A recent judgment of the Supreme Court has left a question mark over the fate of several cases whose suo motu notice was taken by Peshawar High Court Chief Justice Dost Mohammad Khan. The apex court made observations concerning suo motu powers of a high court chief justice and placed certain restrictions on it, observing that “A high court would exercise its extraordinary discretionary constitutional jurisdiction where it is satisfied that subject to the constitution no other adequate remedy is provided by law.”

The order was issued on Sept 17 in a civil petition for leave to appeal against a judgment of the PHC by a contesting candidate in by-election, Dr Imran Khattak. Subsequently, the apex court granted interim relief to petitioners in two other cases as they claimed that the chief justice had taken suo motu notice of those cases despite restrictions placed by the Supreme Court in the earlier order.

The issue has taken a new turn as on Oct 22 when a Supreme Court (SC) bench comprising Justice Mian Saqib Nisar and Justice Ejaz Afzal Khan directed the PHC’s registrar to submit a report to the SC stating as to how many cases, after pronouncement of the dictum in Imran Khattak case have been taken up by the court in suo motu proceedings. It was directed that the said report must reach the SC in two weeks.

Initially, a three-member SC bench on Sept 17, 2013 set aside an order of the PHC concerning re-polling in several female polling stations in NA-5 Nowshera and NA-27 Lakki Marwat.

The PHC chief justice had taken notice of the issue on Aug 22 on the day of by-elections in several constituencies, after his personal staff officer Ms Sofia Waqar Khattak submitted a report wherein several TV reports were quoted as saying that women were barred from voting there. Subsequently, on Aug 28 a two-member PHC bench directed the Election Commission of Pakistan (ECP) to conduct an inquiry and hold re-polling in those polling stations where zero per cent or nominal percentage of women had cast votes.

The judgment of the high court was hailed by civil society groups averse to disenfranchisement of women, but their jubilation proved short-lived.

A candidate of Pakistan Tehreek-i-Insaf Imran Khattak challenged that order of the high court and his counsel Athar Minallah, requesting the apex court to set aside the impugned order as no aggrieved person had approached the court and the chief justice had taken suo motu notice of the issue.

Setting aside the impugned order a short order was released by the apex court on Sept 17. The court ruled that any party/person aggrieved from the election process/polling in the constituencies of NA-5 and NA-27 held on Aug 22 may approach the competent authority in accordance with law for agitating their grievance.

Later, the court released a detailed order wherein it was observed: “No judge of a high court or the Supreme Court is robed and crowned as a king to do whatever suits his whim and caprice.”

The bench comprising Justice Anwer Zaheer Jamali, Justice Ejaz Afzal and Justice Iqbal Hameedur Rahman ruled “In all eventualities he (judge) is bound to abide by and adhere to the law and the Constitution. This is what he has undertaken in his oath as a judge or chief justice.” On Oct 21 the apex court restrained the high court from proceeding further in a case concerning functioning of unregistered or illegally registered SIMs. The SC issued this order on a petition filed by cellular telecom companies challenging certain orders of the high court.

Furthermore, the apex court on Oct 22 suspended an order of the high court through which the authorities were directed to take action against commercial concerns functioning in residential areas in Hayatabad Township and University Town.

In that case advocates Athar Minallah, Ghulam Nabi and Saeed Afridi represented certain schools, a health centre, restaurant and beauty parlor, and argued that the impugned judgment had been passed not on a petition filed by any aggrieved person, rather in exercise of suo motu jurisdiction, which was not vested with the high court, as per the law laid down by the SC in Imran Khattak case.

There are several cases in which the high court and its chief justice earned appreciation from public as after failure of the respective government departments the chief justice had taken notice of the matter and issued appropriate orders.

Some of the important cases include: delay in construction of Northern Bypass Road passing through the outskirts of Peshawar; changing of rusted water supply pipes; purchase of substandard hepatitis vaccines by health department; targeted killings on sectarian grounds; encroachments on graveyards; cattle and poultry smuggling to Afghanistan; dumping of bodies stuffed in gunnysacks in provincial capital and other areas; poaching of markhor in Chitral; fencing and cleaning of canals etc.

Former PHC chief justice Tariq Pervez had taken notice of the drowning of a minor girl in an open drain in 2006 and had issued directives to the city district nazim to cover all open manholes and drains.

Justice Ejaz Afzal, when he was the PHC chief justice, had also taken notice in certain matters.

His most important suo motu notice was concerning supply of spurious and substandard drugs to prisons in the province. Following his orders, it transpired after examination that several of the medicines were substandard.