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Notes for Part VII, Chapter 3

170.
Substituted by the 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."
171.
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.
172.
The words "Majlis-e-Shoora (Parliament)" were substituted for the word "Parliament" by the Revival of the Constitution of 1973 Order, 1985 (P.O.No.14 of 1985) Art 2 and Sch item 1.
172A.
Substituted for the words "forty years" by the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002) which amends the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002) by inserting sched. item 17B).

Effectively the same amendment was asserted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 69(ii)), with effect from August 21, 2002. This is in keeping with the text of the Constitution (Eighteenth Amendment) Act assuming that the changes made the Legal Framework Order, 2002 were never part of the Constitution.

172B.
Clause (1) substituted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 69(i)), with effect from April 19th, 2010, for the following:
(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.

173.
Explanation added by the Constitution (First Amendment) Act, 1974 (33 of 1974), section 8 (with effect from May 4, 1974).
173A.
Proviso inserted by by the Constitution (Eighteenth Amendment) Act, 2010 (Article 70), with effect from April 19th, 2010.
174.
Article 195 substituted by the Constitution (Seventeenth Amendment) Act, 2003 for the following:

[174A]
[195.
(1)] A Judge of a High Court shall hold office until he attains the age of [174B][sixty-two years], unless he sooner resigns or is removed from office in accordance with the Constitution.

[175] * * *

174A.
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).

174B.
Substituted for the words "sixty-two years" by the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002) which amends the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002) by inserting sched. item 17C).

175.
Clauses (2) to (5) added by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976) section 9 (with effect from September 13, 1976) and clause (6) added by the Constitution (Sixth Amendment) Act, 1976 (84 of 1976) section 3 (with effect from December 31, 1976) omitted by P.O.No.14 of 1985 Art. 2 and Sch. item 37 (with effect from March 2, 1985) read as under:
"(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.
(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."
176.
Substituted by P.O.No.14 of 1985 Art. 2 and Sch. item 38 (with effect from March 2, 1985) for the words "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."
177.
Renumbered as Article 198 (1) by P.O.No.14 of 1985, Art. 2 and Sch. item 39 (with effect from March 2, 1985).
177A.
Clause (1A) inserted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 71(i)), with effect from April 19th, 2010.

178.
Added by P.O.No.14 of 1985, Art. 2 and Sch. item 39 (with effect from March 2, 1985).

178A.
Inserted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 71(ii)(a)), with effect from April 19th, 2010.

178B.
Inserted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 71(ii)(b)), with effect from April 19th, 2010.

179.
Substituted by the 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."
180.
Clause (3A) inserted by the Constitution (Fourth Amendment) Act, 1975 (71 of 1975) section 8 (with effect from November 21, 1975) read:
"(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."
This was substituted by clauses (3A), (3B) and (3C) by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976) section 11 (With effect from September 13, 1976) which read:
"(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."
The Constitution (Amendment) Order, 1980, (P.O.No.1 of 1980) section 2 (with effect from May 26, 1980) inserted clauses (3A), (3B) and (3C) which read:
(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."
These have been omitted by P.O.No.14 of 1985 Art. 2 and Sch. item 40 (with effect from March 2, 1985).
181.
Added by P.O.No.14 of 1985 Art. 2 and Sch. item 40 (with effect from March 2, 1985).
181A
Substituted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 72), with effect from April 19th, 2010, for the following
[182] [(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, [183] [State Property or] assessment or collection of public revenues shall cease to have effect on the expiration of a period of [184] [six months] following the day on which it is made, [184A] [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]. ]

182.
Inserted by the Constitution ( Fourth Amendment ) Act, 1975 (71 of 1975), section 8 (with effect from November 21. 1975).
183.
Added by P.O.No.14 of 1985, Art. 2 and Sch. item 40 (with effect from March 2, 1985).
184.
Substituted by P.O.No.14 of 1985, Art. 2 and Sch. item 40 (with effect from March 2, 1985) for the words "sixty days".
184A.
Substituted by the Legal Framework Order, 2002 (Chief Executive's Order No. 24) by inserting sched. item 18(1) for the words "unless the case is finally decided, or the interim order is withdrawn, by the Court earlier".
185.
Clause (4B) added by P.O.No.14 of 1985, Art. 2 and Sch. item 40 (with effect from March 2, 1985). It was removed by the Legal Framework Order, 2002 (Chief Executive's Order No. 24) sched. item 18(2). The Constitution (Eighteenth Amendment) Act, 2010, (Article 2(a)) repealed the Legal Framework Order, 2002, thus restoring this clause.

186.
Substituted by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 12, for the full-stop.
187.
Proviso omitted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 73), with effect from April 19th, 2010, was added by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 12. It read as follows:
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 [188] [two years] at a time.
187A.
Explanation added by the Constitution (Fifth Amendment) Act, 1976 (62 of 1976), section 12.
188.
Substituted by P.O.No. 14 of 1985, Art. 2 and Sch. item 41 (with effect from March 2, 1985) for the words "one year".
189.
Added by the Constitution (Third Amendment) Order, 1985 (P.O.No.24 of 1985) section 3 with effect from March 19, 1985).
190.
Substituted by P.O.No.14 of 1985, Art 2 and 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."
191.
Clause (3) added by the Constitution (First Amendment) Act, 1974 (33 of 1974), section 10 (with effect from May 4, 1974).
192.
Added by P.O.No. 14 of 1985, Art. 2 and Sch. item 41 (with effect from March 2, 1985).
193.
Clause (4) omitted by the Constitution (Eighteenth Amendment) Act, 2010 (Article 73), with effect from April 19th, 2010, was added by the Constitution(Third Amendment) Order, 1985 (P.O.No.24 of 1985) section 3 (with effect from March 19, 1985). It read as follows:
(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.
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