SUPERINTENDENT CENTRAL JAIL, ADYALA, RAWALPINDI vs HAMMAD ABBASI
This civil/criminal appeal arose from a High Court judgment that declared Section 21-F of the Anti-Terrorism Act, 1997 ultra vires the Constitution of Pakistan and directed jail authorities to calculate remissions previously clogged by the said section. The primary procedural issue raised before the Supreme Court of Pakistan was whether a High Court can declare a statutory provision unconstitutional without issuing prior notice to the Advocate General under Order XXVII-A of the Code of Civil Procedure, 1908. Relying on established precedent, the Supreme Court held that compliance with Order XXVII-A CPC is mandatory whenever the constitutional validity of a statute is under consideration. Due to the lack of notice to the Advocate General and Attorney-General, the respondent's counsel raised no objection to remanding the matter. Consequently, the Supreme Court converted the petition into an appeal, set aside the High Court's judgment, and remanded the writ petition back to the High Court for fresh adjudication after issuing the required statutory notices.
- Is notice to the Advocate General mandatory under Order XXVII-A CPC when the constitutional validity of a statute is challenged in the High Court?
- Whether a High Court judgment striking down a statutory provision without issuing notice under Order XXVII-A CPC is liable to be set aside?
- Can a writ petition involving the vires of an Act be remanded for fresh decision due to non-issuance of notice to the law officer?
- section 21-F of the Anti-Terrorism Act, 1997
- Order XXVII-A, C.P.C.
ORDER
MIAN SHAKIRULLAH JAN, J.--- Through the impugned judgment the High Court while allowing the petition, has declared section 21-F of the Anti-Terrorism Act, 1997 as ultra vires of the Constitution and liable to be struck down and directed the jail authorities to calculate the remissions which were clogged by section 21-F of the said Act. At the very outset, the learned Additional Advocate General has contended that as the vires of the Act was under consideration and the High Court ought to have issued notice to the Advocate General as required under Order XXVII-A, C.P.C. And as such the impugned judgment is liable to be set aside on this ground. The learned Deputy Attorney General present in Court has supported the stance taken by the Additional Advocate General and has also relied on the case titled Federal Public Service Commission v. Syed Muhammad Afaq (PLD 2002 SC 167) whereby the judgment was set aside and the case was remanded back to the High Court for decision afresh on the sole ground of non-issuance of notice to the Advocate-General by the High Court.
2. Mr. Ilyas Siddiqui, learned counsel for the respondent has no civil to the aforesaid legal proposition.
3. In view of the above legal proposition, we convert this petition into an appeal and allow the same. The judgment of the High Court is set aside and the Writ Petition is remanded to the High Court for its decision afresh after issuance of notices to the Advocate General and Attorney- General for Pakistan.
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