Summary: Constitution of Pakistan, 1973--- ----Arts. 8, 10A, 175F, 199, 202A & Third Schedule---Income Tax Ordinance, 2001, S. 109-A---Constitution (Twenty-Sixth Amendment) Act, 2024---Constitution (Twenty-Seventh Amendment) Act, 2025---Challenge to vires of statutory provision---Jurisdiction of Constitutional Bench vis-à-vis Regular Bench under erstwhile Art. 202A---Dominant object theory---Ad-interim order suspending operation of law---Maintainability of challenge thereto---Petitioner, after availing 2018 Amnesty Scheme and declaring ownership of foreign company, was issued notice under S.109-A, Income Tax Ordinance, 2001---He challenged both vires of said provision and the notice issued thereunder before Sindh High Court, which initially granted ad-interim restraint against passing of any final adverse order---Later, Constitutional Bench of High Court recalled said interim order on ground that courts ought not suspend operation of law, particularly in revenue matters---Before Federal Constitutional Court, principal question was whether Constitutional Bench, under erstwhile Art. 202A, possessed jurisdiction to entertain matter whose dominant relief was declaration that impugned law was ultra vires---Held, challenge to vires of statute, in substance, sought relief under Art.199(1)(a)(ii), namely declaration that law was “without lawful authority” and “of no legal effect”, and not merely a direction under Art.199(1)(a)(i) or enforcement of fundamental rights simpliciter---Under pre-27th Amendment regime, such matter did not fall within exclusive jurisdiction of Constitutional Bench---Only forum competent to grant final relief could competently grant interim relief; therefore, Constitutional Bench lacked jurisdiction from the outset and its order recalling the earlier ad-interim order was without jurisdiction---Court further held that ad-interim order which had effect of suspending operation of law could validly be brought in challenge before this Court, as until law is finally declared ultra vires it must ordinarily continue to operate---However, in view of subsequent constitutional amendment, exclusive writ jurisdiction now vests in Constitutional Benches and similar matters would henceforth lie before such Benches---Matter was remanded to Sindh High Court for fresh decision by competent Bench in accordance with law. Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through legal heirs (2024 SCMR 1059); Attock Cement case (2024 SHC 1302); Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24); Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61); Marbury v. Madison (5 U.S. 137 (1803)) rel. (a) Constitution of Pakistan, 1973---Art. 202A (as it stood before Twenty-Seventh Amendment)---Jurisdiction of Constitutional Benches of High Courts---Scope--- Under erstwhile Art.202A, Constitutional Benches were not vested with entire writ jurisdiction under Art.199 but only with limited classes of matters specified therein---Therefore, question whether matter was to be heard by Constitutional Bench or Regular Bench had to be determined by reference to true nature of relief claimed. (b) Constitutional jurisdiction---Dominant object theory---Application--- For determining proper forum under former Art.202A, Court must examine pleadings, prayer clause and ultimate effect of relief sought so as to ascertain dominant or substantive relief, while treating merely consequential relief as ancillary---Such exercise is judicial in nature and not dependent upon drafting alone. (c) Challenge to vires of statute---Nature of relief--- Where petitioner assails validity of statutory provision and seeks declaration that same is contrary to Constitution, dominant relief is one under Art.199(1)(a)(ii), namely that impugned law is “without lawful authority” and “of no legal effect”---Such relief is, in substance, in nature of certiorari / declaratory judicial review, even if consequential directions are also sought. (d) High Courts---Power of judicial review---Inherent constitutional authority--- Power of High Court to strike down law ultra vires Constitution is inherent in constitutional scheme and flows from its role as guardian of Constitution, read with judicial oath and constitutional supremacy---Such authority is not negated merely because relief of declaration is not textually set out in identical terms in every clause of Art.199. (e) Interim relief---Competence of forum--- Interim relief may only be granted by forum competent to render final decision on lis---Consequently, where Constitutional Bench lacked jurisdiction to decide vires challenge under former Art.202A, it also lacked competence to pass or recall interim orders in relation thereto. (f) Ad-interim order suspending operation of law---Propriety and challenge thereto--- As a general constitutional principle, until a law is finally declared ultra vires, it should ordinarily continue to operate in normal course---An interim order having effect of suspending operation of law, especially in revenue matters, is therefore open to challenge before this Court and cannot be shielded merely because it is ad-interim in form. (g) Twenty-Seventh Constitutional Amendment---Effect--- After enactment of Constitution (Twenty-Seventh Amendment) Act, 2025, exclusive writ jurisdiction under Art.199 now lies with Constitutional Benches of High Courts, and Regular Benches no longer possess such jurisdiction---Accordingly, a case of like nature would now fall to be heard by Constitutional Bench. (h) Remand---When warranted--- Where impugned order has been passed by a Bench lacking jurisdiction, proper course is to set aside such order and remit matter for fresh adjudication by competent Bench in accordance with law. Petition allowed; impugned order set aside; matter remanded for decision by competent Bench of Sindh High Court in accordance with law.

Summary: (a) Constitution of the Islamic Republic of Pakistan, 1973 ----Arts. 175F(1)(c), 202A, 199(1)(a)(i), 199(1)(a)(ii), 199(1)(b)(i), 199(1)(b)(ii), 199(1)(c) & 10A----Constitutional jurisdiction----Distribution of jurisdiction between Constitutional Benches and Regular Benches of High Court----Dominant object theory----Petitioner challenged vires of Section 109-A of Income Tax Ordinance, 2001 and notice issued thereunder before Sindh High Court----Ad-interim order restraining respondents from passing adverse orders was granted by High Court on 20.12.2023----After passage of Constitution (Twenty-sixth Amendment) Act, 2024, matter was listed before Constitutional Bench of Sindh High Court which recalled interim order on 05.05.2025 on ground that it had effect of suspending operation of law----Said order was challenged through petition for leave to appeal which stood transferred to Federal Constitutional Court pursuant to Art. 175F(1)(c) after passage of Constitution (Twenty-seventh Amendment) Act, 2025----Jurisdiction is foundational issue that must be determined at very beginning of any proceeding and court that is authorized to render final judgment or order on lis is one vested with competence to adjudicate it----Legitimacy and finality of any judgment depend on whether bench delivering it had lawful authority to do so----Jurisdictional certainty is essential not only for validity of judicial decisions but also for safeguarding right to fair trial under Art. 10A of Constitution and for ensuring due process----Prior to Constitution (Twenty-seventh Amendment) Act, 2025, Art. 202A authorized Constitutional Benches of High Court to hear only matters falling under Art. 199(1)(a)(i) and Art. 199(1)(c), corresponding to writs of mandamus, prohibition and enforcement of fundamental rights----After Twenty-seventh Amendment, Art. 202A was expanded and Constitutional Benches now possess exclusive jurisdiction over full range of writ matters exercised under Art. 199----Dominant object theory requires court to look at primary relief sought in constitutional petition to identify appropriate forum----Character of relief claimed determines which bench has authority to hear petition----When validity of law is challenged and writ is filed before High Court seeking judicial review, court is exercising authority under Art. 199(1)(a)(ii), namely power to issue writ of certiorari, assessing action to be without lawful authority and of no legal effect----Challenge to vires of statute falls within ambit of Art. 199(1)(a)(ii) as it amounts to seeking declaration that impugned legislative provision is without lawful authority and of no legal effect----High Courts possess inherent power of judicial review as feature of constitutional framework----As guardians and protectors of Constitution, High Courts possess, under Art. 8 read with Art. 199(1)(c), authority to scrutinize legislation on touchstone of fundamental rights----Even where no specific fundamental right is directly involved, High Courts retain inherent authority to declare law ultra vires if it conflicts with any provision of Constitution----Oath taken by judges binds them to preserve, protect and defend Constitution of Islamic Republic of Pakistan----If judge is faced with situation in which statute conflicts with Constitution, he cannot truly preserve, protect and defend Constitution if unable to strike down impugned law----It is inherent in jurisdiction and duty of High Court to strike down laws that are ultra vires to Constitution----Writ of certiorari envisaged in Art. 199(1)(a)(ii) may be issued against any individual performing functions connected with affairs of Federal, Provincial, or local authorities----High Court is empowered to intervene whenever act or proceeding is undertaken in violation of law or any well-established legal principle----Person mentioned in Art. 199(1)(a)(ii) includes Legislature as they are within ambit of body politic mentioned in Art. 199(5)----Petitioner assailed vires of Section 109-A of Income Tax Ordinance, 2001 for being contrary to Entry 47 and 31 of Federal Legislative List and notice issued under that provision on multiple legal grounds----Said challenge, in substance, amounts to seeking writ under Art. 199(1)(a)(ii)----If High Court were to allow petition, Section 109-A would be declared without lawful authority and of no legal effect and notice issued thereunder would automatically become ineffective as ancillary consequence----Central relief sought in petition was challenge to vires of law, which constitutes relief under Art. 199(1)(a)(ii), namely declaration that impugned law is ultra vires----Under erstwhile Art. 202A, such relief did not fall within jurisdiction of Constitutional Bench----Interim relief may only be granted by forum that is empowered to render final decision----Constitutional Bench from start lacked competence to hear matter involving issuance of writ under Art. 199(1)(a)(ii), and interim order it passed was without jurisdiction----After enactment of Constitution (Twenty-seventh Amendment) Act, 2025, exclusive writ jurisdiction lies solely with Constitutional Benches, and Regular Benches of High Court no longer possess this authority----Petition was allowed, converted into appeal and accepted; impugned order was set aside and matter was remanded to Sindh High Court for fresh adjudication on application for interim relief before Constitutional Bench. Cited Cases: • Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through his legal heirs 2024 SCMR 1059 • Benazir Bhutto (Miss) v. Federation of Pakistan PLD 1988 SC 416 • Attock Cement case 2024 SHC 1302 • Sharjeel Inam Memon CP D-473 of 2025 • Marbury v. Madison 5 U.S. 137 (1803) • Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 • Federation of Pakistan v. Aitzaz Ahsan PLD 1989 SC 61 • Khawaja Adnan Zafar v. Hina Bashir 2024 SCMR 1295 (b) Constitution of the Islamic Republic of Pakistan, 1973 ----Art. 202A----Constitutional Benches----Ad-interim orders----Suspension of operation of law----Challengeability before appellate forum----High Court, while exercising constitutional jurisdiction under earlier form of Art. 202A, proceeded on assumption that order dated 20.12.2023 had effect of suspending operation of law----Impugned order restrained respondents from passing any adverse orders against petitioner till next date of hearing----This in essence suspended operation of law which could not have been done----No authority acting legally could be refrained by courts from acting until vires of law has been determined by courts----It is well-settled principle of constitutional interpretation that until law is finally held to be ultra vires for any reason it should have its normal operation----High Court, although proceeded on right assumption that effect of statute was suspended via interim order, however, as bench acted without jurisdiction, it committed significant error of passing ad-interim order without jurisdiction----Although ad-interim orders are not ordinarily disturbed due to their temporary nature, such orders may nevertheless be interfered with where jurisdictional defect is present or illegality has occurred----Appellate court empowered to assess interim orders provided preceding conditions are met----According to established practice, settled principles of law and policy, ordinarily interim orders passed by High Court are not interfered and such intervention is warranted only in exceptional circumstances involving flagrant violation of law, wrongful exercise of jurisdiction or manifest grave injustice. Cited Cases: • Federation of Pakistan v. Aitzaz Ahsan PLD 1989 SC 61 • Khawaja Adnan Zafar v. Hina Bashir 2024 SCMR 1295 (c) Income Tax Ordinance, 2001 ----S. 109-A----Constitution of the Islamic Republic of Pakistan, 1973, Arts. 199(1)(a)(ii) & 202A----Challenge to vires of statutory provision----Jurisdiction of Constitutional Bench vis-a-vis Regular Bench----Petitioner submitted declaration under 2018 Amnesty Scheme, paid certain amount, and disclosed ownership of foreign company----Petitioner was issued notice under S. 109-A of Income Tax Ordinance, 2001, provision introduced through Finance Act, 2018----Petitioner filed constitutional petition challenging both validity of S. 109-A and impugned notice itself on independent legal grounds in addition to vires challenge----Ad-interim order restraining respondents from passing final adverse order was granted----Matter was later listed before Constitutional Bench of Sindh High Court which recalled interim order on ground that it had effect of suspending enactment/provision under consideration----Challenge to vires of S. 109-A for being contrary to Entry 47 and 31 of Federal Legislative List, in substance, amounts to seeking writ under Art. 199(1)(a)(ii)----Under erstwhile Art. 202A, Constitutional Bench lacked jurisdiction to hear matter involving challenge to vires of statute as such relief fell under Art. 199(1)(a)(ii)----Interim order passed by Constitutional Bench was without jurisdiction----Matter remanded for fresh adjudication before Constitutional Bench which now possesses jurisdiction after Constitution (Twenty-seventh Amendment) Act, 2025. Disposition: Petition allowed, converted into appeal and accepted. Impugned order dated 05.05.2025 passed by Constitutional Bench of Sindh High Court set aside. Matter remanded to Sindh High Court for fresh adjudication on application for interim relief before Constitutional Bench.