JUSTICE TARIQ MEHMOOD JAHANGIRI, JUDGE, ISLAMABAD HIGH COURT Versus MIAN DAWOOD, ADVOCATE HIGH COURT
ORDER
AMIN-UD-DIN KHAN, SENIOR JUDGE.--- Through this petition filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has challenged the order passed by the learned Division Bench of the Islamabad High Court in Writ Petition No. 3670 of 2025 dated 16.09.2025 whereby while issuing the notice on C.M.No.2 of 2025 petitioner who was respondent No.1 before the High Court was restrained to hold the Court. Yesterday on 29.09.2025, we heard the learned counsel for the petitioner and passed the following order:-
"We have heard Mr. Munir A. Malik, Sr. ASC learned counsel for the petitioner. Learned counsel has relied upon judgment of this Court reported as "Malik Asad Ali and others versus Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others" (PLD 1998 Supreme Court 161) and argued that writ of quo warranto is maintainable against the Judge of Superior Court but no interim order can be passed. States that he has challenged interim order passed by the High Court, therefore, we issue notice to the respondents. Respondent No. 1 is present in Court. Waives notice. As the matter relates to interpretation of the provisions of Constitution, therefore, we also issue notice to the learned Attorney General for Pakistan and Advocate General ICT Islamabad under Order XXVII-A of the C.P.C. On behalf of Federation learned Additional Attorney General is available. Also waives notice. Office to issue notice to the other unserved respondents for tomorrow i.e. 30 September 2025 at 9.30 A.M.
C.M.A. No.7477/2025
Notice. In the meanwhile, operation of the impugned order is suspended."
2. Today we have heard the learned counsel for the petitioner as well the learned Attorney General for Pakistan and respondent No.1 in person. Mr. Munir A. Malik, the learned counsel for the petitioner has reiterated the arguments advanced by him yesterday. The learned AG also assisted the Court and is of the opinion that a Judge of the Superior Court cannot be restrained from performing judicial function as a Judge in a matter when a writ of quo warranto is filed in the High Court.
It is important to mention here that the respondent No.1 filed a constitutional petition before the Islamabad High Court, Islamabad under the provision of Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'), which relates to seeking information. The principle of seeking information regarding personal affairs of a Judge of the Superior Court in the nature of quo warranto has been elaborated by this Court in Malik Asad Ali and others 1 . Relevant portion of paragraph No. 77 at page 281 is reproduced herein below:
"...Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court.
Para 77 Page 285
I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a Superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings but not by a writ under Article 199 of the Constitution."
3. Similarly, Paragraph 84 of the said judgment relied upon by the learned counsel for the petitioner, learned AG and respondent No.1 in person, is reproduced herein below:
"It will be convenient at this stage to deal with an ancillary argument of Mr. Abdul Hafeez Pirzada in these cases. The learned counsel contended that even if it is held that proceedings for seeking information in the nature of quo warranto are maintainable against a Judge of superior Court, no interim order prohibiting or restraining the Judge from performing his functions could be granted during the pendency of the case. While dealing with the scope of proceedings under Article 199 of the Constitution, filed against a Judge of the superior Court, we have held that the actions of the Judge which relate to the performance of his duty and functions as a Judge of the Court or as a member of the Court, cannot be brought under challenge under Article 199 of the Constitution before the High Court. Only such actions of a Judge of superior Court are amenable to the jurisdiction of High Court under Article 199 of the Constitution, which he performs in his personal capacity, having no nexus with his official functions as a Judge of the Court. We are, therefore, inclined to hold that the High Court while hearing a case against the Judge of a superior Court under Article 199 of the Constitution seeking information in the nature of quo warranto which we have held is maintainable, cannot pass any interim order restraining the Judge from performing his functions as a Judge of the Court, in view of clause (5) of Article 199 of the Constitution. However, this restraint on the power of High Court, is not applicable to this Court while hearing a case filed directly under Article 184 of the Constitution, as the power exercised by this Court under Article 184(3) of the Constitution is not subject to constraints and trappings mentioned in Article 199 of the Constitution. As discussed earlier, the proceedings before this Court under Article 184(3) of the Constitution are regulated by the terms of this Article and further vest the jurisdiction in this Court by virtue of Article 187 of the Constitution to pass any order, direction or decree which may be necessary to do complete justice in a matter before it. Therefore, in exceptional cases, this Court, while hearing a case against the Judge of superior Court wherein the legality of his appointment is challenged, may, if the circumstances of the case so demand, pass necessary order even restraining him from performing his functions as a Judge of the Court, if the dictates of justice so demanded."
4. On a query to respondent No. 1 that why he did not appear at the time of hearing, when the impugned order was passed and further that office objections have not been decided by the High Court and writ petition has been registered, and further in the light of Malik Asad Ali's case referred supra, how he can defend the impugned order, admits his non-appearance and defending the office objections at the time of passing of impugned order. States that after yesterday's hearing by this Court and issuance of notice to him, he has thoroughly gone through the judgment passed by this Court in Malik Asad Ali's case supra and he is of the view that a judge of the High Court cannot be restrained from performing his judicial function through an interim order in a writ of quo-warranto filed against him in the High Court, therefore, he does not defend the impugned order to such extent.
5. In this view of the matter, this petition is converted into an appeal and is disposed of with concurrence and keeping in view the dictum laid down by the learned 10 member Bench of this Court, the impugned order passed by the High Court in C.M. No. 02 of 2025 to the extent of restraining order, that is, till the final decision of the Supreme Judicial Council, Respondent No.1 is hereby restrained to hold the Court, is set aside.
6. It is expected that the learned Division Bench of the High Court will first decide the office objection(s) and proceed in accordance with law.
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Senior Judge
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Judge Judge
While agreeing, I am appending my additional note
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Judge Judge
ADDITIONAL NOTE
SHAHID BILAL HASSAN, J.--- I have the privilege to go through the order recorded by my brother Mr. Amin-Ud-Din Khan-J and while agreeing with the same I append my additional note.
2. Perusal of impugned order dated 16.09.2025 passed by Islamabad High Court, Islamabad divulges that office raised certain objections upon presentation of memorandum of writ petition by the petitioner therein; however, the learned Division Bench, without considering, dilating upon and deciding the same through a speaking order, proceeded to pass the following order:
'The office has raised certain objections. This Court is of the view that the same would be seen on the judicial side at the time of final adjudication of instant case. The office is directed to number this petition as well as allied matters and fix the same for today.'
3. With great concern and regret, it is observed that a procedure has been provided under the relevant provisions of Volume V, Chapter 1-A of Lahore High Court Rules and Orders, which have been adopted by the Islamabad High Court, Islamabad for regulating the proceedings in such scenario; however, in the instant case the same has not been resorted and adhered to. The relevant provisions are reproduced as under:
Rule 9. Power to return petition for amendment.-(i) The Deputy Registrar (Judicial) is authorized to return memorandum of any suit, appeal, or petition, or application, etc.,-- a. if it is not maintainable under any law; or b. if it is not properly constituted; or c. if it contains scandalous or objectionable language or material; or d. if it is not drawn up in conformity with the foregoing directions; or e. for amendment, making up of the deficiency or for filing requisite documents, within the time to be specified in the Objection Memorandum Appendix I(a), I(b) and I(c).
(ii) The order of the Deputy Registrar (Judicial) returning the memorandum of any suit, appeal, petition or application may be challenged before the Chief Justice or Judge nominated by the Chief Justice on administrative side whose decision shall be final and shall not be assailed in any other proceeding before the High Court.
Rule 9-A. A list of petitions, appeals etc. ordered to be returned shall be notified on the Notice Board and petitions, appeals, etc. not received back within seven days of the publication of the list shall be placed before the Judge of the High Court for order on a date to be notified by including such petition in a motion cause list. It is made clear that any delay in placing such petition before the Court or issuing the list shall not furnish any justification for non-receipt of the returned petition in time and non-compliance of the objection taken within time specified by Deputy Registrar (Judicial).
The above rules make it clear that the petitions or appeals, etc. not received back within time specified for the purpose, making return of the same, be fixed in a motion cause list and shall be placed before a Judge of the High Court, so authorized by the Chief Justice of the High Court for deciding the fate of the same, obviously, through a speaking order, enabling the parties to agitate the same before higher forum, if need there be. However, in the instant case, without dilating upon and deciding the objections, so raised by the office, the learned Division Bench, proceeded to pass the impugned order, which is nothing but a nullity in the eye of law because all doors have been shut for the parties to challenge the vires of the order, ought to have been passed in respect of 'certain objections', which is nothing but an administrative order and that too without assigning any reasons, to adjudicate the same at the time of final adjudication, is not in consonance with the mandate of law because section 24-A of the General Clauses Act, 1897 requires that each and every order should be supported with reasoning. The judgments reported as Zahid Hussain and another v. The State (1998 SCMR 611) and Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another (2007 SCMR 1328) support the above observations, wherein it has been held that:-
'Verbal order has no sanctity in law and such orders are alien to the process of the law and the Courts. All orders passed and acts performed, particularly, by the State/public functionaries and adversely affecting anyone must be in writing, as section 24-A(1) of the General Clauses Act, 1897 envisages that the powers shall be exercised reasonably, fairly and justly and subsection (2) further makes it necessary that the authority passing orders shall, so far as necessary or appropriate, give reasons for making the orders and unless the order is in writing, the reasons and fairness etc. thereof cannot be ascertained/ adjudged.'
Further the judgments on the subject are Captain Faisal Ghazanfar Chaudhry v. Civil Aviation Authority through its Director General, Lahore and others (2019 CLC 1737-Lahore) and Shehzad Ahmad v. Asad Niaz and 2 others (PLJ 2020 Lahore 557), which can be referred.
The above determination finds support from judgment 1 wherein this Court held that:
"From Rule 9 ibid, it is clear that the Deputy Registrar of the High Court is only authorized to return a revision petition for the amendment etc. thereof; meaning thereby, if it is not in consonance with Rule 6 or 7 (supra), he can return the petition for the making up of any deficiency and for re -filing. This rule, however, does not empower the Deputy Registrar to refuse to entertain (note:- the expression understood in its legal sense) the petition or in other words to dismiss the petition as having not been validly instituted. In case, however the deficiency is not corrected by the revision petitioner within the time given by the Deputy Registrar, the situation is fully catered by Rule 9-A supra, which postulates that if, within the time provided such petition is not re -filed/returned, a notice shall be affixed upon a notice board meant for that purpose and if within seven days thereafter, the deficiency is still not made good, the matter shall be placed before a Judge of the High Court for an order, on a date to be notified by fixing such a petition in the motion cause list (emphasis supplied). It is, thus, clearly mandated, that it is for the Court to decide as to what should be done with such a deficient petition, because the ministerial and administrative staff of the High Court cannot be empowered and allowed to decide about the fate of the revision petition (even deficient), which in fact is a compliant against the Court, subordinate to the High Court, to that Court, and not subordinate to DR; this is not permissible in the exercise of DR's ministerial/ administrative function at all. In such an event, it is for the Court alone to take a decision as to what should be the fate of such a petition. And in the facts and circumstances of each case, the Court may have more than one options in this behalf, some are elucidated as (a) grant the delinquent party with a further chance within a specified period to meet the office objection and re -file the petition within that time (b) While recording reasons, to overrule the office objections and to consider the petition as it is, deeming it ,having been properly instituted and to hear it on merits the same day or some further day fixed for hearing (c) By upholding the objection to dismiss the petition as having been invalidly filed or being not maintainable, or to dismiss the same for non-prosecution, depending upon the nature of the deficiency involved in a particular case; but the last option should be resorted to an acute matter, where the defect/deficiency is absolutely inherent and incurable. However, all these actions are within the exclusive authority of the High Court, which cannot and have not been delegated to the office and the office (DR) has no authority and the empowerment that of his own to declare a petition, which has been filed within prescribed period of limitation as time barred, only because the office objection has not been met in time; the D.R. also in such a situation cannot require the petitioner to file an application for the condonation of delay."
Similarly in judgment 2 it was held by Lahore High Court, Lahore that:
"From Rule 9 ibid it is clear that the Deputy Registrar (Judicial) of this Court, is only authorized to return the appeal for making up any deficiency or filing requisite document within time to be specified in the objection memorandum, however, the rule does not empower the Deputy Registrar (Judicial) of this Court, to entertain the petition or in other words to dismiss the petition having not been validly instituted. In case the deficiency is not corrected by the appellant within time given by the Deputy Registrar (Judicial) of this Court, the situation is fully covered by rule 9-A (supra) which postulates that if within time provided such petition is not refilled/ returned a notice shall be affixed upon the Notice Board meant for the purpose specified and if within seven days the deficiency is still not made good, the matter shall be placed before a Judge of this Court for an order on a date to be notified by fixing such a petition in the motion cause list. It is thus clear that as per rules it is for the Court to decide as to what should be done with such matter(s)."
However, in the instant case, no such procedure has been adopted and outrightly the learned Division Bench, obviously, without overruling the office objections, without recording any cogent and plausible reasons, as to maintainability of the writ petition and locus standi of the petitioner therein, opined that the same would be seen on the judicial side, that too, at the time of final adjudication and even while passing the impugned order as to restraining the petitioner to hold the Court, no notice as required under Order XXVII-A of the Code of Civil Procedure, 1908 was either issued to the Attorney General for Pakistan, etc. or even to the present petitioner by following the universal principle of Audi Alteram Partem, which is a glaring miscarriage of justice and the same cannot be allowed to sustain.
4. As observed above, the nature of proceedings in objection cases are administrative and this matter has been expounded by a Division Bench of Lahore High Court, Lahore in judgment 3 and while making reference to Rules and Orders of the Lahore High Court, Volume-V and observed that while hearing an objection case, the Court is performing an administrative function and only after an office objection is "overruled", the case is matured on the judicial side and formally enters the domain of the jurisdiction of the Court. Similar observations were rendered in judgment 4 , wherein Single Bench of Lahore High Court, Lahore observed that proceedings before the Administrative Judge were not judicial rather the same were administrative in nature. It is observed that since the proceedings germane to dealing with objections of office raised on presentation of the writ petitions, appeals, etc., are of administrative nature, absence of power of review is not obstacle to recall any earlier order if it is found to be contrary to law, this observation finds support from Section 21 of the General Clauses Act, 1897 which provides that the authority, competent to pass an order even in absence of expressed provision, can also revoke, rescind or recall the same until the definite act is taken.
5. In view of the above, I convert the instant petition into appeal and allow the same, set aside the impugned order dated 16.09.2025 as a whole restoring the position ante and direct the learned Islamabad High Court, Islamabad to firstly decide the fate of office objections through a speaking order; then proceed with the matter in accordance with law.
MH/J-7/SC Appeal allowed.
1 FARMAN ALI v. MUHAMMAD ISHAQ and others (PLD 2013 Supreme Court 392)
2 MUHAMMAD BOOTA v. BASHARAT ALI (PLD 2014 Lahore 1) (2014 CLD 64-Lahore)
3 Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD (PLD 2014 Lah. 436) and PAKISTAN LAWYERS FORUM (REGISTERED) through its President v. FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Human Rights, Islamabad and 2 others (PLD 2005 Lahore 107 )
4 Tahira Naseem v. Arshad Mehmood and others (2021 PCr.LJ 682)