PROPOSED RIGHT OF APPEAL WHEN POWERS ARE EXERCISED
UNDER ARTICLE 184 (3) OF THE CONSTITUTION OF ISLAMIC
By:
Senior Advocate Supreme Court of
AIMS AND OBJECTS
1. WHEREAS it is provided under Order XXV Rule 1
that a writ of habeas corpus can be filed under Rule 1 while for the
enforcement of any other Fundamental Right an application can be filed under Rule
VI of the Supreme Court Rules 1980 but the above said rules has not conferred
the right of appeal on the aggrieved person when the powers are exercised under
Article 184(3) of he Constitution of Islamic Republic
of Pakistan.
2. WHEREAS Honourable
Supreme Court of Pakistan can exercise jurisdiction under Article 184 (3) of
the Constitution of Islamic Republic of Pakistan, there are number of cases
when original jurisdiction has been exercised but any remedy is not available
to the aggrieved person while it has been held by the Division Bench in PLD
2008 Kar:146 (DB) and 2012 SCMR 1298 at page 1342 that courts have inherent
powers to provide remedy where there is a wrong but it is settled law that
right of appeal is always creation of statute.
3. WHEREAS the right of appeal was provided
before a larger Bench under Section 2 of the Law Reforms Ordinance (Amendment
Act VIII) of 1972 when the order is passed by a Single Bench of the High Court
the appeal can be filed under the Law Reforms Ordinance 1972, on the same analogy
right of appeal can be conferred.
4. WHEREAS the right of appeal is also provided
under Section 19 (3) of the Contempt of Court Ordinance 2003 but when powers
are exercised under Article 184 (3) of the Constitution of Islamic Republic of
Pakistan, the aggrieved person is remediless, as such, on the same analogy
right of appeal can be provided.
5. WHEREAS Fundamental Right of fair trial is
protected under Article 10-A of the Constitution of Islamic Republic of
Pakistan and concept of access to justice as enshrined in Article 4 of the
Constitution of Islamic Republic of Pakistan is also available but not
providing right of appeal to an aggrieved person whop the powers are exercised
under Article 184 (3) of the Constitution may amount to denial of access to
justice and may also frustrate the concept of fair trial.
6. WHEREAS the Honorable Supreme Court of
Pakistan in NLR 2009 UC 696 has followed the rule of law laid down by the
Federal Shariat Court and upheld by the Honourable Supreme Court of Pakistan in PLD 1989 SC 6
wherein it has been held that at least one right of appeal is mandatory to meet
the requirements of principle of natural justice, thus, in order to provide
right of appeal the Law Reforms Ordinance 1972 may please be amended through
the proposed amendment.
7. WHEREAS in PLD 1988 SC 202 it is held that
Islamic injunction of "Adal and Ihsan" warrant in cases where authentication of the
declaration is refused by the District Magistrate thus the aggrieved person is
entitled to the right of appeal, such injunction of Islam being consistent with
the Holy Qur'an.
LAW REFORMS AMENDMENT ACT OF 2014:
WHEREAS it is
expedient to amend the Law Reforms Ordinance XII of 1972 for the purpose of
providing right of appeal to an aggrieved person when the powers are exercised
by the Supreme Court of Pakistan under Article 184 (3) of the Constitution of
Islamic Republic of Pakistan.
1. Short title
and commencement.--(1) This Act may
be called Law Reforms (Amendment) Act of 2014.
(2) It shall come into force at once.
2. Amendment of
Section 3 of Ordinance XII of 1972:--(1)
An appeal shall lie to the large bench when the order is passed by the Supreme
Court of Pakistan in exercise of its jurisdiction under Article 184 (3) of the
Constitution of Islamic Republic of Pakistan.
(2) No appeal shall lie from an interlocutory
order or an order which does not dispose of the entire case.
(3) The appeal can be preferred without copy of
the impugned order while copy of the order should be provided to the parties.
3. Limitation:--(1) While computing the period of limitation for
filing an appeal, the provisions of Sections 5, 12 and 14 of the Limitation Act
will be applicable.
(2) The appeal can be preferred within 30 days.