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Civil Petition for Special Leave to Appeal No. 9 of 1964, decided on 27th January 1964.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 18th December 1963, in Writ Petition No. 270 of 1962).
and
In the matter of registration of this petition in the Supreme Court.
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-----Refused where further remedy was still available by way of appeal from order passed by Single Judge to Division Bench‑Grant of special leave within discretion of Supreme Court‑Constitution of Pakistan (1962), Art. 58(3)‑[Malik Feroze Khan Noon v. The State P L D 1958 S C (Pak.) 333 distinguished.]
Nasim Hasan Shah Senior Advocate Supreme Court (Kh. Shaukat Ali Advocate Supreme Court with him) instructed by Khalil‑ur‑Rehman Attorney for Petitioner.
Nemo for Respondent.
Date of hearing: 27th January 1964.
‑By this petition Dauran Khan seeks special leave to appeal from an order passed by a learned Single Judge of the High Court of West Pakistan, Karachi Bench. The office has raised the question whether this petition should be registered in view of the fact that under the Letters Patent of the High Court an appeal to a Division Bench from the Single Judge's order would be competent.
We have heard learned counsel for the petitioner, Dr. Nasim Hasan Shah. He has attempted to argue that Article 58 (3) of the Constitution imposes no legal bar to the grant of special leave to appeal in such a case even though the remedy of an appeal under the Letters Patent has not been availed of. The important consideration, however, is whether this Court should grant special leave to appeal when its effect would be to practically destroy the jurisdiction possessed by the High Court under the Letters Patent. Dr. Nasim Hasan Shah relies on a decision of this Court in Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333), for the proposition that the Supreme Court can grant leave to appeal even in cases where its jurisdiction may be said to be concurrent with any other Court. The facts of that case were, however, peculiar. It was found in that case that the relief asked for in the appeal could not have been granted by the High Court. No such special feature exists in the present case justifying grant of special leave. The matter rests in the discretion of this Court and we would be extremely reluctant to take a step which prevent the High Court from exercising its undoubted jurisdiction under the Letters Patent. It is indeed meet and proper that before a matter comes up by way of appeal to this Court, the final judgment of the High Court itself should be available by way of assistance to this Court.
Dr. Nasim Hasan Shah represented that by now his appeal under the Letters Patent may be barred by time. It may be that he can convince the High Court that he has been bona fide pursuing his remedy in this Court under Article 58 of the Constitution and is therefore entitled to grant of extension of time. That would, however, be a matter for the consideration of the High Court itself and we can express no opinion on that aspect of the case. The petition is dismissed in limine.
A. H. Petition dismissed.
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