P L D 1992 Lahore 302 (PLP)

This is an application of an unusual kind under Article 199, of the Constitution of Islamic Republic. of Pakistan, 1973, for a peremptory direction to the Registrar of Federal Shariat Court to place service appeal filed by the petitioner before a three‑member Bench of the Court, as required in sub rule (2) of rule 11 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982. Facts relevant to the petition, briefly set out are:‑‑ Petitioner was in the employment of N.I.R.C. On 24‑6‑1980, he was appointed as Private Secretary to the Member of Federal Shariat Court, in Basic Pay Scale

16. On 22‑7‑1986, petitioner was upgraded and placed in BPS‑17 as a Private Secretary to the ‑Honourable Judges of the Federal Shariat Court. On 15‑11‑1988, petitioner was confirmed as Private Secretary with effect from 3‑9‑1986. On .30 ‑371989, petitioner was promoted as Secretary to Honourable, the Chief Justice of Federal Shariat'Court in BPS‑18 on temporary basis. On 8‑11‑1990, he was confirmed as Secretary to Honourable, the Chief Justice of the Court in BPS‑18 with effect from 1‑9‑1989. On 30‑3‑1989, petitioner was allowed to look after the duties of Deputy Registrar (B & A) until further orders, In October 1990, former Chief Justice of the Court retired. On 1‑1‑1991, the post held by the petitioner was redesignated as OSD without portfolio till further orders. On 8‑5‑1W1, the post of Secretary to Honourable, the Chief Justice of the Court was abolished with effect from 1‑7‑1991 and petitioner was allowed to draw salary against the post of Secretary till 30th of June, 1991. Meanwhile Law and Justice Division was to move for his absorption through the Establishment Division. Establishment Division as also the Law and Justice Division failed to accommodate the services of the petitioner. Against abolition of his post in the Court, petitioner addressed an appeal to the Registrar of Federal Shariat Court, Islamabad, under rule 11(2) of the Federal Shariat Court (Terms and Conditions of Service of Staff) Ruless, 1982. Since the Registrar did not place the appeal of the petitioner either before Honourable, the Chief Justice of the Court or a three‑member Bench of the Court for its hearing, despite some reminders, petitioner invites this Court for a step under Article 199 of the Constitution for giving him the necessary relief for compelling the Registrar to place the appeal as required by force of law. Upon principle, authority and propriety, I feel reluctant to issue a writ of a commanding nature to the Federal Shariat Court or in respect of its working. Provisions regarding Federal Shariat Court; its constitution; jurisdiction, binding nature of its judgments in the field allotted to it, under the Constitution and appeals from its judgments to Shariat Appellate Bench of the Supreme Court; its revisory jurisdiction from the cases decided by the Criminal Courts dealing with any law relating to enforcement of Hudood arc provided in Chapter 3‑A of the Constitution of Islamic Republic of Pakistan. Article 203‑G provided for a bar of jurisdiction including the Supreme Court and the High Court. Article 203‑GG observed that decision of the Federal Shariat Court in exercise of its jurisdiction under Chapter 3‑A shall be binding on the High Court, and, on all Courts subordinate to ti‑e High Court. Article 203‑A provided a non‑obstante clause in the Constitution regarding Chapter 3‑A. Writ jurisdiction conferred on the High Court is subject to the Constitution and availability of other adequate remedy for regulating the exercise of writ jurisdiction by the High Court. In sub‑Article (5) of the Article 199 of the Constitution, definition of "person" excluded Supreme Court, High Court or a Court or Tribunal established under a law relating to Armed Forces of Pakistan. There, is neither doubt nor dispute that the High Court cannot issue a writ unto itself, nor to the Supreme Court. It is not only clear from the language in Article 199 of the Constitution, but is supported.by the high authority of Supreme Court in case of Mian Jamal Shah reported as PLD 1900 Supreme Court 1, and. number of other judgments, which in view of an absolute clarity, on the point is unnecessary to make a reference to. As said above, Chapter 3‑A of the Constitution was a later amendment to it. There was no corresponding amendment in sub‑Article (5) of Article 191) of the Constitution for excluding Federal Shariat Court from the purview of the Constitutional jurisdiction of the High Court. However, upon harmonious construction of the various parts of the Constitution; status of Federal Sharia, Court in it and amenability of its decisions to appeal be * fore the Shariat Appellate Bench of Supreme Court only, leads to an inevitable corollary that a writ of mandamus ought not to issue from the High Court to it in regard to the sphere earmarked for it by the Constitution of Pakistan. Service rules regarding the staff of the Court were framed under Article 208 of the Constitution. Rule 11 provided for imposition of the penalties on any officer or servant on the staff attached to the Federal Shariat Court. In case, penalty was imposed by Honourable, the Chief Justice of the Court, sub‑rule (2) provided that appeal shall lie to a Bench of not less than three Judges of the Federal Shariat Court. Appeal was addressed to the Registrar of Federal Shariat Court. Registrar is not an appellate authority. Appellate Authority was a Bench of Federal Shariat Court. Presumably, constitution of the appellate Bench lay in the decision of Honourable, the Chief Justice of Federal Shariat Court. Direction sought from this Court in reality was either a direction to Honourable, the Chief Justice of the Federal Shariat Court or the Appellate Bench of the Federal Shariat Court to hear the service‑appeal. Petitioner intended to achieve the goal indirectly which directly he could not reach. In view of comity between the Judges of the superior Courts set up under the Constitution, I do not think that this Court should make. a direction of the kind sought from it. Though, this Court is not expected to educate the petitioner. who had the privilege of being attached to a superior Court in one form or ,another, on his remedies, yet it could not be helped observing that a simpler C way is to address the appeal, subject to its availability, under the Rules, to the Federal Shariat Court, which in due course may reach its proper place. I entertain no doubt that the Registrar, who is the principal staff Officer of the Federal Shariat Court shall not be an impediment to the hearing of the appeal of the petitioner by the appellate Bench. Having regard to the aforesaid, writ is denied and petition for it is dismissed in limine. M.B.A./M‑347/L Petition dismissed