Aerial Incident Of 10th August, 1999

INTER﷓COURT APPEAL INTER‑COURT APPEAL By Syed Shabbar Raza Rizvi, Advocate Supreme Court An appeal is provided under section 3 of Law Reforms (Amendment) Act, 1972 against the decision of Single Bench in Constitutional Petition under Article 199 of the Constitution before a Bench of two Judges. But this right of appeal is not absolute, in certain cases right to appeal is barred under subsection (2) (proviso) and subsection (3) of section 3 of Law Reforms (Amendment) Act, 1972. Appeal is barred under sections 2 and 3: Under section 3(2) of Law Reforms (Amendment) Act, 1972, no appeal against the order of Single Bench brought before the High Court under Article 199 is available if the writ/grievance arises out of any proceedings in which the law applicable provide at least one appeal to any Court, Tribunal or authority against the original order. Clause (3) of section 3 further says no appeal shall lie from an interlocutory order or any order which does not dispose of the entire case before the Court. A careful examination of the proviso to subsection (2) of section 3 will show at an appeal against the order of a Single Judge under Article 199 would not be maintainable if the petition under Article 199, arises out of the proceedings which is initiated under law which provide for at least one ,appeal, or one revision or one review to any Court, Tribunal or Authority against the original order. In the relevant para. two expressions are important to note and to bear in mind to decide whether inter‑Court appeal would be maintainable or not? Original Order: First expression is "original order". It means the order with which the proceedings under the relevant statute commenced. The original order/legal order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings was subject to any appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not? (Mst. Karam Bibi v. Hussain Bukhsh PLD 1984 SC 344). Which is the original Order: In a case where under the relevant law an appeal and revision was provided and before coming to the High Court under Article 199, such appeals were filed and orders were passed, but the counsel for the appellant contended that the impugned judgment passed in the writ petition was an original order against which no appeal lies. The inter‑Court appeal was dismissed and order passed in the writ petition was not treated as an original order. Muhammad Jamal v. Haji Shamas Din 1992 MLD 666. The Lahore High Court while relying upon a precedent of the Supreme Court held that Original Order means the order passed by the lowest officer or authority in the hierarchy. (Tayyab etc. v. Nazeer Ahmad 1986 MLD 491). The other important consideration of the law to determine the subject‑matter is whether the relevant law provided right of appeal at the time the original order was actually passed? It is not material if law provide right of appeal at time when the matter came before a Single Bench if the same right was not provided when the original order was actually passed. It was observed by the Peshawar High Court as under:‑‑ "It shall thus be seen that original order in the proceedings before the Settlement and Rehabilitation Authorities was made on 15‑4‑1963 and at that time there was no right of appeal etc. available in the Act. The controversy about the term original order and the true scope of the expression arise out of any proceedings in proviso to section 3(2) of the Law Reforms (Amendment) Act, 1972 as amended has been very elaborately discussed in PLD 1975 Lah. 1339 and the learned Judges arrived at the conclusion that the obvious intention underlying the provision was to abolish Inter Court Appeal in cases in which the impugned order in the Constitutional Order arises out of the proceedings in which the original order was appealable and necessarily, therefore, the question whether an original order was appealable or not will be determined with reference to the law that was applicable only to the date of such original order and not the date when the matter came before the High Court in Constitutional jurisdiction." Proceedings: The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject -matter of the particular statute. The term "proceedings" is a very comprehensive term and generally speaking means prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A "proceedings" would include every step taken towards the further progress of the cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance, the judgment in a pending suit. The "proceedings" commence with the first step by which the machinery of the law is put into motion any order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible sets in the action under the law. From its commencement to the execution of the judgment. Proceedings means judicial or quasi judicial proceedings in which rights of parties are adjudged. It was held by the Lahore High Court that if judicial or quasi judicial proceedings are annulled or ignored through an executive order which is not challengeable by way of an appeal or revision etc., the appeal before the Division Bench would be competent. The Court observed as under:‑‑ "Proceedings do not mean an executive order passed in office ignoring or annulling judicial order. The matter brought before the High Court was the executive order which was not even challengeable by way of appeal etc. Consequently, the appeal against the order of the Learned Single Judge is quite competent." (Mst. Hajran v. Ghulam Sarwar Khan etc. PLD 1985 Lah. 214). The history of Inter‑Court Appeal: The various High Courts in the Sub‑Continent were constituted by the British Government under the instrument known as 'Letters Patent' issued in exercise of its powers under Section 108 of the Government of India Act, 1935. This instrument continued thereafter and was continued by the Government of Pakistan with necessary amendments and by means of various adoption orders till 1972. In that year the Law Reforms Ordinance, 1972 was enacted on 14th April, 1972 by means of section 3 of this Ordinance, the Letters Patent Appeals and second appeals in certain cases were abolished. Subsequently an amendment was made in this Law Reforms Ordinance, 1972 by amending Ordinance No. XXXIV of 1972 whereby section 3 was amended .to provide for an appeal to the Bench of two Judges of the High Court. One appeal only: It was noted by the High Court that section 8(3) of Industrial Relations Ordinance (I.R.O.), 1969 provides a right‑of appeal to the Trade Union if the registration is not done by the Registrar in violation of proviso of this section. But no right of appeal has been provided to employer under ,Section 8, but under section 10, registration of a Trade Union can be cancelled by the Labour Court upon a complaint if it is made in writing by the Registrar of Trade Union. The High Court further noted, "thus, it would be seen that the crucial point is about registration of Trade Union and for that right of appeal is provided under Sub Section 3 of Section 8. It is immaterial if the right of appeal is provided to one party or to both or whether right of appeal has been availed or not". The High Court held the reason of the above finding is, subsection (2) of section 3 of the Ordinance, 1972 speaks about one appeal, one revision or one review to any Court, Tribunal or Authority against the original order. Workers Union of P.I.A., Karachi v. Fida Muhammad Khan PLD 1993 Karachi 713. Is I C A maintainable against the orders of registration of F.I.R.? The Writ Petition was filed whereby quashment of F.I.R. was sought. The writ petition was dismissed. The order of dismissal was challenged in Inter‑Court Appeal. From the State, the learned Deputy Attorney General appeared and contended that since the Constitutional petition before the learned Single Judge arose out of proceedings under the Criminal Procedure Code which provides for appeal and revision, therefore, I.C.A. was not maintainable. On the other hand the counsel for the appellant contended that in the Constitutional petition, the appellant had sought quashment of F.I.R. and no appeal or revision lies against the order for registration of case and as such the appeal is not hit by the proviso to subsection (2) of section 3 of the Law Reforms Act 1972. The Court concluded: "It may be true that in a way Constitutional petition had arisen out of proceedings under the Criminal Procedure Code but a reference to proviso of subsection (2) of section 3 of the Law Reforms Act, 1972 would show that the bar contained therein is not attracted merely for the reason that the law out of which proceedings have arisen provides for an appeal or revision. On the other hand, in order to take away the right of appeal it has also to be shown that the registration order in the proceedings was appealable and revisable. There cannot be any dispute that order or the act of registration of a case under the Criminal Procedure Code is neither appealable nor revisable" '(Iftikhar Hussain v. Government of Pakistan PLJ 1996 Lah. 82). See also Yar Muhammad v. Muhammad Afzal PLD 1989 (sic) 584. Difference between Order and Notification: Legality of a notification by which export tax was levied was challenged before the Single Judge on the ground that certain rules were not adhered to before levy of the tax. The Constitutional petition was dismissed by the Single Judge. But the learned Division Bench accepted Inter Court Appeal and also did not approve the preliminary objection of jurisdiction, on the ground that there is a difference between an order and a notification. The tax was levied through a notification and the relevant statute did not provide appeal against a notification. Thus Inter‑Court Appeal was accepted and the impugned order of the learned Single Judge was set aside. An appeal was filed before the Supreme Court on the ground of maintainability as well as on merit. After discussing the previous cases, the Supreme Court held as under: "We are inclined to approve the principle enunciated in Iqan Ahmad's case PLD 1979 Kar. 610 and hold that the impugned notification or a petition provided for under section 144 of the Punjab Local Government Act in substance was an "Order" for levy of export, tax and was, therefore, appealable to the Controlling Authority. The learned Judges in the I.C.A. Bench had, therefore, legally erred to hold that under section 219 of the Punjab Local Government Act, 1975 only an "Order" could be appealed against whereas a "Notification" in general terms for imposition of new taxes or making modification in the rates of tax being not an order against an assessee was not appealable, therefore, an appeal (I.C.A. was maintainable)". (Deputy Commissioner Attock v. Lawrancepur Woollen Taxtile Mills Ltd.)".