The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973), Articles 199, 41 & 43:

Article 199 — Pakistan Army Act (XXXIX of 1952), Section 8(2) — Constitutional jurisdiction, bar of — Constitutional jurisdiction, held, would not extend to a member of Armed Forces of Pakistan or to a person who was subject to any law relating to those forces — Such jurisdiction would also be barred, where matter or question was in respect of such person’s terms and conditions of service or same arose out of his service or was, in respect of any action taken in relation to him as a member of Armed Forces of Pakistan or as a person subject to such law — Chief of Army Staff being a member of Armed Forces of Pakistan would be immune from constitutional jurisdiction of High Court. [pp. 534, 535, 538] A, B, D & K.

Article 199(3) — Word “matter”, connotation of — [Words and phrases]. The “matter” according to Chamber’s Twentieth Century Dictionary, Revised Edition, page 809 means “that which occupies space, and with which we become acquainted by our bodily sense; that out of which anything is made, material; subject or material or thought, speech, writing, dispute, etc. substance (opp: to form), good sense (Shak); anything engaging the attention; affair; subject; thing; that with which one has to do; cause or ground; thing of consequence; something that is amiss; that with which a Court is concerned something to be tried or prove; importance. [p. 535] C

Article 199(3) — Word “arising”, connotation of — [Words and phrases]. The word “arising” is a present participle of “arise”. The word “arise” inter alia means to come above the horizon. To go or come higher. To go or come up, to rise with its submit or surface. To spring up, come above ground, into existence. To spring forth from its source. To take its rise, originate. To spring, originate, or result from. To come into existence or
notice.

Corpus Juris Secundum, Volume 6, page 336, gives its meanings as accruing, appearing, or originating. The phrase ‘arising out of employment’ for its meaning with referenc to 38 Am. Jist Workm Comp. S. 211 was considered as ‘implying a casual connection between an injury to an employee and the performance of work required of him. [p. 535] E

Article 199(3) — Constitutional jurisdiction bar of — Where a constitutional petition arises out of or results from holding of office of Chief of Army Staff by respondent or has come up in relation to holding of such office, held, would be deemed to arise out of his service — Such petition would be hit by Article 199(3) of the Constitution of Pakistan. [pp. 536, 544] F & M

Article 199(3) — Term “holding of office” connotation of — Term “holding of office”, held, could not be equated to “action” — Holding of office, therefore, could not be termed as action without jurisdiction or coram non judice/malafide — [Words and phrases] (p. 537) G

Article 199(1)(b)(ii) — Writ of quo warranto, issuance of — Requirements — A writ of quo warranto, held, could be issued against any person holding a public office — However, such writ could not be issued against persons excepted from its purview — Writ of quo warranto could be issued where High Court had jurisdiction over both the person and the
matter. [p. 537] H

Article 199 — Writ of mandamus/prohibition — Requirements — Granting a writ in the nature of mandamus/prohibition, person whose acts of commission or omissions were challenged, held must have performed or omitted to perform acts complained of within territorial jurisdiction of High Court. [p. 538] I

Article 199—Writ of quo warranto, issuance of—Writ in the nature of certiorari, held, could be issued only in respect of orders passed or proceedings taken within territorial jurisdiction of High Court and not otherwise. [p. 538] J

Article 199 — Constitutional jurisdiction — Functions of constitutional Court — A constitutional Court, held, has to act within limitations if any, provided by Constitution itself — High Court has never claimed to be above the Constitution nor could it claim a right to strike down any provision of Constitution. [p. 543] L

Article 199(b)(ii) — Constitutional jurisdiction, exercise of — High Court would have constitutional jurisdiction in respect of persons within its territorial jurisdiction — A person within territorial jurisdiction, held, could only mean that either he should have his residence or his office within territorial jurisdiction of High Court. [p. 545] N & O

Article 199(1)(a)(ii) & (iii) — Constitutional jurisdiction, exercise of — Person, holding an office against whom writ was being sought not residing within territorial jurisdiction of High Court — Effect — Where no action of Chief of Army Staff in relation to any officers or cantonments within territorial jurisdiction of High Court was challenged but it was holding office of Chief of Army Staff as such with headquarters outside territorial jurisdiction of Court which was subject to challenge, High Court, held, had no territorial jurisdiction to exercise constitutional jurisdiction. [pp. 548, 549] P & Q

Per Naimuddin, Abdul Qadeer Chaudhry, Muhammad Zahoorol Haq, Madad Ali Shah
and Hyder Ali Pirzada, JJ.—[Full Bench View]—

Article 199 — Constitutional jurisdiction, exercise of quo warranto, issuance of — Where High Court had no territorial jurisdiction to entertain petition in nature of quo warranto, such petition, held, would not be entertainable in constitutional jurisdiction of High Court in view of bar contained in Article 199(3) of the Constitution of Pakistan (1973). [p. 560]R

Per Muhammad Zahoorul Haq and Abdul Qadeer Chaudhary, JJ.—
[Minority View]—

Article 199(3)—Word “matter”, connotation of.—[Word adn phrases].

The word “matter” is defined in Law Lexicon by Iyer, 1940 Edition at page 797 as ‘some substance or essential thing opposed to form; in law, a fact or facts constituting a whole or part of a ground of action or defence. At the same page cause or matter is defined as ‘a most comprehensive term’.

In Oxfor English Dictionary printed in 1961, Vol. VI at page 241 “matter” is defined as “ground, reason or cause of doing or being something”. It is further described on the same page in vague sense as “thing or something of a specified kind involving or related to a specified thing”. Further on same page “matter” is defined as “something which is to be tried or proved, statements or allegation which come under the consideration of the Court”. On the next page it is explained as “the circumstance or state of things which actually involves or concerns some person or thing”. “Taking the things as a whole, speaking generally”.

In the same dictionary at page 242(third colums) “in the matter of”, is shown to mean “in relation to, with regard to?”

“Matter” is thus a very wide term and almost covers even a thing concerned with or in relation to the particular person or thing described. Therefore the expression “matter arising to of service” would appear to include everything connected with the service of the member of the armed forces or in relation to the same or in respect of the same. [p. 554] S

Article 199(3)—Phrase “arising out of”—Meaning and scope.—[Words and Phrases].

Word “arise” is explained in the Concise Oxford Dictionary at page 46 to mean “originate”; result from. In Oxford English Dictionary, Volume 1 at page 445 “arise” is explained to mean “to attain, to reach, to spring up, come above ground, to spring forth, to originate, or result from”.

The expression “arising out of” would appear to indicate as if it was something coming out of some specified object. But it can also result from something. However, it is not defined in any dictionary as such. The expression “arising out of land” has been interpreted in P R 1898 as reproduced in Law Lexicon by Iyer at page 83, as under:—

“right to use the water of a perennial stream for irrigation purposes is a benefit arising out of land because it comes out of the land and is therefore immovable property within the meaning of subsection (5) of section 2 of General Clauses Act, 1868.”

Therefore, “arising out of” would appear to indicate that it is something coming out of something or resulting therefrom and hence the expression “any matter arising out of service” would appear to mean any substance or thing in relation to or connected with or coming out of the service. [p. 554] T

Article 199(3) — Phrase “subject to Constitution”, connotation of — Expression “subject to constitution” held, could be made use of by all parties to proceedings — Petitioner could contend that if appointment of a person proceeded against was against the Constitution itself then bar of Article 199(3) could not be used against him — Respondent could also take advantage of said expression that matters in respect of service of members of Armed Forces could not be dealt with by High Court irrespective of merits or demerits of appointment in view of bar placed in respect of such matters in Article 199(3) of Constitution of Pakistan (1973). (Words and phrases) [p. 555] U

Article 199 — Constitutional jurisdiction, exercise of — Holding of office of Chief of Army Staff by President of Pakistan being a matter which could not be considered to be completely unrelated to or unconcerned with a matter which arises out of a service of member of Armed services, High Court, held, would have ordinarily no jurisdiction as same is fully covered by Article 199(3) of the Constitution (1973) — However, in spite of initial bar contained in Article 199(3), contention of petitioner that after assuming of office of President, such person has ceased to hold office of Chief of Army Staff, subject to objection of lack of territorial jurisdiction could be entertained by High Court under Article 199 of Constitution of Pakistan (1973) if the Bench which admitted petition could be persuaded to the view that contentions of petitioner were prima facie sustainable and required further scrutiny. [pp. 555, 556] V & W

PLD 1975 SC 506 and PLD 1983 SC 92. Ref.

Article 199 — Constitutional jurisdiction, exercise of — Office of Chief of Army Staff, though located outside territorial jurisdiction of High Court, yet such functionary being incharge of various cantonments within High Court territorial jurisdiction, held, could be treated to hold office and perform functions within such territorial jurisdiction, held, could be treated to hold office and perform functions within such territorial jurisdiction. [p. 557] Y

Article 199(1)(b)(ii) — Constitutional jurisdiction, exercise of — Writ of quo warranto — Requirements for issuance — High Court, held, could require a person who is within its territorial jurisdiction, holding or purporting to hold a public office to show under what authority of law he claims to hold that office — However, person proceeded against neither being resident within territorial jurisdiction of High Court nor having his office within such jurisdiction, mere location of the office of his subordinates in High Court’s territorial jurisdiction, held, would not entitle such Court to issue writ of quo warranto as such writ could be directed against a person himself or his office only. [p. 558] Z

PLD 1975 SC 506; PLD 1983 SC 92; AIR 1953 SC 210; AIR 1943 PC 164. Ref.

Article 199(1)(a)(ii) — Constitutional jurisdiction, exercise of — Writ of certiorari, issuance of — Requirements — High Court, held, had jurisdiction to issue writ of certiorari if functionary proceeded against takes an action or proceedings within territorial jurisdiction of High Court — Where however, no such action or proceeding were challenged there would be no ground for exercise of such jurisdiction. [pp. 558, 559] AA, BB, CC & DD.

Articles 41(7) & 43 — Provisions of Constitution allowing a general to continue to hold office of President — Effect of disability clause on such person — Held, a general being a holder of office of profit in Pakistan Army which carried emoluments, was allowed to become the President of Pakistan by Constitution objection of petitioner that President could not hold another office of profit viz., Chief of Army Staff, held was answered by Constitution itself and effect of Article 43 would thus be neutralized. [p. 57] X