P L D 2026 Supreme Court 81

 P L D 2026 Supreme Court 81

Present: Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail,

Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Shahid Bilal

Hassan, JJ

JUSTICE TARIQ MEHMOOD JAHANGIRI, JUDGE, ISLAMABAD HIGH

COURT---Petitioner

Versus

MIAN DAWOOD, ADVOCATE HIGH COURT and others---

Respondents

C.P.L.A. No.4247 of 2025, decided on 30th September, 2025.

(Against the order dated 16.09.2025 passed by Islamabad High Court,

Islamabad in Writ Petition No.3670 of 2025).

Per Amin-ud-Din Khan, J.

(a) Constitution of Pakistan---

----Art. 199 (1)(b)(ii)---Writ of quo warranto against Judge of High

Court---Restraining from judicial work---Non-deciding of objection---

Appellant was a sitting Judge of High Court who had been restrained

from performing his official work by Chief Justice of that High Court in

a petition filed against him assailing his appointment as Judge of High

Court---Validity---Judge of High Court could not be restrained from

performing his judicial function through interim order in

Constitutional petition of quo-warranto filed against him in that High

Court---Supreme Court set aside restraining order passed against

appellant till final decision of Supreme Judicial Council---Supreme

Court expected that Division Bench of High Court would first decide

office objection(s) and proceed in accordance with law---Appeal was

allowed.

Malik Asad Ali and others' case PLD 1998 SC 161 fol.

Per Shahid Bilal Hassan, J., agreeing with Amin-ud-Din Khan, J.

(b) High Court (Lahore) Rules and Orders---

----Volume V, Chapter 1-A, Rr. 9 & 9A---General Clauses Act (X of 1897),

Ss. 21 & 24-A---Constitution of Pakistan, Art. 199 (1)(b)(ii)---Writ of quo

warranto---Office objection---Non-deciding of objection---Effect---Locus

poenitentiae, principle of---Speaking order---Appellant was a sitting

Judge of High Court who had been restrained from performing his

official work by Chief Justice of that High Court in a petition filed

against him assailing his appointment as Judge of High Court, without

first deciding office objection raised against that petition---Validity---

Nature of proceedings in objection cases are administrative---While

hearing an objection case, under Volume V, Chapter 1-A, Rules 9 & 9-A

of High Court (Lahore) Rules and Orders, High Court was performing

an administrative function and only after the office objection was

overruled , the case was matured on judicial side and would formally  enter domain of jurisdiction of High Court---Since the proceedings

germane to dealing with objections of office raised on presentation of

Constitutional petitions, appeals, etc., were of administrative nature,

absence of power of review was not obstacle to recall any earlier order

if it is found to be contrary to law---Authority competent to pass an

order even in absence of express provision, under section 21 of

General Clauses Act, 1897, can also revoke, rescind or recall the same

until the definite act is taken---Supreme Court set aside restraining

order passed against appellant-Judge---Supreme Court restored the

position ante and directed High Court to first decide fate of office

objections through speaking order and to proceed with the matter in

accordance with law---Appeal was allowed.

Zahid Hussain and another v. The State 1998 SCMR 611; Capital

Development Authority through Chairman and another v. Mrs.

Shaheen Farooq and another 2007 SCMR 1328; Captain Faisal

Ghazanfar Chaudhry v. Civil Aviation Authority through its Director

General, Lahore and others 2019 CLC 1737; Shehzad Ahmad v. Asad

Niaz and 2 others PLJ 2020 Lah. 557; Farman Ali v. Muhammad Ishaq

and others PLD 2013 SC 392; Muhammad Boota v. Basharat Ali PLD

2014 Lah. 1; 2014 CLD 64; Rana Naveed Ahmad Khan v. Province of

Punjab through Secretary LG and CD PLD 2014 Lah. 436; Pakistan

Lawyers Forum (Registered) through its President v. Federation of

Pakistan through Secretary Ministry of Law and Justice, Human Rights,

Islamabad and 2 others PLD 2005 Lah. 107 and Tahira Naseem v.

Arshad Mehmood and others 2021 PCr.LJ 682 rel.

Munir A. Malik, Sr. Advocate Supreme Court, Ch. Atif Rafiq,

Advocate Supreme Court, M. Abid Hussain Saqi, Advocate Supreme

Court, Abid S. Zuberi, Advocate Supreme Court, (Assisted by Ghulam

Mustafa Shah, Advocate), Riasat Ali Azad, Advocate Supreme Court,

Waqar Rana, Advocate Supreme Court and Syed Rifaqat Hussain Shah,

Advocate-on-Record for Petitioner with petitioner.

Mansoor Usman Awan, A.G.P., Ch. Aamir Rehman, Addl. A.G., Dr.

Mirza Muhammad Usman, Advocate-on-Record (On behalf of AG

Islamabad) on Court's Notice.

Mian Dawood, Advocate High Court Respondent No. 1 (via video link

Lahore)

Nemo for other Respondents.

Date of hearing: 30th September, 2025.

ORDER

AMIN-UD-DIN KHAN, SENIOR JUDGE.---Through this petition filed

under Article 185(3) of the Constitution of Islamic Republic of Pakistan,

1973, petitioner has challenged the order passed by the learned

Division Bench of the Islamabad High Court in Writ Petition No. 3670

of 2025 dated 16.09.2025 whereby while issuing the notice on C.M.No.2

of 2025 petitioner who was respondent No.1 before the High Court was restrained to hold the Court. Yesterday on 29.09.2025, we heard the

learned counsel for the petitioner and passed the following order:-

"We have heard Mr. Munir A. Malik, Sr. ASC learned counsel for the

petitioner. Learned counsel has relied upon judgment of this

Court reported as "Malik Asad Ali and others versus Federation

of Pakistan through Secretary, Law, Justice and Parliament

Affairs, Islamabad and others" (PLD 1998 Supreme Court 161)

and argued that writ of quo warranto is maintainable against

the Judge of Superior Court but no interim order can be passed.

States that he has challenged interim order passed by the High

Court, therefore, we issue notice to the respondents. Respondent

No. 1 is present in Court. Waives notice. As the matter relates to

interpretation of the provisions of Constitution, therefore, we

also issue notice to the learned Attorney General for Pakistan

and Advocate General ICT Islamabad under Order XXVII-A of the

C.P.C. On behalf of Federation learned Additional Attorney

General is available. Also waives notice. Office to issue notice to

the other unserved respondents for tomorrow i.e. 30 September

2025 at 9.30 A.M.

C.M.A. No.7477/2025

Notice. In the meanwhile, operation of the impugned order is

suspended."

2. Today we have heard the learned counsel for the petitioner as

well the learned Attorney General for Pakistan and respondent No.1 in

person. Mr. Munir A. Malik, the learned counsel for the petitioner has

reiterated the arguments advanced by him yesterday. The learned AG

also assisted the Court and is of the opinion that a Judge of the

Superior Court cannot be restrained from performing judicial function

as a Judge in a matter when a writ of quo warranto is filed in the High

Court.

It is important to mention here that the respondent No.1 filed a

constitutional petition before the Islamabad High Court, Islamabad

under the provision of Article 199(1)(b)(ii) of the Constitution of the

Islamic Republic of Pakistan, 1973 ('Constitution'), which relates to

seeking information. The principle of seeking information regarding

personal affairs of a Judge of the Superior Court in the nature of quo

warranto has been elaborated by this Court in Malik Asad Ali and

others

1. Relevant portion of paragraph No. 77 at page 281 is

reproduced herein below:

"...Therefore, when the appointment of a Judge of superior Court is

challenged on the ground that he did not possess the

qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has

performed or is performing as a Judge of the superior Court but

asks for examination of his personal qualification to be entitled

to hold the office of the Judge of superior Court.

Para 77 Page 285

I, however, do not mean to say that if a Judge has reached the age of

superannuation or is otherwise not qualified to hold the office of

a Judge of a Superior Court, there is no remedy at law against

him. His capacity to hold the office can be questioned in proper

proceedings but not by a writ under Article 199 of the

Constitution."

3. Similarly, Paragraph 84 of the said judgment relied upon by the

learned counsel for the petitioner, learned AG and respondent No.1 in

person, is reproduced herein below:

"It will be convenient at this stage to deal with an ancillary

argument of Mr. Abdul Hafeez Pirzada in these cases. The

learned counsel contended that even if it is held that

proceedings for seeking information in the nature of quo

warranto are maintainable against a Judge of superior Court, no

interim order prohibiting or restraining the Judge from

performing his functions could be granted during the pendency

of the case. While dealing with the scope of proceedings under

Article 199 of the Constitution, filed against a Judge of the

superior Court, we have held that the actions of the Judge which

relate to the performance of his duty and functions as a Judge of

the Court or as a member of the Court, cannot be brought under

challenge under Article 199 of the Constitution before the High

Court. Only such actions of a Judge of superior Court are

amenable to the jurisdiction of High Court under Article 199 of

the Constitution, which he performs in his personal capacity,

having no nexus with his official functions as a Judge of the

Court. We are, therefore, inclined to hold that the High Court

while hearing a case against the Judge of a superior Court under

Article 199 of the Constitution seeking information in the nature

of quo warranto which we have held is maintainable, cannot

pass any interim order restraining the Judge from performing

his functions as a Judge of the Court, in view of clause (5) of

Article 199 of the Constitution. However, this restraint on the

power of High Court, is not applicable to this Court while

hearing a case filed directly under Article 184 of the

Constitution, as the power exercised by this Court under Article

184(3) of the Constitution is not subject to constraints and

trappings mentioned in Article 199 of the Constitution. As discussed earlier, the proceedings before this Court under

Article 184(3) of the Constitution are regulated by the terms of

this Article and further vest the jurisdiction in this Court by

virtue of Article 187 of the Constitution to pass any order,

direction or decree which may be necessary to do complete

justice in a matter before it. Therefore, in exceptional cases, this

Court, while hearing a case against the Judge of superior Court

wherein the legality of his appointment is challenged, may, if the

circumstances of the case so demand, pass necessary order even

restraining him from performing his functions as a Judge of the

Court, if the dictates of justice so demanded."

4. On a query to respondent No. 1 that why he did not appear at the

time of hearing, when the impugned order was passed and further

that office objections have not been decided by the High Court and

writ petition has been registered, and further in the light of Malik

Asad Ali's case referred supra, how he can defend the impugned order,

admits his non-appearance and defending the office objections at the

time of passing of impugned order. States that after yesterday's

hearing by this Court and issuance of notice to him, he has thoroughly

gone through the judgment passed by this Court in Malik Asad Ali's

case supra and he is of the view that a judge of the High Court cannot

be restrained from performing his judicial function through an

interim order in a writ of quo-warranto filed against him in the High

Court, therefore, he does not defend the impugned order to such

extent.

5. In this view of the matter, this petition is converted into an appeal

and is disposed of with concurrence and keeping in view the dictum

laid down by the learned 10 member Bench of this Court, the

impugned order passed by the High Court in C.M. No. 02 of 2025 to the

extent of restraining order, that is, till the final decision of the Supreme Judicial Council, Respondent No.1 is hereby restrained to

hold the Court, is set aside.

6. It is expected that the learned Division Bench of the High Court

will first decide the office objection(s) and proceed in accordance with

law.

Sd/-

Senior Judge

Sd/- Sd/-

Judge Judge

While agreeing, I am appending

my additional note

Sd/- Sd/-

Judge Judge

ADDITIONAL NOTE

SHAHID BILAL HASSAN, J.---I have the privilege to go through the

order recorded by my brother Mr. Amin-Ud-Din Khan-J and while

agreeing with the same I append my additional note.

2. Perusal of impugned order dated 16.09.2025 passed by Islamabad

High Court, Islamabad divulges that office raised certain objections

upon presentation of memorandum of writ petition by the petitioner

therein; however, the learned Division Bench, without considering,

dilating upon and deciding the same through a speaking order,

proceeded to pass the following order:

'The office has raised certain objections. This Court is of the view

that the same would be seen on the judicial side at the time of

final adjudication of instant case. The office is directed to

number this petition as well as allied matters and fix the same

for today.'

3. With great concern and regret, it is observed that a procedure has

been provided under the relevant provisions of Volume V, Chapter 1-A

of Lahore High Court Rules and Orders, which have been adopted by

the Islamabad High Court, Islamabad for regulating the proceedings in

such scenario; however, in the instant case the same has not been resorted and adhered to. The relevant provisions are reproduced as

under:

Rule 9. Power to return petition for amendment.-(i) The Deputy

Registrar (Judicial) is authorized to return memorandum of any

suit, appeal, or petition, or application, etc.,--

a. if it is not maintainable under any law; or

b. if it is not properly constituted; or

c. if it contains scandalous or objectionable language or material; or

d. if it is not drawn up in conformity with the foregoing directions;

or

e. for amendment, making up of the deficiency or for filing requisite

documents, within the time to be specified in the Objection

Memorandum Appendix I(a), I(b) and I(c).

(ii) The order of the Deputy Registrar (Judicial) returning the

memorandum of any suit, appeal, petition or application may be

challenged before the Chief Justice or Judge nominated by the

Chief Justice on administrative side whose decision shall be final

and shall not be assailed in any other proceeding before the

High Court.

Rule 9-A. A list of petitions, appeals etc. ordered to be returned shall

be notified on the Notice Board and petitions, appeals, etc. not

received back within seven days of the publication of the list

shall be placed before the Judge of the High Court for order on a

date to be notified by including such petition in a motion cause

list. It is made clear that any delay in placing such petition

before the Court or issuing the list shall not furnish any

justification for non-receipt of the returned petition in time and

non-compliance of the objection taken within time specified by

Deputy Registrar (Judicial).

The above rules make it clear that the petitions or appeals, etc. not

received back within time specified for the purpose, making return of

the same, be fixed in a motion cause list and shall be placed before a

Judge of the High Court, so authorized by the Chief Justice of the High

Court for deciding the fate of the same, obviously, through a speaking

order, enabling the parties to agitate the same before higher forum, if

need there be. However, in the instant case, without dilating upon and

deciding the objections, so raised by the office, the learned Division

Bench, proceeded to pass the impugned order, which is nothing but a

nullity in the eye of law because all doors have been shut for the

parties to challenge the vires of the order, ought to have been passed in respect of 'certain objections', which is nothing but an

administrative order and that too without assigning any reasons, to

adjudicate the same at the time of final adjudication, is not in

consonance with the mandate of law because section 24-A of the

General Clauses Act, 1897 requires that each and every order should

be supported with reasoning. The judgments reported as Zahid

Hussain and another v. The State (1998 SCMR 611) and Capital

Development Authority through Chairman and another v. Mrs.

Shaheen Farooq and another (2007 SCMR 1328) support the above

observations, wherein it has been held that:-

'Verbal order has no sanctity in law and such orders are alien to the

process of the law and the Courts. All orders passed and acts

performed, particularly, by the State/public functionaries and

adversely affecting anyone must be in writing, as section 24-A(1)

of the General Clauses Act, 1897 envisages that the powers shall

be exercised reasonably, fairly and justly and subsection (2)

further makes it necessary that the authority passing orders

shall, so far as necessary or appropriate, give reasons for

making the orders and unless the order is in writing, the reasons

and fairness etc. thereof cannot be ascertained/ adjudged.'

Further the judgments on the subject are Captain Faisal Ghazanfar

Chaudhry v. Civil Aviation Authority through its Director General,

Lahore and others (2019 CLC 1737-Lahore) and Shehzad Ahmad v.

Asad Niaz and 2 others (PLJ 2020 Lahore 557), which can be referred.

The above determination finds support from judgment

1 wherein this

Court held that:

"From Rule 9 ibid, it is clear that the Deputy Registrar of the High

Court is only authorized to return a revision petition for the

amendment etc. thereof; meaning thereby, if it is not in

consonance with Rule 6 or 7 (supra), he can return the petition

for the making up of any deficiency and for re -filing. This rule,

however, does not empower the Deputy Registrar to refuse to

entertain (note:- the expression understood in its legal sense) the

petition or in other words to dismiss the petition as having not

been validly instituted. In case, however the deficiency is not

corrected by the revision petitioner within the time given by the

Deputy Registrar, the situation is fully catered by Rule 9-A supra,

which postulates that if, within the time provided such petition

is not re -filed/returned, a notice shall be affixed upon a notice

board meant for that purpose and if within seven days

thereafter, the deficiency is still not made good, the matter shall

be placed before a Judge of the High Court for an order, on a

date to be notified by fixing such a petition in the motion cause list (emphasis supplied). It is, thus, clearly mandated, that it is

for the Court to decide as to what should be done with such a

deficient petition, because the ministerial and administrative

staff of the High Court cannot be empowered and allowed to

decide about the fate of the revision petition (even deficient),

which in fact is a compliant against the Court, subordinate to the

High Court, to that Court, and not subordinate to DR; this is not

permissible in the exercise of DR's ministerial/ administrative

function at all. In such an event, it is for the Court alone to take a

decision as to what should be the fate of such a petition. And in

the facts and circumstances of each case, the Court may have

more than one options in this behalf, some are elucidated as (a)

grant the delinquent party with a further chance within a

specified period to meet the office objection and re -file the

petition within that time (b) While recording reasons, to

overrule the office objections and to consider the petition as it is,

deeming it ,having been properly instituted and to hear it on

merits the same day or some further day fixed for hearing (c) By

upholding the objection to dismiss the petition as having been

invalidly filed or being not maintainable, or to dismiss the same

for non-prosecution, depending upon the nature of the

deficiency involved in a particular case; but the last option

should be resorted to an acute matter, where the

defect/deficiency is absolutely inherent and incurable. However,

all these actions are within the exclusive authority of the High

Court, which cannot and have not been delegated to the office

and the office (DR) has no authority and the empowerment that

of his own to declare a petition, which has been filed within

prescribed period of limitation as time barred, only because the

office objection has not been met in time; the D.R. also in such a

situation cannot require the petitioner to file an application for

the condonation of delay."

Similarly in judgment

2 it was held by Lahore High Court, Lahore that:

"From Rule 9 ibid it is clear that the Deputy Registrar (Judicial) of

this Court, is only authorized to return the appeal for making up

any deficiency or filing requisite document within time to be

specified in the objection memorandum, however, the rule does

not empower the Deputy Registrar (Judicial) of this Court, to

entertain the petition or in other words to dismiss the petition

having not been validly instituted. In case the deficiency is not

corrected by the appellant within time given by the Deputy

Registrar (Judicial) of this Court, the situation is fully covered by

rule 9-A (supra) which postulates that if within time provided

such petition is not refilled/ returned a notice shall be affixed upon the Notice Board meant for the purpose specified and if

within seven days the deficiency is still not made good, the

matter shall be placed before a Judge of this Court for an order

on a date to be notified by fixing such a petition in the motion

cause list. It is thus clear that as per rules it is for the Court to

decide as to what should be done with such matter(s)."

However, in the instant case, no such procedure has been adopted and

outrightly the learned Division Bench, obviously, without overruling

the office objections, without recording any cogent and plausible

reasons, as to maintainability of the writ petition and locus standi of

the petitioner therein, opined that the same would be seen on the

judicial side, that too, at the time of final adjudication and even while

passing the impugned order as to restraining the petitioner to hold the

Court, no notice as required under Order XXVII-A of the Code of Civil

Procedure, 1908 was either issued to the Attorney General for

Pakistan, etc. or even to the present petitioner by following the

universal principle of Audi Alteram Partem, which is a glaring

miscarriage of justice and the same cannot be allowed to sustain.

4. As observed above, the nature of proceedings in objection cases

are administrative and this matter has been expounded by a Division

Bench of Lahore High Court, Lahore in judgment

3 and while making

reference to Rules and Orders of the Lahore High Court, Volume-V and

observed that while hearing an objection case, the Court is performing

an administrative function and only after an office objection is

"overruled", the case is matured on the judicial side and formally

enters the domain of the jurisdiction of the Court. Similar observations

were rendered in judgment4, wherein Single Bench of Lahore High

Court, Lahore observed that proceedings before the Administrative

Judge were not judicial rather the same were administrative in nature.

It is observed that since the proceedings germane to dealing with

objections of office raised on presentation of the writ petitions,

appeals, etc., are of administrative nature, absence of power of review

is not obstacle to recall any earlier order if it is found to be contrary to

law, this observation finds support from Section 21 of the General

Clauses Act, 1897 which provides that the authority, competent to pass

an order even in absence of expressed provision, can also revoke,

rescind or recall the same until the definite act is taken.

5. In view of the above, I convert the instant petition into appeal and

allow the same, set aside the impugned order dated 16.09.2025 as a

whole restoring the position ante and direct the learned Islamabad

High Court, Islamabad to firstly decide the fate of office objections through a speaking order; then proceed with the matter in accordance

with law.

MH/J-7/SC Appeal allowed.