BENCH OF LAHORE HIGH COURT AT FAISALABAD

By
CHAUDHARY MUHAMMAD BASHIR,
Advocate, Faisalabad

Faisalabad division, having a population of more than 15 million, and its southern boundary stretching upto the boundary of Multan division, has been relentlessly agitating its demand for establishment of Bench of Lahore High Court at Faisalabad for about 2 decades.

The Chief Minister, Punjab, has been pleased to accord recognition to the demand by sending a summary on 5-7-2010 to the Chief Justice, Lahore High Court for establishment of Bench at Faisalabad.

The Administrative Committee of the Lahore High Court, Lahore, in its meeting held on 08-07-2010, has deferred the consideration of that proposal till the decision of Writ Petition No.6508/1989 pending in the Lahore High Court, challenging the establishment of Benches at Bahawalpur, Multan and Rawalpindi, filed by Mr. M.D.Tahir, Advocate, now deceased.

The pendency of the said petition is no hurdle in the establishment of Bench at Faisalabad for the following reasons:--

(1) Lahore High Court was constituted by George the Fifth on 21st March, 1919 under Letters Patent, 1919. The relevant paras of the said Letters Patent are reproduced hereunder:--

(1) Establishment of High Court at Lahore.--Now known yet that we, upon full consideration of the premises, and of our special grace, certain knowledge and mere motion, have thought fit to erect and establish and by these presents we do accordingly for us, our heirs and successors, erect and establish, for the provinces of the Punjab and Delhi aforesaid, with effect from the date of the publication of these presents in the gazette of India, a High Court of Judicature, which shall be called the High Court of judicature at Lahore, and we do hereby constitute the said Court to be a Court of record.

(26) Powers of Single Judge and Division Courts. And we do hereby declare that any function which is hereby directed to be performed by the High Court of judicature at Lahore, in the exercise of its original or appellate jurisdication, may be performed by any judge, or by any division Court, therefor, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more judges and the judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the judges, if there be a majority, but, if the judges be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the judges who have heard the case, including those who first heard it.

(33) Exercise of jurisdiction elsewhere than at the usual place of sitting of the High Court.

Special commission and circuits.--And we do further ordain that whenever it appears to the Lieutenant Governor of the Punjab, subject to the control of the Governor General in Council, convenient that the jurisdiction and power by these our letters patent, or by or under the Government of India Act, 1915, vested in the High Court of Judicature at Lahore should be exercised in any place within the jurisdiction of any Court subject to the superintendence of the said High Court, other than the usual place of sitting of the said High Court, or at several such places by way of circuit, one or more judges of the Court shall visit such place or places accordingly.

(37) Powers of Indian Legislatures

Powers of Indian Legislatures Preserved.--And we do further ordain and declare that all the provisions of these our Letters Patents are subject to the legislative powers of the Governor General in Legislative Council, and also of the Governor General in council under section seventy one of the Government of Indian Act, 1915, and also of the Governor General in cases of emergency under section seventy two of that Act may be in all respects amended and altered hereby.

The said Letters Patent clearly visualized the establishment of Benches of the said High Court at places other than the principal seat at Lahore in order to make justice accessible to people living at distant places.

It is in line with the objective that Article 37 of the Constitution of Pakistan, 1973, cast a duty on the Government to provide inexpensive and speedy justice to the people.

It is in pursuit of this objective that President Zia-ul-Haq, by President Order 14 of 1985, Revival of Constitution Order 1985, added five more clauses, so as to make Article 198 read as a whole, as under:

198—Seat of the High Court:--

(1) 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.

(2) Each High Court and the judge 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 Sindh shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.

(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 for 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.

The said Article has been amended by Constitution (Eighteenth Amendment) Act, 2010, in the following respects:--

(i) After clause (1) the following new clause has been inserted, namely,

"(1A) The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad."

(ii) In Clause (3):

(a) After the word Abbotabad, the comma and the word "Mangora" shall be inserted; and

(b) After the word "Sibi" occurring at the end, the words "and Turbat" shall be inserted.

It will show that not only the amendment inserted by the Revival of Constitution Order, 1985, has been affirmed by the 18th amendment but the two new Benches have been established at Mangora and Turbat.

The filing of the Writ Petition by Mr. M.D. Tahir, Advocate seems to have been prompted by judgment of the Supreme Court of Bangladesh dated 02-09-1989, without following the true ratio thereof. The Supreme Court did not negate the establishment of Benches of High Court, but objected to the setting up of rival Courts in the garb of Benches. The amended Article 100 of the Constitution of Bangladesh, was held to be ultra vires the Constitution of Bangladesh on the ground that the establishment of the permanent Benches at six other places amounted to setting up of rival Courts to the High Court Division, in the name of permanent Benches, conferring full jurisdictions, powers and functions of the High Court Division on them.

When the Constitution of the said permanent Benches in Bangladesh was sought to be defended by the Attorney General of Bangladesh on the analogy of Benches in Pakistan and India, the Supreme Court differentiated Benches in Pakistan by observing “In Pakistan Constitution, 1973, the assignment of area of jurisdiction of Benches under Article 198 had not divested the jurisdiction of the principal Court or its confinement to the residue area, far less its total extinction."

It was further added that "there it is clear that the oneness of the Court was always maintained (under) the Letters Patent of various High Courts. Only enabling provision, was made for sitting of Court at places other than the usual place but for that purpose rules have been framed by the Court."

The petitioner in the said petition has himself conceded in Para 16 thereof that "He is not assailing the idea of Benches or Circuits for the High Court—However, the main grievance laid in the writ petition is that no Bench sought to be erected at any place other than the principal seat can be invested with a constitutional significance such as would bring it at par with the High Court itself."

The said writ is lying undisposed of since the year 1989 just for the sake of lying, otherwise there is no substance in it, as the petitioner has nowhere in the writ asserted that the Benches impugned in the petition have the status of rival Courts to that of the Lahore High Court. There is no difference in the status of a Judge of Lahore High Court, whether he is dispensing justice by sitting at principal seat at Lahore or at any other place in the Province of the Punjab, as a member of a Bench.

The said writ can hardly be used as an excuse for deferring the establishment of the Bench at Faisalabad, especially when other Benches have been established in the meanwhile at Mangora and Turbat, and an independent High Court has been established at Islamabad for Islamabad Capital Territory.