PLD 2023 SC 825
"Power of the Court" and "Jurisdiction of the Court" --- Distinction ---
Jurisdiction of a Court is a well - understood concept which means the capacity of a court to decide a dispute arising before it --- On the other hand , the " power of the Court " means the actions which a Court may take i.e. the judgement or order it may pass after assuming jurisdiction .
Statute , vires of --- ---- Principle --- Although the constitutional Courts have a duty to protect and defend the Constitution and have been conferred with the power to rule on the vires of laws on the touchstone of the Constitution , the power of striking down laws , has to be exercised with a great deal of care and caution --- Law should not be struck down unless no alternate interpretation is available that can harmonize the Statute with the provisions of the Constitution .
PLD 2023 SC 825
Constitution of Pakistan --- Art . 191
Supreme Court Rules , 1980----
Scope --- Said Rules stand on a higher pedestal than ordinary legislation ; they cannot be changed , modified , amended or altogether displaced by ordinary legislation being beyond the legislative competence of the legislature .
Review jurisdiction of the Supreme Court-
Principles and scope stated .
Following are the principles relating to review jurisdiction of the Supreme Court :
( ii ) It is attached with the concept of " finality " of the judgments of the apex Court i.e. the judgments of the Supreme Court are final and can only be re - opened on limited grounds of review ;
( iii ) To give sanctity to the concept of " finality " , the Court only exercises power of review and does not rehear the case by sitting in appeal over its judgments and orders
( iv ) The scope of review is well - defined in Order XLVII , Rule 1 , C.P.C. in civil cases and this is what review is
( v ) The Supreme Court described what is meant by the " review jurisdiction " in the case reported as " Lt. Col. Nawabzada Muhammad Amir Khan v . The Controller of Estate Duty " ( PLD 1962 SC 335 ) and the framers of the 1973 Constitution consciously and deliberately adopted this meaning ;
( vi ) The framers of the 1973 Constitution were not under any misconception , were conscious and aware of the fact that review jurisdiction could not be expanded or equated to appeal , and knowingly used the word " review " and not " appeal " in Article 188 ( just as the framers of the Constitution in 1956 and 1962 had also specifically used the word " review " and not " appeal ") ;
( vii ) In " Lt. Col. Nawabzada Muhammad Amir Khan's case ibid , the Judges stated that Supreme Court should frame rules to regulate its review jurisdiction . The matter was considered by the Full Court in 1980 , and after full deliberation Order XXVI , Rule 1 of the Supreme Court Rules , 1980 was framed , which clearly and unambiguously states what review jurisdiction is ;
( viii ) It is not possible to attribute to the authors of the Constitution that they were unaware of what review meant nor it is possible to attribute lack of knowledge of law to the judges who framed the Supreme Court Rules , 1980 that they did not appreciate the difference between review and appeal ;
( ix ) The Supreme Court , consisting of eminent Judges in 1980 and thereafter , were well - aware that they could not expand or restrict the scope of review under Article 188. If they had considered that the review jurisdiction under Article 188 could be " expanded " to appellate jurisdiction , then they would not have restricted this power to the one contained in Order XLVII , Rule 1 , C.P.C
( x ) It is clear that Order XXVI of the Supreme Court Rules , 1980 is an explanation and elucidation of the meaning of " review jurisdiction " and does not expand or restrict it
( xi ) Since 1980 , the Supreme Court has always been aware that there is only one nature , scope , ambit and meaning of review as used in Article 188 i.e. review jurisdiction means review jurisdiction and nothing more or less . It is therefore , wholly fallacious to suggest that review jurisdiction under Article 188 can be equated with appeal or can be expanded or restricted in any manner ;
( xii ) To suggest that the scope of " review " under Article 188 is or can be the same as " appeal " , is also wholly incorrect as it assumes that when the framers of the Constitution stated that the Supreme Court can review its judgement and orders , they did not know the scope of " review " and actually meant " appeal " ;
( xiii ) The Constitution makers were well - aware of the concept of " appeal " and when appellate jurisdiction was to be conferred upon the Supreme Court , it was clearly so mentioned in Article 185 ;
( xiv ) The framers of the Constitution deliberately did not use the word " appeal " in Article 188 but specifically limited it to " review " jurisdiction .
Constitution of Pakistan --- Art . 187 --- Power of the Supreme Court to issue such directions , orders or decrees as may be necessary for doing complete justice in any case or matter pending before it --- Scope --- Article 187 of the Constitution is not an Article which confers jurisdiction on the Supreme Court --- Supreme Court can exercise powers under Article 187 in a case or matter pending before it once the Court has competently assumed jurisdiction --- While the Supreme Court has jurisdiction under Articles 184 , 185 , 186 and 188 , Article 187 confers the power to do complete justice --- It is not a jurisdiction --- Article 187 can be pressed into service only in a matter which is competently filed before the Court but it does not give an independent right to initiate proceedings of the nature in question .
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