1998 PLP 1077 (CLC)

(a) on the application of any aggrieved party, make an order: (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a Local Authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the, territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or"

7. It is obvious from the plan reading of the above provisions that a two fold territorial limitations has been placed on the power of the High Court to issue writs. In the first place, the person to whom a High Court issues such a writ must be within the territorial jurisdiction of the Court. Secondly, the impugned act done or proceedings taken by a person must have been done or taken within the territorial jurisdiction of the Court. In either of the cases, the territorial nexus is required to be shown in order to attract the jurisdiction of a High Court. The provisions of Article 199 of 1973 Constitution are akin to Article 170 of 1956. Constitution and Article 226 of the Constitution of India as amended. However, it was by way of amendment in Article 98(2) of 1962 Constitution through the Constitution First Amendment Act, 1963, that a territorial restriction on the powers of a High Court was placed for a limited purpose of proceeding for the enforcement of fundamental rights, The provisions of Article 98 of 1962 Constitution were different from the present Article 199 of 1973 Constitution.

8. The question of territorial jurisdiction of the High Court was recently examined by the Hon'ble Supreme Court of Pakistan in the case of Sandalbar Enterprises (Pvt.) Ltd. (supra). The said Company imported certain consignment from abroad which arrived at the Port of Karachi. A bill of entry for the release of goods was filed before the Customs Authorities, Karachi, which assessed the levy of regulatory duty imposed under a notification of the Central Board of Revenue, Islamabad. The writ petition to challenge the levy of regulatory duty and the notification was returned by a Division Bench of the Lahore High Court to enable the petitioner Company to file it before the proper Court. The order of the Lahore High Court was affirmed by the Supreme Court. Mr. Justice Ajmal Mian, the Hon'ble Chief Justice of Pakistan, speaking for the Court, made the following observations: "

7. The petitioner's prayer was for a direction to the Customs Authorities at Karachi not to levy the regulatory duty: The above relief could have been granted by the High Court of Sindh within whose jurisdiction the person performing the affairs of the Federation is discharging his functions.

8. We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be deprecated. The Court is to see, what is the dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi. We are, therefore, not inclined to' grant leave. Leave is refused." A similar view was taken in the cases of Sohail Jute Mills (Pvt.) Ltd. (supra) and M/s. Nadia Ghee Mills (Pvt.) Limited v. The Federation of Pakistan through Secretary Commerce and 4 others (1992 MLD 2154). I need not consider the case of New Jubilee Insurance Co. Ltd. (supra) since leave to appeal has been granted as reported in (1995 SCMR 1535) and now Civil Appeal No.743 of 1995 is pending before the Supreme Court. Similarly, in the case of Mukhtar Ahmad v. Pakistan Engineering Council (1995 SCMR 102) leave was granted to examine the point.

9. In The Province of N.‑W.F.P. and another v. Abdul Rehman Khan, Forest Contractor (1991 SCMR 1321), a Constitutional petition before the Peshawar High Court calling in question a notice for contempt of Court issued by a Civil Court at Lahore was held to be not maintainable for want of territorial jurisdiction. In Muhammad Latif v. Trading Corporation of Pakistan (1987 PLC (C.S.) 793), it was held that a writ petition against order of termination from service passed at Karachi did not lie before the Lahore High Court. In Abbas Khan Khatak v. Pakistan Forest Institute (PLD 1987 Pesh. 57), the Peshawar High Court took the view that it had no jurisdiction to entertain a writ petition against an order of termination from service which was passed at Lahore.

10. However, in the case of M/s. Al‑Iblagh Limited, Lahore v. The Copy Right Board, Karachi and others (1985 SCMR 758), the Hon'ble Supreme Court laid down that where the appeal had been heard by the Board at Lahore the writ petition would be competent before the Lahore High Court notwithstanding the fact that the original order of refusing the registration of Copy Right and the appellate order were issued at Karachi. Similarly, in the case of Asghar Hussain v. Election Commission, Pakistan and 2 others (PLD 1968 SC 387), a writ petition filed before the High Court at Dacca against the Election Commission of Pakistan with its head office at Islamabad was held to be maintainable.

11. The Supreme Court laid down in the case of Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others (1979 SCMR 555) that a writ petition before the Peshawar High Court was not competent where neither the impugned action was taken, nor the authority taking such action was residing, within its territorial jurisdiction. It was further held that the respondent Government of Pakistan whose orders were called in question was located at Rawalpindi within the jurisdiction of the Lahore High Court and that the subordinate offices of the other respondents situated within the jurisdiction of the Peshawar High Court had done nothing against the petitioner. The judgment of Faiz Najmuddin Abdul Ali (supra) referred to by the learned counsel for the petitioner was not followed. In the case of Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Karachi and 3 others v. Ata‑ul‑Haq (PLD 1965 SC 201 at page 207), it was authoritatively held that a writ of certirari could only be issued to the National Bank of Pakistan at its head office at Karachi where also the record in question was held. It was held that as the Karachi was outside territorial jurisdiction of the High Court of Dacca, the writ sought for could not have been issued despite the fact that a part of inquiry had been held by the Department at Dacca. A Full Bench of the East Pakistan High Court examined the question in A.K.M. Fazlul Quader Chowdhury v. Government of Pakistan and another (PLD 1957 Dacca 342), and refused to issue the writ on the ground that the same had been directed against Government of Pakistan and the Secretary, Ministry of Law both of which were at Karachi beyond the Court's jurisdiction.

12. In the case of Abdul Ghaffar Lakhani v. Government of Pakistan (PLD 1986 Kar. 525), a Full Bench of the Sindh High Court declined to interfere in writ against the Chief of Army Staff by holding that none of his actions in relation to any officers or cantonments within the territorial jurisdiction of the Court had been challenged. It was only his holding of office as Chief of Army Staff with Headquarters outside the territorial jurisdiction of the Court which had been called in question.

13. The Peshawar High Court expressed the lack of territorial jurisdiction in Syed Shah v. Political Agent, Bajaur Agency (PLD 1981 Peshawar 57) where an order cancelling a Domicile Certificate had been passed by Political Agent of a Tribal Area although the same had been conveyed to the writ petitioner within the limits of the High Court. An action taken in the Tribal Area was held in the case of Jamil Ahmad v. The State and 5 others (PLD 1969 SC 344) to be not amenable to the jurisdiction of the High Count.

14. The Supreme Court of India in the Election Commission. India v. Saka Venkata Rao (AIR 1953 SC 210) held that a writ petition under Article 226 of the Indian Constitution was not competent before the High 'Court of Madras restraining the Election Commission located at New Delhi. It was further observed that there functioning of a Tribunal or Authority within but permanent located beyond the territorial limits of the High Court was not sufficient to invest the High Court with jurisdiction to issue a writ. Nor was the accrual of cause of action within its territorial limits sufficient for the purpose. The Indian Supreme Court reiterated the same view in the cases of A. Thangal Kunju Musaliar v. M. Venkatachalam Potti and another (PLD 1956 SC India 291), Madan Gopal Rungta v. Secretary to Government of India (AIR 1962 SC 153), Collector of Customs, Calcutta v. East India Commercial Company Limited, Calcutta and others (AIR 1963 SC 1124) and P.K. Pavoo v. The State and others (AIR 1959 Kerala 65). The Constitution of India was amended in 1963 to confer jurisdiction on the High Courts against Central Government and its offices located outside but against proceedings or actions within the jurisdiction of such High Court.

15. The intention of the Constitution makers does not seem to permit one High Court of a federating Unit to encroach upon the jurisdiction which is primarily exercisable by another High Court. Such a course may impinge upon the spirit of the federal character of the Constitution. The Supreme Court had an occasion to consider this aspect in the case of Syed Masroor Ahsan v. Muhammad Tariq Chaudhary and others (1991 SCMR 668). It was observed therein as follows:‑‑‑ "Lastly, and most important is the consideration whether the High Court had the jurisdiction or could exercise it lawfully in respect of the dispute brought before it. In this connection one must remember that Pakistan is a 'Federal Republic' (Article 1). To the Senate of Pakistan each of the four Provincial Assemblies elects fourteen members (Article 59). Question arises whether a member elected to that Senate by a Provincial Assembly to represent the Province can be asked by the Lahore High Court for the Province of Punjab show under what authority he was holding office of having been elected by the Provincial Assembly of his Province? If that be so, all the members elected by the three Provincial Assemblies would be amenable to the jurisdiction of the Lahore High Court for the Province of Punjab. Therefore, when a Constitutional petition on the same ground and for the same relief was pending in the High Court of Sindh, without final adjudication to Lahore High Court had no right to issue direction that the petitioner who was elected by the Provincial Assembly of Sindh shall not be administered oath."

16. In this case the F.I.R. was registered, the challan was submitted and the impugned order was issued, at Karachi. Nothing had happened within the jurisdiction of this Court except that the order had been served here. No explanation was forthcoming from the side of the petitioners as to for what compelling reasons they could not invoke the jurisdiction of the Sindh High Court. No exceptional circumstances were shown for the entertainment of these writ petitions by this Court. The Court of Special Judge (Central‑II), Karachi, before whom the proceedings are pending is not 'amenable to the appellate jurisdiction of this Court. The Investigating Officer, F.I.A., is also posted at Karachi to deal with the cases pertaining to that place. The investigation is with regard to the affairs of Pakistan Steel Mills Corporation, Karachi. No territorial nexus was shown by the petitioners in this particular case so as to attract the jurisdiction of this Court in any manner whatsoever. For this purpose, it would have been more appropriate for the petitioners to invoke the jurisdiction of the Sindh High Court where the record by the Investigating Agency could be more conveniently produced. In view of the facts of this case, I find that this is not a fit case to be entertained by the Lahore High Court for the exercise of a discretionary Constitutional jurisdiction. In my view, the writ petition essentially and primarily pertains to the Sindh High Court and it would not be in the fitness of things to by‑pass the Court in the ordinary course. Of course, in a proper case the exercise of Constitutional jurisdiction of this Court, even if concurrent with some other High Court, may be called for.

17. At this stage, the learned counsel has submitted that it is not possible or practicable for the petitioners to appear before the Investigating Officer today. The submission of the learned counsel is not without substance. The petitioners are allowed one month's time to appear before the Investigating Officer pursuant to the impugned order to explain their point of view.

18. For the foregoing reasons, I hold that these writ petitions are not fit to be entertained by the Lahore High Court and the same are disposed of in limine. D The petitioners may, if so advised, move the proper forum.

19. The learned Deputy Attorney‑General for Pakistan shall also notify this order. A.A./A‑227/L Order accordingly