Shaukat Ali v. State Bank of Pakistan, 2007 CLD 1352

[31] Bhagirath Singh v. State ofPunja, AIR 1965 Punj 170

[32] Zila Parishad v. Kundan Sugar Mills, AIR 1968 SC 98

[33] 2010 CLD 804

[34] PLD 2010Lahore 230

[35] Hayat Khatoon v. Allah Dino, 1985 CLC 1343;

Chairman, Central Board of Revenue, Islamabadv. Messrs Pak-Saudi Fertilizer

Ltd., 2000 PTD 3748

[36] Baburam v. Zila Parishad, AIR 1969 SC 556; Chief Engineer, A.E.B v.

Commissioner for Workmen’s Compensation Authority, 2000 PLC (CS) 1082

[37] Syed Ali Abbas v. Vishan Singh, PLD 1967 SC 294

[38] Messrs Ahmed Clinic v. Government of Sindh and others, 2003 CLC 1196

[39] Messrs Pioneer Cement Limited v. Province of thePunjab, 2000 CLC 54 Syed

Nayyar Hussain Bukhari v. District Returning Officer, NA-49,Islamabad, PLD 2008

SC 487

[40] Vincent and others v. Karachi Development Authority, 1992 CLC 518

[41] Pervez Iqbal v. Provincial Transport Authority, Sindh, 1996 CLC 182

[42] Sri Balasubramania Traders v. Assistant Commissioner of Income-Tax, 2001

PTD 3475 Muhammad Younus v. Divisional Canal Officer, Lodhran Canal

Division, Multan, 2010 CLC 68

[43] Syed Allah Dost v. Haji Muhammad Alam and 12 others, PLD 1987Quetta

235

[44] Ibid

[45] Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty,

etc., PLD 1961 SC 119

[46] Chief Engineer, A.E.B v. Commissioner for Workmen’s Compensation

Authority, 2000 PLC (CS) 1082;

[47] Dr. Ghulam Mustafa Chaudhry v. Dr. M Ashiq Khan Durrani, VC BZU Multan,

2000 PLC (CS) 385

[48] Faisal Razzaq v. Tehsil Municipal Administration, Khairpur Tamewali, 2007

YLR 2887

[49] M. Pervaiz Iqbal v. P.O.P., and others, 2008 YLR 2485

[50] WAPDA v. Commissioner Hazara Division, 1992 SCMR 21

[51] Dr. M. O. Ghani, Vice-Chancellor,University ofDacca v. Dr. A. N. M.

Mahmood, PLD 1966 SC 802

[52] Faisal Razzaq v. Tehsil Municipal Administration, Khairpur Tamewali, 2007

YLR 2887 Nizam-ud-Din Ahmad v. Commissioner of Sales Tax, 1971 SCMR 68

[53] The Presiding Officer v. Sadruddin Ansari, PLD 1967 SC 569

[54] Waseem-ul-Haq v. Govt. of Sindh, PLD 1975Karachi 1

[55] Mrs. Ghinwa Bhutto v. Govt. of Sindh, PLD 1997Karachi 119

[56] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri Ghulam Shah, 2003

YLR 1316

[57] Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani, P L D 2002Karachi

328

[58] Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro, 2010 SCMR 624

[59] Zulfiqar Ali v. Sub-Divisional Police Officer, Jampur, District Rajanpur, 2010

P.Cr.L.J. 556

[60] Abdul Baqi and others v. The Superintendent, Central Prison , Machh, PLD

1957Karachi 694

[61] Mrs. Razia Begum  v. Cantonment Board,Clifton ,2000 YLR 2114

[62] PLD 2000Lahore 349

[63] SBLR 2001Karachi 945

[64] Mian Ayaz Anwar v. Federation ofPakistan, PLD 2010Lahore 230

By: AMJAD HUSSAIN Assistant Professor, Department of Law, The

IslamiaUniversity of Bahawalpur,Pakistan

Army School vs Smt. Shilpi Paul on 16 August, 2004

Showing the contexts in which writ against private person appears in the documentChange context size 

 

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32. In the aforesaid decision in Anand Kumar Gupta's case a Division Bench (Per M. Katju, J.) observed :

"The language of Article 226 is no doubt very wide. It states that a writ can be issued 'to anyperson or authority' and 'for enforcement of rights, conferred by Part III and for any other purpose'. However, the aforesaid language in Article 226 cannot be interpreted and understood literally. If we take the language literally it will follow that a writ can be issued to any privateperson or to settle even private disputes. If we interpret the words 'for any other purpose' literally it will mean that a writ can be issued for any purpose whatsoever, e.g. for decidingprivate disputes, for grant of divorce, succession certificate etc. Similarly, if we interpret the words, "to any person" literally it will mean that a writ can even be issued to private persons. However, this would not be the correct meaning in view of various decisions of the Supreme Court and of other Courts [vide Smt. Biran Devi v. Sechu Lal, 2001 (4) AWC 2659 ; Gajendra Kumar Sharma v. General Manager, 1999 (3) UPLBEC 2452 ; Carisbad Co. v. Jagtiani, AIR 1952 Cal 315 etc.].

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The correct interpretation of the aforesaid words in Article 226 is that a writ can ordinarily be issued to a person to whom writs were traditionally issued by British Courts on well established principles. Similarly, the words, "for any other purpose" have to be interpreted in the narrower sense to mean that a writ can be issued for the purpose for which writs were traditionally issued by British Courts on well established principles [vide Workmen of Pepsico v. Labour Commissioner, 2000 (3) ESC 1593 (All)]. The British Courts did not ordinarily issue writs to private personsexcept a writ of habeas corpus.