' NAIMUDDIN, C. J.-I had occasion of going through the judgment proposed by my learned brother Muhammad Zahoorul Haq, J. I would like to record my own reasons for the opinion I form.
' By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan filed by the petitioner against the Federal Government of Pakistan, through the Secretary, Cabinet Division, respondent No. 1, the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad, respondent No. , and General Muhammad Ziaul Haq, Chief of Army Staff, President House, Rawalpindi, respondent No. 3, he has prayed for a declaration that respondent No. 3 has ceased to act as Chief of Army Staff after assumption as elected President of Pakistan under Article 270-A of the Constitution and for a further declaration that respondent No. 3 is Supreme Authority/Commander of all armed forces of Pakistan under Article 243 of the Constitution of Pakistan.
2. The petitioner in his petition has stated that respondent No. 3 is a God-fearing person and he has done lot for this country and that he has opened a new chapter in the history of Pakistan, being Chief Martial Law Administrator he has lifted Martial Law and transferred the power peacefully and successfully to the Civilian Government and also held impartial election in the country and got lifted the emergency. He has further stated that respondent No. 3 has taken upon the neglected task of Islamization of law and infusing the true Islamic spirit in the country so that the Muslims of Pakistan may be able to lead their lives in consonance with the directive of the Holy Qur'an and Sunnah.
3. The grievance of the petitioner however, is contained in paragraph 5 of the petition and it may be stated in his own words by reproducing the said paragraph immediately hereinbelow "The respondent No. 3 being elected President under Article 41 of the Constitution is holding an office of Profit as Chief of Army Staff under Article 243 of the Constitution and his holding of office as Chief of Army Staff is against the Constitution laid down under Article 243 of the Constitution and it is also affecting the dignity and integrity of the respondent No. 3 in the eyes of general public and the entire world because respondent No. 3 as President of Pakistan himself is the appointing authority of Chief of Army Staff and head of other forces and the respondent No. 3 perhaps due to misconception is not relinquishing the office of the Chief of Army Staff and hence it is bad in law, therefore, the petitioner is challenging its legality by way of this Constitution petition as no other adequate remedy is available,"
4. The office has raised the following objections to the maintainability of the petition: "(1) How this petition is competent in view of Article 270-A of the Constitution of Pakistan, 1973, as amended by Eighth Amendment Act, 1985?
(2) How this petition is competent in this Court under Article 199 of the Constitution when none of the respondents are within the territorial jurisdiction of this Court?"
5. When the matter came up for consideration before a Division Bench of this Court, it referred the following question to Full Bench: "Whether this Court has jurisdiction to entertain this petition?"
6. Accordingly, the Full Bench heard the learned counsel for the petitioner and the Attorney- General on the question.
7. The learned counsel for the petitioner submitted that he was challenging the holding of office of the Chief of Army Staff by respondent No. 3 on the ground that it was unconstitutional under the provisions of Article 43 of the Constitution, therefore, the bar under Article 199(3) of the Constitution would not apply to him. He referred to the following decisions :-
(1) The Chief Secretary to the Government of East Pakistan v. MoslehudDin Sikdar and another PLD 1957 SC (Pak.) 1;
(2) In the Matter of Reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219 ;
(3) A. K. M. Fazlul Quader Chowdhury v. Government of Pakistan and another PLD 1957 Dacca 342 ;
(4) Munir Ahmed v. Returning Officer, Karachi and others PLD 1966 Kar. 1;
(5) Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan through The Secretary' to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1969 SC 174;
(6) Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139;
(7) The State v. Zia-ur-Rahman and others PLD 1973 SC 49;
(8) Brig. (Retd.) F.
8. All and another v. The State PLD 1975 SC 506;
(9) Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315;
(10) Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657;
(11) Saifuddin Saif v. Federation of Pakistan PLD 1977 Lah. 1174, and
(12) Mr. Zulfikar All Bhutto v. The State PLD 1978 SC 40.
8. As already stated herein before this Constitution petition is filed under Article 199 of the Constitution and it would be convenient, if 1 may reproduce Article 199 of the Constitution in order to consider the question whether under Article 199 of the Constitution this Court has jurisdiction to entertain the petition : "199.-(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.
(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.
(4) . . . .
9. Before I proceed further I may at the very outset state that the learned counsel for the petitioner submitted that his case is covered by Article 199(1) (ii) of the Constitution whereunder the Court is empowered to require 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. Although the prayer is not to that effect yet I will proceed to examine the said provisions alongwith the provisions of clause (3) (ibid) which prohibit making an order under clause (1) of Article 199 of the Constitution on the application made by or in relation to a person who is a member of Armed Forces of Pakistan or who in for the time being subject to any law relating to any of those Forces, or in respect of his terms and conditions of service, or 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.
10. Now, it is clear that if a person is (i) a member of Armed Forces of Pakistan or he is for the time being subject to any law relating to those forces and (ii) the matter or question is in respect of his terms and conditions of service or it arises out of his service or is 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, then this Court has no jurisdiction to pass any order under clause (1) of Article 199 or the Constitution. Now, it was not agitated before us that respondent No. 3, as Chief of Army Staff is not a member of Armed Forces of Pakistan. Even otherwise, section 8, A subsection (2) of the Army Act, 1952 (hereinafter called the Act) amended with effect from 20-9-1967, defines Chief of Army Staff as the officer commanding the Pakistan Army'. Section 8, subsection (12) define `officer' as 'a person' other than a junior commissioned officer, commissioned, gazetted or in pay as an officer of the Pakistan Army and includes, in relation to a person subject to this Act when serving under such condition as may be prescribed, an officer of the Pakistan Navy and an officer o the Pakistan Air Force. It was not disputed that he is covered by both the definitions of 'Chief of Army Staff' and 'Officer', therefore, it appears that respondent No 3 is a person who is a member of Armed Forces.
11. Then section 2(1) of the Act provides that the following persons shall be subject to this Act, namely : "(a) officers, junior commissioned officers and warrant officers of the Pakistan Army
(b) persons enrolled under the Indian Army Act, 1911, before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act ; sons subject to the Pakistan Navy Ordinance, 1961, or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct ;
(b) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army."
' Thus the respondent No. 3 as the Chief of Army Staff is a person who is subject to the Act.
Subsection (2) of section 2 of the Act provides that every person subject to the Act under clause (a), clause (b). Or clause (c) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.
12. It is, therefore, clear that respondent No. 3 is not only a member of Armed Forces but is also subject to the Act, and he will continue to be so until duly retired, released, discharged, removed or dismissed from service as provided in subsection (2) of section 2 of the Act. It is not the petitioner's case that respondent No 3 has been retired, released, discharged, removed or dismissed from service.
' Indeed it is the petitioner's own case that he is holding the office of the 'Chief of Army Staff and, office he is not relinquishing the oce as stated in :paragraph 5 of the petition.
13. I have already examined the question whether respondent No. 3 is a person who comes within the purview of clause (3) of Article 199 of the Constitution and reached the conclusion that he does come. Now, I would examine whether the matter raised in the petition relates to the terms and conditions of service or is in respect of any natter arising out of the service of respondent No. 3 or the petition is in respect of any 'action taken in relation to him as a member of Armed Forces of Pakistan, for, if it is so then the bar provided in clause (3) (ibid) would operate. The petition does not question any action in relation to respondent No. 3 as member of the Armed Forces of Pakistan. The petition is also not in respect of his terms and conditions of 'service. The learned counsel for the petitioner himself stated that he was not questioning any terms or conditions of service of respondent No.
3. He, however, submitted that he was challenging the very basis of holding of office of the Chief of Army Staff by respondent No. 3 as being against the Constitution which submission I propose to deal with while discussing the cases cited by the learned counsel. Therefore, the only point that requires consideration to attract the provisions of clause (3) is whether the petition is in respect of any matter arising out of the service of respondent No. 3 as member of Armed Force of Pakistan or as a person subject to such law. The petitioner in the prayer clause seeks a declaration that respondent No. 3 has ceased to act as Chief of Army Staff after his assumption as elected President of Pakistan. This in my view raises the question whether respondent No. 3 continues to hold or has ceased to hold the office of the Chief of Army Staff. For this I have to consider the meanings of the word 'matter' and the phrase 'arising out of' used in clause (3) (ibid).
The 'matter' according to Chamber's.' Twentieth Century Dictionary, Revised Edition, p. 809, means `that which occupies space, and with which we become acquainted by our bodily senses ; that out of which anything is made, material : subject or material of thought, speech, writing, dispute, C 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 proved: importance.
' In accordance with the above meaning I have no doubt that the ques tion raised in the petition relates to a matter concerning the service o D respondent No. 3 as Chief of Army Staff.
' 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 summit or surface. To spring up, com above ground, into existence. To spring from its source. To take its rise, originate. To spring, originate, or result from. To come into existent or notice. (See: Shorter Oxford English Dictionary, Vol. A. M., p. 97).
13. Corpus Juris Scundum, Vol. 6, p. 336, gives its meanings as accruing, appearing, or originating.
The phrase 'arising out of employment' for its meaning with reference to 38 Am Jist Workm Comp.
S. 211 was considered as 'implying a casual connection between tiff inquiry to an employee and the performance of work required of him'.
15. The question or matter raised in the petition originates or result from the holding of the office of Chief of Army Staff by respondent No. 3 or it has come up in relation to holding of such office.
Therefore, it arises out of his service. In any case, the matter or question even if it has a casual connection with the service of respondent No. 3 as Chief of Army Staff it would, therefore, arise out of his service as such. Moreover, the word 'any' is significant as it enlarges the scope of the phrase and leaves no doubt whatsoever, that the matter raised arises out of his service. It is, therefore, clear that the matter in question arises out of the service of respondent No. 3 in the Armed Forces.
Accordingly, the petition is bit by clause (3) of Article 199 of the Constitution. It was not argu and it could not be argued that clause (1) (b) (ii) of Article 199 of th Constitution is not bit by clause (3), because the perovision of clauses (3) itself prohibits that an order shall not be made under clause (1), which would include all the sub-clauses including sub-clause (b) (i) or (b) (ii).
16. The learned counsel for the petitioner mainly relied on the Supreme Court judgment of Brig.
(Retd.) F. B. All and another v. The State (1) in support of his arguments that if action of the authority is without jurisdiction, mala fide or coram non judice, the High Court can entertain petition under Article 199 of the Constitution notwithstanding bar of jurisdiction provided in the law or in the Constitution. He particularly relied on the following passage from the judgment of Hamoodur Rahman, C. J., which appears at page 542 :- .
' Somewhat similar provisions contained in Article 98 (3) (a) of the 1962 Constitution came up for consideration by this Court in the case of Muhammad Akram Khan v. Islamic Republic of Pakistan PLD 1969 SC 174 and it was held that the bar operates only in a case where the action has been taken against a member of a defence service in relation to him exclusively as a member of such a service in respect of matter specified in clause (3). Originally clause (3) of Article 199 of the present Constitution was the same as clause (3) of Article 98 of the 1962, but in 1974, it was amended so as to bar an application also in relation to a person "who is for the time being subject to any law relating to any or these forces" even in respect of "any action taken in relation to him as a person subject to such law". Under clause (5) a "Court or Tribunal established under a law relating to the Armed Forces" is exluded from the category of "persons" against whom any direction or order can be issued under Article 199.
' The learned Attorney-General has contended that the words "relating to" in clause (3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceivable action taken in relation to even a person for the time being subject to the Army Act as the appellants were. However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram non judice or has been taken mala fide as held by this Court in State v. Ziaur Rahman PLD 1973 SC 49.
On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Forces.
(1) PLD 1975 SC 506 ' The action must, however, be one which is taken while he is so subject and not before he becomes so subject or after he ceases to be so subject. In this view of the matter the trial of the offence under section 121.A, P. P. C., would not, in my opinion, be protected being without jurisdiction."
17. In order to understand the case of F. B Ali I must state the facts of the case as summarised in the headnote of the report: The appellants were sought to be brought within the ambit of the Pakistan Army Act, 1952 by reason of amendments made in the Act by Ordinance III of 1967 and Ordinance IV of 1967 on the accusation made against them of attempting to seduce certain named officers and others in the military forces of Pakistan from their allegiance to the Government. The appellants claimed that since they had been retired from the Army they were no longer subject to the Pakistan Army Act and they could not be tried by a General Court Martial. The contention was that the provisions of clause (d) of subsection (1) of section 2 of the Act as introduced by Ordinance III of 1967, should be read in a restricted manner and unless some nexus or connection with army is established persons not normally subject to the Act should not be made liable to be dealt in accordance therewith. It was asserted that notwithstanding the amendment introduced in the Act by Ordinance III of 1967 the provisions of the Act could not be extended to persons who have at the relevant time no connection whatsoever, with the. Army. Even persons who are normally subject to the Army discipline remain subject only till retirement, release, discharge, removal or dismissal from service.
18. Considering the abovementioned contention in the light of the aforesaid facts it was held that the words of clause (d) introduced into section 2 of the Army Act by Ordinance No. III of 1967, were clear enough. It was further observed that the words persons not otherwise subject to this Act, clearly embraced all others who were not subject to the said Act by reason of the provisions of clauses (a), (b , (bb and (c) and the intention of the framers of clause (d) was clearly that even civilians or persons who had never been, in any way, connected with the Army should be made subject to it in certain circumstances gravely affecting the maintenance of discipline in the Army. It was further observed that "the nexus required is that they should be persons who are accused of seducing or attempting to seduce any person subject to the Army Act from his duty or allegiance to Government. In this case, the appellants were so accused, and therefore, came within the ambit of clause (d.. The nexus, if any required, was provided by the accusation. No other nexus or connection was necessary".
19. It would, therefore, be seen that question in that case was whether the General Court Martial had jurisdiction over the persons who were tried by that Court and it was in this connection that it was held that if an action was without jurisdiction, coram non judice or mala fide the superior Court could go into the same. Before us no action of respondent No. 3 is challenged. 'Holding of office' cannot in my opinion be equated to 'action', and therefore, holding of office could not be termed as action without jurisdiction, or coram non judice or mgla fide. Indeed the counsel for the petitioner in his arguments wholly relied on clause (1) (b) (ii) of Article 199 of the Constitution which provides for issuance of a writ in the nature of quo warranto. In order to issue a writ of quo warranto under the aforesaid clause it is necessary to see whether the Court has jurisdiction over the person in respect of whom writ of quo warranto is sought. Under Article 199 of the Constitution a writ of quo warranto could be issued against any person holding a public office but not against the persons excepted from its purview. The Court should have jurisdiction over both the person and the matter. If clause
(3) (ibid) was not incorported in Article 199, which excepts from its purview the persons who are members of Armed Forces of Pakistan or who are subject to the provisions of the Army Act, 1952, then I would have surely gone into the question whether the holding of office of Chief of Army Staff by respondent No. 3 is constitutional or not.
20. Even in respect of the cases covered by Article 199 (1) (a) (i) direction could be issued only to a person who performs the functions withip the territorial jurisdiction of the ow in connection with the affairs of the Federal, Provincial or local authorities for the purposes mentioned therein. Similarly under Article 199 (1) (a) (ii) a declaration could be made in respect of any act or proceedings taken only, if the act was done or the proceedings taken within the territorial jurisdiction of the Court. In other words for granting a writ in the nature of Mandamus or prohibition, the person whose acts of commission or omission are challenged must have performed or omitted to perfom the acts complained of within the territorial jurisdiction of the High Court. Likewise a writ in the nature of certiorari could be issued only in respect of orders passed or proceedings taken within the territorial jurisdiction of the High Court and not otherwise.
21. Now, taking up the other cases on the point referred by the learned counsel for the petitioner, I may say that in Saifuddin Sail's case (supra) the learned Single Judge of Lahore High Court followed the decision of the Supreme Court in the case of F. B. Ai and with reference to clause (3) of Article 199 of the Constitution, held that if action suffered from certain infirmities including absence of jurisdiction on the part of authority taking action, then clause (3) would not in the circumstances, operate as a bar. The learned Judge further held that in order to oust the jurisdiction of the High Court under clause (I) of Article 199 of the Constitution of Pakistan, it is imperative for the respondents to show that the impugned action taken against the detenu including arrest and detention was and is being taken "while he is so subject (to a law relating to the Armed Forces) and not before he becomes so subject". I may mention that the learned Judge in the judgment has relied on the following' passage from the judgment of the Supreme Court in F. B. Ali's case:- "However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction coram non judice or has been taken mala fide as held by this Court in State v. Ziaur Rehman PLD 1973 SC 49. On the {{BLURR}} other hand if the action is with jurisdiction and bona fide then am 2, '"w, 'prepared to concede that the bar will be operative in respect of almost 'Anythiht if it is in relation to a person who is even only for the time 1"11-'being subject to a law relating to the Armed Forces." .
A( (Underlining* is mine) .;".41 [ This observation again speaks of action taken and is not in respect of an office held or purportedly held. In other words, it is not in relation to a writ of quo warranto. Indeed this observation to some extent supports] the view taken by me as I have already shown that respondent No. 3 is ag member of Armed Forces of Pakistan, and if the petition is in respect] j" 01, Tier. In italics] brut' grit 10011$ 4.)111V004Vr. {{BLURR}} of any matter arising out of the service of respondent No. 3, then the observation that "the bar will be operative in respect of almost/ anything" would apply with full force to the case under consideration.
22. I may state that the question of mala fide -has not been raised in the petition under consideration at all and in my opinion such a question could arise in relation to an action and not in relation to holding of a public office for the office is either held with lawful authority or without it and no question of mala fide arises in such case.
23. The distinction made by me between holding an office and an action was also made by Salahuddin Ahmed, J. In his separate opinion in the case of Abrar Hassan v. Government of Pakistan (1), at page 338 in the following words:- "The bar contemplated under clause (5) of the Article is, inter alia, against a High Court as such and not against a Judge of a High lm, Court in his individual capacity apart from his function as a trial Court. The present petition does not seek any writ against the act or order of a Judge of a High Court as a Court, but questions his authority or right to act as such Judge. While the former is not permissible under Article 199, the latter is."
' In that case the question was whether a writ could issue to the Chief Justice of the High Court or not in view of the bar provided in Article i99, clause (5) of the Constitution.
22. In the case of Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan (2), the facts, as taken from the report, were that the appellant, who was at the material time a Captain in the 13th Punjab Regiment, was arrested on the 22nd of January, 1962, and taken into custody by the Military Intelligence Authorities on the 20th of April, 1962, charges were framed against him for violation of Martial Law Regulations Nos. 6 and 20-A, and a Special Military Court was convened, under Martial Law Regulation No. 1-A, on the 21st of April, 1962, to try him. The trial commenced on the 23rd of April, 1962, but the appellant continued to remain in the custody of the Military Authorities.
' At the trial, immediately after pleading to the charges, the appellant, through his counsel, raised an objection in writing to the jurisdiction of the Court to try him. He maintained that being a person serving in the Defence Services he was not amenable to the jurisdiction of the Special Military Court but could only be tried by a Court Martial in accordance with the provisions of the Pakistan Army Act, 1952. This objection, which is on the file, was rejected and the trial proceeded with.
' The trial concluded on the 2nd of May, 1962, when the Special Military Court recording finding of guilty on both counts and the President of the Court certified under his signature that the Court bad awarded the appellant the sentence of death by hanging. This sentence, which required confirmation by the Chief Martial Law Administrator, was accordingly transmitted to him for such confirmation. The minutes of confirmation were signed by the Chief Martial Law Administrator on the 4th of June, 1962, before the coming into force of the Constitution of the Islamic Republic of Pakistan on the 8th of June, 1962, but the sentence could not be promulgated until the 26th of June, 1962, in accordance with the
(1) PLD 1976 SC 315 (2) PLD 1969 S 174 practice of the Army in the J. C.
0.'s Mess at Quetta. It was only after this that the appellant was sent to the Superintendent of the Quetta Prison to be lodged there under warrant of the said date until such time as a further warrant was issued. This sentence was subsequently, upon the appellant's mercy petition, commuted on the 15th of August, 1962, by the Commander-in-Chief of the Pakistan Army, to transportation for life and again on the 18th of February, 1967, on the representation of the appellant, further reduced to a sentence of 12 years' rigorous imprison- ment.
' His further attempts to have his sentence revised also failed and thus, having exhausted his remedies on the administrative side, the appellant ultimately invoked the jurisdiction of the High Court under Article 98 of the Constitution (1962) on the 26th of February, 1968. It was inter alia contended on behalf of the appellant that clause (3) of Article 98 constituted no bar to the High Court entertaining the proceedings before it, but the High Court repelled the contention and held that Article 98 (3) (a) of the Constitution was a complete bar to the exercise of any jurisdiction by it.
Dealing with the question of jurisdiction, it was observed by Hamoodur Rahman, C. J., who delivered the opinion of the Court as follows:- "This brings us to the next question, namely, as to whether the jurisdiction of the High Court, under Article 98, was barred by reason of the provisions of clause (3) (a) thereof. This clause is in these terms:- "(3) An order shall not be made under clause (2) of this Article-
(a) on application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his se. Vice or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan."
"It will thus be seen that the bar provided by clause (3) (a) is not a general bar against the entertainment of any application moved by or in relation to a member of a Defence Service of Pakistan but the bar operates only in respect of an application made by or in relation to such a person if the application is in respect of the matters specified therein, namely; (a) the terms and conditions of his service or (b) any matter arising out of his service, or (c) any action taken in relation to him as a member of the service. In the present case the application was certainly not in respect of the terms and conditions of the appellant's service or in respect of any matter arising out of his service but was it in respect of an action taken in relation to him as a member of the Defence Services of Pakistan. `Does this mean any and every kind of action taken in relation to a person who is a member of a defence service? It obviously cannot, for, a member of a defence service is also a citizen of the State with rights and obligations as such a citizen. A distinction has of necessity to be drawn between his dual capacities and, therefore, the action referred to in elapse 3 (a) of Article 98 must be confined strictly to action which is only relatable to a person in the capacity of a member of a defence service and not to any other capacity.
"The Pakistan Army Act itself makes a differentiation between certain categories of offences and between `civil offences' and offences punishable under the Act. Thus, offences of murder, culpable homicide and rape committed by a member of a defence service in relation to a person who is not a member of a defence service cannot be dealt with under the Army Act except when committed while on active service at any place outside Pakistan or at a frontier post. Again even though section 59 of this Act makes all other `civil offences' also offences under the Act yet under section 94 where the offence is also triable by a Criminal Court then it is the prescribed Officer who has in his discretion to decide as to which Court shall try him. If such an Officer decides that the case shall be tried by the criminal Court and not a Court under the Army Act then should not the ordinary incidents of such a litigation attach to such a proceeding even though the accused is a member of a defence service. The choice lies with the defence service authorities and if they choose to treat him as an ordinary citizen then they cannot subsequently claim that action was taken against him as a member of a defence service only.
"This is exactly what happened in the present case. After arresting him under the Army Act it was decided to have him tried by a Special Military Court set up under Martial Law Regulation No. 1-A as an ordinary citizen. This is confirmed also by the fact that the appellant had at the very first sitting of the Special Military Court raised an objection in writing to its jurisdiction and claimed to be tried by a Court Martial. As the offence was one which fell within the category of a civil offence under the Pakistan Army Act."
25. Taking up the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (1), it may be stated that the learned counsel only referred to this case without referring to any principles enunciated, accepted or decided therein or without referring to any particular passage in that lengthy judgment wherein four honourable Judges, namely, Anwarul Hach C. J., Muhammad Akram, J., Qaisar Khan, J., and Dr. Nasim Hasan Shah, J., have expressed separate detailed opinions.
Therefore, it is not necessary to discuss this case in any detail.
26. Reference was also made to the case of Mr. Zulfikar Ali Bhutto v. The State (2). In this case the Constitution of the Lahore High Court and the validity of the appointment of Mr. Justice Mushtaq Hussain, as Acting Chief Justice of the Court was questioned and in support the following contentions were raised:- "(i) The High Court was not properly constituted in terms of Article 192 of the 1973 Constitution as the permanent Chief Justice. Mr. Justice Aslam Riaz Hussain was no longer holding the office of the Chief Justice, nor was he performing its functions, having been appointed as the Acting Governor of the Punjab and having relinquished charge of the office of Chief Justice with effect from the 13th of July, 1977 ;
(ii) Mr. Justice Mushtaq Hussain had not been appointed as Acting Chief Justice of the High Court by a competent authority in terms of the Constitution ;
(1) PLD 1977 SC 651 (2) PLD 1978 SC 40 (iii)The Acting Chief Justice had not taken the oath as prescribed by Article 194 of the Constitution read with Schedule III, thereof, and had instead taken a modified oath prescribed under President's Order (Post Proclamation) No. 1 of 1977-High Court Judges (Oath of Office) Order, 1977-with the result that he could not be regarded as having validly entered upon his new office ;
(iv) Even if it be assumed that Mr. Justice Mushtaq Hussain had been validly appointed as Acting Chief Justice, and had validly assumed the &uties of his office, yet he could not continue in this capacity after his appointment as the Chief Election Commissioner with effect from the 17th of July, 1977 as Article 216 of the Constitution prohibited the Chief Election Commissioner from holding any other office of profit in the service of Pakistan ; and
(v) In the alternative, Mr. Justice Aslam Riaz Hussain still continued to be the permanent Chief Justice of the High Court as his appointment as the Acting Governor of the Punjab was unconstitutional and not justified on the grounds of necessity or welfare of the people with the necessary consequence that there was no occasion at all for the appointment of an Acting Chief Justice."
' It will be seen that none of the contentions relates to the bar provided in clause (3) of Article 199 of the Constitution, and the bar provided in clause (3) did not come up for discussion in that case. I have no doubt that but for the bar provided in clause (3) of Article 199 of the Constitution which goes to the very root of the matter I would have considered the question on merits as was done in the abovementioned case in relation to the holding of office of the Chief Justice by Mr. Justice Mushtaq Hussain in view of the bar provided in Article 216 of the Constitution in the way of Chief Election Commissioner to hold any office of profit in the services of Pakistan because clause (3) of Article 199 applies to a member of Armed Forces of Pakistan or to a person who is for the time being subject to any law relating to any of those forces and not to any other holder or purported holder of public office.
27. I have gone through the following other cases referred to by Mr. Haq :--
(1) The Chief Secretary to the Government of East Pakistan v. Mo3lehuddin Sikdar and another PLD 1957 SC (Pak.) 1.
(2) In the Matter of Reference by he President of Pakistan Under Article 162 of the Consti ution of the Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219.
(3) Miss Asma Mani v. The Government of the Punjab and another PLD 1972 SC 139 and
(4) Munir Ahmed v. Retruning Officer, Karachi and others PLD 1966 Kar.
1.
28. So far as cases at Serial Nos. 1 to 3 are concerned the learned counsel merely cited them. He did not argue how could these cases advance his case. ' It is, therefore, not necessary to examine them in detail.
29. As regards Munir Ahmed v. Returning Karachi (1), it was held in this case that for issuing a writ of quo warranto, the petitioner need not be an aggrieved party. There is no cavil with this proposition.
The other question raised in this case was that the respondent was not holding a
(1) PLD 1966 Kar. 1 public office. But no such contention was raised before us. Thus, reference to this case was unnecessary.
30. The learned counsel for the petitioner further submitted that the supremacy of the judicial system as provided in the Constitution should be established by examining the grounds raised in the petition and in support of his submission he relied on State v. Ziaur Rehman (1), and the Federation of Pakistan v. Saeed 4 hmad Khan and others (2), to which reference was also made by the Attorney-General. He particularly relied on the following passages in Zia-ur-Rahman's case :- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution ; that it derives its powers and jurisdictions from the Constitution ; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
' This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessasy for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself.
' In saying this, however, I should make it clear that I am making a distinction between 'judicial power' and 'jurisdiction'. In a system where there is a trichotomy of sovereign powers, then ex necessitate rei from the very nature of things the judicial power must be vested in the judiciary. But what is this judicial power. `Judicial power' has been defined in the Corpus Juris Secundum, Volume XVI, paragraph 144, as follows :- ' The judiciary or judicial department is an independent and equal co-ordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law or that depertment of Government which is charged with the declaration of what the law is, and its construction, so far as it is written law."
There is no doubt that the determining of what the existing law is in relation to something already done or happened is the function of the judiciary. A Constitutional Court has nonetheless to act within the limitations if any, provided by the Constitution itself for if the Constitution says that the High Court shall not have jurisdiction in any matter, L how can then the High Court deal with that matter. In the words of Hamoodur Rehman, J., as expressed in the abovequoted passage from the judgment of Ziaur Rehman's case "so far therefore this Court is concerned, it has never claimed to be above the Constitution nor has it claimed a right to strike down any provision of the Constitution." Further, it (OP L D 1973 SC 49 (2) PLD 1974 SC 151 would be instructive if I quote another passage from the same judgment which appears at the same page and the next page :- "It may well be asked at this stage as to what is meant by `jurisdiction' ? How does it differ from 'judicial power' ? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus, it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial powers to hear and determine will be exerciseable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court."
31. In the case of Saeed Ahmed Khan (supra) the same principles of interpretation applying to a constitution were stated which were enunciated in Ziaur Rahman's case, and they need not be recapitulated here.
32. In rebuttal to the contention of Mr. Muzaffarul Haque, learned counsel for the petitioner that Article 199 (3) of the Constitution does not bar the jurisdiction of this Court, learned Attorney General relied on Muhammad Khurshid Butt v. Government of Pakistan (1). In this case it was contended on behalf of the appellant that once the appellant established that he belonged to an All Pakistan Civil Service, then notwithstanding the fact that he was rendering services "in connection with defence" he could claim the constitutional protection in the matter of retirement before reaching the age of superannuation. It was, however, pleaded on behalf of the respondents that the jurisdiction to entertain under Article 98(3)(a) of the Constitution of 1962 was barred. While dealing with the contention, it was observed by Shafiur Rahman, J., who delivered the opinion of the Court as follows :- "The expression Defence Services of Pakistan in its generic sense would mean not only service in Defence Forces but all employment in Defence Forces and Service connected with, ancillary or incidental to the tasks performed by the defence forces or requiring performance of duties on which the effective functioning of the defence forces in times of peace and war depends. Military Engiieering Service to which the appellant admittedly belonged would on this view certainly be a Defence Service. The constitutional petition by the appellant being relatable to terms and conditions of service was barred by Article 98(3)(a) and its dismissal by the High Court was unexceptionable. This appeal has no merits, fails and is hereby dismissed leaving the parties to to bear their own costs."
' It will be seen from the above observations that the real question was whether the petitioner was in the Defence Service of Pakistan or not so as to attract are not to attract the bar contained in Article 98(3)(a) of the Constitution.
32-A. I am, therefore, of the opinion that the petition is hit by the provisions of clause (3) of Article 199 of the Constitution.
(I) PLD 1983 SC 92
33. Now, I shall consider the question whether this Court has territorial jurisdiction to entertain this petition.
' A perusal of sub-paragraph (ii) of paragraph (b) of clause (1) shows that in order to require a person to show under what authority of law he claims to hold or purports to hold a public office he must be within the territorial jurisdiction of the Court. The word 'person' in sub-clause (b)(ii) is followed by the words 'within the territorial jurisdiction'. It is, therefore, not every person in regard to whom High Court could pass an order requiring him to show under what authority of law he claims to hold or purports to hold the public office. It is only a person within the territorial jurisdiction of the High Court over which it shall have jurisdiction. The phrase 'A person within the territorial jurisdiction' used in clause (1) (b)(ii) of Article 199 of the Constitution could only mean that either he should have his residence or his office within the territorial jurisdiction of the High Court.
Respondent No. 3 on petitioner's own showing is the resident of President's House Rawalpindi. He has neither his residence nor his office within the territorial jurisdiction of this Court.
33. It was, however, submitted by the learned counsel for the petitioner that a person would come within the territorial jurisdiction, if he exercises powers or authority over the area within the territorial jurisdiction of the Court and as in the present case respondent No. 3 exercises his authority by controlling all Military Officers and Cantonments in Pakistan including those within the territorial jurisdiction of the Court, therefore he comes within the territorial jurisdiction of this Court.
As already stated that for issuance of a writ in the nature of quo warranto it is the place of residence, or the place of office of the person against whom such a writ is sought which is material and that should be within the territorial jurisdiction and not the area over which he exercises the authority or powers of the office held by him. In the present petition no action of respondent No. 3 in relation to any officers or the Cantonment within the territorial jurisdiction of this Court is challenged. What is being questioned is the holding of office as Chief of Army Staff. Therefore, this Court has no territorial jurisdiction. It may be stated that where an action of a person who is not covered by clause (3) of Article 199 is questioned, the Court would have jurisdiction, if action was taken within the territorial jurisdiction of the Court as would be clear from the language used in clause (1)(a)(ii) of Article 199 of the Constitution. I am fortified in my view by a decision of the Supreme Court of Pakistan and several other decisions from foreign jurisdiction and a decision of Dacca High Court, namely Sabir Din and another v. Government of Pakistan (1), Abrar Hassan v.
Government of Pakistan and another (2), Election Commissioner, India v. Saka Venkatasubbarao (3), K. S. Rashid &. Son v. Income-tax Investigation Commission and others (4), Lt.-Col. Khajoor Singh v. Union of India (5), Madan Gopal Rungta v. The Secretary to the Government of Orissa and others (6) and A. K. M. Fazlul Quadir Chowdhury v. Government of Pakistan and another (7).
(1) 1979 SCMR 555 (2) P I, D 1976 SC 315
(3) AIR 1953 SC 210 (4) AIR 1954 SC 207 (51 A R 1961 SC 532 (6) AIR 1962 SC 1513
(7) P I. 1) 1957 DReCti. 342
35. I shall first refer to the case of Sabir Din v. Government of Pakistan and anothe), in some detail.
In this case the facts were that the petitioner claimed that he was promoted and duly confirmed as Deputy Assistant Military Estates Officer in the Directorate of Military Lands and Cantonment, under the Ministry of Defence, Government of Pakistan, respondent No. I. He was posted, as further claimed, in the office of the Military Estates Officer, Hazara Circle, Abbottabad, from where he was transferred to Muzaffar ibad (Azad Jammu and Kashmir) as Deputy Military Estates Officer (Military Estates Section) which, as stated, fell within Hazara Circle (N.-W. F. P).
' It was asserted from the petitioner's side that respondent No. 3 (the Departmental Promotion Committee at Rawalpindi) seemingly acting under a letter of the Establishment Division of the Pakistan Government, made recommendation for the reversion of the petitioner and three others which was approved by the Director, Military Lands and Cantonments, Rawalpindi, respondent 2.
' Learned counsel stated that although the office of the Hazara Circle was required to give the information about the reversion, they did not do so and in fact the petitioner learnt about it at Rawalpindi from as employee of Rawalpindi Circle.
' The petitioner challenged the above order of his revision in the Peshawar High Court through a writ petition under Article 199 of the Constitution, seeking relief against the respondents for the "quashment of the order' passed by respondent No.
2. The same having been dismissed in li ine on ground of lack of territorial jurisdiction, he moved a petition for special leave to appeal in the Supreme Court.
Muhammad Afzal Zullah, J., who wrote the opinion of the Court observed as follows :- "The normal considerations of 'residence' etc. And the 'cause of action' qua territorial jurisdiction even if attracted in the circumstances, do not support the petitioner's case. The cause of action partly arose at Muzaffarbad and partly at Rawalpindi. The Central Government, as held in the case of Waliullah Safyani, does not reside at any one place in the realm. However, the respondent No. 2 whose order (Annexure 'B' to the writ petition) was brought under challenge, is at Rawalpindi. On this view the Peshawar High Court would have no territorial jurisdiction. The Hazara Office of the respondents Nos. 1 and 2 is only one chain in the administrative set up. It has not done anything against the petitioner nor any relief has been sought against it nor even a formal one. Indeed it has not even been impleaded as a party. That aspect of the matter either, would not confer territorial jurisdiction on the Peshawar High Court. (Underlining* is mine).
"The question having arisen in the context of a writ petition the Peshawar High Court was justified in refusing to exercise jurisdiction on another ground as well. As provided in Article 199 (1) (a) of the Constitution the impugned action or the authority taking the same should be within the territorial jurisdiction of the High Court, for exercise of jurisdiction thereunder. None of those conditions is satisfied herein. Therefore, the refusal by the Peshawar High Court to exercise jurisdiction is unexceptionable."
36. In the case of Abrar Hassan v. Government of Pakistan, to which reference was also made by the learned Attorney-General Muhammad Yaqub Ali, C. J. At page 332 of the report observed as follows :- "Article 199 (1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another province."
36. In the case of Election Commission v. Saka Venkata Subba Rao (supra). The respondent had applied to the High Court of Madras under Article 226 for a writ restraining the Election Commission, a statutory authority constituted by the President, having its office permanently located at New Delhi, from inquiring into his alleged disqualification for membership of the Assembly. The High Court issued the writ. From order of issuing writ an appeal was filed in Supreme Court of India. The Supreme Court recalled the writ holding that the High Court had no power to issue writ to the Election Commission which had its office permanently located at New Delhi. It was observed by the Court that the mere functioning of a tribunal or authority, permanently located elsewhere, within the territorial limits of the High Court was not sufficient to invest the High Court with jurisdiction under Article 226 to issue a wrtt. Nor was the accrual of the cause of action within the territorial limits of the jurisdiction of the High Court sufficient for investing the High Court with jurisdiction under Article 226 to issue a writ.
37. The Supreme Court of India did not accept the reasoning of Madras High Court that if a tribunal or authority, permanently located elsewhere, exercised jurisdiction within the High Court's territorial limits so as to affect the right of the people therein, such tribunal or authority must be regarded as 'functioning' within the High Court's jurisdiction. The Court held that the person or the authority against whom the writ is sought must be amenable to the Court's jurisdiction either by residence or by locatton within the territorial jurisdiction. The basis of jurisdiction was held to be the residence or location of the person or the authority concerned and not the cause of action. It was contended before the Supreme Court that the jurisdiction of the High Court to issue writ is analogous to the jurisdiction of a Court to grant a decree or order against persons outside the limits of its local jurisdiction provided that the cause of action arose within those limits. The Court overruled the contention in these words :- "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction."
' Accordingly, it was held that no High Court except that of Punjab could issue writ against the departments of Government of India which were located in New Delhi.
39. The Supreme Court of India again considered the matter in Lt.-Col. Khajoor Singh v. Union of India and another (supra), and reiterated the principle laid down in Election Commission's case (supra) and again refused to accept the concept of cause of action as the basis of issuing the writ by a High Court on the ground that Article 226 did not refer to it at all. The Court held that the argument that the Government of India was all pervasive and was functioning throughout India confused the concept of 'location' of a Government with the concept of its 'functioning'. The seat of the Government of India being at New Delhi, it is as such located there. The Supreme Court observed that the jurisdiction of a High Court under Article 226 depended on the person or authority against whom a writ was sought to be issued being within the territory of the concerned High Court.
40. In order to obviate the hardship faced by the injured persons who, because of their limited resources, could not always resort to the Punjab High Court, the Indian Law Commission suggested removal of the hardship by amending Article 226 which was done in 1963, and the 'cause of action' has been added as a ground on which the High Court could have jurisdiction to issue writ. The amended Article 226 reads as follows :- "226. Power of High Courts to issue certain writs.-(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exerctses jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, or any of them, for the rights conferred by Part III and for any other purpose).
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Not material ...
(4) Not material
41. It will be seen that under Article 199 of our Constitution the requirement of clause (a) (1) for issuing a direction is that the person to whom the direction is sought must be performing the function in connection with the affiairs of the Federation, a Province or a local authority, within the territorial jurisdiction of the Court, and for a declaration under clause (1) (a) (ii) the requirement is that the act done of the proceedings taken must have been done or taken within the territorial jurisdiction of the Court. Similarly, under clause (1) (b)(i) for issuance of a writ in the nature of habeas corpus the person should be in custody within the territorial jurisdiction of the High Court.
Likewise under clause (1) (b) (ii) for issuance of a writ in the nature of quo warranto the person should be within the territorial jurisdiction of the High Court. It will be seen that in our Constitution in Article 199 the concept of cause of action seems to have been incorporated only in clause (1) (a)
(ii) of Article 199 of the Constitution.
42. I may mention that there is not a single word in the petition to attract the provisions of clause
(1) (a) (ii) of Article 199 of the Constitution in relation to respondent No. 3 that he has done anything or taken any proceedings within the territorial jurisdiction of this Court.
42. I am, therefore, of the opinion that this Court has also no territorial jurisdiction to entertain the petition.
43. In the result I dismiss the petition.
' ALLY MADAD SHAH, J.-I agree that this Court does not have territorial jurisdiction to entertain the petition. I agree with the view of the learned Chief Justice that the petition is not entertainble in view of the provisions of Article 199 (3) of the Constitution.
' HAIDER ALI PIRZADA, J.-I agree with the learned Chief Justice.
' MUHAMMAD ZAHOORUL HAQ, J.-In this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner has asserted that after having assumed the office of the President of Pakistan under Article 270-A, General Muhammad Ziaul Haq, the respondent No. 3, could not continue to hold the office of Chief of the Staff of Pakistan Army as under Article 43 of the Constitution it is provided that the President cannot hold any office of profit in the service of Pakistan, and therefore, it may be declared that he has ceased to hold that office of Chief of Army Staff.
2. The office had taken the objection that the petition was incompetent, in view of the provisions of Article 270-A of the Constitution and because none of respondents was within the territorial jurisdiction of this Court.
3. The matter was placed for consideration of a D. B. Consisting of the Hon'ble Chief Justice and another Hon'ble Judge and the said D. B. Called upon petitioner's counsel to make submissions in respect of Article 199(3) of the Constitution and thereafter referred the matter of objections to jurisdiction to a Full Bench observing that the matter respecting the jurisdiction of this Court was of a fundamental nature. The question posed was: "Whether this Court has jurisdiction to entertain this petition".
4. We have heard Mr. Muhammad Muzaffarul Haq for the petitioner and Mr. Aziz Munshi, Attorney- General. Who was assisted by Mr. Liaquat H. Merchant, Mr. Sayeed A. Shaikh and Mr. Wajihuddin Ahmed.
5. Mr. Muhammad Muzaffarul Haq has pointed out that Article 41(7) has provided that General Muhammad Ziaul Haq has become the President of Pakistan on the day of the first meeting of the Parliament and, therefore, in view of the provisions of Article 43 which bars the President to hold any office of profit in the service of Pakistan or any other position carrying the right to remuneration for the services, the President automatically ceased to hold the office of Chief of Staff of the Army and hence he is no more the member of the Armed Services of Pakistan. He, therefore, argued that the bar in Article 199(3) of the Constitution is thus not attracted and the office objection is not justified.
6. It is necessary to reproduce the relevant provisions of Article 199 :- "199.-(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) . .
(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) . . .
(2) . . .
(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 to a person subject to such law.
(4) . . . . .
A) .
B) .
(5) . . . . . .
' Whether the President has ceased to hold the office of the Chief of Staff of the Army is a matter which involves the decision of the petition on merits which has to be tackled by the Bench which is entrusted with this petition if we were to hold that this Court has jurisdiction to entertain it.
7. The matter pertinent for Full Bench is only the reference in respect of the jurisdiction only.
8. Mr. Muzaffarul Haq submitted that since he is challenging that the respondent No. 3 cannot hold the office of the Chief of Army Staff, because the holding of the post of COAS by the respondent No. 3 is unconstitutional in view of the provisions of Article 43 and hence the bar under Article 199 (3) is not attracted. He relied upon PLD 1975 SC 506, the case of F. B. Ali, where it was held by the Supreme Court that if an action taken against a member of the armed forces was coram non judice or without jurisdiction or mala fide then the bar under Article 98 (3) of 1962 Constitution will not be attracted. It may be cleared here that present Article 199 (3) is a similar to the provisions of Article 98 (3) of 1962 Constitution. The counsel also relied upon PLD 1966 SC 174 where it was held that the bar of Article 98 (3)(a) operates only in cases where the action has been taken against a member of defence services. Reliance was also placed on 1986 SCMR 252, case of Mirza Abdul Hameed, where it was held that after vacating the office of Chief Justice, Governor could not perform functions of Judge in that capacity and his duties while functioning as Governor are alien to the judicial office held by him and the functions exercised in that capacity. It was held in that case that the office of the Governor and Chief Justice are incompatible with each other. The case of Zulfikar All Bhutto v. State (1) was also referred where it was held that permanent Chief Election Commissioner cannot hold any other office of profit including office of Judge of Supreme Court or High Court. However, in that case it was observed that the Acting Chief Election Commissioner was not under that disability. In PLD 1977 SC 315 it was held that unconstitu tional appointment can be challenged and remedied by a constitutional petition. It was further held in the same case that in quo warranto enquiry relates to a matter in which the public are interested, namely, legality and sanctity of a public office and not the enforcement of individual rights or redress of individual grievances.
9. In PLD 1977 Lah. 1174 a learned Single Judge, as he then was, followed the case of F. B. Ali and observed that if the impugned action is found to be without jurisdiction High Court would be competent to grant relief.
10. On the basis of the above authorities and citations the petitioner's counsel stressed that the petitioner is only seeking declaration that the respondent No. 3 had ceased to hold the office of COAS and since he is relying upon a constitutional provision which bars the holding of any office by the President, therefore, the continuing of the bolding of the office of COAS by the President is unconsitutional. He further argued that if in the case of F. B. Ali in PLD 1975 SC 506 where the conviction of the appellants by the Court Martial under the provisions of the Army Act was upheld by the Supreme Court, but still their conviction by Court Martial under section 121 of Pakistan Penal Code could have been held by the Supreme Court to be without jurisdiction, in spite of bar contained in Article 98 (3) on the ground that the appellants before the Supreme Court were not subject to the Army Act when this offence was alleged to have been committed by them then on the same analogy an appointment which is challenged to be Unconstitutional and illegal could be treated as not barred under Article 199(3) of the Constitution.
' The counsel emphasised that the supremacy of judicial system as provided in constitution should be established by examining the questions raised in this petition. Petitioner's counsel clarified that he is challenging the very holding of the office by COAS while the bar under Article 199 (3) appears to be related to an individual who is admittedly an office of the armed forces and appears to be intimately connected with his office and matters arising in respect thereof and not merely touching the said office incidentally.
11. In respect of public office he referred to PLD 1966 Kar. 1 (8) where public office was defined as a right and duty conferred by law by which an individual is invested with some portion of the sovereign function of the Government to be exercised by him for the public. Reliance was also placed on PLD 1957 SC 219 where the Supreme Court had observed that it had the power to examine and interpret the Constitution.
' Further submission of the counsel was that he has not challenged either the terms and conditions of service of Chief of Army Staff nor the petition involves any matter arising out of service of Chief of Army Staff but he is only challenging the very basis of respondent No. 3 to hold that office and therefore, the bar under Article 199 (3) is not attracted in this case. Counsel also wanted this Court to consider whether the dual legislative authority, namely, the Parliament and Chief Martial Law Administrator as sole legislator can function during martial law. This argument is however irrelevant in this matter as there is no Martial Law now.
11. In respect of the jurisdiction of this Court reliance was placed on case of State v. Ziaur Rehman, where the Supreme Court had observed that Supreme Court is the creature of the Constitution but it has the right to interpert the Constitution and to say what a particular provision of Constitution means. It was further observed that this judicial power is inherent in the Court itself. He also brought to our attention the case reported in PLD 1972 SC 139 where the Supreme Court had not felt inclined to condone every action of usurper who had assumed power but it only condoned these actions which were found necessary.
12. Mr. A. A. Munshi, learned Attorney-General, emphasised that this Court while exercising powers under Article 199 was having a jurisdiction which was subject to the Constitution itself and therefore if there is any bar in respect of the exercise of powers under Article 199 (3) then High Court should refuse and refrain to exercise that jurisdiction. He asserted that the very prayer in the petition shows that the petitioner wanted this Court to declare that the respondent No. 3 ceased to act as Chief of Army Staff after his assumption as elected President of Pakistan and, therefore, he was seeking a declaration in respect of the office of a member of armed forces and that matter was eminently arising out of such service and, therefore, the bar under Article 199(3) was eminently attracted in this case. The counsel emphasised that there would be nothing left in the petition if the post of COAS was not involved. He urged that the Constitution had thought it fit that no matter which touched upon the terms and conditions of service of a member of the armed forces or was in respect of any matter arising out of his service or in respect of any action taken in relation to him as member of the armed forces should be beyond the scope of scrutiny of the High Court.
' He emphasised upon the words "subject to the Constitution" appearing in the very beginning of Article 199 and argued that since the bar under Article 199 (3) was in the Constitution itself, therefore, the proceedings of quo warranto as provided in Article 199(1) (b) (ii) was hit by clause (3) of this Article which was applicable to all the sub-clauses as appearing in Article 199(1) and, therefore, this High Court should not require a person who is performing. His functions as COAS, and therefore, as a member of the armed forces of Pakistan, to show his authority of law under which he claims to hold that office. His argument was that the quo warranto proceedings in respect of the member of the armed forces are completely out of pale of this High Court as otherwise the bar under clause (3) of Article 199 would not have been in respect of the whole matters covered by entire clause (1) of Article 199. If the Constitution wanted the authority of the member of armed forces to be questioned then it would have excluded clause (i) (b) (ii) from the ambit of clause (3) of Article 199.
' He also urged that PLD 1975 SC 506 was not applicable to the present case as the observations of the Supreme Court that bar under Article 98(3) was not applicable in the matter of conviction of the appellants before Supreme Court, under section 121, P.P.C., because it was found that the appellants were not subject to the Army Act when the offence under that section was alleged to be committed by them, but he submitted that it is not so in this case as the respondent No. 3 is a general and COAS according to the petitioner himself and hence he is a member of the armed forces and the submission that he has ceased to hold that office is a matter arising out of his service.
' He further argued that the present Constitution was enforced on 10th March, 1985 and on 23rd May, 1985 the respondent took over as the President of Pakistan as a result of the referendum held on 19-12-1984. While the Martial Law was revoked by the then Chief of Army Staff and CMLA, General Muhammad Ziaul Haq, the respondent No. 3, on 30th December, 1985. He therefore argued that if this Court was to hold that General Muhammad Ziaul Haq was not Chief of Army Staff on 30th December, 1985 then the very effect of the revocation of martial law by COAS would become a doubtful matter and loose its force because the martial law had been imposed on 5-7-1977 by the COAS Pakistan Army and could be revoked by the COAS alone and not merely by the President of Pakistan without having the authority of the Chief of Army Staff. He, therefore, urged that no such declaration should be given by this Court. He relied upon PLD 1973 SC 49 where the Supreme Court had observed as under :- "This Court has never claimed to be above the Constitution nor to have the power to strike down any provision of the Constitution."
' It was further observed in the same case at page 70 as under :- "It is not the function of the judiciary to legislate or question the wisdom of the legislator in making a law if it has made it competently without transgressing the limitation of the Constitution."
' He therefore strongly urged that this High Court should uphold the objection raised by the referring Bench and refuse to admit this petition.
13. It appears to us that the controversy in respect of the objection to the jurisdiction of this Court centres around the expression "in respect of any matter arising out of his service", an expression used in Article 199(3). What is therefore really to be considered is whether the petition which seeks a declaration that the President has ceased to hold the office of COAS is seeking a declaration in respect of a member of armed forces in respect of any matter arising out of his service.
14. This petition is not a matter in respect of terms and conditions of service nor a matter in respect of any action taken in relation to a member of the armed forces or a person subject to such law.
16. The word "matter" is defined in Law Lexicon by Iyer,
194. 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 corn prehensive term'.
17. In Oxford English Dictionary printed in 1961, Vol. VI at page 241 "matter" is defined as "ground, reason or cause of doing of 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 column) "in the matter of", is shown to mean "in relation to, with regard to ";
16. It, therefore, appears to us that "matter" is 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 out 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.
17. Another expression which would need consideration is "arising out of". Word "arise" is explained in the Concise Oxford Dictionary at page 46 to mean "originate" ; result from ; In Oxford English Dictionary Vol. 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'.
18. 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 Lexicion by Iyer at page 83, as under "right to use the water of a perinneal stream for irrigation purposes is T 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.
Consequently, this petition clearly appears to be related to the service of respondent No. 3 in the armed forces as he is the serving General and Chief of Staff of Pakistan Army. It is therefore, the obvious result that the initial bar of Article 199(3) is apparently attracted to the present petition. But this does not conclude the matter.
19. In respect of the citations quoted by the petitioner where the bar of Article 199 (3) was observed to be not applicable by superior Courts we find that those were causes of actions which had been taken by the military authorities in respect of the persons who were not the members of the armed forces or subject to such law at the relevant time. In the matter of F.B. Ali the Supreme Court had rejected the submissions of the petitioner that the conviction against them, by the court martial were illegal or in any way coram non judice, mala fide or without jurisdiction and therefore it had applied the bar of Article 98 (3) of the then Constitution. It had, however, held the conviction against them under section 121, P. P. C. By the Court martial as without jurisdiction as they were not subject to the Army Act at the time where they were alleged to have committed those offences and, therefore, Supreme Court held that bar of Article 98(3) could not be attracted and the Supreme Court or for that matter the High Court could scrutinise the action. Therefore, the observations of the Supreme Court were essentially based on the facts of that case. Those observations are however entitled to great respect, but the facts of the present case are different where the petitioner admits that the respondent No. 3 is holding the office of COAS as a fact but wants a declaration that the President should be treate I to have ceased to hold that office by virtue of Article 43.
' In the case of F.B Ali the Supreme Court had observed that if the action taken against a person by court martial was coram non judice, without jurisdiction or mak, fide then the bar under Article 98(3) would not be applicable. Following these observations of their Lordships of the Supreme Court and taking them to their logical conclusion it could reasonably be urged that if the very basis of appointment to the position of member of the armed forces is alleged to be unconstitutional then the jurisdiction of the High Court to examine the legality of the appointment or the authority under which the public office is assumed could be a matter which could be considered by the High Court without the fear of doing anything against the Constitution.
20. The expression 'subject to the Constitution', could be made use, of by all the parties. The petitioner could contend that if an appointment was against the Constitution itself then the bar of Article 199(3) should not be used against him while the respondents could also take advantage of the said expression and say that since the Constitution itself had provided o that matters in respect of service of the member of the armed forces will not be dealt with by the High Court irrespective of the merits or demerits of the appointment to the post and that High Court should respect that position and decline to deal with such a matter as otherwise it would be acting against not only the spirit of the Constitution but against the very words of the Constitution.
21. The contention that the President has ceased to hold the office of COAS is a matter which arises out of the assumption of office by the President and on account of the constitutional bar contained in Article 43 that the President shall not hold any public office. Therefore, it is a matter basically arising out of the constitutional disability of the President to hold a public office. But at the same time this petition cannot be considered to be completely unrelated to or unconcerned with a matter which arises out of service of the member of the armed services. It is an established position in law that Chief of Staff of the Army is the Commandar-in-Chief of the Army (section 8 of the Army Act, 1952) and as such he is member of the armed forces. His continuing as COAS or ceasing to hold the office of COAS is very much related to his being member of the armed forces and thus arises out of his service as such. Therefore, it is a matter arising out of such service. The relationship of the post with the ultimate result of cessation of holding of that post cannot be denied irrespective of the means which cause that result. It is only after the respondent is treated as holder of post of COAS that the effect of his assumption of office as President and ceasing to hold the office of COAS is to be taken into consideration. There can be no cessation if there was no holder of that office. Therefore, the result of cessation is intimately related to the matter of service itself as the cessation of office is the result of the cause of constitutional disability created any Article 43. But the cause cannot exist alone and it has to have an effect upon an object. The object in this case is the service of respondent No 3 as COAS. Without the post of COAS the cause will evaporate in the thin air. It is therefore quite clear to us that if we were to give a declaration that respondent No. 3 has ceased to hold the office of COAS then we would be doing so only after we have dealt with a matter which arose out of the service of respondent No 3 in the Armed Forces. We are afraid that we have ordinarily no such jurisdiction as the matter is fully covered by Article 199
(3) of the Constitution.
22. In the case of PLD 1975 SC 506 (F. B. Ali's case) the Supreme Court had held that conviction under section 121, P. P. C. Against the appellants by court matial was without jurisdiction although it had upheld the convictions against those very persons under section 31 of the Pakistan Army Act, awarded by the same Court martial as legal and effective. The Supreme Court had scrutinised the case of convictions in detail and had come to the conclusion that the appellants were not covered by the Army Act on the day that they were accused to have committed the offence under section 121, P P.C. And therefore, conviction under that charge was without jurisdiction. They had observed that if an action was coram non judice or mala fide or without jurisdiction then the bar under Article 98 (3) of the Constitution (a provision similar to Article 199 (3) of present Constitution) would not apply. Therefore, Supreme Court was of the view that, in spite of the initial bar under Article 199
(3) if there was a fundamental challenge to the legality and lawfulness of the action, based on the lack of jurisdiction or mala fides or coram non judice, then the superior Courts could entertain a petition and scrutinise the action. It would be legitimate to conclude that in a case where the authority to hold an office by a member of the armed forces is challenged as being in contravention of the Constitution then the said challenge could be examined by the High Court and if it was of the view that the challenge deserved to be considered in depth then the constitution petition could be maintained inspite of initial bar under Article 199 (3) of the constitution. After all a challenge based on a provision of the Constitution has to be treated, if not higher, at least at par with a challenge based on the lack of jurisdiction by virtue of ordinary law. Mr. Aziz Munshi had relied upon PLD 1983 SC 92 where a petition filed by a civil employee of defence services was treated as barred under Article 98 (3) (a) of 1962 Constitution as he was treated as member of the Defence Services and his petition related to terms and conditions of his service. But in this case there was no challenge made on the b sis of lack of jurisdiction, mala fides or coram non judice and the action of retirement was held to be with jurisdiction. Therefore, this can hardly neutralise the effect of the observations made in the case of F. B Ali.
23. I am therefore of the view that in spite of the initial bar contained in Article 199 (3) of the present contention of the petitioner, that the respondent had ceased to hold office of COAS after assuming the office of the President subject to the objection of, lack of territorial jurisdiction, could be entertained by the High Court under Article 199 of the Constitution if the admitting Bench could be persuaded to the view that contentions of the petitioner were prima facie sustainable and required a further scrutiny. But in this case there is a bar on account of the absence of the person or office of the respondent No. 3, within the territorial jurisdiction of this Court as explained later.
24. I have refrained from expressing my opinion on the merits of the contentions of the petitioner as the same were not convassed before the Court in detail. It is enough to state that the challenge was based upon Article 43 which debars the President from holding another office of profit and the bar appears to be equivocal. But the raply of Mr. Aziz Munshi is also weighty that Article 41 (7) itself has allowed General Muhamman Ziaul Haq to be some the President of Pakistan notwithstanding the provisions of article 41 and Article 43, and has further allowed him to hold that office for a per od of 5 years from the day of joint sitting of Majlis-e-Shoora and hence the bar of Article 43 is not applicable to General Muhammad Ziaul Haq, because the Constitution itself allows General Muhammad Ziaul Haq to continue to hold the office of President. Even a General is the holder of an office of profit in the Pakistan Army which carries emoluents and therefore the objection of the petitioner is answered by the Consti ution itself. Since this provision is contained in the Constitution itself, therefore, the effect of Article 43 is neutralised. However, it is not X necess I y to consider the matter in further detail in view of the fatal objecti n about the territorial jurisdiction of this Court in quo warranto matter as discussed hereafter.
25. There is objection to the jurisdiction on the basis that the respondent is not holding or purporting to hold a public office within the territorial jurisdiction of this Court and hence power under Article 199 (1) (b) (ii) cannot be exercised. Not much argument was advanced by the peti oner's counsel on this aspect. He merely asserted that since the COAS is the Commandar-in-Chief of Pakistan Army and the Army had its installatios in Sind which are inspected and visited by COAS, therefore, he holds a pub!Ic office within the territorial jurisdiction of this Court. Mr. Aziz Munshi had, on the other hand, pointed out that office of COAS was located at Islamabad and hence he was not holding any office within the territorial jurisdiction of this Court.
26. In this respect it may be useful to refer to a case of Indian Supreme Court reported in AIR 1953 SC 210 (213) where it was observed as under :- "Secondly the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories."
27. In the cited case the Madras High Court had issued a writ of prohibition against the Election Commissioner whose office was located at Delhi, but it heard an Election Reference at Madras, but still the Supreme Court of India held that High Court of Madras had no jurisdiction to issue such a writ as office of Election Commissioner was located at Delhi. The Supreme Court of India had relied upon AIR 1943 P C 164 where it was held that Madras High Court had no jurisdiction to issue writs of certiorari to any one outside the Presidency of Town of Madras.
28. However, initially it appeared to me that the above cases are not applicable to the present case as the office of COAS may be located Islamabad but the respondent No. 3 is having many cantonments under his control in various parts of Sind where he is exercising his control and authority and he is in fact incharge of defence of the whole country and, therefore, he should be treated to hold office and perform functions within the territorial jurisdiction of this Court and the word location in respect of COAS should not be confined to his headquarters at Islamabad, bu should include the installations and offices under the control of the COA in Sind as well where he exercises his authority.
32. But on closer examination it appears that in respect of the qu warranto proceedings the emphasis is not on performing of functions no it is the action of a functionary which is the deciding factor in this regard. What is necessary is that the office of the person should be either located within the territorial jurisdiction of this Court or that he should be resident in that jurisdiction. The office of the subordinates of that person are of no consequence.
33. The quo warranto writ is directed against the person himself and not his subordinates. We can, under Article 199 (1) (b) (ii) require a person who is, within our territorial jurisdiction (Sind), holding or purporting to hold a public office to show under what authority of law he claims to hold that office. Therel ore, either the respondent No. 3 should be shown to be resident in Sind, which he is evidently not, as he has his residence in Islamabad, or his office should be located in our jurisdiction. Again th office of COAS is situated at Rawalpindi/Islamabad and not in Sind. The location of the office of the subordinates of respondent No. 3 in Sind would not give us a jurisdiction to issue of writ of qua warranto as this writ is essentially directed against a person himself or his own office only.
' Even in a matter covered by Article 199 (a)(i) where admittedly the two respondents had their subordinate offices within the territorial jurisdiction of Peshawar High Court it was held by the Supreme Court in 1979 SCMR 555, that the said High Court did not have jurisdiction to issue a writ under Article 199 (1) (a) against the Government of Pakistan and the Director of Military Lands and Cantonments because their offices were situated in Rawalpindi. These obsetvations of the Supreme Court would apply with greater force in a matter under Article 199 (1) (b) (ii) where the quo warranto proceedings requires either the presence of the office or the residence of the person, who is holding that office, to be within the territorial jurisdiction of the High Court.
32. It would be useful to consider and compare the various jurisdictions of this Court under Article 199 as discussed below.
It is of course undoubted that this High Court has jurisdiction to issue writ of certiorari against respondent No. 3 under Article 199 (1) (a) (ii) if he takes an action or proceedings within the territorial jurisdiction of this Court and we can make a declaration in respect of legal effect of that action or proceedings. But no such action or proceedings of respondent No. 3 is challenged before us and hence there is no question of exercise of our powers under Article 199 (1) (a) (ii) in this petition. But it is also clear that if the impugned action is taken by the respondent outside our territorial jurisdiction men we have no jurisdiction to interfere in that action. Jurisdiction is, therefore, limited to this extent.
33. Similarly we can issue a direction against respondent No. 3 under Article 199 (1) (a) (ii) in respect of performance of his functions within the territorial jurisdiction of this Court and we can restrain him from doing anything he is not permitted by law to do or we can direct him to do anything within our territorial jurisdiction, which he is required by law to do. Reference is invited to PLD 1968 SC 387 (397) where the Election Commissioner of Pakistan having its office in Islamabad was held to be amenable to the jurisdiction of the High Court of East Pakistan as it was held to be a person or authority which exercises in the Province of East Pakistan functions in connection with the affairs of the Centre, namely, Elections to the office of the President etc. But again in this petition we are not required to issue any mandamus against the responded No. 3 as there is no allegation of illegal action or omission against him. But again it is clear that outside its territorial jurisdiction, this Court will not ask the respondent No. 3 to refrain from doing anything or direct him to do anything.
There again the jurisdiction is limited. It would be useful to refer to 1979 SCMR 555 (556-557) where it was held that since the Director of Military Lands and Cantonments, Rawalpindi whose order was brought under challenge was at Rawalpindi, therefore, the Peshawar High Court would have no territorial jurisdiction to issue any writ. It was observed in that case that Hazara Office of the Government of Pakistan and Director of Military Lands and Cantonments were only one chain in administrative set up and since that office had not done anything against the petitioner in that case nor any relief had been sought against it, not even a formal one, and it had not even been impleaded as a party therefore writ was not competent.
36. But it should be emphasised that both under Article 199 (1) (a) and (ii) the location of the office of the respondent No. 3 or his residence is not important and it is the performing of the fuctions or the doing of any act or proceedings or omission within our jurisdiction which invests us with jurisdiction under these two clauses.
37. However, the matter of issuing of quo warranto under Article 1991 (i) (b) (ii) is quite different and here the jurisdiction is not co-extensive with the performance of functions or the capacity to do any act or omission within our territorial jurisdiction but it is restricted to the person who is holding a public office within the territorial jurisdiction of the High Court. Therefore, if the office is held outside the jurisdiction of the High Court and the person is also not residing here then we do not have jurisdiction to call upon him to show his authority. Our hands are tied by the constitution if he is beyond our territorial jurisdiction. In PLD 1947 P C 90 (Hamid Haan v. Bonwari Lal) where the Howarah Corporation had been superseded and Hamid Hassan had been appointed in place of the Councillors and writ in the nature of quo warranto had been issued by Calcutta High Court, it was held by the P. C. As under :- "Jurisdiction of Calcutta High Court in the nature of quo warranto arises in exercise of ordinary Original Civil Jurisdiction and is confined to the town of Calcutta and as the appellant does not resIt is, therefore, clear to us that quo warranto proceedings are directed against a particular person or his office and in case he is not resident within the jurisdiction of this Court or his office is not located here then we have no jurisdiction. No one had even alleged that there was any office of Chief of Army Staff in Sind and hence it is clear to us that the office objection in respect of jurisdiction is fatal and, therefore, we have no jurisdiction to entertain this petition.
OPINION OF THE FULL BENGH ' By unanimous opinion it is held that this Court has no territorial jurisdiction to entertain the petition which is in nature of quo warranto. R By majority opinion it is held that the petition is not entertainable in view of the bar contained in Article 199(3) of the Constitution.