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Part VII: The Judicature

Chapter 3: The High Courts

192 Constitution of High Court.
(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.
 
 414[
(2) The Sind and Baluchistan High Court shall cease to function as a common High Court for the Provinces of Baluchistan and Sind.
 
(3) The President shall, by  415 Order, establish a High Court for each of the Provinces of Baluchistan and Sind 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  416[Majlis-e-Shoora (Parliament)] 416, be extended to any area in Pakistan not forming part of a Province.
 
] 414
 
193 Appointment of High Court Judges.
 417[
(1) The Chief Justice and each of the other Judges of a High Court shall be appointed by the President in accordance with Article 175A.
 
] 417
(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than  418[forty-five] 418 years of age, and-
(a) 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
(b) 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
(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.
 420[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.] 420
 
(3) In this Article, "District Judge" means Judge of a principal civil court of original jurisdiction.
 
 
194 Oath of Office
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 421[:] 421
 422[Provided that the Chief Justice of the Islamabad High Court shall make oath before the President and other Judges of that Court shall make oath before the Chief Justice of the Islamabad High Court. ] 422
 
 423[
195 Retiring Age
A judge of the 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.
 
] 423
196 Acting Chief Justice.
At any time when-
(a) the office of Chief Justice of a High Court is vacant, or
(b) 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  429[one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court] 429, to act as Chief Justice.
 
197 Additional Judges.
At any time when-
(a) the office of a Judge of a High Court is vacant; or
(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to any other cause; or
(c) 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.
 
198 Seat of the High Court.
 431[(1)] 431 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.
 
 432[
(1A) The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad.
 
] 432 433[
(2) 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 Sind shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad 434[, Mingora] 434 and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi  435[and Turbat] 435.
 
(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,-
(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
(b) for all incidental, supplemental or consequential matters.
 
] 433
 
199 Jurisdiction of High Court.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order-
(i) 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
(ii) 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
(b) on the application of any person, make an order-
(i) 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
(ii) 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
(c) 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.
 
 436[
(3) 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.
 
] 436 437[] 437
(4) Where- 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 authorised 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-
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) 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  441[or state property] 441 or of impeding the assessment or collection of public revenues,
(i) would not have such effect as aforesaid;or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
 
 442[
(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, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made:
Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order in made.
 
] 442 447[
(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.
 
] 447
(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
(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
(b) in any other case, the Advocate-General for the Province in which the application is made.
 
 
200 Transfer of High Court Judges
(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  448[:] 448 449[] 449
Explanation.-In this Article, "Judge" does not include a Chief Justice  452[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] 452.
 
 453[
(2) Where a Judge is so transferred or is appointed to an office 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.
 
] 453 454[
(3) 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:
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.
 455[Explanation.- In this Article, "High Court" includes a Bench of a High Court.] 455
 
] 454 456[] 456
 
201 Decision of High Court binding on Subordinate Courts.
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 Rules of Procedure
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 Hight Court to superintend Subordinate Courts
Each High Court shall supervise and control all courts subordinate to it.
 

Notes

414   Substituted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 8 (with effect from December 1, 1976) for :
(2) Notwithstanding anything contained in Article 175, any two provinces may, with the consent of the President, agree that there shall be a common High Court for the two Provinces, and the President shall establish a common High Court accordingly.
Explanation.- The Sind and Baluchistan High Court as functioning immediately before the commencing day shall be deemed to have been established under this clause.
 
(3) A High Court established under clause (2) shall have jurisdiction in both the Provinces for which it has been established.
 
(4) The agreement referred to in clause (2) shall contain such incidental and consequential provisions, including provisions relating to sharing of expenditure connected with the high Court, as may appear necessary or desirable for giving effect to the purposes of the agreement and shall specify by which Governor any function which is to be discharged by the Governor of a Province under this Chapter shall be discharged in respect of the High Court, and the Governor so specified shall have the power to discharge that function.
 
415   For such Order in respect of establishment of High Courts for Baluchistan and Sind, see the President's Order No. 6 of 1976 of November 29, 1976, Gazette of Pakistan, 1976, Extraordinary, Part I, pages 595-99.
416   Substituted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 1 (with effect from March 2, 1985) for "Parliament".
417   Substituted by Constitution (Eighteenth Amendment) Act, 2010, Section 69(i) (with effect from April 19, 2010) for :
(1) A Judge of a High Court shall be appointed by the President after consultation-
(a) with the Chief Justice of Pakistan;
(b) with the Governor concerned; and
except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.
 
418   Substituted by Constitution (Eighteenth Amendment) Act, 2010, Section 69(ii) (with effect from August 21, 2002) for " 419[forty-five] 419".
419   Substituted by Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), Article 2(4) (with effect from October 9, 2002) for "forty".
420   Inserted by Constitution (First Amendment) Act, 1974 (33 of 1974), Article 8 (with effect from May 4, 1974).
421   Substituted by Constitution (Eighteenth Amendment) Act, 2010, Section 70 (with effect from April 19, 2010) for ".".
422   Inserted by Constitution (Eighteenth Amendment) Act, 2010, Section 70 (with effect from April 19, 2010).
423   Substituted by Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), Article 7 (with effect from December 31, 2003) for :
195 Retiring Age
 424[(1)] 424 A Judge of a High Court shall hold office until he attains the age of  425[sixty-five years] 425, unless he sooner resigns or is removed from office in accordance with the Constitution.
 
 426[] 426
 
424   Renumbered by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 9 (with effect from September 16, 1976)
425   Substituted by Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), Article 2(4) (with effect from October 9, 2002) for "sixty-two years".
426   The following was omitted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 37 (with effect from March 2, 1985) : :
 427[
(2) The Chief Justice of a High Court, whether appointed before or after the commencement of the Constitution (Fifth Amendment) Act, 1976, shall, unless he sooner attains the age of sixty-two years, hold office for a term of four years and shall thereafter have the option either:
(a) to retire from his office and receive the pension to which he would have been entitled if he had retired from office on attaining the age of sixty-two years; or
(b) to assume the office of the most senior of the other Judges of the High Court and to continue to receive the same salary which he was receiving while holding the office of Chief Justice.
 
(3) When a Judge assumes the office of the most senior of the other Judges of a High Court under clause (2), the Judges who was until then the most senior of the other Judges shall rank next after him in order of seniority.
 
(4) A person who has once held office as Chief Justice of a High Court, otherwise than under Article 196, shall not again be appointed to be the Chief Justice of that High Court.
 
(5) The provisions of clauses (2), (3) and (4) shall have effect notwithstanding anything contained in Article 275.
 
] 427 428[
(6) Notwithstanding anything contained in clause (1) or clause (2), a Chief Justice of a High Court who attains the age of sixty-two years before he has held that office for a term of four years may continue to hold that office until he has completed that term.
 
] 428
427   Inserted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 9 (with effect from September 16, 1976).
428   Inserted by Constitution (Sixth Amendment) Act, 1976 (84 of 1976), Section 3 (with effect from December 13, 1976).
429   Substituted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 38 (with effect from March 2, 1985) for " 430[one of the Judges of the High Court who have not previously held the office of Chief Justice of the High Court otherwise than under this Article] 430".
430   Substituted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 9 (with effect from September 16, 1976) for "the most senior of the other Judges of the High Court".
431   Renumbered by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 39 (with effect from March 2, 1985)
432   Inserted by Constitution (Eighteenth Amendment) Act, 2010, Section 71(i) (with effect from April 19, 2010).
433   Inserted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 39 (with effect from March 2, 1985).
434   Inserted by Constitution (Eighteenth Amendment) Act, 2010, Section 70(ii)(a) (with effect from April 19, 2010).
435   Inserted by Constitution (Eighteenth Amendment) Act, 2010, Section 70(ii)(b) (with effect from April 19, 2010).
436   Substituted by Constitution (First Amendment) Act, 1974 (33 of 1974), Section 9 (with effect from May 4, 1974) for :
(3) An order shall not be made under clause (1) on application made by or in relation to a member of the Armed Forces of Pakistan 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.
 
437   The following was omitted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 40(1) (with effect from March 2, 1985) : :
 438[
(3A) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, a High Court shall not, under this Article:-
(a) make an order relating to the validity or effect of,any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or intended to be done or taken, thereunder;
(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal;
(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal; or
(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.
 
(3B) Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment)Order, 1980, shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue Of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate.
 
(3C) The Proclamation of the fifth day of July 1977, all President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made.
 
] 438 439[
(3A) A High Court shall not make under this Article:-
(a) an order prohibiting the making, or suspending the operation,of an order for the detention of any person under any law providing for preventive detention;
(b) an order for the release on bail of any person detained under any law providing for preventive detention;
(c) an order for the release on bail, or an order suspending the operation of an order for the custody, of any person against whom a report or complaint has been made before any court or tribunal, or against whom a case has been registered at any police station, in respect of an offence, or who has been convicted by any court or tribunal.
(d) an order prohibiting the registration of a case at a police station, or the making of a report or complaint before any court or tribunal, in respect of an offence; or
(e) any other interim order in respect of any person referred to in any of the preceding paragraphs.
 
(3B) Every such order as is referred to in clause (3A) made at any time after the commencement of the Constitution (Fourth Amendment) Act, 1975, shall cease to have effect and all applications for the making of any such order that may be pending before any High Court shall abate.
 
(3C) The provisions of clauses (3A) and (3B) shall also apply to the disposal of an application in a petition for leave to appeal or in an appeal, from an order such as is referred to in the said clause (3A) that my be pending-before the Supreme Court immediately before the commencement of the Constitution (Fifth Amendment) Act, 1976.
 
] 439
438   Inserted by Constitution (Amendment) Order, 1980 (President's Order No. 1 of 1980), Section 2 (with effect from May 26, 1980).
439   Substituted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 11 (with effect from September 16, 1976) for :
 440[
(3A) A High Court shall not make an order under clause (1):-
(a) prohibiting the making of an order for the detention of a person, or
(b) for the grant of bail to a person detained, under any law providing for preventive detention.
 
] 440
440   Inserted by Constitution (Fourth Amendment) Act, 1975 (71 of 1975), Section 8(a) (with effect from November 21, 1975).
441   Inserted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 40(2) (with effect from March 2, 1985).
442   Substituted by Constitution (Eighteenth Amendment) Act, 2010, Section 72 (with effect from April 19, 2010) for :
 443[
(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,  444[State Property or] 444 assessment or collection of public revenues shall cease to have effect on the expiration of a period of  445[six months] 445 following the day on which it is made,  446[provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made] 446.
 
] 443
443   Inserted by Constitution (Fourth Amendment) Act, 1975 (71 of 1975), Section 8(b) (with effect from November 21, 1975).
444   Inserted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 40(3)(a) (with effect from March 2, 1985).
445   Substituted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 40(3)(b) (with effect from March 2, 1985) for "sixty days".
446   Substituted by Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002), Article 3(1), Sch. item 18 (with effect from August 21, 2002) for "unless the case is finally decided, or the interim order is withdrawn, by the Court earlier".
447   Inserted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 40(4) (with effect from March 2, 1985).
448   Substituted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 12 (with effect from September 16, 1976) for ".".
449   The following was omitted by Constitution (Eighteenth Amendment) Act, 2010, Section 73(i) (with effect from April 19, 2010) : :
 450[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  451[two years] 451 at a time.] 450
450   Inserted by Constitution (Fifth Amendment) Act, 1976 (62 of 1976), Section 12 (with effect from September 16, 1976).
451   Substituted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 41 (with effect from March 2, 1985) for "one year".
452   Inserted by Constitution (Third Amendment) Order, 1985 (President's Order No. 24 of 1985), Section 3(a) (with effect from March 19, 1985).
453   Substituted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 41 (with effect from March 2, 1985) for :
(2) When a judge is so transferred, he shall, during the period for which he serves as a judge of the High Court to which he is transferred, be entitled to such compensatory allowance, in addition to his salary, as the President may, by Order, determine.
 
454   Inserted by Constitution (First Amendment) Act, 1974 (33 of 1974), Section 10 (with effect from May 4, 1974).
455   Inserted by Revival of Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985), Art 2, Sch. item 41 (with effect from March 2, 1985).
456   The following was omitted by Constitution (Eighteenth Amendment) Act, 2010, Section 73(ii) (with effect from April 19, 2010) : :
 457[
(4) 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.
 
] 457
457   Inserted by Constitution (Third Amendment) Order, 1985 (President's Order No. 24 of 1985), Section 3(c) (with effect from March 19, 1985).

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