P L D 1984 Lahore 69 (PLP)

(3) that they exercise the judicial powers of the State ; (4) that there is a plaintiff who complains to such persons of an injury done ; (5) that there is a defendant who is called upon by such persons to make satisfactions for the injury done ; (6) that they are empowered to pronounce a definitive judgment which is binding and authoritative; (7) that such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any authority other than Government.

15. The Supreme Court in Tariq Transport Company's case (P L D 1958 S ‑C (Pak.) 437) held that it is not presence or absence of the trappings of a Court but the character of action taken in a given case and nature of rights it operates which determines whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. According to the learned judges an authority acts judicially, in the full sense of the term; (1) if it has to determine a dispute; (2) the dispute relates to a right or liability which, what ever its imme diate .aspect, is ultimately referable to some right or liability, recognis ed by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision ; (3) since every right or liability depends upon ‑facts, the tribunal is under an obligation to discover the relevant facts ; (4) the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by its opponent; and (5) after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned, terminates the dispute. In respect of an administrative tribunal, the learned Judges added that its emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal, it was added, the approach in determining the relevant facts is often subjective and not objective; there being generally no /is before it, in which the parties are arrayed against each other, for the enforcement of private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument.

16. In Abdul Hamid v. Malik Karam Dad a Division Bench of this Court referred to the negative proposition (referred to in para. 26 infra) about a Court given by a Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation. The learned Judges further went on to say as under: ‑ "Quasi‑judicial tribunals are not fettered by the technical rules of evidence. The concensus of opinion is that administrative tribunals are fact finding bodies and the method of fact‑finding varies from that which obtains in Courts of Law .`Judicial proceedings are to be distinguished from the duties of administrative tribunals. As observed by Lopes L. J. in Dwarkins v. Lord Rokeby 8 Q. B. 255 `the word "judicial" has two meanings. It may refer to the dis charge of duties exercisable by a Judge, by Justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration ............... At the same time this does not mean that Tribunals can act arbitrarily and capriciously. The Tribunals especially in cases where they are required to adjudicate upon the civil rights of the parties are under an obligation to act judicially and are bound to follow the funda mental rules of evidence and fair play which are embodied in the principles of natural justice. A part of the quotation adopted by the learned Judges in Pir Syed Safi‑ud‑din v. Secretary (P L D 1958 Pesh. 157), from Province of Bombay v. Khushaldas S. Advani (AIR 1930 S C 222), may be reproduced with' advantage :‑ After giving my anxious consideration to the distinction between the quasi‑judicial and administrative order, I have arrived at the con clusion that if the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively, and based on some relevant and existing circumstances and facts, and at the same time substantially affects the rights of others, it would be a quasi‑judicial order.

17. The above discussion, apart from clarifying the attributes of Court, quite clearly shows that the judicial power may be exercised both by the Courts and quasi‑judicial tribunals. This conclusion, however, has been drawn from foreign judgments or such judgments of our Courts which were delivered before the promulgation of the 1973 Constitution. However, as discussed in para. 7 above, the judicial power. as is contained in Article 175 , can be conferred only on judicial tribunals called Courts and not other authority. Thus, the discussion about Courts and quasi‑judicial tribunals is of no importance at all. So, as far as Pakistan is concerned, the distinc tion is to be found not between judicial and quasi‑judicial tribunals but judicial and administrative tribunals and any Court or other authority, by whatever name called, shall be deemed to be a Court, constituted in pursu ance to Article 175 (2) of the Constitution and subject to the superintendence and control of the High Court of the Province, in which it is situate, if it exercises judicial power of the State, under an Act of a Legislature, and its existence is not specifically provided for by any other provision of the Constitution.

18. Despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term `Court'. However, inspired by all that has 'peen said so far, and without claiming that it will be exhaustive, in my humble view, `judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justifiable issue, dispute, or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called `Court' and in performing its functions it declares, construes and applied law or custom or usage, having the force of law. The judicial power is thus the instrument to be used by the Court.

19. The American and Australian Constitutions divide the State power into three organs i.e. legislature, executive and judiciary. The precise position under such Constitution is that the Legislature enacts laws, i.e. declares what the law shall be. The executive administers that law but any disputes arising there about or thereunder are brought before the Courts for resolution. The legislative power is enjoyed by the Legislature exclusively within the Constitutional limits. The laws made by it, to be valid, thus must conform to the Constitutional requirements. For example, if a legis lature can make laws only in respect of a certain specified territory or subject, any law transgressing those limits is ultra vises and so void. Again,' if the judicial power has been vested by the Constitution only in Courts, the Legislature cannot enact a law to confer any part of it on any executive or other forum. The power to decide as to whether the Legislature has transgressed its limits or if the executive has correctly administered law vests with Courts. It is, however, the obligation of the Courts not to encroach upon the domain of any other organ of the State.

20. The Privy Council in Attorney‑General v. The Queen ((1957) 95 C I. R 529) opined that in a federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the executive. To vest in the same body executive and judicial power is to remove a vital Constitutional safeguard. Resultantly, their Lordships upheld the judgment of the High Court of the Commonwealth of Australia, whereby the Commonwealth Court of Conciliation and Arbitration, Court of record, created under a law and presided over by a Judge of the High Court, who was to hold office for seven years, was declared unconstitutional, though the objectionable union of executive and judicial power in it was not challenged for about a quarter of a century earlier. Dixon J. also in Meakar v. Dignan's ((1931) 46 C L R 73) observed that `Parliament is restrained both from reposing any essentially judicial power in any other organ or body and from reposing any other than that judicial power in such tribunals. Again, Dixon, C. J. in The Queen v. Daison stated that `It is beyond the Constitutional power of the Parliament to authorise any person or body to make such an order except a Court constituted under sections 71 and 72 of the Constitution.

21. Griffith, C. J. of the High, Court of the Commonwealth of Australia, held in Alexander's case ((1918) 25 C L R 434) that it is impossible under that Constitution to confer judicial functions upon any body other than Courts, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In his view, any attempt to vest any part of judicial power of the Commonwealth, in any body, other than a Court, is entirely ineffective. Barton, J. in the above case at page 451 observed: Whether persons were judges, whether tribunals were Courts and whether they exercised what is now called judicial power, depended and depends on substance and not on mere name. The above view was approved by the Privy Council in Attorney‑General v. The Queen Dixon, J. in Victorian Stevedoring and General Contracting Co. and Meakes v. Dignam remarked, with the later approval of the Privy Council in the above case, that an independent consideration of the provisions of the Commonwealth Constitution, unaided by any knowledge of the Constitution of the United States cannot but suggest that it was intended to confine, to each of the three departments of the government, the exercise of power with which it is invested by the Constitution.

22. Article III, section 1 of the American Constitution states that the judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Supreme Court in Kansas v. Colorado ((1907) 206 U S 46) observed that Artical III granted to the Supreme Court `entire judicial power of the Nation' and that if there are any limitations they must be expressed. Professor Schwartz in his book `A Commentary on the Constitution of the United States' Part 1, Volume I, page 425 states `According to Chief Justice Taney, though there was no decision by the Supreme Court in Huyburn's case. ((1792) 2 Dal, 409), the opinions expressed by the members of that tribunal on circuit clearly established that the power proposed to be conferred upon .the Federal Courts by 1792 statute was not judicial power within the meaning of the Constitution and was, therefore, unconstitutional and could not lawfully be exercised by the Courts. On the other hand, no effort seems to have ever been made to confer judicial power on executive. The judicial power of the Australian Commonwealth under sections 71 and 72 of the Constitution is also conferable only on Courts. The Australian Courts have, therefore, as also said above, held all such provisions of law as ultra vires that vest any judicial power in bodies other than Courts. The High Court went rather, further in the Rola Company Australia Proprietary Ltd v. Commonwealth ((1944) 69 C L R 185) to say that the power to find fact, that is fundamental to legal liability, is part of judicial power. It went on to say that where the finding amounts to a binding determination as between parties, the Tribunal empowered to make the finding necessarily exercises judicial power and any statute depriving Courts of judicial power has to be declared unconstitutional. Apparently, it is to take care of that situation that Article 175 (3) of the 1973 Constitu tion was incorporated so as to give the executive and the Legislature some time to take steps to separate the judiciary from the executive as regards the then existing position. It is, however, to be noted that any judicial, function, given to the executive, after the enforcement of the 1973 Constitution, may not be saved and merit being struck down.

23. So, the definitions of `judicial power' and `Courts' as given above show that the `Courts'. use judicial power to decide conclusively the justici able issues, controversies or disputes about existing legal rights in accordance with law or a usage having the force of law. These legal rights, of the individuals, created by natural law or consent of the parties, are recognised by the society in which individuals live and are 'protected by the State. The test of that right is that if it is assailed, will the State enforce it, or grant damages for any failure to carry out the corresponding duty or in some other way recognise the right and attach legal consequences to the interference with it? However, the State may, by law, for political, social or economical reasons regulate those rights so as to curtail, limit or restrict them. In that situation, the differences or disputes arising may either be left to be determined by Courts or power to settle those disputes be conferred on authorities who are to administer the law also. Now, if those authori ties are to take a decision which adversely affects the existing natural rights of an individual, it may be an act judicial in nature. In such a case, the law may provide an administrative relief but it must not bar the individual to approach a Court unless the Constitution it self confers immunity to such an action. The reason as explained above, is that executive authorities cannot be entrusted with the function of determining or passing an order about an actual or potential, controversy as to an existing right or obligation as it is a judicial function.

24. However, if the right has been created by the same law itself, and an authority to administer the law has also been created the decision of the authority may be challenged in accordance with the procedure laid down in that law. Even in that situation any constitutional power vesting in a Court to judicially review that decision will remain available for a redress or remedy except where the Constitution itself denies it. So, no law can without the support of the Constitution, deny any individual to go to a Court in respect of a matter which concerns his natural rights, irrespective of the fact whether the said right has been violated by another individual or a public functionary or a statutory authority. Further, the Courts are entitled to declare such laws ultra vires and hence void and inoperative. Alongwith that any part of the judicial power being conferred on any executive authority without the backing of the Constitution will also be ultra vires, as held by the Privy Council in Attorney‑General v. The Queen: referred to above.

25. Such executive authorities, adjudicating matters incidental to the exercise of their administrative power, under a law, are generally referred to as "administrative tribunals" and the adjudication that they do may not be in the exercise of judicial power. It may be noted that even administrative tribunals may have trappings of Courts but they would not lose their character just for that reason. In Federal Commissioner of Taxation v. Munro (1926 CLC 153), it was said that power and function of finally determining matters of fact and even discretion are not solely indicative of judicial action. That is an attribute; it was added, common to administrative bodies that are adjunct to legislation and to judicial bodies. Kitto, J. in The Queen v. Trade Practices Tribunal, observed that the fact that an official is given a power conditionally upon being satisfied of a particular state of facts is no indication that in deciding that he is exercising judicial power.

26. It is a generally accepted position that there is no hard and fast test to distinguish between a `Court' and a `tribunal' and that functions) assigned shall have to be analysed in each case to see if they fall under one or the other category. What is available, however, are only the broad guidelines. The general attributes of a Court have been mentioned in paras. 17‑18 above. They deal with the disputes or controversies between two or more parties about their existing legal rights so as to giving binding decisions. Again, a Court is required to base its decision upon the material presented to it in evidence while a tribunal can make use of the information within its personal knowledge also. A Court is generally riot concerned with the objective truth or accuracy of its findings, as held in re K (infants) (1965 A C 201) as it proceeds to decide, in accordance with law, on the basis of the material placed before it. The tribunal, on the other hand, may try itself to dig up facts or collect evidence in order to find the true facts on which to base its result. The approach of a Court is through adversary system while that of the tribunal is inquisitorial. An administrative tribunal is characteristically delegated the function of developing and applying through its decision a set of principles which are important 'and after highly specialised' activity can be regulated in the public interest. It possesses a complete, absolute or unfettered discretion and decides matters before it not on the requirement of law, but policy. It has no ascertainable standards to guide it and so follows expediency and policy subjectively on such considerations as. it sees fit. A negative proposition was given in R. v. Electricity Com missioners (1924 IKB 171), to say that, a tribunal: (a) is not necessarily a Court in the strict. Sense because it gives a final decision; (b) nor because it hears witnesses on oath; (c) nor because two or more contending parties appear before it between whom. it has to decide; (d) nor because it gives decisions which affect the rights of subjects; (e) nor because there is an appeal to a Court; (f) nor because it is a body to which a matter is referred by another body. It was held by the Privy Council in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation, already referred to above, that 'an administrative tribunal may act judicially but still remains an administrative tribunal as distinguished from a Court strictly so‑called.

27. To sum up, therefore, a Court adjudicates by fixed standard objectives, upon a controversy or dispute, as regards pre‑existing legal rights and liabilities, conferred or imposed by a statute, usage, usage or agreement recognised by law, and long settled principles, on the basis of the evidence produced by the parties before it. In contrast a non judicial or administra tive tribunal may adopt the same procedure as the Courts but its decisions or orders are incidental to an obligation to administer law to regulate or supervise matters and are based not on fixed objective standards but on subjective considerations, policy and expediency. A Court looks for some law to guide it but an administrative tribunal, within its province, is law unto itself.

28. Gordon D. M. in his essay on Administrative Tribunals and Courts' published in 1933 L Q R 94 expressed the following view :‑ (110) "Ministerial, judicial and 'administrative' functions, therefore, exemplify the three degree of irresponsibleness that a tribunal may possess. Acting magisterially a tribunal has no power (except in the rare cases where a statutory discretion is given to consult its own wishes; it must carry out its legal duties as judicially decided for it. Acting judicially a tribunal has very little power to consult its own wishes in theory, whatever it may do in practice; because it professes to be bound by a fixed and settled objective standard. A tribunal exercising 'administrative' functions, when within its proper province and observing any procedural formalities prescribed, must inevitably be guided by its own wishes, because it has no fixed standard to follow, but only policy and expediency; and these are what it makes them. Its standards are purely subjective; so in the last analysis it follows own will.

29. The Banking Court, when judged on the above standard is a Court in fact and law. According to section 6 (1) (a) of the Ordinance, it has to exercise civil jurisdiction as vested in a Civil Court, under the Code of Civil Procedure. Again under section 6 (1) (b) it exercises criminal jurisdiction vesting in an Assistant Sessions Judge under the Code of Criminal Procedure. Section 6 (3) says that all proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code and it is a Court for the purposes of sections 480 and 482 Cr. P. C. It has to decide a controversy before it, objectively vide section 7 in accordance with Order XXXVII in the First Schedule to the Code of Civil Procedure. After hearing the case it pronounces a judgment on which has to follow a decree as per section 8(1). The Special Court has also the power to execute its decree under section 8(3). The orders of the Court are also appealable before the High Court. The rights or the liabilities of the parties before it are pre‑existing and they have to be dealt with in accord with the evidence produced and the law. The mere fact that the procedure adopted is shorter would not take is out of the ambit of a Court as even 'the other regular Courts in certain specified matters adopt the same procedure.

30. The next point is to know if it is a Court subordinate to the High Court. The framework of all the three Constitutions made by the people of Pakistan, 'and enforced at times, was also based on‑the principle of separation of the State power and its conferment on three organs i. e. Legislature, executive and judicial This division is not exclusive and l. absolute and one sphere of power may overlap the other but extent thereof: in each case can be located. In the 1973 Constitution, Article 175 provides the hierarchy of the judicial power as is quite clear from the word `judiciary' used in. sub‑Article (3). Article 175 (f) states that there shall be a Supreme Court of Pakistan and a High Court for each Province sad such other Courts a$ may be established by law. The point to be noted is that there will be only one Supreme Court for the whole of Pakistan and one High Court for each Province. There can thus be no parallel or higher Courts at these levels. All the other Courts in Province created under Article 175, thus must be lower or inferior to the High Court, of that Province. Thus section 14 of the West Pakistan Civil Courts Ordinance, 1962, or other similar provisions laying down that all the Courts created thereunder are subordinate to the High Court, are mere recognition of the Constitutional position: The Courts mentioned‑; in the Constitution, apart from `other Courts' given in Article 175 and to be created and located in a Province, will thus be exception to the main set up.

31. There is another part, of judicial power for which the Article 175 of the Constitution' may also be deemed to be providing. There are other territories, apart from the Provinces, like Islamabad, the Federally Adminis tered Tribal Areas and such other States and territories as are or may be included in Pakistan. They are part of Pakistan, as given in Article 1 of the Constitution and held by the Supreme Court in the Superintendent etc. v. Zawar Khan(P L D 1969 S C 485). Thus the citizens of the above territories also have the inalienable right to get their disputes settled and grievances redressed by competent Court and according to Article 192 (4) the jurisdiction of any High Court may be extended with regard to such other territory. As a result it will be a High Court for that territory also and so all the inferior Courts of that territory will become the Courts subordinate to it. Reference be also made to Article 187 (2) which provides, that any direction, order or decree issued by the Supreme Court shall be enforceable throughout Pakistan. It shows that the jurisdiction of the Supreme Court also extends to the whole of Pakistan. The only exclusion is given in Article 247 (7) whereby the Supreme Court or the High Courts have been denied the same in respect, of tribal areas unless Parliament by law otherwise provides. According to Article 258, the President may, by order, make provision for peace and good government for any part of Pakistan not forming part of a Province, until Parliament by law otherwise provides. This also proves that all the other Courts to be created under Article 175 have to be subordinated to a High Court, as and when that area is brought within the Jurisdiction of a High Court.

32. The above position further establishes the view that the judicial power of Pakistan, save as is excepted in Articles 199 (5) and 212, is to be vested in the Courts created under this Article and no forum, other than that specifically, mentioned. in the Constitution, can be created for the perfor mance of judicial functions and exercise of judicial power. This conclusion 'is strengthened by the fact that the Constitution does exclude certain other subjects also from the purview of the Courts jurisdiction as given in it: Articles 69, 225 and 247 (7). Article 209, with regard to the Constitution of the Supreme Judicial Council may also be cited for the same purpose. All these articles thus support the above view, for if the framers of the Constitution wanted, that the judicial power be conferred on any authority, other than a Court or, the same be curtailed, in any respect, it would have either so stated in Article 175 or that intention would have been made clear elsewhere. Further, the intention of the Constitution to separate the judiciary from the executive progressively as contained in Article 175 (3) and the Pre‑amble also upholds the above position.

33. Again, the concept that there will .be a High Court for each Pro vince has to have its plain meaning, in the absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i.e. a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, "the such other Courts" must necessarily be inferior to the High Courts.

34. It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, though, according to Article 190, all executive and judicial authorities have to act in its aid and all Courts in the country shall be bound to follow its decision in view of Article

189. As for the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court, subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that any decision of a High Court shall to the extent it decides a question of law, or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. The Constitution, however, does not specifically say as to which Courts are subordinate to it. The scheme of the Constitution, however, appears to be that while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court, merely because of its position, the Courts in a Province have to follow the High Court and be bound by its decision as they are subordinate to it. So, the mere fact that there is no express indication in Article 175 of the Constitution that all "other Courts" to be created by or under law will be the Courts subordinate to the High Court is riot at all important.

35. The jurisdiction conferred on a High Court by the Constitution, under Article 199 also gives a clear cut scope of it's authority. It lays down that a High Court may, on an application made by an aggrieved person, direct any person performing within its territorial jurisdiction, functions in connection with the affairs of the Federation or a Province, or a local authority, to do or refrain from doing, any act which he is not permitted by law to do. The High Court can likewise declare their actions as without lawful authority. Further, within, its territorial jurisdiction, which would include such other area as may be brought within its jurisdic tion under Article 192, it can satisfy itself if a person is not being held without lawful authority. Thus, the authority of a High Court extend throughout the Province, in respect of all matters and persons except those expressly taken out of its ambit by the Constitution itself. Reference be made to Article 199 (5) which provides for the exclusion of the Courts for the Armed Forces. As a result, the specific mention of "subordinate Courts and not the other Courts and tribunals, in Articles 202 and 203 only amounts to making sure that the superintendence and control of the High Court shall be confined to the Courts‑ in the Province and not the other authorities there.

36. Thus, the judicial power, in view of Article 175 of the Constitution vests, in a Province, only in the High Court and such other inferior Courts as may be created under law. The earlier civil, criminal and revenue Courts have, however, been continued under Article 275(3). of the Constitu tion but the judiciary has to be separated from the executive within the period provided in Article 175(3). May be it is for the reason of saving the unconstitutional position of some of these Courts that the Constitution provided a time limit ‑under Article 175 (3).

37. The Constitution further provides that the Courts shall exercise such jurisdiction as is conferred on them by' the Constitution or law. The jurisdiction is a slice of the judicial power. It is defined, as the power to hear and determine a cause of action presented to it, in the 20 Am Jur 2d page

451. The term has reference to power of the Court, over the subject matter over, the res or property in contest and to the authority of the Court to render the judgment or decree it assumes to make. To create jurisdictions the judicial power is to be divided horizontally, with the Supreme Court at the apex High Courts in the middle and the subordinate Courts at the base. A further division in each case, may be made into original, appellate, reviewal or revisional segments and also on the basis of territories, persons, or subjects or their combinations.

38. The `jurisdiction' thus represents that part or a segment of the judicial power which is conferred either by the Constitution itself or the law, or any Court. The jurisdiction of the Supreme Court has been given in detail in the Constitution, though the Parliament may also confer on it more of it. The High Courts have also been given the power of superintendence on the Courts subordinate to it and also the power of judicial review on all the statutory functionaries and the local authorities within its territorial jurisdiction. The jurisdiction conferred by the Constitution cannot be altered, amended or repealed by Legislature. Thus while the Constitution has placed the Court as the highest Court in the Province and conferred on it jurisdiction of superintendence and control and of judicial review to ensure that any aggrieved person can bring to its notice any injustice or illegality for a redress, it has left it to the respective Legislature to confer any other jurisdiction on it. From the above, it quite clear that there is a guarantee given in the Articles 199 and 203 of the Constitution to an aggrieved person to approach a High Court, against any excess, illegality or injustice committed by any authority or Court in its territorial jurisdiction. So, the purpose of the provision of Article 203 in the Constitution itself appears to be that if the Legislature for any reason, takes away the appellate or the revisional powers of the High Court in respect of any matter, or fails to apply‑the same in certain cases the High Court shall still be left with a power to redress the genuine grievances of the aggrieved persons and see that injustice, if any, done by the subordinate Courts is not perpetuated. According to 20 Am Jur 2d, page 470, sec tion 112 "where superintending control over all inferior Courts is conferred by a provision of the Constitution, the supervisory power cannot be restrict ed or removed by legislative action, unless the constitutional provision granting supervisory jurisdiction authorises the legislation to enact a statute regulating such superintending control.

39. Having discussed that the other Courts created under Article 175 are subject to the superintendence and control of the High Courts, in their respective territories, it is now necessary to know as to what kind of 'superintendence' and control can a High Court exercise over them. The learned counsel have referred to a number of judgments of our Courts which I shall consider presently. It appears to have been the unanimous view of our Courts in the past that this power' of superintendence extended only to the subordinate Courts and not even to the acts of the subordinate judicial officers while they were acting as tribunals or persona designata, though in a quasi‑judicial capacity. Reference be made to Aziz Begum v. Noor Muhammad (P L D 1962 Lah. 887 (F B)), where this Court held that a Civil Judge acting as a Rent Controller under the West Pakistan Urban Restriction Ordinance, 1959, was a persona designata and not a Court and the High Court could not order transfer of proceedings before him under Article 203 of the Constitu tion. This view was upheld by `‑the Supreme Court in the case of Khadim Mohyuddin (P L D 1965 S C 459). It may, however, be noted that the above views fell under the previous constitutional position and as said in para. 17 above; the distinction to be brought out now will be whether it was a judicial or an administrative function.

40. As far its scope, a Full Bench of the Sind High Court in Abdul Rehman v. Mst. Chaman Ara (P L D 1972 Kar. 164) considered it while interpreting Article 102 of 'the 1962 Constitution, which is similar to Article 203 of the 197.1 Con stitution and did not dissent with the earlier views on the point. However, Qadeeruddin, C. J. who wrote the judgment for the Full Bench remarked that an earlier Division Bench judgment to which he was a party had been misunderstood. He observed in its first part of the judgment that the power of supervision and control conferred on the High Court, with regard to its subordinate Courts, did not authorise it to settle the grievance of the parties or to do justice between their for their sake. According to him, as Article 102 of the 1962 Constitution did not refer to any proceedings, order, judgment, relief or remedy, all these would not be considered to be within its ambit and its scope shall have to be confined to supervising only the, conduct of the subordinate Courts. The High Court, it was stated, should only keep an eye on the subordinate Courts so that they may not fail to do their duties i. e. attending the Courts regularly and punctually, to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be ousting their jurisdiction, to obey legitimate directions of their superior authorities and to know the law and to conduct themselves like judicial officers. However, the following concluding remarks may be reproduced with advantage to show that the concept of judicial control earlier approved was maintained :‑ But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct them selves rightly as Courts. If a party applies to the High Court under this Article it merely brings the failure, faults or derelictions of duty to the notice of the High Court and if the High Court takes action on such an application it does so 'for keeping the administration of: justice pure and not to help the appellant. "This duty is to be performed (by the High Court) irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not". It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceedings.

41. In an earlier Division Bench judgment in Karim Bakhsh v. Mst. Mubarik Jan (P L D 1970 Pesb. 169 ), to which Qadeeruddin, J. was a party, and which was written by Dr. Nasim Hasan Shah, J., now a very eminent Judge of the Supreme Court, the learned Judges carefully considered with approval some earlier opinions on the same point, as expressed by various Courts, including the Privy Council, the Indian Supreme Court, as well as a judgment of the Sind High Court, Emperor v. Tarapore (A I R 1940 Sind 230), to express the view that Article 102 conferred, not only power of administrative but judicial superintendence .also. The relevant portion of the judgment may be reproduced with advantage :‑ "We respectfully agree with the view expressed in the above judgments that a Family. Court, constituted under the West Pakistan Family Courts Act (XXXV of 1964), is a Court subordinate to the High Court, within the meaning of Article 102 of the 1962 Constitution. Likewise, we agree with the proposition that the power conferred by the Article on the High Court to supervise and control all other Courts that are subordinate to it" being a general power and includes the control of subordinate Courts not merely administratively but also judicially. We are also in accord with the view, taken in those judgments, that Article 102 confers upon the High Court, unlimited power to correct or revise ail proceedings, orders and judgments of as the Courts subordinate to it, for the purpose of enforcing the law correctly and guiding or compelling the subordinate Courts to follow the law and to exercise other jurisdiction properly."

42. The learned. Judges, in the above case, also approved two single Bench judgments of this Court, in Mst: Gaman v. Taj Din (P L D 1968 Lab. 987) and Mst. Safia Begum v. Abdul Hamid (P L D 1968 Lab. 1358.) recorded by different Judges. In the case of Mst. Gaman, Karam Elahi Chauhan, J. after taking note of the historical background held that Article 102 gave the High Courts power to control all subordinate Courts administratively as well as judicially. In the other case of Mst. Safia Begum, the view taken by A. R. Sheikh; J. was as under :‑ "No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision, regardless of the limitations imposed by law on those powers. 1, however, agree with the view that the power is to be exercised only in very rare and exceptional cases and may be used exdebito justitias, where there is no other remedy available under the ordinary law. The case before me is of that description and the circumstances are such that I feel persuaded to invoke the extraordinary power of superintendence under Article 102 of the Constitution." (The underlining* is supplied).

43. The last case approved in the above D. B. judgment (see para. 41) is reported as Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqui (P L D 1971 Kar. 118) Mr. Justice Muhammad Haleem, as he then was, and who now adorns the chair of the Chief Justice of the Supreme Court of Pakistan, approved the Indian as well as the view of Karam Elahee Chauhan, J. in the case of Mst. Gaman referred to above, to say that the word 'superintendence' includes both judicial as well as administrative junctions. The learned Judge further observed that there is authority to conclude that the word `supervision' and `control' in Article 102 empower the High Court to exercise judicial control over the decisions of the subordinate Courts though the limits within which it has to be exercised is a different question. In his view, the judicial control is limited to the correction of exercise of jurisdiction or non‑compliance of any statutory provision of the concerned law, and it does not extend to interference on merits, if otherwise, the subordinate Court has acted within its bounds. The result was that the order of the appellate Court was set aside and he was directed to rehear the appeal, for the reason that he had not considered the judgment of the Family Court and had merely set it aside and ordered retrial on the consideration that the declaratory suit of the respondent was still sub judice and until there was a decision against him, the decree for deferred‑ dower could not be passed.

44. It is quite clear from the above that there is no difference of opinion of our Courts on the extent and scope of the power of superinten dence conferred on this Court by the Constitution. It is established that, an action thereunder may result in a relief, which may be in the nature of t judicial or administrative exercise of power the controversy, if any,1 may only lie in the procedure i.e. should the Court act on the application of an aggrieved person and for his benefit? It is respectfully submitted that the emphasis placed by the learned Judges of the Full Bench is that the High Court should not exercise that power just for the benefit of one or the other party to the case but should do so only under the dictates of law and. justice. I think, with respect that the view expressed in: the case of Farida Parveen (Para. 43 above) gives the most concise but comp rehensive and correct exposition of Article

102. It may further be seen that our Courts have admitted no hurdle or obstacle in their way ands have granted relief whenever it was found necessary or proper, in the interest of justice, both on the application of aggrieved persons and also suo Motu.

45. Some of the situations countered may be given chronologically to illustrate the point :‑ 1976. A Division Bench of the High Court of Sind held that the High Court is empowered to correct the failure, faults or dereliction of duty, laches, defect of jurisdiction, denial of justice, bias or disability of the Court in order to keep ‑the administration of justice pure. (S. Zahid Ali v. Mubarak Bano P L D 1976 Kar. 68). 1976. Karam Elabi Chauhan, J. held that the record of the case pending before a. Judge Family Court could be called for suo Motu to set aside the short orders passed by him and he could be directed to pass proper orders in accordance with law. (Muhammad Siddiq v. Syed Ali Shah P L D 1976 Lab. 293). 1979. The power of superintendence and control was relied on by a learned single Judge of the Lahore High Court (Rustam Sidhwa J.) to allow interim.bail.) (Muhammad Naeem v. State 1979 P Cr. L J 333). 1979. Another learned single Judge (M. S. H. Quraishi, J.) of the Lahore High Court held that as the Rent Controller was not a Court, the power under Article 102 of the Constitution could not be invoked for the transfer of proceedings from one Controller to another. (Fardaus Kausar v. Subah Sadly 1979 C L C 208). 1980. Mr. Justice Gulbaz Khan in Shahzad Hussain v. State P L D 1980 Lah. 54 held that as the orders of the special Courts constituted under the Suppression of Terrorists Activities (Special Courts) Act, 1975, are appealable to the High Court, the special Court is a Court subordinate to the High Court and Article 203 of the Constitution would apply so as to set aside proceedings instituted without juris diction. It was further held that any order passed by such a Court in violation of law could be corrected. 1980. A learned single Judge of the Peshawar High Court in Mst. Shirin Taj v. Akbar Khan 1980 C L C 787 held that any finding that could be challenged in appeal or revision would not fall for determi nation in exercise of supervisory jurisdiction given under Article 203 of the Constitution. The learned Judge, however, refused to interfere in the matter before him as the order passed by the learned District Judge was neither perverse nor such that no Court could have arrived at that conclusion. 1980. A Division Bench of the Baluchistan High Court in Khadija Bibi v. Abdul Wahid 1980 C L C 2145 held that superintendence or administrative jurisdiction of the High Court clearly means judicial superintendence over subordinate Courts or administrative control over such Courts in judicial matters. According to the learned Judges such control did not travel beyond passing such orders which are necessary for ensuring that they are functioning in the best interest of law and justice: Regarding the judgments and orders of the subordinate Courts the learned Judges observed that as they were subject to appellate or revisional jurisdiction of the High Court, no coverage from Article 203 be provided: Reverting to the meaning of the word `Court' they observed that it did not deserve a limited but elastic meaning depending, of course, upon the consideration that it serves the purpose of letter and real administration of justice. The result seems to be that the High Court has unlimited Constitutional discretionary power to supervise and control all such forums, by whatever names called, if they exercise judicial power in the Province and this jurisdiction would encompass the judicial decisions as well as the adminis trative actions so that the particular judgments and orders as well as the A main stream of justice are kept pure and clean and the Courts are directed to remain within the 'bounds laid down by law and the superior Courts. The High Court may even go to the extent of taking disciplinary action against the delinquent officers as is supported hereinafter. In this connection reference may also be made to note 115‑117 of the 20 Am Jur 2d, which reads as under: ‑ "

115. Scope and mode of exercising jurisdiction.‑The scope of super visory jurisdiction is very broad and it may be exercised to different modes, depending on the nature of the particular case. In the exercise of its superintending control over trial Courts, the Supreme Court may make rules for them and enforce those rules, it may restrain a state Court from proceeding in an action involving the same controversy and the same parties as an action pending in a federal Court, it may require a Court to make an order fixing the amount of security for costs where the defendant has a statutory right to such security and no appeal would lie from its detail, and it may compel appropriate action by a lower Court where the lower Court applied a rule in a manner the higher Count considers unreasonable. Supervisory jurisdiction may be exercised to compel action by an inferior Court or to keep an inferior Court within its jurisdiction, as by the issuance of a writ of mandamus, or a writ of prohibition. It may also, subject to the rules governing that remedy in the particular jurisdic tion, be exercised by the issuance of a writ of certiorari. And although the cases are not in harmony with regard to this point, and the view has been taken that an error not going to the jurisdiction of the Court may not be the subject of remedial action by way of exercise of supervisory jurisdiction, there are opinions to the effect that supervisory jurisdiction may be exercised in the case of a non jurisdictional error.

116. Discretion of supervising Court.-‑The exercise of supervisory jurisdiction is of discretionary nature. It is generally a matter of judicial policy, particularly dependent on the judicial policy prevailing in the given jurisdiction. A Court will not lightly use its superintend ing jurisdiction and ordinarily will do so where there is an adequate remedy by appeal or writ of error. It has been pointed out, however, that the self‑restraints used by Courts are not limitations on the supervisory powers.

117. When exercised.-‑The general practice is that supervisory jurisdic tion will not be exercised as a matter of course, but only where there is an urgent reason for its exercise. It will, therefore, generally be exercised only in extreme cases, to accomplish such things as to prevent irreparable mischief or great hardship, to protect fundamental rights of a party or parties or to achieve justice. It will not be used merely for the purpose of controlling the exercise of discretion by an inferior Court. One of the reasons frequently given for the exercise of supervisory jurisdiction is that a remedy by appeal is not available, or is not adequate to give relief under the particular circumstances, or would come too late for effective redress. Sometimes the Supreme Court of a state exercise its supervisory jurisdic tion to create uniformity of decisions in the intermediate appellate Courts of the state."

46. It is necessary to point out with respect, that though some of the above judgments have referred also to the word "control" as appearing in the Article 102 of the 1962 Constitution or Article 203 of 1973 Constitu tion, yet they have not dwelt on its meaning and scope. A little more closer look at the terms "superintendence" and "control" would show that they l overlap each other both in meaning and scope. According to dictionary `control' may also mean superintend and vice versa. Again while the superintendence may be of the system, its working and the product, the control may be of the personnel also. The Courts of this country did never have the occasion to consider and decide the scope of "Control" in the Article 203 but the Indian Courts have fathomed the scope of the same term as found in the parallel provisions of the Indian Constitution in W. B. v. Nripendra Nath (A I R 1966 S C 447), the Supreme Court held that the power of control conferred on the High Court in Article 235 of the Constitution included the power to take disciplinary action and so the Government had no power to hold an inquiry against an Additional Sessions Judge. The Patna High Court in Madan Mohan v. Bihar (A I R 1970 Pat: 432), held that control', over subordinate Courts carried with it the power to fix the seniority of Officers employed in those Courts. In Assam v. Ranga Muhammad (A I R 1967 S C 903), the Supreme Court held that a power to transfer a District Judge from one place to another belonged not to Government but formed part of the control, exercisable by the High Court under Article

235. The same view was taken by the Supreme Court in Chandramouleshwar v. Patna High Court, (A I R 1970 S C 370). Interpreting similar power, the Privy Council in Raj Kumar v. Ram Sundar (A I R 1932 P C 69), opined that High Court could take disciplinary action for cases of flagrant mal-administration of justice.

47. Even the termination of the services of a member of his judicial service, by the High Court, on the findings of an inquiry, conducted by the Director of Vigilance, at the instance of the High Court was set aside by the Supreme Court in Shamsher Singh v. Punjab (A I R 1974 S C 2192), on the ground that the High Court not only denied the employee the protection under Article.311 but also denied to itself the dignified control of the subordinate judiciary. According to "Words and Phrases Permanent Edition"; Volume 9‑A page 21 "the power of the Supreme Court, conferred by I.‑C. A, Court, Article 5.1 to supervise the inferior Courts is to oversee for direc tion, to superintend and to inspect with authority: and. to "control" is to exercise restraining or governing influence over and to regulate, govern, or overpower, so that the appointment of the District Judges as Condemna tion Commissioners by statutory authority is properly within the supervi sory control of the Supreme Court. It is to be appreciated that if exercise of disciplinary jurisdiction over the subordinate judiciary is not a part of the constitutional power of superintendence then the High Courts cannot exercise effective control and be made responsible for proper functioning of the subordinate Courts. On the other hand, there is no provision of the Constitution burdening the executive with such a responsibility. Further, it is not only relevant to the concept of separation of judiciary from the executive, it is essential to inspire confidence in the public mind about the independence of judiciary.

48. This power of superintendence is not new to our system of law. According to Common Law every appellate and superior Court possessed it as its inherent power. The Government of India Act, 1915, vide section 107 conferred on every High Court the power of superintendence over all Courts, for the time being subject to its appellate jurisdiction. Earlier, section 15 of the High Courts Act, 1861, also gave the same power to all the High Courts. Subsequently, by section 224 of the Government of India Act, 1935, every High Court was given the power of superinten dence over all Courts for the time being subject to their respective appellate jurisdiction. The subsection (2) was, however, added to it in order to take away the power of judicial superintendence over the subordinate Courts which the High Courts already enjoyed, in addition to the powers of revision conferred by the ordinary law. The Calcutta High Court in Sakal v.,lswar ((1941) 2 Cal. 366), Jahaabi v. Basudeb ((1949) 54 C W N 626), and also in Ryots of Garabandhu v. Parlakimedi ((1943) 70 I A 129), noted the change made by section 224(2) of the 1935 Act to say that it expressly barred the already available power of judicial interference in exercise of its power of superintendence.

49. The Article 227 of the Constitution of India, however, reproduced the section 224 of the Government of India Act, 1935, without the limitation of "appellate jurisdiction" and dropped the subsection (2) also. The result is that the Indian High Courts have unabridged and unlimited power of superintendence over ail Courts and Tribunals in their respective territorial jurisdiction. The same position has been brought in by Article 203 of our Constitution though this power has not been extended to the tribunals. Consequently, the position as it obtained under section 107 of the Govern ment of India Act, 1915, has not only been restored but improved. The relevant part of‑section 107 read as under: ‑ "Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction and may do any of the following acts that is to say ." The relevant portion of Article 227 of the Constitution of India runs as follows:‑ "(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. . (4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the armed force." Article 203 of the Constitution 1973, may also be reproduced for ready reference:‑ "

203. Each High Court shall supervise and control all Courts sub ordinate to it."

50. So, by omitting to incorporate the contents or spirit of subsec tion (2) of section 224 of the Government of India Act, 1935, in its Article 227, the Indian Constitution also restored the judicial superinten dence of the High Courts as it existed after the Government of India Act, 1915. The Indian Courts have also taken same view in their sub sequent pronouncements. Reference may be made to the cases of Satyanarayan v. Mallikarjun (A I R 1960 S C 137), Waryam Singh v. Amarnath (A I R 1954 S C 215), as well as Hari Vishnu v. Ahmad (A I R 1955 S C 233). Section 107 of the Government of India Act, 1915, was similarly interpreted in a number or cases. In Sholapur Municipality v. Tuljaram (A I R 1931 Dom. 582), Emperor v. Jamnadas (A I R 1937 Dom. 153), and a Full Bench of the same High Court in Balkrishna v. Emperor (A I R 1933 Born. 1), held that the word superintendence meant to include judicial as well as administrative superin teridence and the High Court would intervene by revision in proper cases even where section 115 of the C. P. C. or section 439 of the Criminal Procedure Code did not apply.

51. The meaning and the scope of the word 'superintendence' was considered by the Indian Supreme Court in Waryam Singh v. Amar Nath referred to above, which ruled that Article 227 conferred a general power to control all subordinate Courts administratively as well as judicially. In Sandal v. Kedar (A I R 1935 All. 519), it was held that it includes the power of the High Court to direct the subordinate Courts and Tribunals to carry out its orders. In Rajkumar v. Ramsundar (A I R 1932 P C 69), the Privy Council opined that the Court could direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice under that power. The power to stay proceedings before a Tribunal till the disposal of the suit pending before a civil, Court was also found to lie in this power. In re: Pattisam (A I R 1954 Mad. 573). It was further noticed in Faqir v. Gopi (A I R 1962 Pb. 117), and Barrow v. State of U. P. (A I R1958 All.154), that the power under Article 227 could be exercised suo motu in proper cases even without any application from the party aggrieved. The Indian Courts, however, in some cases refused to give relief under that Article in cases where alternative relief could be granted under some other jurisdiction. In Carlstill v. State of Bihar (A I R1961 S C 1615), the Indian Supreme Court held that the power of general superintendence, conferred by Article 227, involves a duty on the part of the High Court, to keep, all Courts and Tribunals, in its territorial jurisdiction within the bounds of their authority and to see that they do what their duty requires and they do it in a legal manner.

52. The scope of this Article as enunciated by the Indian Courts in various cases can further be summed up as under:‑ The High Court can interfere in cases of‑ (a) erroneous assumption or excess of jurisdiction; (b) refusal to exercise jurisdiction; (c) error apparent on the face of the record; (d) violation of the principles of natural justice; (e) fraud on the part of the prosecutor; (f) arbitrary or capricious exercise of authority; or discretion; (g) perverse finding e, g., where it is based on no material‑ whatsoever; (h) deciding contrary to the law laid down by the High Court or refusal to comply with the decision of the High Court; Those Courts further held that this power will be restricted to: (i) cases of grave dereliction of duty, or flagrant violation of law,1 where grave injustice would result unless the High Court interferes; (ii) be exercised only to do justice between the parties and not even to remove an illegality if the result may be to perpetuate some other illegality or injustice; (iii) not be exercised to correct an error of fact, or of law, nor being an error of law apparent on the face of the record, unless such error affects the jurisdiction of the inferior tribunal; (iv) will not proceed to reappraise the evidence on which the conclusion of the Court is based, or to go into the evidence' for any other purpose except in exceptional cases e. g., to see whether its own order of remand has been carried out; (v) intervene to correct an error as to the interpretation of the Constitution. (vi) not substitute its own judgment for that of the inferior Court, whether on a question of fact or law or interfere ‑with the intra vires exercise of a discretionary power, unless it is `arbitrary or capricious'; or perverse e. g., where it is based on no material whatsoever. The power under Article 227 has also been held to be wider than that under section 115, C. P. C. 53: Thus,‑the position in the prepartition India before 1935 and after the enforcement of its Constitution in 1950 has been that the High Courts had both the administrative and judicial superintendence over the Courts subordinate to it. The power under Article 227 of the Constitution was thought to be superior but co‑extensive with the ordinary revisional power, wherever it was available. The Courts in Pakistan as discussed above, therefore, also rightly treated the similar powers given to them under (Article 177 of the 1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right of administrative' as well as judicial superintendence over its subordinate Courts. The result] is that this application is maintainable under Article 203 of the Constitu tion, but as the Special Court. withdrew its previous order on the commit merit of the petitioner that he will, pay the balance amount in lump sum within the period specified and there is no miscarriage of justice or are illegality calling for interference, this application has no merit. The parties to bear their own costs. M. Z. M. Order accordingly.