Haji MUHAMMAD SAIFULLAH KHAN vs THE FEDERATION OF PAKISTAN and others
This petition was filed under Article 184(3) of the Constitution of Pakistan 1973, seeking to declare various Ordinances—specifically the Delimitation of Constituencies (Amendment) Ordinance IV of 1988, the Delimitation of Constituencies (Second Amendment) Ordinance VIII of 1988, and the Representation of the People (Amendment) Ordinance XIV of 1988—as illegal. The petitioner further challenged the constitution of the Election Commission and requested directions for the appointment of a caretaker cabinet and the fixation of fresh election dates. The core legal questions were whether the petitioner was barred from seeking these reliefs due to a failure to include them in a prior writ petition and whether the invocation of the Court's jurisdiction under Article 184(3) was competent absent an allegation of a fundamental rights violation. The Court held that the petition was incompetent, ruling that the petitioner was debarred by the principle in Order II Rule 2 of the Code of Civil Procedure 1908 and that the petition failed to allege the infringement of any fundamental right necessary to invoke Article 184(3) jurisdiction.
- Is a petitioner barred from seeking reliefs in a constitutional petition that could have been claimed in an earlier writ petition?
- Can the Supreme Court's jurisdiction under Article 184(3) be invoked without alleging the infringement of a fundamental right?
- Does the principle embodied in Order II Rule 2 of the Code of Civil Procedure 1908 apply to petitions filed under Article 184(3) of the Constitution?
- Article 184(3), Constitution of Pakistan 1973
- Order II Rule 2, Code of Civil Procedure 1908
- Delimitation of Constituencies (Amendment) Ordinance IV of 1988
- Delimitation of Constituencies (Second Amendment) Ordinance VIII of 1988
- Representation of the People (Amendment) Ordinance XIV of 1988
ORDER
1. ' MUHAMMAD HALEEM, C.J.--The petitioner in this petition has claimed the following reliefs:
(a) The Delimitation of Constituencies (Amendment) Ordinance IV of 1988, promulgated on 21-7- 1988, the Delimitation of Constituencies (Second Amendment) Ordinance VIII of 1988, and the Representation of the People (Amendment) Ordinance XIV of 1988, may be declared to be illegal and without lawful authority;
(b) That the Election Commission headed by Mr. Justice SA. Nusrat be declared to be illegally constituted and in consequence thereof it be declared that it is not competent to hold the elections scheduled to be held on 16th and 19th of November, 1988, and all the steps, actions, notifications issued by the Election Commission, taken or purported to be taken, be declared to be of no legal consequence;
(c) That a direction may be issued for appointment of a Care-taker Cabinet headed by a Prime Minister for the promulgation of necessary Ordinances and for proper constitution of the Election Commission;
(d) A direction may also be made for fixation of fresh dates for holding of general elections; and
(e) Any other relief which this august Court may deem fit be granted and the petitioner may also be awarded costs; ' Only one of such reliefs was sought in the earlier writ petition filed by the present petitioner in the High Court against whose order petitions were filed not only by the Federation of Pakistan and the Province of the Punjab but also by the present petitioner which were converted into appeals and disposed of by a short order on the 5th of October, 1988. The reasons in support of the order are yet to be rendered by the Court.
2. Thereafter this petition has been filed under Article 184(3) seeking the afore-mentioned reliefs. The additional reliefs as are claimed now could have even been claimed in the earlier petition filed by the petitioner in the High Court which he failed to claim and one such similar relief is being dealt with by the Court in the reasons which are to be rendered in support of the short order. Therefore, he is debarred from claiming them now by reason of the principle embodied in Order 2 Rule 2 of the Civil Procedure Code. But the more formidable ground is that he has invoked the jurisdiction of this Court under Article 184(3) without alleging any infringement of his fundamental right for the enforcement of which he now seeks to invoke the jurisdiction of this Court. The learned counsel is unable to support the competency of the petition on this ground also.
3. ' Accordingly, it is disposed of as incompetently filed.