IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Present:
Mr. Justice Umar Ata Bandial, HACJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Muhammad Ali Mazhar

SUO MOTU CASE NO.4 OF 2021

In attendance:
Mr. Khalid Javed Khan,
Attorney General for Pakistan.
Mr. Aamir Rehman, Addl. AGP.

Mr. M. Latif Afridi, President SCBAP.

Mr. Khushdil Khan, Vice Chairman, PBC.

Mr. Jehangir Khan Jadoon, ASC.

Mr. Amjad Nazir Bhatti,
President, Press Association of Supreme Court

Dates of hearing: 23, 25 and 26.08.2021.

ORDER

Munib Akhtar, J.: This matter was disposed of by a short order on

26.08.2021 (reported as In the matter of Suo Motu Case No. 4 of
2021 [No.3] 2021 SCMR 1612), which was in the following terms:

“For detailed reasons to be recorded later and subject to

what is set out therein by way of amplification or otherwise:

1. It is declared that the invocation/assumption of the

suo motu jurisdiction of this Court under Article 184(3) of
the Constitution is based on, and shall be guided by, the
following principles:

a. The Chief Justice of Pakistan is the sole authority by

and through whom the said jurisdiction can be, and is to
be, invoked/ assumed.

b. The Chief Justice may invoke/assume the said

jurisdiction in his discretion and shall do so if so
requested or recommended by a Bench of the Court.

c. No Bench may take any step or make any order

(whether in any pending proceedings or otherwise) as
would or could constitute exercise of the suo motu
jurisdiction (such as, but not limited to, the issuance of
SMC 4/2021 2

any notice, making any enquiry or summoning any

person or authority or any report) unless and until the
Chief Justice has invoked/assumed the said jurisdiction.

2. All matters already pending in respect of, or involving,

the suo motu jurisdiction of the Court shall, notwithstanding
para 1, continue to be heard and disposed of by such
Benches as are constituted from time to time by the Chief
Justice.

3. In view of the above, the order dated 20.08.2021

stands recalled. SMC No.4 of 2021 and all filings therein
shall stand disposed of.

4. The substantive claims made by the Press Association

of Supreme Court and others in the application presented in
Court on 20.08.2021 shall be placed before the Chief Justice
of Pakistan for consideration.”

Those reasons are given below.

2. On August 20th, a Friday, the judicial day started with a

ceremony: the oath taking of Justice Umar Ata Bandial as the
Hon’ble Acting Chief Justice of Pakistan (“HACJ”). The oath was
administered by Justice Qazi Faez Isa. That day three Benches
held court. The first (“Bench-I”), comprising of three members, was
headed by the HACJ. The second (“Bench-II”), comprising of two
members, was headed by Justice Qazi Faez Isa. The third (“Bench-
III”), comprising of three members, was headed by Justice Ijaz Ul
Ahsan. By all accounts, the day proceeded in the normal and
ordinary course insofar as the cause list of each Bench was
concerned. However, as the day drew to a close, something quite
extraordinary—indeed unprecedented—occurred, that triggered a
chain of events that has culminated in this judgment.

3. In Bench-II, it appears that the learned Judges had finished

with their work as per the cause list but had not yet risen for the
day. It was apparently at that moment that a group of journalists/
vloggers, who either were already present in the courtroom or
entered at that time, came forward and presented a
remonstrance—an application of grievances—to the learned senior
member of the Bench. The said document, referring to Article
184(3) of the Constitution, set out in some detail their grievances
as regards stated serious, persistent and continuing violations of
their fundamental rights as such by various agencies and actors,
named and unnamed. The remonstrance (herein after the
“Application”) was signed by five journalists/vloggers, who
SMC 4/2021 3

included the then present and a former President of the

professional body, the Press Association of the Supreme Court
(herein after the “Association”). The Application was perused by the
learned senior member. It appears that also present in the
courtroom was a vlogger who had not signed the Application. It
seems that the learned senior member queried from him as to why
he was not a signatory. It appears that the vlogger stated that he
did not agree with the presentation of the Application. This was
apparently for the reason that there was one (or perhaps more)
petition(s) under Article 199 of the Constitution pending in the
Islamabad High Court, the subject matter of which at least
partially overlapped with what was set out in the Application. (In
vlogs posted thereafter, this vlogger expressed the view that it was
his understanding that the applicant-journalists/vloggers were
only interested in presenting their Application to Bench-II, i.e., as
headed by the learned senior member thereof.) Be that as it may,
in the event a detailed order was made by the learned Bench. The
order has since been reported as In the matter of Suo Motu Case No.
4 of 2021 [No.1] 2021 SCMR 1602. The last paragraph stated as
follows (emphasis in underling supplied):

“13. The office is directed to number this petition and to

array the Press Association of the Supreme Court as petitioner
No. 1 and the other signatories as petitioner Nos. 2 to 5.
And, to array the aforementioned Ministries, FIA, PEMRA, IG
Police Islamabad, PTC and PBC as respondents. Adjourned
to 26 August 2021 by or before which date all replies
should be filed. Since this Bench of the Supreme Court has
taken notice pursuant to Article 184(3) of the Constitution
and has heard the applicants at some length let this case be
fixed before the same Bench.”

4. This order, and especially the portion thereof where

emphasis has been supplied, were unprecedented and prima facie
flew in the face of both the law and practice of the Court. The office
therefore felt it appropriate (in our view quite correctly) to place the
matter before the HACJ. A detailed note was put up, which inter
alia referred to past precedents and traced in some detail the
history and manner in which the suo motu jurisdiction of the
Court had hitherto been invoked. The HACJ was pleased to make
the following order thereon on 21.08.2021 (emphasis supplied):

“14. The order of the learned Bench dated 20.08.2021

directing registration of application now numbered as SMC
SMC 4/2021 4

No.4 of 2021 takes Suo Motu notice of the said application

submitted in the Court room. It orders notice to a number of
Federal Government authorities as well as the Law Officers
of the Federation and Provinces. The order proceeds to fix a
date for next hearing of the matter, namely, 26.08.2021 and
further directs that such matter be listed before the same
Bench that has passed the order.

15. This office note has put up a number of orders passed

by learned Benches of this Court which demonstrate a clear
practice to refer each of the foregoing aspects, namely, notice,
date of hearing and composition of Bench to the Chief Justice.
A circular dated 19.07.2005 on the subject has also been
placed on record.

16. The order dated 20.08.2021, prima facie, deviates from

the established practice of the Court in respect of invocation of
its Suo Motu jurisdiction. Therefore, what action may be taken
pursuant to the said order dated 20.08.2021 requires clarity
for which it would be appropriate that the matter is addressed
on the judicial side. Accordingly, a larger Bench comprising:

Mr. Justice Umar Ata Bandial, HACJ

Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Mr. Justice Qazi Muhammad Amin Ahmad
Mr. Justice Muhammad Ali Mazhar

is constituted to hear the matter on Monday 23.08.2021.”

5. On August 23rd, the immediately following Monday, when the

larger Bench took up the matter, Mr. M. Latif Afridi, the President
of the Supreme Court Bar Association of Pakistan sought
permission to make some submissions. Permission was granted
and after hearing the learned President an order was made, since
reported as In the matter of Suo Motu Case No. 4 of 2021 [No.2]
2021 SCMR 1609. Notices were directed to be issued to the learned
Attorney General for Pakistan, the learned President SCBA, the
learned Vice Chairman of the Pakistan Bar Council and learned
counsel, if any, who wished to appear on behalf of the journalists/
vloggers who had filed the Application. The order, inter alia, stated
as follows (emphasis in underlining supplied):

“3. It is important that the original constitutional jurisdiction

of the Court under Article 184(3) read with its powers under
Article 187 of the Constitution of Islamic Republic of
Pakistan (‘Constitution’) is invoked under a procedural
scheme that lends credibility, certainty and consistency to
the substantive proceedings that follow in the exercise of
that jurisdiction. The Court has a discernible settled practice
regarding the procedural issue of how Suo Motu motions
may be entertained by the Court. In contrast, however, the
SMC 4/2021 5

order dated 20.08.2021, prima facie, makes a departure from

the norms of the applicable procedural practice. Taking into
account the distinction between the invocation of the
jurisdiction of the Court on the one hand and the exercise
thereof on the other, the question arises: How is the Suo
Motu jurisdiction of the Court under Article 184(3) of the
Constitution to be invoked? In the light of the answer to this
question the propriety, manner and extent to which the
order dated 20.08.2021 can be implemented by the office is
another question that needs to be addressed.

5. At the moment, the judicial order dated 20.08.2021

directing notice to and reports from several Federal
Government authorities is in the field. On account of the
question now before the Court which goes to the root of the
jurisdiction, it is inappropriate to implement the said order
because that may obscure and unsettle the practice of the
Court for invoking its Suo Motu jurisdiction resulting in
needless uncertainty and controversy with attendant
consequences. Therefore, the resolution of the question
raised before this Court at an early date is essential.
Accordingly, the parties and the learned Law Officer named
above shall come prepared with their submissions on
25.08.2021. Meanwhile, the order of the learned two
Member Bench dated 20.08.2021 shall remain in abeyance.”

It was also clarified as follows (emphasis supplied):

“4. … However, it must be borne in mind that
notwithstanding an important question raised before the
Court by the applicant journalists, we are neither in a
position nor intend to consider their substantive grievance in
the exercise of our Suo Motu jurisdiction at this stage. The
only aspect of the case that is presently under our
consideration is the manner and procedure whereby the Suo
Motu jurisdiction is to be invoked and in particular whether,
and if so how, such action may be initiated at the instance or
on the recommendation of a learned Bench of this Court.”

6. On August 25th, when the matter was taken up, the learned
Attorney General led in making submissions. He began with what
was called a clarificatory submission. It was submitted that it was
being said in some quarters that the Larger Bench was a
“monitoring” Bench that had been constituted over and above
Bench-II. The learned Attorney General strongly dispelled this
impression. It was submitted that the Larger Bench was not in any
manner a “monitoring” Bench, but rather an enlarged one to
consider the important question (as set out in the order of
23.08.2021) raised by the making of the order of 20.08.2021 by
Bench-II. It was submitted that the latter order was not final; it
could be recalled or modified at any time. There was no
SMC 4/2021 6

requirement that the matter initiated in terms of the order of

20.08.2021 had to be heard by the same Bench and, in particular,
nothing therein that placed a clog on the power of the Chief Justice
(here the HACJ) to constitute a larger Bench for the hearing.
Pending proceedings were routinely heard by different Benches as
constituted from time to time.

7. We pause to state that in our view the learned Attorney

General correctly set out the legal position. As explained in detail
in the paras below Benches of this Court are constituted by the
Chief Justice and they cannot (and specifically in the context of
invoking suo motu the jurisdiction under Article 184(3)) self-
constitute or self-propagate or self-perpetuate. As we conclude
below, that, with respect, was a fundamental error made by the
learned Bench-II in making the order of 20.08.2021, which was in
any case not a final order dispositive of anything said therein or
done thereby. It was fully within the power of the HACJ to
constitute a larger Bench to consider the question raised in para 3
of the order dated 23.08.2021. This Bench is not in any sense or
manner a “monitoring” Bench set up over and above the learned
Bench-II. It is so held.

8. Continuing with the submissions of the learned Attorney

General, it was submitted (relying on a written synopsis placed by
him before the Court) that the jurisdiction of the Court under
Article 184(3) was invoked through various methods. These were
(a) the formal filing of a petition, in compliance with the various
procedural and other requirements as set out in the Supreme
Court Rules, 1980 (“1980 Rules”), (b) an order by a Bench hearing
a matter (i.e., petition, appeal, etc) that it be regarded as one under
Article 184(3), (c) a Bench invoking the said jurisdiction in respect
of any matter arising from a matter being heard, though distinct
and separate from it, (d) the Chief Justice suo motu invoking the
jurisdiction under Article 184(3), (e) one or more Judges as such
(i.e., not while sitting as a member of a Bench) taking notice of a
matter and referring it to the Chief Justice and (f) a singular
situation where a Bench suo motu invoked the jurisdiction and did
not refer it to the Chief Justice, but the matter was on an office
note so brought to the latter’s attention and the matter was
ordered to be listed separately as a suo motu case (SMC). The
SMC 4/2021 7

learned Attorney General referred to various examples in this

regard, which were placed before us in the paper book, taking us
in detail through the same. The learned Attorney General referred
to various judgments and further submitted that it was well settled
that the Chief Justice was the master of the roster and the
constitution of Benches for the hearing of cases was a power that
vested solely in him. It was submitted that although the approach
of the Court for invoking of the jurisdiction under Article 184(3)
showed great flexibility, a Bench constituted for the hearing of
cases could not purport to act independently and entertain matters
under or with reference to the said Article and hear and decide the
same without any reference or recourse to the Chief Justice. This,
it was submitted, would not be conducive to the public good and
may in fact lead to conflicting decisions and administrative and
judicial contradictions. It was also specifically submitted as follows
(para VI of the written synopsis):

“An even more compelling consideration which calls for

regulating the procedure for invoking the jurisdiction is that
if individual parties or litigants are allowed to pick and
choose benches of their preference, this may result in
complete chaos which would seriously undermine the system
of administration of justice in the country. This may also
result in allegations of nepotism and favouritism, which
though will invariably be frivolous and unwarranted, yet it
will shake the public confidence in the institution of
Judiciary.”

This was characterized by the learned Attorney General as

being, or leading to the possibility of, “forum shopping” which
ought to be condemned in no uncertain terms and firmly stamped
out. The learned Attorney General concluded by making specific
recommendations with regard to the invoking of the suo motu
jurisdiction (in, especially, para IX of the written synopsis). He
also, at the conclusion of the hearing, drew attention to the
position with regard to the Indian Supreme Court and placed
before us the relevant extract from the rules of procedure of that
Court.

9. The learned Vice Chairman of the Pakistan Bar Council

(“PBC”) read out the orders of 20.08.2021 and 23.08.2021 and a
circular that had been issued in 2005 by the then Chief Justice.
Referring to Article 184(3) and the constitution of Benches in terms
of Order XI of the 1980 Rules, the learned Vice Chairman
SMC 4/2021 8

submitted that the learned Bench-II had acted well within the
jurisdiction of the Court when it entertained the Application. Such
was permissible and not contrary to law. Strong reliance was
placed on Watan Party and others v Federation of Pakistan and
others PLD 2012 SC 292, 327-8. Referring to the circular aforesaid,
it was submitted that it duly recognized that a Bench of the Court
could invoke suo motu the jurisdiction under Article 184(3). If at
all (although that was not accepted) the consideration of the
Application and the making of an order on the basis thereof or with
reference thereto was a lapse it was only procedural in nature and
nothing more. Reliance was placed on Suo Motu Case No. 17 of
2017 2019 SCMR 318. Reference was also made to the inherent
powers of the Court under O. XXXIII, Rr. 6 and 7 of the 1980
Rules. It was submitted that the order of 20.08.2021 was valid and
proper and called for no modification or recall.

10. Learned counsel appearing for one applicant-vlogger (Mr.

Aamir Mir) supported the order of 20.08.2021. Learned counsel
referred to Article 175(2) and 184(3) and a judgment of this Court
reported as Brother Steel Mills Ltd. and others v Mian Ilyas Miraj
and others PLD 1996 SC 543 at 547. It was submitted that when
the order of 20.08.2021 was considered, it was not at all a suo
motu invocation of the jurisdiction. Rather, it was simply that the
learned Bench-II, on an examination of the Application, considered
it a proper matter for consideration and disposal under Article
184(3) and directed the office to register it as such. It may be noted
that on a query from the Court, learned counsel made a
remarkable statement: that the applicant-vlogger whom he
represented had simply received the Application via WhatsApp and
had signed it as such. The source from whom the Application was
received was not disclosed by learned counsel. The President of the
Press Association of Supreme Court filed a statement before the
Court which, inter alia, stated that the questions raised were those
of law in respect of which he was not in a position to be of
assistance. Full confidence was reposed in the Court and all the
Judges thereof.

11. The learned President of the Supreme Court Bar Association

(“SCBA”), relying on Article 176, submitted that Article 184(3)
referred to the “Supreme Court”. It was submitted that all Benches
SMC 4/2021 9

of the Court were the “Supreme Court” and exercised the various
jurisdictions vesting in the Court. Such was also the case with the
learned Bench-II when it was presented with the Application, and
considered it and made an appropriate order in relation thereto
with reference to, and in terms of, Article 184(3). If any matter
came to the knowledge of any Bench with reference to Article
184(3) it could formulate an appropriate question in relation
thereto and refer the matter to the Chief Justice. The learned
President also relied on the cases referred to by the learned Vice
Chairman, PBC and submitted that the order of 20.08.2021 by the
learned Bench-II was valid and proper. The learned President
submitted that the question posed in the order of 23.08.2021 was
important and required resolution, but that that ought to be done
by the Full Court and prayed that the question be so referred to
the whole of the Court and decided accordingly. We may note that
the learned President had earlier also made the same request on
23.08.2021.

12. We have heard learned counsel as above and considered the

record and case law cited. Before we address the question raised
three points may be made. Firstly, we are concerned, in relation to
Article 184(3) of the Constitution, with the suo motu invoking of
the jurisdiction of this Court. At least some, and probably many, of
the observations made in this judgment will be found to apply not
merely to that jurisdiction but also to the others that inhere in this
Court and even to the jurisdictions of courts at large. This is
inevitable. However, strictly speaking, we are concerned with a
limited and specific question of law. Secondly, some (and, again,
perhaps many) of the observations made may appear to be
unqualified and cast in absolute terms. However, rules and
principles of law both substantive and procedural, howsoever
broadly stated and general they may appear to be, invariably
become encrusted in provisos, qualifications, limitations,
exceptions and the like. Likewise, the various Articles of the
Constitution here considered have been before the Court earlier as
well, and a rich, multilayered, nuanced and complex jurisprudence
has developed in relation thereto. To set out all of that in relation
to what is said in this judgment would be needlessly burdensome.
Therefore, the apparent absoluteness of what is said here both in
relation to specific Articles of the Constitution and principles of
SMC 4/2021 10

constitutional law should not mislead. The qualifications, provisos,

etc are to be taken as read. Finally, a point of nomenclature. The
point in issue—and the question to be addressed here—relates to
what is generally referred as the “suo motu jurisdiction of the
Court”. That, really speaking, is nothing but convenient shorthand
for the “suo motu invocation of the jurisdiction of the Court under
Article 184(3)”. In other words, “suo motu jurisdiction” is not some
substantive jurisdiction separate from, or independent of, Article
184(3). Rather, it is but a way of how that jurisdiction is invoked.
These expressions are therefore understood to be the same and are
used here interchangeably.

13. The precise question before us, set out in para 3 of the order
of 23.08.2021, is narrowly shaped and tightly focused. It relates to
the judicial process for a certain jurisdiction of this Court. In order
to provide the necessary context and analytical framework that
process can be thought of as comprising three “categories”. By way
of a starting point the categories can be set out as follows:

Firstly, a court must have jurisdiction; secondly, that

jurisdiction must be properly invoked; and, thirdly, the
jurisdiction must be properly exercised.

It is to be kept in mind that the categorization is sequential.

The first category is a sine qua non for the other two. And, for
jurisdiction to be exercised it must first be invoked. The first
category requires that the court must have the legal power to
decide (since that, in its essence, is what it means to have
jurisdiction) whatever it is that it is called upon to decide. In the
common law tradition that, in the vast majority of cases, is a
dispute of the sort that is regarded as susceptible to determination
by a court of law, cast in adversarial terms between two or more
parties. The second category raises, in the present context,
questions of “who” and “how”, i.e., who can bring a dispute before
a court (a question of standing) and the manner in which the
dispute is to be so brought (e.g., by filing a plaint or presenting a
petition etc). The third category, subject to the first two, is the
actual exercise of the power to decide.

14. While we are concerned with the second category it must be

kept in mind that it is but one among three. There is also, as we
SMC 4/2021 11

will see later, a fourth “element” involved, which serves as a link or

bridge between the second and third categories, and can be
regarded as raising a “how” issue, though of a nature different
from that posited above. But, the essence of the matter is
contained in the tripartite formulation. Conceptually, each
category is distinct and separate from the others and as will be
seen it was an absence and loss of clarity in this regard that, with
respect, led to error on 20.08.2021. But this does not mean that
each category operates independently of the others. There are
many instances of linkages between the three. Most importantly,
as the jurisdiction continues to be exercised as cases come before
the Court (the third category) that can, and does, alter judicial
understanding of what the jurisdiction means. That obviously
affects the first category, i.e., what it means to “have” jurisdiction.
And that can affect who can invoke the jurisdiction and how it can
be invoked, i.e., the second category. Likewise, the question
whether the court has jurisdiction and/or that the jurisdiction has
been properly invoked, if raised (e.g.) by way of an objection or
when considering a threshold requirement, can only be resolved by
the court exercising jurisdiction. However, even though it may not
be possible to describe the relationship between the three
categories exclusively in linear terms, the sequencing already
referred to is nonetheless an integral aspect of the judicial process.
That the relationship is dynamic and interactive (and may even to
a certain extent be iterative) ought not to be ignored. But at the
same time it must be clearly understood that linkages and
“spillovers” do not affect, and certainly cannot destroy or deny, the
conceptual categorization into which the judicial process is
arranged.

15. It is also important to note that this tripartite arrangement is

not simply a matter of merely classificatory convenience. The three
categories are a blend of matters substantive and procedural.
Certainly, the one with which we are concerned is the one most
procedural in nature and operation. But, as we now intend to
show, taken as a whole the three categories constitute the very
essence of judicial power. This point is important for achieving
conceptual clarity, so as to enable the question before us to be
properly addressed. For this however a constitutional digression is
required, to which we turn.
SMC 4/2021 12

16. The constitutional doctrine of separation of powers between

the three organs of the State, i.e., the legislative, executive and
judicial branches is not expressly set out in our Constitution but it
is by now well established that it is an important and fundamental
aspect of constitutional law. The doctrine infuses and informs
constitutional structures, is indispensable for a proper
understanding of the organs of governance and is vital for a proper
delineation of their functions and interactions, whether in
apposition or opposition. In our jurisprudence the doctrine is
usually referred to as the trichotomy of powers. It is established
by, and attested in, any number of judgments of this Court. Thus,
in Jurists Foundation v Federal Government and others PLD 2020
SC 1 it was stated to be “a fundamental principle of our
constitutional construct” (pg. 40). The Full Court, in Dr. Mobashir
Hassan and others v Federation of Pakistan and others PLD 2010
SC 265 referred to a number of decisions and set out the doctrine
in its traditional form, as follows (pg. 347):

“It is also to be borne in mind that Constitution envisages

the trichotomy of powers amongst three organs of the State,
namely the legislature, executive and the judiciary. The
legislature is assigned the task of law making, the executive
to execute such law and the judiciary to interpret the laws.
None of the organs of the State can encroach upon the field
of the others.”

And in the leading case of State v Zia-ur-Rehman and others

PLD 1973 SC 49 (herein after “Ziaur Rehman”) the following general
description is to be found (pg. 66, emphasis in original):

“…in the case of a Government set up under a written

Constitution, the functions of the State are distributed
amongst the various State functionaries and their respective
powers defined by the Constitution. The normal scheme
under such a system, with which we are familiar, is to have
a trichotomy of powers between the executive, the Legislature
and the judiciary. But each of these organs may itself be
fashioned in a variety of different shapes and forms. Thus
the Legislature may be unicameral or bicameral; the
legislative subjects may be divided between the federating
units and the federation in a federal system or even the
legislative power may be divided between the executive and
the Legislature as in our present system. The executive,
Legislature takes the Presidential or the Parliamentary form.
The judiciary also may consist of various types and grades of
Courts with the highest at the apex either as an ultimate
Court of Appeal or a Court of Cassation. There may also be
other administrative tribunals outside the judicial pyramid.
SMC 4/2021 13

In all such cases, it will also be the function of the

constitution to define the functions of each organ or each
branch of an organ, as also specify the territories in which,
the subjects in respect of which and sometimes even the
circumstances in which these functions will be exercised by
each of these organs or sub‑organs. Limitations would,
therefore, be inherent under such a system so that one
organ or sub‑organ may not encroach upon the legitimate
field of the other. Thus, under a written Constitution, the
Legislature of a federal unit will not be able to legislate in
respect of a subject which is within the field of the federal
Legislature, nor will a federal Legislature be able to legislate
upon a subject which is within the exclusive field of the
Legislature of the federating units. It cannot, therefore, be
said that a Legislature, under a written Constitution,
possesses the same powers of "omnipotence" as the British
Parliament. Its powers have necessarily to be derived from,
and to be circumscribed within, the four corners of the
written Constitution.”

17. The position under our Constitution—i.e., where the doctrine

is not expressly set out in the text but is nonetheless firmly
entrenched in, indeed is deeply woven into the very fabric of,
constitutional law—may be contrasted with, e.g., the US
Constitution. There, as is well known, the doctrine is expressly set
out in the text. Thus, Article I expressly vests “all” legislative
powers of the United States in Congress, Article II vests executive
power in the President and Article III vests the “judicial Power” in
the Supreme Court and such “inferior” courts as may be created by
Congress. The point is reinforced by the adoption of the
Presidential form of government. Our Constitution, in contrast,
sets up a polity that is generally described as a Westminster style
parliamentary democracy. Here the division between the executive
and legislative branches is much less rigid, with accompanying
overlapping. Thus, to take but one example at the federal level (the
provincial position being equivalent), our Constitution allows for
the promulgation of Ordinances by the executive branch. Article
89(2) expressly provides that an Ordinance is to have the same
force and effect as an Act of Parliament, and Article 260(2) states
that whenever the Constitution speaks of an Act of Parliament or a
federal law, that is to be taken to include an Ordinance. However,
the distinction between these branches on the one hand, and the
judicial branch on the other, is much more rigid and strictly
enforced. This is so, among other reasons, in order to ensure and
protect the vital constitutional principles of the independence of
SMC 4/2021 14

the judiciary and access to justice, which are now regarded as

fundamental rights in and of themselves. The intermingling and
overlapping of executive and legislative powers is thus to be
contrasted with their rigid separateness from the judicial power.

18. While the Constitution does not, as such, use the term
“judicial power” it does say something, in Article 175, of the
judicial branch in general terms. Clause (1) provides that there
shall be a Supreme Court, a High Court for each Province and for
the Islamabad Capital Territory and “such other courts as may be
established by law”. Clause (2) provides as follows: “No court shall
have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law.” Cast though it is in negative
terms, this provision ought not, in our view, be read in minimalist
and literalist terms notwithstanding, with respect, some
observations in the case law that might suggest otherwise. For one
thing, this may seriously jeopardize or compromise the
independence of the judiciary and result in a substantial erosion
(and even denial) of access to justice. Further, such an approach
would, among other consequences, divest the courts of jurisdiction
that is regarded as inherent. To take but one example, it is well
established that s. 151 CPC does not invest the court with any
powers but only saves its inherent powers. A literal and minimalist
reading of Article 175(2) may cast doubt on this (and equivalent)
provisions, which would clearly be incorrect. In our view, the
conferring of jurisdiction on courts by the Constitution and the law
(and since the law must ultimately find repose in the Constitution,
the former in particular) does not mean only such as is expressly
so conferred. It includes also, but is not limited to, all such
jurisdiction as by intendment or necessary implication (especially
including, on the constitutional plane, such as may be required to
give full expression to constitutional provisions and principles)
must be held to vest or inhere in courts of law. Perhaps a better
appreciation of Article 175(2) can be obtained by inverting its
language: “all courts shall have only such jurisdiction as is or may
be conferred on them by the Constitution or by or under any law”.
When so viewed, it becomes clearer that Article 175 does tell us,
albeit indirectly, something about the “judicial power” of the State.
On a combined reading of clauses (1) and (2) it can be concluded
that, by application of the doctrine of separation of powers, the
SMC 4/2021 15

judicial power does vest in the judiciary but that the actual
allocation of this power among the various components of the
judicial branch (i.e., the jurisdiction of a particular court) is to be
as is conferred (either directly or otherwise) by the Constitution or
law. Clause (3), in requiring the separation of the judiciary from
the executive, provides further confirmation that the judicial power
vests in the judicial branch. We pause here to note the
Constitution also recognizes, in addition to Courts of law, the
existence and jurisdiction of what are called Administrative Courts
and Tribunals. This is not only under Articles 212 and 225 but
also in terms of entry No. 14 of the Federal Legislative List (and a
corresponding legislative competence that, though not enumerated,
is available also to the Provinces). Quite how the Constitution
seeks to establish and balance the interaction and interplay
between Court on the one hand and Tribunals on the other in
relation to judicial power is a matter not before us and hence
outside the scope of what is said here.

19. The distinction between judicial power on the one hand and
jurisdiction on the other was also noted in Ziaur Rehman in the
following terms by the learned Chief Justice, who gave the
judgment of the Court (pp. 69-70, emphasis in original):

“… 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, Vol. XVI, Paragraph 144, as
follows:‑

"The judiciary or judicial department is an independent

and equal coordinate branch of Government, and is that
branch thereof which is intended to interpret, construe,
and apply the law, or that department of Government
which is charged with the declaration of what the law is,
and its construction, so far as it is written law."

This power, it is said, is inherent in the judiciary by reason

of the system of division of powers itself under which, as
Chief Justice Marshall put it, "the Legislature makes, the
executive executes, and the judiciary construes, the law."
Thus, the determination of what the existing law is in
relation to something already done or happened is the
function of the judiciary while the pre determination of what
the law shall be for the regulation of all future cases falling
under its provisions is the function of the Legislature.
SMC 4/2021 16

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 [Cassation] 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 power to hear and determine will be
exerciseable. These are all matters which are commonly
comprised in what is called the jurisdiction of the Court. It
expresses the concept of the particular res or subject
manner over which the judicial power is to be exercised and
the manner of its exercise. Jurisdiction is, therefore, a right
to adjudicate concerning a particular subject‑matter in a
given case, as also the authority to exercise in a particular
manner the judicial power vested in the Court.”

20. Thus, on the constitutional plane “jurisdiction” as used in

Article 175(2) refers to or indicates that part of the judicial power
that is allocated to a particular court. To the crucial question, what
is meant by “judicial power”, one answer has been given in Ziaur
Rehman in the passages just extracted above. However, with
respect, it is only a partial answer. It accords with the traditional
description of the trichotomy of powers, which has also been noted
above. It no doubt sufficed for purposes of the issues raised by the
facts and circumstances of the appeals that were before the Court.
It is also pertinent to note that the extract taken in Ziaur Rehman
from Corpus Juris Secundum, Vol. 16, §144, is from the
commentary to that section. The section contains, in its opening
paragraph the following statement of the law (emphasis supplied):

“The term “judicial power” as employed to designate one of

the three great branches or departments in which the powers
of government are divided may be broadly defined as the
power to hear and determine those matters which affect life,
liberty, or property, and the judiciary, or judicial department
of the government as that branch thereof which is intended
to interpret, construe, and apply the law.”

The question with which we have to contend is different from

the issues before the Court in Ziaur Rehman and necessitates a
deeper analysis, at a more fundamental level. This requires us, for
reasons that will become clear shortly, to take a look at the
Australian Constitution.
SMC 4/2021 17

21. Now, the constitution just mentioned, like the US

Constitution, provides expressly for the separation of powers.
Section 1 vests the legislative power of the Commonwealth in the
Federal Parliament and s. 61 vests the executive power in the
Queen (exercisable by the Governor-General acting on the (binding)
advice of the Federal Cabinet). Most relevantly for our purposes s.
71 (found in Chapter III of the Constitution) vests the “judicial
power” of the Commonwealth in a “Federal Supreme Court to be
called the High Court of Australia”, such other federal courts as
may be created and also other courts as may be invested with the
federal judicial power, in both instances by Parliament. However,
like Pakistan and unlike the position in the United States, the
polity set up by the Australian Constitution is also a Westminster
style parliamentary democracy (also referred to as the cabinet form
of government). What that means in the context of the doctrine of
separation of powers was explained by the High Court of Australia
in Wilson v Minister for Aboriginal and Islander Affairs (1996) 189
CLR 1, [1996] HCA 18 as follows (internal citations in this and
other judgments quoted below are omitted):

“10. … The functions of the judicial branch are

constitutionally separated from the functions of the
Legislature and the Executive - the political branches of
government: "The Constitution of the Commonwealth is
based upon a separation of the functions of government, and
the powers which it confers are divided into three classes -
legislative, executive and judicial". In each branch of
government, its proper powers are vested: ss 1, 61 and 71.
The Constitution reflects the broad principle that, subject to
the Westminster system of responsible government, the
powers in each category - whose character is determined
according to traditional British conceptions - are vested in
and are to be exercised by separate organs of government.
The functions of government are not separated because the
powers of one branch could not be exercised effectively by
the repository of the powers of another branch. To the
contrary, the separation of functions is designed to provide
checks and balances on the exercise of power by the
respective organs of government in which the powers are
reposed.

11. Harrison Moore wrote that under the Australian

Constitution there was, between legislative and executive
power on the one hand and judicial power on the other, "a
great cleavage". The function of the federal judicial branch is
the quelling of justiciable controversies…. The institutional
separation of the judicial power assists the public
perception, central to the system of government as a whole,
SMC 4/2021 18

that these controversies have been quelled by judges acting

independently of either of the other branches of government.

12. The separation of the judicial function from the other

functions of government advances two constitutional
objectives: the guarantee of liberty and, to that end, the
independence of Ch III judges….

13. The separation of the judiciary is no mere theoretical

construct. Blackstone rightly perceived that liberty is not
secured merely by the creation of separate institutions, some
judicial and some political, but also by separating the judges
who constitute the judicial institutions from those who
perform executive and legislative functions….

14. The separation of judicial function from the political

functions of government is a further constitutional
imperative that is designed to achieve the same end, not only
by avoiding the occasions when political influence might
affect judicial independence but by proscribing occasions
that might sap public confidence in the independence of the
Judiciary. That independence is especially important in a
federal system….”

The Privy Council emphasized the importance of the

independence of the judiciary in Attorney-General (Cth) v The
Queen [1957] 2 All ER 45, [1957] UKPC 4 (also known as the
Boilermakers’ case):

“…in a federal system the absolute independence of the

judiciary is the bulwark of the constitution against
encroachment whether by the legislature or by the executive.
To vest in the same body executive and judicial power is to
remove a vital constitutional safeguard.”

The foregoing observations well apply, mutatis mutandis, to

the position under our Constitution to the relationship and
interaction between the executive and legislative branches on the
one hand and the judicial branch on the other.

22. It will be seen from the foregoing that, notwithstanding the

express enunciation of the doctrine of separation of powers in the
Australian Constitution and the absence of such textual
statements in ours, the actual position under the two constitutions
is not dissimilar. It follows that what the High Court of Australia
has said of the meaning of “judicial power” in terms of s. 71 can be
usefully applied to what that means in relation to our Constitution.
And this brings us directly to the nub of this constitutional
digression: that the tripartite categorization of the judicial process
SMC 4/2021 19

described earlier is not a matter of mere procedure; it is part of the

very essence of the judicial power.

23. In the early case of Huddart, Parker and Co. v Moorehead

(1909) 8 CLR 330, [1909] HCA 36, Griffith, CJ formulated a
definition of “judicial power” that has proved enduring and is to
this day the leading statement of law in Australia. The learned
Chief Justice defined the expression as follows (at pg. 357):

“…I am of opinion that the words "judicial power" as used in

sec. 71 of the Constitution mean the power which every
sovereign authority must of necessity have to decide
controversies between its subjects, or between itself and its
subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal
which has power to give a binding and authoritative decision
(whether subject to appeal or not) is called upon to take
action.”

The Privy Council has at least twice paid tribute to this

formulation. In Shell Company of Australia Ltd. v. Federal
Commissioner of Taxation [1931] AC 275, [1930] UKPC 97, the
formulation was set out in extenso and described as “one of the
best definitions”. And in the Boilermakers’ case (supra) it was
called a “classic and widely accepted” definition. The High Court
itself has regarded it as seminal. In Private R v Cowen [2020] HCA
31, Edelman J in his concurring judgment recalled the many
earlier decisions where Griffith, CJ’s formulation was described as
“a classic statement of the characteristics of judicial authority” and
(echoing the Privy Council) “one of the best definitions of judicial
power” (see para. 172, and the authorities gathered in fn 296 and
297).

24. The definition put forward by Griffiths, CJ has also found

mention in our case law, albeit indirectly and as part of a general
consideration of Australian decisions as to the meaning of judicial
power: see Dr. Mubashir Hassan v Federation of Pakistan PLD 2010
SC 265 at 431 (para 132) and District Bar Association Rawalpindi v
Federation of Pakistan PLD 2015 SC 401 at 893 (judgment of Mian
Saqib Nisar, J. (as his Lordship then was) at para. 180). It has also
been considered and applied in other common law jurisdictions. In
India it has been cited many times, e.g., in Dr. Subramanian
Swamy v Arun Shourie (2014) 12 SCC 344, where among others
the earlier decision of Bharat Bank Ltd. v. Employees of the Bharat
SMC 4/2021 20

Bank AIR 1950 SC 188 was referred to. In the latter decision,
Mahajan, J in his concurring judgment called Griffith, CJ’s
formulation as the “best definition” on “high authority”. In Ireland,
it has been cited in Akpekpe v The Medical Council and others
[2013] IEHC 38, [2014] 3 IR 420, where the earlier “landmark”
judgment of M v The Medical Council [1984] 1 IR 485 was relied
upon, in which the “Huddart Parker” principles were expressly
adopted. In Sri Lanka, it was cited, among other cases, in Farooq v
Raymond and others [1996] LKSC 5, (1996) 1 Sri LR 217, and in
Canada one aspect of it was applied by the Supreme Court in
Dupont v Inglis [1958] SCR 535.

25. The foregoing survey of multi-jurisdictional authorities

shows that Griffith, CJ’s formulation has stood the test of time and
is regarded as virtually a judicial definition, and certainly as an
authoritative statement as to the legal meaning of judicial power. It
is not of course to be regarded as the absolute last word, as the ins
and outs of the Australian jurisprudence itself show. For example,
in R v Davison [1954] HCA 46, (1954) 90 CLR 353 it was said that
“[m]any attempts have been made to define judicial power, but it
has never been found possible to frame a definition that is at once
exclusive and exhaustive”, and in Attorney General (Cth) v Alinta
Ltd. [2008] HCA 2 Hayne J said (at [93]) that “no single
combination of necessary or sufficient factors identifies what is
judicial power”. Even the Privy Council, despite the tributes noted
above, did say in Labour Relations Board of Saskatchewan v John
East Iron Works Ltd. [1948] UKPC 75, [1949] AC 134 (an appeal
from Canada) as follows:

“Without attempting to give a comprehensive definition of

judicial power, they accept the view that its broad features
are accurately stated in that part of the judgment of Griffith
C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1909) 8
CLR, at p 357, which was approved by this Board in Shell
Co. of Australia Ltd. v. Federal Commissioner of Taxation
(1931) AC 275. Nor do they doubt, as was pointed out in the
latter case, that there are many positive features which are
essential to the existence of judicial power, yet by themselves
are not conclusive of it, or that any combination of such
features will fail to establish a judicial power if, as is a
common characteristic of so-called administrative tribunals,
the ultimate decision may be determined not merely by the
application of legal principles to ascertained facts but by
considerations of policy also.”
SMC 4/2021 21

Notwithstanding the foregoing, there can be no doubt that

Griffith, CJ’s formulation certainly captures the essence of the
concept and, in our view, illumines very well the nature of judicial
power under, and in relation to, our Constitution. We may also
note that the description of judicial power given in the opening
paragraph of § 144 of Vol. 16 of the Corpus Juris Secundum, noted
above (see para 20), accords with Griffith, CJ’s formulation
inasmuch as it likewise emphasizes that the essence of the power
is to “hear and determine” matters that “affect life, liberty, or
property”. Indeed, these three categories are found verbatim in
what was said by Griffith, CJ.

26. For present purposes, our immediate interest in Griffith,

CJ’s formulation is that the tripartite categorization of the judicial
process noted above can be clearly discerned in it. The formulation
comprises of two sentences. The first sentence (“the power which
every sovereign authority [i.e., courts which exercise this power in
terms of the doctrine of separation of powers] must of necessity
have to decide controversies….”) is equivalent to the first category,
of the requirement that the court must have jurisdiction to decide
whatever it is that it is called upon to decide. The second sentence
encapsulates the second and third categories. This sentence may
be recast as follows: “The exercise of this power does not begin until
[a court] is called upon to take action”. The apparent reversal of the
two categories is of course merely a textual device; the sequence is
established by the bridge provided by “until”. The tripartite
categorization thus lies at the heart of judicial power, as an
integral part thereof. Conceptual clarity with regard thereto, and
careful adherence to the sequencing, are not merely an aid to
better understanding; they are essential for a proper application of
the judicial power itself.

27. Griffith CJ’s formulation was, as is to be expected, cast in

orthodox, even classical terms squarely in line with the common
law tradition. There must be a dispute (“controversy”) relating to
legal rights or claims, disputants (whether all in the private sphere
or involving both the public and private spheres), one or more
claimants who come knocking at the door of the court (calling
upon it to take action) and an exercise of judicial power
(jurisdiction) by the court to resolve the dispute. This traditional
SMC 4/2021 22

approach works well enough in the vast majority of cases and the
tripartite categorization has been set out along similar lines. But,
things have moved on since 1909 and we have to address the suo
motu jurisdiction of this Court under Article 184(3), a late
twentieth century development that (if we may respectfully
conjecture) would perhaps have baffled Griffiths, CJ and may even
have been alien to him. But, however it might have fared with the
learned Chief Justice, there can now be no gainsaying that the suo
motu jurisdiction is an expression of the power that vests in the
judicial branch, and is a jurisdiction that stands allocated to this
Court alone in terms of Article 184(3). The question therefore
becomes as to how Griffith CJ’s formulation needs to be adapted
and restated in order to attain conceptual clarity with regard to the
tripartite categorization, specifically in the context of the suo motu
jurisdiction. To this we therefore turn.

28. Viewed analytically, the adaptation can be regarded as being

articulated in two “modes”, though three are given here, with the
first serving as a point of comparison and departure. The “modes”
are presented in a form suited for analytical purposes, and that
does not necessarily track the case law chronologically. The
“modes” did not develop linearly, neatly following one from the
other in the sequence set out below. In actuality they emerged in a
manner best described as interactive, iterative and interdependent.
Nor are the “modes” exclusive in the sense that the existence of
one precludes the others. The law, as it has developed, allows all to
co-exist. However, the aim of the present exercise remains, as
always, to attain conceptual clarity. The first “mode” of Article
184(3) is in substance no different from Griffith CJ’s formulation.
For, this involves one or more petitioners formally filing a petition
under the provision, that complies with all procedural
requirements (such as are, inter alia, set out in Order XXV of the
1980 Rules) and in which the former claim (against identified/
specified respondents) a denial, abridgement or curtailment of, or
interference with, one or more fundamental rights that are both
personal to them (i.e., inhere directly, immediately and specifically,
though not necessarily exclusively, in the claimants) and also raise
questions of public importance with reference to their enforcement.
Such petitions are eventually (after going through the normal
processes of the office) fixed for hearing and disposal before
SMC 4/2021 23

Benches of the Court as constituted from time to time by the Chief

Justice, i.e., for the exercise of the jurisdiction conferred by Article
184(3). As is clear from this brief description, the entire matter
moves from start to finish along orthodox lines. In principle, in this
“mode” the Court is a passive recipient. It springs into action (as it
were) only once, and when, called upon to act by claimants, by
(and on) presentation of their petition and then resolving the
dispute under Article 184(3) in adversarial terms. In practice, as a
result of experience with the other “modes” discussed below,
matters have developed along somewhat different lines. However,
this aspect need not detain us here.

29. In the second “mode” (i.e., the first requiring adaptation of

Griffith CJ’s formulation), the Court’s evolving understanding of
Article 184(3) caused its attention to focus more tightly (and in a
sense perhaps even exclusively) on what this provision enables it to
do, namely, enforce fundamental rights (subject to the requirement
that a question of public importance be involved). This involves a
shift in how the jurisdiction is viewed: not so much (or only) as a
power to decide a dispute in terms as outlined in the first “mode”
(important though that certainly is) but rather as a constitutional
duty to enforce fundamental rights, in particular of those segments
of society as are perceived to be marginalized, disempowered or
disadvantaged, especially including those who can be regarded, in
that powerfully evocative phrase from a bygone era, as “the
wretched of the earth”. Issues relating to minorities are another
area of concern. But not only that. In this changed perception of
the Court’s function, the jurisdiction is also regarded as a duty to
“cleanse” the constitutional structures, organs and institutions
and stand guard over them. The constitutional duty so conceived
may extend not only to identified or identifiable groups but even,
more diffusely, simply to the nation as a whole. Clearly, this shift
from power to duty alters perceptions as to the nature of the
jurisdiction that the Court “has” (i.e., the first category of the
tripartite formulation). It states the jurisdiction much more
expansively, inclusive as it now is of both a power and a duty, with
focus shifting (some might say decisively) from the former to the
latter. In terms of Griffith, CJ’s formulation the Court may not now
(especially when fulfilling its perceived duty) be seen as deciding a
dispute stricto sensu, but rather, more broadly, as resolving a
SMC 4/2021 24

“controversy” with regard to the enforcement of fundamental

rights. This adaptation, while necessary to accommodate the more
diffuse perception of what it is that the Court can do under Article
184(3), is nonetheless within the scope of any modern
understanding of what the learned Chief Justice said in the first
sentence of his description of the judicial power.

30. This change in perception also, among other things, inclines

the Court to adopt a more activist stance. After all, if the Court has
a duty to perform under Article 184(3), and one that is set on a
high (even exalted) constitutional pedestal, it cannot (as it were)
just sit around and wait for a case to drop in its docket that is not
merely a dispute stricto sensu but also has aspects and features
that comport with said duty. But the activist approach so
engendered requires a rethinking of the second category of the
tripartite formulation. Who it is that can now invoke the
jurisdiction of the Court (i.e., call upon it to take action) and how
that can be done? The changing perceptions of the second “mode”
require a loosening of standing requirements and the manner in
which the matter can be raised. And that is, in fact, what
happened. Thus, in the case cited by the learned Vice Chairman of
the PBC, Watan Party and others v Federation of Pakistan and
others PLD 2012 SC 292, petitions were formally filed under Article
184(3) raising issues said to be of public importance and involving
enforcement of fundamental rights which did not, as such, involve
directly, immediately and specifically any grievance or claim
personal to the petitioners; rather, they involved what might be
called the fundamental rights of the nation at large. The issue of
maintainability (which was raised by the Court itself: see at pg.
309, para 8) was answered in the affirmative, in terms of
observations made, inter alia, at pp. 327-8 (para 35) (which were
relied upon by the learned Vice Chairman). It is to be kept in mind
that this was not a case of suo motu jurisdiction. Rather, it was
one that, in our view, constitutes an important milestone in the
shaping and crystallization of the second “mode”. In this “mode”
then the person(s) who raise the matter under Article 184(3) (i.e.,
call upon the Court to take action) need not be claimants or
disputants stricto sensu, although of course they can certainly be
that as well. The petitioners can even be only informants, simply
laying certain facts before the Court as are regarded by them to
SMC 4/2021 25

involve questions of public importance for the enforcement of

fundamental rights of an identified or identifiable group (not
including the petitioners) or even, much more generally, of the
nation as a whole. Accompanying this loosening of the standing
requirement is also a relaxation of procedural requirements as to
how the matter is presented (but it is to be kept in mind that the
matter must still be presented formally in, or at least pass
through, the office). These adaptations, reflecting as they do the
idea the Court is now performing a constitutional duty, also mean
that the Court is not now to be regarded as proceeding only in
adversarial terms; there is a shift to what is called the inquisitorial
mode. As in the first “mode”, the matters that are to be regarded as
falling in the second “mode” are placed for hearing and disposal
before Benches of the Court constituted from time to time by the
Chief Justice for the exercise of the jurisdiction.

31. This brings us to the third “mode” (i.e., the second

adaptation to Griffith CJ’s formulation), which involves the suo
motu jurisdiction. Here, the view as regards the first category of
the tripartite formulation—i.e., what is the nature of the
jurisdiction that the Court has—remains the same as in the second
“mode”. Indeed, if anything there is an intensification of the
perception that Article 184(3) imposes a constitutional duty, and
hence a strengthening of the activist stance and a deepening of the
inquisitorial approach. Concomitantly, there are changes in
thinking as to the exercise of the jurisdiction (i.e., the third
category). The real change however is as regards the second
category, the invocation of the jurisdiction—and this is of course
the very question with which we are confronted. The invoking of
the jurisdiction suo motu is, in essence, recognition that what is
crucial is the information (i.e., the set of facts, howsoever briefly or
sketchily articulated) that constitutes the basis on which the
jurisdiction is to be exercised. As is clear from the second “mode”
the focus has shifted from the source of the information to the
information itself. Now, issues, if any, regarding the source in a
sense become almost wholly eclipsed. It will be seen that in the
first and second “modes”, the source is external to the institution.
(It may be noted that we have deliberately used the term
“institution” and not “Court”.) In the first “mode” the source is a
petitioner who is also directly, immediately and specifically a
SMC 4/2021 26

disputant/claimant. In the second “mode” the rules of standing

have been relaxed to the point that the petitioner need only be an
informant and nothing else. Yet, in both “modes” there is formally
someone who stands outside the institution. The third “mode” is
recognition that there need not be a petitioner at all as long as the
information is, or can become, available. However, there must still
be someone who brings forth the information. For, the requirement
that the jurisdiction has to be invoked (the second category), i.e.,
that the Court must be called upon by someone to take action (in
terms of Griffith CJ’s formulation) remains: it is, after all, part of
the essence of the judicial power. Who then is now to be that
someone? To this there can be only one answer: that someone
must be internal to the institution. Of course, the “someone” (to
whom we turn in a moment) would inevitably have some external
source for the information, e.g., a newspaper report or a complaint
or letter (anonymous or otherwise) or some other basis for the
relevant facts. But now, and this is the crucial difference from the
other two “modes”, there is no petitioner as such. It is someone
from within the institution itself who invokes, i.e., calls upon the
Court to exercise, the jurisdiction under Article 184(3).

32. Who can that “someone” be? In our view, realistically the
following possibilities present themselves:

a. it can be a Bench of the Court when acting judicially

as such; or

b. it can be one or more Judges as such, and here two

sub-possibilities exist: (i) it can be any one of the
Judges; or (ii) the Chief Justice alone;

It will be seen that these possibilities are internal; one

involves the Court exercising jurisdiction as such and the other the
institution, i.e., either a Judge (which would include the Chief
Justice) as such or the Chief Justice alone. It now remains to be
determined which of these possibilities is conceptually viable and
constitutionally permissible. We proceed seriatim.

33. In order to consider whether a Bench of the Court when

acting judicially as such can invoke the suo motu jurisdiction, we
need to consider the constitution of Benches and the allocation of
SMC 4/2021 27

work whereby the Benches exercise the jurisdiction of the Court.

This is indeed the fourth “element” which was alluded to in para
14 above, which serves as the link or bridge between the second
and third categories of the tripartite formulation. For, as is well
known, in the ordinary course this Court does not sit en banc (as
does, e.g., the US Supreme Court) but in Benches. And the
Benches do not, and cannot, self-constitute or, once constituted,
self-propagate or self–perpetuate. Rather, it is settled law that it is
the Chief Justice alone who is the master of the roster and who,
from time to time, constitutes Benches for the exercise of the
various jurisdictions of the Court. This applies (to take the
language of Order XI of the 1980 Rules) to “every cause, appeal or
matter” to be heard and disposed of by the Court. Now, the
Benches constituted by the Chief Justice are, each of them, the
Court when they are so exercising the various jurisdictions that
inhere in the Court. However, even here there are limitations and
qualifications. The most important for present purposes is that a
Bench cannot self-select the causes, appeals or matters that are to
be taken up and decided by it. It cannot pick and choose
whichever case it wants from those on the docket. That too,
ultimately, is within the power of the Chief Justice. In everyday
terms, as per current practice, the Chief Justice constitutes two-
and three-member Benches on a weekly basis and a cause list is
issued which earmarks the cases which are to go before each
Bench. Special benches (including those comprising of a larger
number of Judges than just indicated) may also be constituted
from time to time for a variety of different reasons, for whom,
again, a cause list is issued. Now, what are those cases? They are
the ones in which the jurisdiction of the Court has already been
invoked. The exercise of the jurisdictions that inhere in the Court
is therefore controlled and regulated by (among others) the
following factors, as relevant for present purposes. Firstly, it can
only be exercised by Benches duly constituted by the Chief Justice.
Secondly, the Benches can only take up such cases as are listed
before them and cannot self-select. Thirdly, the cases that are
listed before the Benches are those where the jurisdiction of the
Court has already been invoked. In other words, the constitution
SMC 4/2021 28

(and existence) of Benches presupposes the existence of causes,

appeals or matters in relation to which the Benches will exercise
the jurisdictions of the Court. Conceptually, the two are distinct,
separate and independent one from the other. These two aspects of
course relate to nothing other than the third and second
categories, respectively, of the tripartite formulation.

34. It follows from the foregoing that the Benches are constituted
only for the purposes of exercising the jurisdictions of the Court in
relation to what is already on the docket. Can such a Bench invoke
suo motu the jurisdiction of the Court under Article 184(3)? In our
view the answer has to be in the negative. For a Bench, constituted
as above, to be able to do so would mean that a Bench can both
self-constitute and self-propagate. But that is neither possible nor
permissible. In such a situation, the second and third categories of
the tripartite formulation would collapse, and merge to become
one. That would be absolutely counter to the essence of the judicial
power. Furthermore, the invoking of the jurisdiction suo motu, i.e.,
the calling upon the Court to take action, brings forth a fresh or
new “controversy” (i.e., cause or matter) to be decided by the
Court. Can a Bench, that cannot self-select cases for its
consideration even from the existing docket, add a fresh cause
thereto? The question, surely, answers itself. Put differently, if a
Bench constituted as above suo motu invokes the jurisdiction of
the Court in relation to any matter, then in respect thereof it would
have self-constituted. And if it requires that the matter be fixed
before it (and, explicitly or implicitly, before it alone), then in
respect thereof the Bench would have self-propagated and self-
perpetuated.

35. Our conclusion therefore is that the first possibility identified

in para 32 above is both conceptually non-viable and
constitutionally impermissible, being in negation and violation of
the judicial power itself, as encapsulated in Griffith CJ’s
description and set out in terms of the tripartite formulation.

36. We turn to the second possibility. Can the “someone” within

the institution, who can invoke suo motu the jurisdiction of the
Court under Article 184(3), be any one (or more) of the Judges, or
can it be the Chief Justice alone? It is of course not in doubt that
SMC 4/2021 29

the Chief Justice can invoke the jurisdiction suo motu. The
innumerable times that Chief Justices have done so, and continue
so to do, suffices to establish this. The only question therefore is
whether, in addition to the Chief Justice, any Judge or Judges as
such may do so. As will be seen below, while there have been some
examples where the jurisdiction was invoked suo motu at the
instance of an individual Judge other than the Chief Justice, there
is not any consistent or sustained practice in this regard. Now, the
learned Attorney General, at the conclusion of his submissions,
drew attention to the position in respect to the Supreme Court of
India. There, applications for the enforcement of fundamental
rights under Article 32 of the Indian Constitution are dealt with in
Order 38 of their Supreme Court Rules, 2013. This Order is
divided into various parts, the last of which (comprising of Rule 12)
relates to “public interest litigation” (or PIL as it is known). This
Rule provides in its sub-rule (1) as follows:

“A Public Interest Litigation Petition may commence in any of

the following manners:

(a) as a suo motu petition in pursuance of the order of the

Chief Justice or Judge of the Court.

(b) in pursuance of an order of the Chief Justice or a Judge

nominated by the Chief Justice on a letter or representation.

(c) by an order of the Court to treat a petition as a Public

Interest Litigation Petition.

(d) by presentation of a petition in the Court.”

Thus, in India it seems that, as expressly provided in the

rules themselves, the answer to the possibility now under
consideration would be that the jurisdiction can be invoked suo
motu by any of the Judges of the institution. However, it is
interesting to note that the suo motu label is used exclusively to
the situation where the source of the information is the Judge
himself (clause (a)). If the source of the information is “external” to
the Judge, more specifically being a letter or representation (clause
(b)), then the PIL petition can only commence on the order of the
Chief Justice or a Judge nominated in this regard by the former.
As should be clear from the discussion above, the situation
envisaged in clause (b) would here be regarded as more flexible. It
could, depending on how and by whom the letter or representation
SMC 4/2021 30

is received and dealt with, be regarded as falling in either the

second or the third of the “modes” identified above.

37. Looking at the matter conceptually, and with all due respect
to the position in India, in our view it is the Chief Justice alone
who is that “someone” within the institution who can suo motu
invoke the jurisdiction of the Court under Article 184(3). The
position of the office of the Chief Justice, in particular vis-à-vis the
other Judges, is complex and perhaps ultimately not susceptible to
what might be called “black letter” enunciation. For present
purposes, two contrasting perspectives are relevant. One is where
the Chief Justice is a member of a Bench constituted as such, to
act (i.e., exercise jurisdiction) in terms as described above. Here
(subject to what is said below) he is one among equals, this being
without prejudice to the special responsibilities that fall on him
(and the deference which is his due) as the senior member of the
Bench (though these are, in substance but not in entirety, the
same as to those that fall on any Judge who is the senior member
of any Bench so constituted). The other is in relation to other
responsibilities, duties and powers, especially but by no means
exclusively as regards administrative matters, which inhere in the
office and are exclusive to the Chief Justice. One such has already
been noted above, i.e., his position as the master of the roster. The
office of the Chief Justice is, in non-judicial settings, the repository
of important functions and powers, many of which of course
impact directly on judicial powers and functions also. These
functions, powers and responsibilities are not susceptible to
precise and exhaustive delineation. It is an aspect of the common
law tradition that many have accrued to the office over time, and
not in the same manner or to like extent in all common law
jurisdictions. Different and divergent paths are available, which
can and have been taken. All may be conceptually viable and yet,
in the peculiar circumstances of a particular jurisdiction, one or
the other may crystallize, to be uniquely adopted and applied. In
our view, it is in this perspective that the proposition now under
consideration is to be treated. In India, as seen above, the pathway
adopted is for the jurisdiction to be invoked suo motu by any
Judge in one particular situation, but only by the Chief Justice or
a Judge nominated by him in another. In this country, the choice
has been different: it is the Chief Justice alone who is that
SMC 4/2021 31

“someone” within the institution who can suo motu invoke the
jurisdiction.

38. The statement just made follows from how the practice has
settled, especially since the issuance of the circular dated
19.07.2005, alluded to in the order of the HACJ dated 21.08.2021
(herein after referred to as “the Circular”). As noted above, there
have been some instances where the jurisdiction was invoked suo
motu by Judges other than the Chief Justice. Thus, in the 1990’s,
Saleem Akhtar, J. both invoked and exercised suo motu the
jurisdiction under Article 184(3): see In re: Human Rights Case
(Environmental Protection in Balochistan) PLD 1994 SC 102 and In
re: Pollution of Environment caused by smoke, emitting vehicles,
traffic muddle 1996 SCMR 543. Moving forward, on or about
28.09.2004 Rana Bhagwandas, J. noticed a news report in the
daily press and, after directing that notices be issued to various
functionaries, ordered that “the case be registered as suo motu
direct petition under Article 184(3) read with Article 187”. It was
further directed that after issuance of notices the matter be placed
before the Chief Justice “for appropriate orders as to its marking to
an appropriate Bench”. In the second matter, on or about
21.12.2004 Hamid Ali Mirza, J. noted an incident which had been
widely reported in the press, and in respect of which a complaint
had been received for suo motu action. It was ordered that notices
be issued to various functionaries and that the “case shall be
registered under Article 184(3) read with Article 187” and
thereafter placed before the Chief Justice “for appropriate orders as
to its marking to appropriate Bench”. In each case the Chief
Justice ordered that the cases be placed before Benches of which
Rana Bhagwandas, J. and Hamid Ali Mirza, J., respectively, were
members (SMC Nos. 2 and 3 of 2004). On or about 04.07.2005,
Rana Bhagwandas, J. noticed another news report and after
issuing notices to concerned functionaries directed that “this
reference” be registered as a “Suo motu case”, directing the office
to “put up the reference as well as report of Inspector General of
Police before Honourable Chief Justice for constitution of a Bench”
(SMC No. 8 of 2005). It should be noted that each of the two
Judges concerned invoked suo motu the jurisdiction of the Court
but did not exercise it; for that, the matter was referred to the
Chief Justice. On or about 30.10.2007 Syed Jamshed Ali, J.
SMC 4/2021 32

forwarded a news report to the Chief Justice regarding a certain

matter and recommended that “it appears to be a fit case for suo
motu exercise of jurisdiction of this court under Article 184 of the
Constitution to examine the legality and validity of the actions on
banks in public sector in writing off loans”. On this
recommendation the Chief Justice directed the registration of a
suo motu case (SMC 26/2007). However, it is pertinent to note
that the learned Judge did not, as had been the situation in the
earlier instances noted, suo motu invoke the jurisdiction. Rather,
only a recommendation was made.

39. It seems therefore (and this point is again taken up below)

that individual Judges have not, as a matter of sustained practice,
sought to suo motu invoke the jurisdiction of the Court. That has
been left in the hands of the Chief Justice. However, that does not
end the inquiry. In matters proceeding before Benches constituted
in terms as described above to act judicially (i.e., matters already
on the Court’s docket and placed before the Benches) the suo motu
jurisdiction has also been involved. For reasons that will become
clear later, a distinction has to be made between Benches headed
by the Chief Justice and those of which the Chief Justice was not a
member. We first look at a sampling of instances from the latter
category.

40. On or about 02.09.2016, a learned two member Bench (Amir

Hani Muslim and Mushir Alam, JJ.), while hearing CA 82-K/2016,
recommended invoking suo motu the jurisdiction of the Court and
directed that “[if] the Hon’ble Chief Justice of Pakistan approves
the recommendations of the Bench” then notices be issued to the
concerned authorities (reported as State through Chairman NAB v
Hanif Hyder and another 2016 SCMR 2031). The Chief Justice
ordered that the matter was to be treated as a Suo Motu case (SMC
17/2016). On or about 19.01.2017, a learned three member Bench
(Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ.), while
disposing of Crim. P. 1177/2016 directed in respect of a certain
matter that “a separate file be opened with a copy of this order”
and that notices be issued to specified functionaries, and that “this
may be placed for approval before the Hon’ble Chief Justice for
exercising suo motu jurisdiction”. The Chief Justice accorded his
approval (SMC 1/2017). On or about 08.05.2017, a learned two
SMC 4/2021 33

member Bench (Gulzar Ahmed and Dost Muhammad Khan, JJ.),

while dealing with CPLA 1331/2017 etc directed certain specified
functionaries to, inter alia, prepare a report in respect of a stated
matter. An interim report was subsequently submitted and further
time was sought, the matter being placed (it seems) before the
learned Judges in Chamber. One of the learned Judges (Gulzar
Ahmed, J.) was inclined to grant the extension sought. The other
learned Judge (Dost Muhammad Khan, J.) however was of the view
that since the matter was of “vital public importance requires to be
taken into cognizance under Article 184(3) of the Constitution and
to be placed before Hon’ble Chief Justice of Pakistan”. The Chief
Justice was pleased to direct that the matter may be registered as
a suo motu case (SMC 6/2017).

41. On or about 21.11.2017 a learned two member Bench

(Mushir Alam and Qazi Faez Isa, JJ.), when dealing with CP
2983/2016 and, in particular, while considering an application for
adjournment moved on behalf of counsel for the petitioner issued
notices, in relation to a dharna, to specified functionaries and
directed for the re-listing of the matter two days later. (It may be
noted that the adjournment had been sought on the ground that
counsel could not attend to the matter as the route was being
blocked by the dharna.) On 23.11.2017 the matter was re-listed
before the same learned Bench. It was, inter alia, ordered (while
adjourning the matter to 30.11.2017) that the office “prepare a
separate file with regard to this matter so that Civil Petition No.
2983/2016, which could not proceed on the last date of hearing on
account of the illegal actions of the protestors, can be separately
heard”. The office sought orders from the Chief Justice, asking for
approval for the registration of the matter as a suo motu case. The
Chief Justice accorded his approval (SMC 7/2017). This suo motu
case was ultimately disposed off by a judgment reported as Suo
Motu Case No. 7 of 2017 PLD 2019 SC 318.

42. On or about 05.08.2020 a learned two member Bench

(Mushir Alam and Qazi Faez Isa, JJ.) while disposing off Crim. P.
650/2020 directed that in respect of a specified matter as
identified therein a separate file be prepared as a suo motu case.
The office (relying on the Circular) sought orders from the Chief
Justice, pointing out that a similar matter had already been
SMC 4/2021 34

considered in earlier suo motu proceedings (SMC 13/2016) which

had since been disposed of vide order dated 31.03.2017 by a
learned three member Bench, and that certain proceedings
emanating from that (by way of compliance) were also disposed of
by a three member Bench on 12.03.2020. The Chief Justice
directed that the matter be registered as a suo motu case (SMC
2/2020).

43. On or about 12.10.2020 a learned two member Bench (Qazi

Faez Isa and Amin ud Din Khan, JJ.) while dealing with an
adjournment application filed in CP 3998/2016 took up a matter
and directed that in relation thereto “a separate file be prepared
and numbered in respect of this matter by the office and to place it
before the Hon’ble Chief Justice for constitution of an appropriate
Bench to hear the case”. The matter was registered as directed by
the Chief Justice (SMC 3/2020) and it was further directed that it
be placed before a three member Bench headed by the Chief
Justice.

44. On or about 03.02.2021 a learned two member Bench (Qazi

Faez Isa and Maqbool Baqar, JJ.) took notice of a news report and
directed, with reference to CP 20/2013, for the issuance of notices
to specified functionaries for 10.02.2021. The order was then listed
as a miscellaneous application (CMA 490/2021). CP 20/2013 had
already been disposed of (the judgment being reported as Action
against distribution of development funds by Ex Prime Minister Raja
Parvaiz Ashraf: In the matter of PLD 2014 SC 131). It is to be noted
that the said disposed of matter was not listed before the learned
Bench on 03.02.2021 nor was there any CMA pending therein. The
office, after recounting the history of the disposed of case and
various reviews and contempt applications filed in relation thereto
(all already disposed of), sought the orders of the Chief Justice. The
Chief Justice directed that the matter be placed before a five
member Bench, which disposed of the CMA on 10.02.2021
(judgment reported as Action against distribution of development
funds to MNAs/MPAs by Prime Minister: In the matter of CMA No.
490 of 2021 in Constitution Petition No. 20 of 2013 PLD 2021 SC
446).

45. It will be recalled from para 39 above that a distinction was

drawn between Benches headed by the Chief Justice and those of
SMC 4/2021 35

which he is not a member, and the discussion so far has been in

respect of the latter category. It is time to look at the reason for
this distinction. Now, Benches headed by the Chief Justice do
invoke the suo motu jurisdiction of the Court. However, there is a
crucial distinction between such Benches and those of which the
Chief Justice is not a member. When a Bench headed by the Chief
Justice seems to invoke the suo motu jurisdiction that, in law, is
not an act of the Bench. The reason is that what appears to be one
act is, when analyzed conceptually, found in law to be a
combination of three distinct steps. The first is where the Chief
Justice, acting as such, invokes suo motu the jurisdiction of the
Court in respect of a matter. The second is where, in respect
thereof, he constitutes the Bench headed by him to exercise the
jurisdiction so invoked. And the third is where the Bench does
exercise said jurisdiction. Since it is all happening together the
three steps, each distinct and separate in law though it is, become
conflated. Thus, what seems (and in a practical sense is) one act is
shown, when unraveled and examined conceptually, to comprise in
law of three distinct elements. Each of the elements is perfectly
legitimate within its own scope and the fact that they have, as it
were, been rolled into one act on account of the Chief Justice
heading the Bench should not confuse. As a matter of law the
invoking of the suo motu jurisdiction by such a Bench is
equivalent to nothing other than an invocation by the Chief Justice
alone.

46. The position as regards the suo motu invocation of the

jurisdiction can also be examined by looking at the data in more
general terms, for the period from the issuance of the Circular
(19.07.2005) to end 2021. It appears that such cases are registered
as either Human Rights Cases (HRC) or Suo Motu Cases (SMC). In
all HRC cases the suo motu jurisdiction is invoked by the Chief
Justice alone and is then directed to be placed before a Bench
constituted in terms as described above (i.e., fixed in Court). We
are informed that over the relevant period 1028 cases were so
registered (this includes cases for the whole of 2005.) Over the
period from the Circular to end 2021 243 cases were registered as
SMC cases (this includes the one case, referred to in para 44
above, where it was registered as a CMA). Of these 28 cases appear
still to be pending. An analysis of the SMC cases shows that in 158
SMC 4/2021 36

cases (65%) the suo motu jurisdiction was invoked by the Chief
Justice alone (and of these, in 20 cases it was done on the
recommendation of an individual Judge). Seventy seven cases
involved Benches of the Court, but of these in 52 cases (21.4%) the
Bench was headed by the Chief Justice. As explained above, as a
matter of law, the suo motu jurisdiction was here also invoked by
the Chief Justice. The balance 25 cases involved Benches of which
the Chief Justice was not a member. But even here in 6 cases the
matter was simply referred to the Chief Justice. Thus, in only 19
cases (7.8%) was the suo motu jurisdiction invoked by a Bench of
which the Chief Justice was not a member. Finally, in eight cases
(3.3%) the suo motu jurisdiction was invoked by an individual
Judge as such (the last such instance, it appears, being SMC
6/2015 on 09.07.2015). The position that emerges is clear.

47. When the data for the HMC and SMC cases are combined
(giving a total of 1271 cases), the position becomes even clearer.
The Chief Justice alone invoked the jurisdiction suo motu in 1186
cases (1028 plus 158), i.e., 93.3% of the total. The cases where the
jurisdiction was so invoked by a Bench headed by the Chief Justice
constitute 4.09% of the total. Thus, in 97.39% of the cases the suo
motu jurisdiction was invoked by the Chief Justice either directly
or as a matter of law. The cases where this was done by a Bench
not headed by the Chief Justice constitute a miniscule 1.5% and
those where this was done by individual Judges were a vanishingly
small 0.6%. (The balance 0.5% represents the cases where the
matter was simply referred to the Chief Justice by the Benches
concerned.) These figures speak for themselves. The pathway
adopted in this common law jurisdiction is clear. The settled
practice is that the suo motu jurisdiction is to be invoked by the
Chief Justice alone and not by any other Judge as such. The few
cases where Benches not headed by the Chief Justice invoked the
jurisdiction was, for reasons already stated, with respect, a
conceptual error that was constitutionally impermissible.

48. One other point may be made. It will be noted that in terms
of the short order whereby this matter was disposed of (set out at
the beginning of the judgment) it was stated that the Chief Justice
“shall” suo motu invoke the jurisdiction “if so requested or
recommended by a Bench of the Court”. The reason for this is that
SMC 4/2021 37

if the practice up to now is considered it seems that Chief Justices

have not turned down any such request or recommendation,
emanating as it does from Judges ensconced in the formal setting
of a Bench constituted as such. It is only in this sense that a
Bench has been referred to, and not by way of any recognition that
it can itself invoke suo motu the jurisdiction of the Court. However,
it is of course entirely for the Chief Justice to decide the time and
manner in which the jurisdiction is to be suo motu invoked and
the Bench by whom it will be exercised.

49. The above analysis with regard to the suo motu invoking of
the jurisdiction of the Court under Article 184(3) may therefore be
summarized as follows: (i) it is constitutionally impermissible and
conceptually non-viable for a Bench of the Court, constituted and
acting judicially as described above, to suo motu invoke the
jurisdiction; and (ii) it is the Chief Justice alone who may do so.

50. Insofar as the Circular is concerned, it also in certain

aspects and respects, suffers from a lack of conceptual clarity. In
order to fully rationalize the position we recommend that the office
may place the Circular before the Hon’ble Chief Justice for such
reconsideration as may be deemed appropriate.

51. This brings us to the order dated 20.08.2021 (2021 SCMR

1602) made by the learned Bench-II, for its consideration and
examination in light of the foregoing discussion and analysis. The
attendant facts relating to the making of the order have already
been set out above. In our view, there can be no doubt that, with
respect, the learned Bench erred materially in law in making the
order. The learned Bench suo motu invoked the jurisdiction of the
Court under Article 184(3). This is absolutely clear from a perusal
of the order as a whole and, in particular, para 11 thereof where
the learned Bench clearly stated that “We have decided to treat
this application as one under Article 184(3) of the Constitution….”
(emphasis supplied) read with para 13, where a direction was given
to the office “to number this petition”, with parties arrayed as
ordered. In this para also it was specifically asserted that “… this
Bench of the Supreme Court has taken notice pursuant to Article
184(3) of the Constitution….” This, with respect, it could not do.
There was a failure to properly abide by, and to apply, the judicial
power as explained above. This failure was, with respect, the result
SMC 4/2021 38

of a lack of conceptual clarity. In respect of the subject matter of

the Application not only did the learned Bench self-constitute but,
in directing that notices be issued to named functionaries (and
directing that replies be furnished before the next date of hearing)
and that the matter be listed before it, the learned Bench also self-
perpetuated and self-propagated. As explained above, this simply
could not be done. With respect, the learned Bench acted in a
constitutionally impermissible manner. The office quite correctly
sought orders from the HACJ and it was well within the relevant
powers (and, in our respectful view, duty in the facts and
circumstances of the present case) of the Chief Justice (which for
the time being vested in, and fell upon, the HACJ) for an
authoritative pronouncement to be sought on the question posed
in the order of 23.08.2021. That question stood answered in the
short order of 26.08.2021, as explained and amplified in terms of
what has been set out in this judgment. We are, with respect,
unable to subscribe to the action taken by the learned Bench-II.
The order of 20.08.2020 could not be allowed to stand. Attendant
consequences necessarily had to follow, as set out in para 3 of the
order dated 26.08.2021.

52. We are now reaching the end of the judgment. Before the
coda there is one onerous duty that, regrettably, must be
performed. While the matter was being heard by this Bench,
another extraordinary event occurred. The learned senior member
of Bench-II, on 25.08.2021, filed an application (“CMA”) in this
matter. The text of the CMA ran to 15 pages. In it, the learned
Judge sought, inter alia, to justify the order dated 20.08.2021 and
to criticize and attack the formation of the Larger Bench by the
HACJ and the order of 23.08.2021 made by the Larger Bench.
Indeed, the order last mentioned was referred to as a “purported
order” passed by a “monitoring Bench”. A wholly unwarranted
attack ostensibly directed at the Registrar of the Court was also
launched. This was an extraordinary and unprecedented
intervention in pending proceedings. We say no more. While we
chose, in order to maintain the dignity of the Court, not to draw
attention to the CMA during the course of the hearing, it is
necessary, as a matter of law, to give quietus to it. It is hereby
declared, and directed to be, expunged from the record.
SMC 4/2021 39

53. While the question before us has been addressed, there is

nonetheless something additional that we would like to say. The
suo motu invoking of the jurisdiction of the Court under Article
184(3) has, over the years, come in for its share of analysis,
debate, discussion and, indeed, criticism. It must be acknowledged
that this is not something confined just to the Bar but extends to
the Bench also. That the jurisdiction can be so invoked cannot now
be gainsaid. But the time has come to recognize that there is a
certain imbalance, which ought to be corrected. The imbalance lies
in what has been called the “fourth element” above, i.e., the link or
bridge between the invoking of the jurisdiction and the exercise of
it. As has been explained above, law and practice require that the
suo motu invoking of the jurisdiction lie solely with the Chief
Justice. As also seen the law mandates that the constitution of
Benches for the exercise of the jurisdiction lies with the Chief
Justice alone. It is this that creates an imbalance, and we need not
dwell on whether this is a matter of perception only, or both
perception and reality. Either way it is something that, it must be
fairly conceded, ought to be addressed.

54. How is the balance to be achieved? To this different answers

can be given. However, the one that seems to us to be most readily
capable of application is for a suitable practice to develop and
crystallize in relation to the “fourth element”. Since both the suo
motu invocation of the jurisdiction and the constitution of a Bench
to exercise that jurisdiction lie in the same hands, it is for those
hands, in our respectful view, to act in a manner that dispels any
perception of the imbalance.

55. The foregoing are the reasons for the short order of
26.08.2021.

Acting Chief Justice

Judge
SMC 4/2021 40

Judge

Judge

Judge
Islamabad, the
26th August, 2021