IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

Present:

Shamsuddin Abbasi, J.

Agha Faisal, J.

CP D 817 of 2023 : Muhammad Aslam Tunio vs.

Executive Engineer SCARP Larkana

& Others.

Petitioner : In person

For respondents : Mr. Abdul Hamid Bhurgri, Additional

Advocate General Sindh.

Mr. Oshaq Ali Sangi, Assistant Attorney

General Pakistan.

Date of hearing : 14.05.2024.

Date of order : 14.05.2024.

ORDER

Agha Faisal, J. Prima facie a letter, dated 14.12.2023, was addressed to the Senior Judge sitting at Larkana with a personal request for construction of a sim shakh and installation of an electric motor to facilitate the private cause of the letter’s author. Order dated 16.01.2024 demonstrates that the office was directed to prepare list of nomenclature of respondents and then issue notice. Admittedly no petition was ever preferred, however, the letter was morphed into a Constitutional petition and the order sheet manifests that on subsequent dates of hearing extraneous contractual issues were delved into and notice was also issued to some private contractor, not arrayed herein. The order sheet dated 13.03.2024 and 16.04.2024 shows that a representative of a private company appeared, after having received a show cause[1], and was given directives under threat of coercive action, per Article 204 of the Constitution. Respectfully, it would appear that this amounts to exercise of suo motu jurisdiction, perhaps alien to Article 199 of the Constitution.

Article 175(2)[2] of the Constitution mandates that no court shall have any jurisdiction save as that conferred by law. The Supreme Court, while sitting as a five member bench, maintained in Raja Muhammad Nadeem[3] that the High Court was not vested with any suo motu jurisdiction. The judgment in Dr. Imran Khattak[4] was cited with approval, wherein it was observed as follows:

“………..…It be noted that no Judge of a High Court or the supreme Court is robed, crowned and sceptered as a King to do whatever suits his whim and caprice. In all eventualities, he is bound to abide by and adhere to the law and the Constitution .………………..It thus follows that the framers of the Constitution of 1962 and those of 1973, inasmuch as it can be gathered from the words used in Article 98 of the former and Article 199 of the latter, never intended to confer Suo Motu jurisdiction on a High Court. Had they intended, they would have conferred it in clear terms as the framers of the Code of Civil Procedure under its provision contained in section 115 have conferred it on the High Court and the District Judge and the frames of the code of Criminal Procedure under its provisions contained in section 439 and 439-A have conferred it on the High Court and the sessions Judge respectively. Article 175(2) of the Constitution leaves no ambiguity by providing that “no Court shall have jurisdiction, save as is or may be conferred on it by the Constitution or by or under any law”. We would be offending the very words used in the Article by reading exercise of Suo Motu jurisdiction in it which cannot be read even if we stretch them to any extreme. It has been settled as far back as in 1916 in the case of Tricomdas Cooverji Bhoja v. Sri Gopingath Jui Thakur” (AIR 1916 Privy Council (sic)), that where the meanings of a provision are clear, unequivocal and incapable of more than one interpretation, even a long and uniform course of interpretation, if any, may be overruled, if it is contrary to its meanings. We have, therefore, no hesitation to hold that the High Court could not exercise Suo Motu jurisdiction under Article 199 of the Constitution of Pakistan. The more so when we have noticed that such jurisdiction has stridently been used even in the matters which are clearly and squarely outside the jurisdiction of a High Court.”

Article 189 of the Constitution enunciates that decisions of the Supreme Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all other courts in Pakistan and certainly this diktat includes the High Courts. The rendering of orders in apparent indifference to Supreme Court authority has been deprecated most recently in Pervez Musharaf[5]. Syed Mansoor Ali Shah J observed that failing to adhere to the judgments and orders of the Supreme Court undermines the credibility and effectiveness of the entire judicial system established by the Constitution. It was stressed that such judgments are binding on all judicial and executive authorities of the country per Articles 189 and 190 of the Constitution. The judgment accentuated that disregard of Supreme Court judgments inter alia unsettles the integrity and sanctity of the Supreme Court and renders inconsistent High Court pronouncements not only without jurisdiction but also unconstitutional.

The issue between the contractor and its principle is contractual in nature, hence, not amenable to adjudication in writ jurisdiction[6]. Especially, since neither party to the contract has ever approached the Court.

Therefore, this Court finds itself unable to sustain a petition actuated by an apparent unmerited suo motu; whereby coercive recourse is manifest to compel strangers towards specific performance of some extraneous contract, hence, this petition is dismissed.

Judge

[2] Article 175(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

[3] Per Qazi Muhammad Amin J in Raja Muhammad Nadeem vs. The State reported as PLD 2020 Supreme Court 282.

[4] Dr. Imran Khattak & Another vs. Mst. Sofia Waqar Khattak, PSO to the Chief Justice & Others reported as 2014 SCMR 122.

[5]Per Syed Mansoor Ali Shah J in Taufiq Asif vs. General (retired) Pervez Musharaf& Others (Civil Petition 3797 of 2020) and connected matters; yet unreported judgment dated 10^th January 2024.

[6] 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 Supreme Court 415.