Case Summary & Legal Holding

This judicial decision was delivered by the FEDERAL-CONSTITUTIONAL-COURT. The matter involves proceedings between KHALID MEHMOOD and PAKISTAN, through Secretary, Ministry of FinanceHonorable Justice Aamer FarooqFaisal Siddiqi,Shah Nawaz, officially reported as 2026 PLD 1. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

P L D 2026 Federal Constitutional Court 1 Present: Aamer Farooq and Rozi Khan Barrech, JJ KHALID MEHMOOD---Petitioner Versus PAKISTAN, through Secretary, Ministry of Finance and others---Respondents Civil Petition No.2202 of 2025, decided on 27th November, 2025. (Against Order of the Sindh High Court dated 05.05.2025 in C.M.A. No. 28869/2023 in Constitution Petition No. D-6169 of 2023). (a) Constitution of Pakistan--- ----Art. 10A---Jurisdiction---Determination---Jurisdiction is a foundational issue that must be determined at the very beginning of any proceeding---Court that is authorized to render a final judgment or order on the lis is the one vested with the competence to adjudicate it---This is because the legitimacy and finality of any judgment depends on whether the Bench delivering it had the lawful authority to do so---Such jurisdictional certainty is essential not only for the validity of judicial decisions but also for safeguarding the right to a fair trial under Article 10A of the Constitution and for ensuring due process. (b) Constitution of Pakistan--- ----Arts. 199 (1) & 202A [as amended by Constitution (Twenty-Seventh Amendment) Act, 2025]---Constitutional Benches of High Courts---Jurisdiction---Pre and post Amendment---Distinction---Comparison of the two versions of Article 202A of the Constitution shows that, prior to Constitution (Twenty-Seventh Amendment) Act, 2025 Constitutional Benches of High Courts were authorized to hear only those matters falling under Article 199(1)(a)(i) and Article 199(1)(c) of the Constitution, which corresponded to the well-known writs of mandamus, prohibition and to enforce fundamental rights envisaged in Part II, Chapter I of the Constitution---After Constitution (Twenty-Seventh Amendment) Act, 2025, Article 202A of the Constitution has been expanded and Constitutional Benches of the High Courts possess exclusive jurisdiction over the full range of matters exercised under Article 199 of the Constitution. (c) Constitution of Pakistan--- ----Arts. 199 (1)(a)(i) & (ii), 199(1)(b)(i) & (ii) & 202A---Jurisdiction of High Court---Writs of certiorari, habeas corpus, quo warranto, mandamus or prohibition---Prior to enactment of Constitution (Twenty-Seventh Amendment) Act, 2025---Scope---When relief requested was one of certiorari (Article 199(1)(a)(ii) of the Constitution), habeas corpus (Article 199(1)(b)(i) of the Constitution), or quo warranto (Article 199(1)(b)(ii) of the Constitution), only the Regular Benches of High Courts were competent to entertain the matter---Conversely, where petitioner sought relief in the nature of mandamus or prohibition (Article 199(1)(a)(i) of the Constitution), jurisdiction was rested exclusively with Constitutional Benches of High Courts---It was the character of the relief claimed that used to determine as to which Bench had the authority to hear the petition. (d) Constitution of Pakistan--- ----Arts. 8 & 199---Judicial review---Powers---Principle---High Courts have derived their power of judicial review as an inherent feature of the Constitutional framework---As guardians and protectors of the Constitution, High Courts possess, under Article 8 read along with Article 199(1)(c) of the Constitution, the authority to scrutinize legislation on the touchstone of fundamental rights---Even in situations where no specific fundamental right is directly involved, this does not divest High Courts of the power to invalidate legislation that is ultra vires; they continue to hold, under the Constitutional scheme, the inherent authority to declare law ultra vires, if it is in conflict with any provision of the Constitution, directly or indirectly. (e) Constitution of Pakistan--- ----Art. 199(1)(a)---Constitutional jurisdiction of High Court---Vires of law---Scope---Declaration concerning vires of a law falls within the ambit of Article 199(1)(a)(ii) of the Constitution---This is because the act of striking down a law is not in the nature of a direction under Article 199(1)(a)(i) of the Constitution, nor does it correspond to habeas corpus, prohibition, or quo warranto---When a statute is invalidated, the Court effectively holds that X, the assailed legislative provision, is struck down and is without lawful authority and of no legal effect, language that encapsulates the concept of ultra vires---Writ of certiorari, that is more or less envisaged in Article 199(1)(a)(ii) of the Constitution, may be issued against any individual performing functions connected with the affairs of the Federal, Provincial, or local authorities---It is not necessary that such a person be acting in a judicial or quasi-judicial capacity---High Court is empowered to intervene whenever an act or proceeding is undertaken in violation of the law or any well-established legal principle. (f) Income Tax Ordinance (XLIX of 2001)--- ----S. 109-A---Constitution of Pakistan, Arts. 199 & 202A [as amended by Constitution (Twenty-Seventh Amendment) Act, 2025]---Constitutional jurisdiction of High Court---Vires of law---Scope---Petitioner assailed notices issued to him as well as vires of Section 109-A of Income Tax Ordinance, 2001 on the plea that it was contrary to Entries 47 and 31 of the Federal Legislative List mentioned in the Constitution---Validity---Substance of the petition amounted seeking a writ under Article 199(1)(a)(ii) of the Constitution---If High Court were to allow the petition, Section 109-A of Income Tax Ordinance, 2001 would be declared without lawful authority and of no legal effect and, as a result, the notice issued thereunder would automatically become ineffective as an ancillary consequence---Even if the provision itself was upheld, the notice had independently been challenged on separate legal grounds that the High Court was competent to examine---Central relief sought in the petition was challenge to the vires of the law, which had constituted a relief under Article 199(1)(a)(ii) of the Constitution, namely a declaration that the challenged law was ultra vires---Under the erstwhile Article 202A [as it was prior to the Constitution (Twenty-Seventh Amendment) Act, 2025] such a relief did not fall within the jurisdiction of the Constitutional Bench---Interim relief could only be granted by a forum that was empowered to render a final decision---Constitutional Bench from the start lacked competence to hear a matter involving issuance of a writ under Article 199(1)(a)(ii) of the Constitution and the interim order that High Court had passed was without jurisdiction---Federal Constitutional Court set aside the order passed by High Court and remanded the matter to High Court for its fresh adjudication on the application for interim relief, before the Constitutional Bench---Appeal was allowed. 2024 SCMR 1059, Para 13 (Per Muhammad Ali Mazhar, J.); 2024 SHC 1302 (Per Muhammad Shafi Siddique, CJ.); CP D-473 of 2025 and connected matters; PLD 1988 SC 416 (Per Muhammad Haleem, CJ); 5 U.S. 137 (1803) (Per John Marshall, CJ.); PLD 1973 SC 24 (Per Muhammad Yaqub Ali Khan, J.); PLD 1989 SC 61 (Per Muhammad Haleem, CJ.) and 2024 SCMR 1295 (Per Naeem Akhtar Afghan, J.) rel. Faisal Siddiqi, Advocate Supreme Court for Petitioner. Shah Nawaz, Advocate Supreme Court for Respondents. Assisted by: Barrister Zarrar Haider Bhatti, Law Clerk. Date of hearing: 27th November, 2025. JUDGMENT AAMER FAROOQ, J.---The petitioner has challenged the order passed on 05.05.2025 by the Constitutional Bench of the Sindh High Court constituted under Article 202A of the Constitution of the Islamic Republic of Pakistan, 1973 ( the Constitution,1973 ). This order effectively recalled the ad-interim stay earlier granted by the Sindh High Court on 20.12.2023. The impugned order was subsequently brought before the Supreme Court of Pakistan through a petition for leave to appeal under Article 185(3) of the Constitution, 1973. However, after the passage of Constitution (twenty-seventh) Amendment Act, 2025 the matter now stands transferred to the Federal Constitutional Court of Pakistan pursuant to Article 175F(1)(c)1. 2. Under the 2018 Amnesty Scheme, the petitioner submitted a declaration, paid a certain amount, and disclosed ownership of a foreign company, Red Castle. Subsequently, however, the Petitioner was issued a notice under Section 109-A of the Income Tax Ordinance, 2001 ( the ITO ), a provision introduced through the Finance Act, 2018. Aggrieved by this notice, the Petitioner filed C.P. No. D-6169 of 2023, challenging both the validity of section 109-A of the ITO and the impugned notice itself on independent legal grounds in addition to the vires challenge. 3. When C.P. No. D-6169 of 2023 was taken up before the Sindh High Court, the court issued an ad-interim order on 20.12.2023 restraining the respondents from passing any final adverse order pursuant to the impugned notice. The matter was later listed before the Constitutional Bench of the Sindh High Court (after the passage of Constitution (twenty-sixth) Amendment Act, 2024) on 05.05.2025, and after hearing the parties, the Constitutional Bench recalled the order dated 20.12.2023 in the following terms: The petitioner has challenged the vires of Section 109-A of the Income Tax Ordinance, 2001 and predicated thereupon has obtained ad-interim orders, having the effect of suspending the very enactment / provision under consideration. The Supreme Court has deprecated the tendency to render interim orders having the effect of suspending a law. It has been consistently maintained, especially in revenue matters, that interim orders, having the effect of suspending a law, ought not to be passed. There is a plethora of edicts to such effect, including PLD 1989 SC 61, 1993 SCMR 2350 and AIR 1985 SC 330, and recently the same has been emphasized in the order dated 29.02 2024, passed in the case of Commissioner Inland Revenue, Large Taxpayers Office v. Pakistan Oilfields Ltd. Rawalpindi and others (Civil Petitions Nos. 3472 to 3475 of 2023). In mutatis mutandis application of the binding edicts, referred to supra, interim orders passed herein are recalled and CMA 28869 of 2023, is hereby dismissed . (Emphasis supplied) 4. Learned counsel for the Petitioner, Mr. Faisal Siddique, ASC, contended that the case should be remanded for a fresh hearing. He argued that the Constitutional Bench of Sindh High Court which rendered the impugned order lacked jurisdiction under Article 202A of the Constitution, 1973, as it did not then possess the authority to issue a writ of certiorari (which it does now after the passage of Constitution (twenty-seventh) Amendment Act, 2025). He argued that the case ought to have been heard by a Regular Bench of the Sindh High Court, which possessed the necessary authority to issue writs of certiorari, and he relied on two relevant judgments of the Sindh High Court in support of his submission. Conversely, learned counsel for the Respondents, Mr. Shah Nawaz, ASC, objected to the arguments raised and argued that this court cannot interfere with the interim order of the High Court. He referred to various precedents to substantiate his position. We have considered the arguments of both learned counsel and appreciate their assistance in this regard. 5. The question that we are inclined to decide in the instant case is; whether the impugned order of the High Court was without jurisdiction under the erstwhile Article 202A of the Constitution, 1973 and whether an ad-interim orders passed by the High Court could be challenged before this court. a. Whether the impugned order of the High Court was without Jurisdiction? 6. It is a well-established principle of law, consistently reaffirmed, that a court cannot issue any order, judgment, or exercise an authority in a matter unless it is legally competent to adjudicate upon it (see Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through his legal heirs2). For a court to decide a case, the matter must fall within its jurisdiction; and where a court is internally divided into different benches, the case must also fall within the jurisdiction of the specific bench assigned to hear it. For example, if a matter that is required to be heard by a Constitutional Bench of a High Court (constituted under Article 202A of the Constitution, 1973) is instead heard by a Regular Bench, the High Court as an institution may have jurisdiction over the subject matter involved, but the bench hearing the case does not. Any order passed in such circumstances would therefore be without jurisdiction. 7. Jurisdiction is a foundational issue that must be determined at the very beginning of any proceeding and the court that is authorized to render a final judgment or order on the lis is the one vested with the competence to adjudicate it. This is because the legitimacy and finality of any judgment depend on whether the bench delivering it had the lawful authority to do so. Such jurisdictional certainty is essential not only for the validity of judicial decisions but also for safeguarding the right to a fair trial under Article 10A of the Constitution, 1973, and for ensuring due process. 8. In the instant case, the impugned order was passed by Sindh High Courts Constitutional Bench established under the Constitution (twenty-sixth Amendment) Act, 2024. Article 202A at the time, as it stood, read as follows: 202A. (1) There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A, from time to time. (2) The most senior Judge amongst Judges nominated under clause (1) shall be the Head of the Constitutional Benches. (3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the High Court under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199. (4) For the purposes of clause (1), a Bench, to be nominated by a committee comprising the Head of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), subject to clause (7), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis-e-Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches. (7) This Article shall come into force, if in respect of-- (a) the Islamabad High Court, both Houses of Majlis-e-Shoora (Parliament) in the joint sitting; and (b) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article. (Emphasis supplied) 9. However, the position regarding Article 202A has altered significantly after the passage of Constitution (twenty-seventh) Amendment, Act 2025. The erstwhile Article 202A has been amended to read as follows: 202A. Constitutional Benches of High Courts.---(1) There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A, from time to time. (2) The most senior Judge amongst Judges nominated under clause (1) shall be the Head of the Constitutional Benches. (3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the High Court under Article 199. (4) For the purposes of clause (1), a Bench, to be nominated by a committee comprising the Head of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), subject to clause (7), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis-e-Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches. (7) This Article shall come into force, if in respect of-- (a) the Islamabad High Court, both Houses of *[Majlis-e-Shoora] (Parliament) in the joint sitting; and (b) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article. (Emphasis supplied) 10. A comparison of the two versions of Article 202A shows that, prior to the 27th Constitutional Amendment, the Constitutional Bench of the High Courts were authorized to hear only those matters falling under Article 199(1)(a)(i) and Article 199(1)(c), which correspond to the well-known writs of mandamus, prohibition and to enforce fundamental rights envisaged in Part II, Chapter I of the Constitution,1973. After the 27th Constitutional Amendment, however, Article 202A has been expanded, and the Constitutional Benches of the High Court (provided they are established under Article 202A (7)), now possess exclusive jurisdiction over the full range of writ matters exercised under Article 199. 11. Since the impugned order was passed prior to the enactment of the 27th Constitutional Amendment, it must be examined in light of the former Article 202A. To determine whether a matter fell within the jurisdiction of the Regular Benches or the Constitutional Benches, the Sindh High Court in its various pronouncements relied on the dominant object theory. The theory essentially requires the Court to look at the primary relief sought in a constitutional petition in order to identify the appropriate forum. Under this approach, when the relief requested was one of certiorari (Article 199(1)(a)(ii)), habeas corpus (Article 199(1)(b)(i)), or quo warranto (Article 199(1)(b)(ii)), only the Regular Benches were competent to entertain the matter. Conversely, where the petitioner sought relief in the nature of mandamus or prohibition (Article 199(1)(a)(i)), the jurisdiction rested exclusively with the Constitutional Benches of the High Court. Thus, it was the character of the relief claimed that determined which bench had the authority to hear the petition. The Sindh High Court appropriately invoked this dominant object theory in the Attock Cement case3 and observed as follows: In a petition where the petitioner both seeks directions of prohibitory or mandamus relief under Article 199(1)(a)(i) as well as declaratory relief under Articles 199(1)(a)(ii), then which constitutional bench of the High Court will have jurisdiction to decide the matter, i.e. either Constitution Bench A or B ? An analogy can be drawn to the tests of dominant object and ultimate relief developed in jurisprudence on territorial jurisdiction. In a recent 4-member bench judgement of the Supreme Court in the case of Taufiq Asif v General (Retd.) Pervez Musharraf, the test was laid down by the apex Court to determine the territorial jurisdiction of the High Courts. The judgement reviewed past precedents on the subject and held that the ratio of these cases is that it is the dominant object of the petition, i.e., the main grievance agitated and the ultimate relief sought in the petition, which determines the territorial jurisdiction of the High Courts. The aforementioned precedent can be analogized in the instant issue by using a similar test to determine whether the lis is beyond the jurisdiction of the other benches after the 26th Amendment. Thus, in our opinion, the matter may be decided in terms of the dominant relief being sought. Is the dominant relief in the petition declaratory or directory (prohibitory or mandamus)? If the dominant relief is declaratory and the directory prohibitory or mandamus relief is merely consequential to such declaratory relief, then the Constitutional Bench A of the High Court, i.e., will have the Roster, but if the directory prohibitory or mandamus relief is dominant, then the Constitutional Bench B will deal with the assignment/work. Ultimately, the exercise may be an art rather than an exact science. For example, take the case of a petition filed for a missing person or free will. First, is the relative of the missing person seeking relief under Article 199(1)(b)(i) for directions to produce the detenu? Or, is s/he seeking positive directions under Article 199(1)(c) for enforcement of Fundamental Rights conferred under Article 8 (security of persons), Article 9 (safeguards as to arrests and detention), Article 14 (inviolability of dignity of man), etc.? What will be the dominant relief since both writs seek to issue directions from the Court? Chapter 2, Article 35 of the 1973 Constitution (protection of family, etc.) may also be in play. The dominant relief can fall in either of the two benches, i.e., the Constitutional High Court s Constitutional Bench A , or the Article 202A Constitutional Benches , Constitution Bench B . In either case, the exercise will involve an examination of the petition, hearing(s), etc. or, at the very least, perusing the prayer clause of the petition, ultimately, with the view of understanding what is the dominant relief being claimed by the petitioner and which bench is best suited to hear the lis. Suffice it to say that there can be no hard and fast rules and is incapable of a complete and exhaustive protocol that comprehends all the permutations to which such protocol would apply, which in fact will vary depending upon the facts and circumstances of the matter at the time of examination of the petition . (Emphasis supplied) 12. The Sindh High Court was right to rely on the dominant object theory , as it provides a clear method for determining which bench has jurisdiction over a particular matter. Dominant object theory provides the appropriate framework towards understanding which bench was to hear a given case. It requires the Court to identify the primary or dominant relief by examining the pleadings and, in particular, the prayer clause, while also considering the ultimate effect of granting the relief, so as to determine which relief is merely ancillary and which is substantive. In another case, Sharjeel Inam Memon4, the Sindh High Court explained this approach as follows: Para 12. The obvious issue to address next is the remit of a bench, other than the Constitutional bench; colloquially referred to as the Regular bench. An interim order rendered in Attock Cement attempted to address this question vide resort to the dominant object or relief theory. The concept theorizes that the dominant object / relief of a petition shall determine the question of jurisdiction. The apparent consequence of application of this theory to the present scenario is that petitions seeking the dominant object / relief of writs of mandamus, prohibition and / or enforcement of fundamental rights must be placed before the Constitutional bench; whereas the remaining matters may be placed before the Regular bench. Para 13. Notwithstanding that the preponderant authority, referred to in Attock Cement, applied the theory to determine territorial jurisdiction, as opposed to distribution of jurisdiction within the same territory as is the case herein; however, to the extent of such invocation it appears consonant with the Constitutional scheme. While the application of the theory would require matters in which the dominant relief pertains to writs of certiorari, habeas corpus, quo warranto etc. to be placed before a Regular bench, the same could not be construed to denude a Constitutional bench of concurrent jurisdiction in such matters, given the right circumstances. Para 14. The right circumstances may be illustrated to encompass a scenario wherein two or more equi-dominant objects / relief are sought in a petition. If one of these objects falls within the exclusive remit of a Constitutional bench then the entire matter would be heard…

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