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Chapter 3. THE HIGH COURTS

192.

  1. A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President.
  2. [1] [The Sindh and Baluchistan High Court shall cease to function as a common High Court for the Provinces of Baluchistan and Sindh.
  3. The President shall, by [2] 0rder, establish a High Court for each of the Provinces of Baluchistan and Sindh and may make such provision in the Order for the principal seats of the two High Courts, transfer of the Judges of the common High Court, transfer of cases pending in the common High Court immediately before the establishment of two High Courts and, generally, for matters consequential or ancillary to the common High Court ceasing to function and the establishment of the two High Courts as he may deem fit.]
  4. The jurisdiction of a High Court may, by Act of [3] [Majlis-e-Shoora (Parliament)], be extended to any area in Pakistan not forming part of a Province.

193.

  1. A Judge of a High Court shall be appointed by the President after consultation-
    1. with the Chief Justice of Pakistan;
    2. with the Governor concerned; and
    3. except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.
  2. A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty years of age, and-
    1. he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
    2. he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or
    3. he has, for a period of not less than ten years, held a judicial office in Pakistan. [4] [Explanation.-In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.]
  3. In this Article, “District Judge” means Judge of a principal civil court of original jurisdiction.

194.

  • Before entering upon office, the Chief Justice of a High Court shall make before the Governor, and any other Judge of the Court shall make before the Chief Justice, oath in the form set out in the Third Schedule.

[5]

195.

  • A Judge of a High Court shall hold office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with the Constitution.

[6] * * * * * * *

196.

  • At any time when-
    1. the office of Chief Justice of a High Court is vacant, or
    2. the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause,

    the President shall appoint [7] [one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court], to act as Chief Justice.

197.

  • At any time when-
    1. the office of a Judge of a High Court is vacant; or
    2. a Judge of a High Court is absent or is unable to perform the functions of his office due to any other cause; or
    3. for any reason it is necessary to increase the number of Judges of a High Court,

    the President may, in the manner provided in clause (1) of Article 193, appoint a person qualified for appointment as a Judge of the High Court to be Additional Judge of the Court for such period as the President may determine, being a period not exceeding such period, if any, as may be prescribed by law.

[8]

198.

  1. Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day.
  2. [9]Each High Court and the Judges and divisional courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit courts consisting of such of the Judges as may be nominated by the Chief Justice.
  3. The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sindh shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.
  4. Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.
  5. A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
  6. The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,-
    1. assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
    2. for all incidental, supplemental or consequential matters.

199.

  1. Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
    1. on the application of any aggrieved party, make an order-
      1. 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
      2. 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
    2. on the application of any person, make an order-
      1. directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
      2. requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
    3. on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
  2. Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
  3. [10]An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
  4. [11] * * * * * * * Where-
    1. an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
    2. the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest [12] [or State property] or of impeding the assessment or collection of public revenues,

    the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorized by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-

    1. would not have such effect as aforesaid;or
    2. would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

    [13](4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in part I of the First Schedule or relates to, or is connected with, [14] [State Property or] assessment or collection of public revenues shall cease to have effect on the expiration of a period of [15] [six months] following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier. ]
    [16](4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded. ]

  5. In this Article, unless the context otherwise requires, “person” includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and “prescribed law officer” means
    1. (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
    2. (b) in any other case, the Advocate- General for the Province in which the application is made.

200.

  1. The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except ‘ with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts [17] [: ]
  2. [18] [Provided that such consent, or consultation with the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not exceeding [19] [two years] at a time.
  3. Explanation.-In this Article, “Judge” does not include a Chief Justice [20] [but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196].]
  4. [21] Where a Judge is so transferred or is appointed to an office other than that of Judge at a place other than the principal seat of the High Court, he shall, during the period for which he serves as a judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine.
  5. [22] If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court:
  6. Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.

  7. [23] [Explanation.- In this Article, "High Court" includes a Bench of a High Court]
  8. [24] A Judge of a High Court who does not accept transfer to another High Court under clause (1) shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.]

201.

  • Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.

202.

  • 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.

203.

  • Each High Court shall supervise and control all courts subordinate to it.

Notes for Part VII, Chapter 3

  1. Substituted by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 8,for the original clauses (2) to (4) (with effect from December 1, 1976)
  2. For such Order in respect of establishment of High Courts for Baluchistan and Sindh, see the President’s Order No. 6 of 1976 of November 29, 1976, Gazette of Pakistan, 1976, Extraordinary, Part l,pages 595-99.
  3. Subs. by P.O. No.14 of 1985, Art. 2 and Sch., for “Parliament”.
  4. Explanation added by the Constitution (First Amendment) Act, 1974 (33 of 1974), section 8 (with effect from May 4, 1974).
  5. Article 195 renumbered as clause (1) of that Article by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 9 (with effect from September 13, 1976).
  6. Clauses (2) to (5) added by the Act, 1976 (62 of 1976) and clause (6) added by the Act, 84 of 1976 omitted by P.O.No.14 of 1985 Art. 2 and Sch.
  7. Substituted by P.O.No.14 of 1985 Art. 2 and Sch.
  8. Renumbered.
  9. Added, ibid.
  10. Substituted by the Constitution (First Amendment) Act, 1974 (33 of 1974) section 9, for clause (3)(with effect from May 4, 1974).
  11. Clause (3A), (3B) and (3C) as they stood before 5th July, 1977, and as inserted by P.O. No.1 of 1980, omitted by P.O. No.14 of 1985, Art.2 and Sch.
  12. Inserted by P.O.No.14 of 1985 Art. 2 and Sch.
  13. Clause (4A) inserted by the Constitution ( Fourth Amendment ) Act, 1975 (71 of 1975), section 8 (with effect from November 21. 1975).
  14. Added by P.O.No.14 of 1985, Art. 2 and Sch.
  15. Substituted,
  16. Added, ibid.
  17. Substituted by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 12, for the full-stop (with effect from 13th September, 1976).
  18. Proviso added, ibid.
  19. Substituted by P.O.No. 14 of 1985, Art. 2 and Sch.
  20. Added by P.O.No.24 of 1985, Art. 3.
  21. Clause (3) added by the Constitution (First Amendment) Act, 1974 (33 of 1974), section 10 (with effect from May 4, 1974).
  22. Inserted by P.O.No. 14 of 1985, Art. 2 and Sch.
  23. Added by P.O. No.24 of 1985 Art 3.