Dr. Azhar Jadoon Vs Registrar, Peshawar High Court, Peshawar & others

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

W.P No. 274-P/2026

Dr. Azhar Khan Jadoon.

V.

Registrar, Peshawar High Court, Peshawar & Others.

For the Petitioner: Sardar Nasir Aslam Khan, Advocate For Respondents: Mr. Muhammad Riaz Khan Paindakhel, AAG., Mr. Muhammad Inam Khan Yousafzai, Advocate.

Research assistance: Mr. Mazhar Ali Khan, Research & Reference Officer Date of hearing: 23.01.2026

JUDGMENT

SYED ARSHAD ALI, J.- The instant writ petition has been instituted by the Dr. Azhar Khan Jadoon (petitioner) President of Professional Education and Promotion Society, a legally constituted entity responsible for the administration of Women Medical and Dental Colleges, Abbottabad, seeking to challenge Notification No. 324-J dated 08.09.2025 (impugned notification) and the order dated 18.12.2025 (impugned order) passed by the learned Judge Consumer Court, Abbottabad.

2.The genesis of the present dispute lies in a suit for declaration, permanent and mandatory injunction, along with rendition of accounts, filed by the private respondents against the petitioners. This suit was predicated upon the private respondents’

assertion of an unreasonable ouster from the administrative hierarchy, specifically the Executive Body and General Body, of the aforementioned Professional Education and Promotion Society.

The petitioners vigorously contested the said suit by filing a comprehensive written statement, whereupon the matter proceeded before the learned trial court. Prior to the issuance of the impugned notification, the trial court had already recorded the statements of several witnesses produced by the plaintiffs therein.

3.During the ongoing proceedings before the learned trial court, the impugned notification was issued on 08.09.2025.

Consequent to this development, the petitioners preferred an application before the learned Judge Consumer/Commercial Court, praying for the return of the case to a court of competent jurisdiction, citing an absolute lack of jurisdiction on the part of the court then seized of the matter. However, the learned Judge of the Consumer Court, vide order dated 18.12.2025, dismissed the said application. It is against this backdrop of the aforementioned notification and the dismissal order that the petitioners have approached this Court through the present writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution).

4.Arguments heard and record perused.

5.The pivotal question of law that warrants determination in the instant petition is whether the Special Court, by virtue of the insertion of Section 12A into the West Pakistan Civil Courts Ordinance, 1962 (Ordinance of 1962) through the Khyber Pakhtunkhwa Civil Courts (Amendment) Act, 2025 (Amendment Page 2 of 13

Act, 2025), has been vested with the plenary status and powers of a “Principal Court of Civil Jurisdiction”. This determination is fundamental, as it goes to the root of the Court’s competence to adjudicate upon the complex civil rights and matters which have traditionally remained within the exclusive domain of the ordinary Civil Courts. To ascertain the scope of this jurisdictional shift and the legislative intent underpinning the conferment of such powers, it is imperative to examine the express language of the amending statute. The relevant text of Section 12A is reproduced herein below for ready reference:

12A. Power to transfer cases to Special Courts or tribunals. ---(1) Notwithstanding anything contained in any other law for the time being in force, the High Court. under intimation to Government, may, if considers it expedient so to do in the interest of justice. transfer any case-

(a)from a court of District Judge or Additional District Judge to a Special Court or Tribunal: or

(b)from one Special Court or Tribunal to another Special Court or Tribunal.

(2)Upon transfer or a case under sub-section (1) any connected case or cases shall also stand transferred.

(3)A Special Court or Tribunal to which the case is transferred under subsection (1) shall be deemed to be the court or Special Court or Tribunal, as the case may be in which the case was originally instituted and shall have all the powers and jurisdiction or such court.

(4)A Special Court or Tribunal to which the case is transferred under subsection (1), shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall and to rehear any witness who has given evidence and may act on the evidence already recorded.

Explanation: In this section the words “District Judge”, “Additional District Judge”, “Special Court” and “Tribunal”, shall have the same meaning as have assigned to them respectively by this Ordinance, the Code of Civil Procedure, 1908 or any special law for the time being in force.

6.A plain reading of the newly inserted Section 12A manifests a clear legislative intent to vest Special Courts with an expanded, Page 3 of 13

statutory jurisdiction that transcends their original enabling laws.

Sub-section (3) of Section 12A is particularly significant in this regard; it employs a “deeming clause” which explicitly mandates that the transferee Special Court “shall be deemed to be the court...

in which the case was originally instituted and shall have all the powers and jurisdiction of such court.” From the bare reading of the above provisions, it seems that this is not merely a procedural facilitation but a substantive conferment of jurisdiction. By operation of this statute, the Special Court is effectively deputized to act as the Principal Court of Civil Jurisdiction for the specific case transferred to it. To comprehensively evaluate the legal position arising from Section 12A of the Ordinance of 1962, and the contentious issue of a Special Court’s expanded jurisdiction, it is imperative to first establish a foundational understanding of what is a principal civil court? How the law treats a civil court both in terms of jurisdiction and constitution? And, what constitutes a “special law” and, consequently, a “Special Court” within our legal framework? This initial definitional clarity will then provide the necessary context for a nuanced discussion of the conferment of jurisdiction under Section 12A and its implications for the inherent powers of civil courts.

7.To determine the competence of the forum, it is imperative to first crystallize the legal character of a “Civil Court” and the specific status of the “Principal Civil Court of Original Jurisdiction.”

Under the statutory scheme of the Ordinance of 1962 (specifically Sections 3, 5, and 6) read with Section 2(4) of the Code of Civil Procedure, 1908 (CPC) and Section 3(15) of the General Clauses Act, 1897, the “Principal Civil Court” is identified as the Court of the Page 4 of 13

District Judge. As elucidated by the Sindh High Court in Patricia Anne Patel v. Gerald Cowling Patel [PLD 1972 Sindh 444], this expression must be understood in its literal and grammatical sense; the District Judge occupies the highest position within the district’s original jurisdiction. Consequently, where a special law confers jurisdiction upon the “Principal Civil Court,” it refers inextricably to the District Judge, and not to the Civil Judges, a position further fortified by the Lahore High Court in Mst. Anwar Begum v. State Life Insurance Corp. [2017 CLD 650]. However, the law does not view the District Court as a monolithic entity incapable of sharing its judicial burden. The legislative intent, as manifested in Section 6 of the Ordinance of 1962, allows for the delegation of functions to Additional District Judges. As held in Dr.

Muhammad Ishfaq Gujjar v. Additional District Judge [2021 LHC 5486] and Abdul Samad v. Muhammad Ali [PLD 1977 Lahore 687], once the District Judge assigns functions to an Additional District Judge, the latter exercises the same powers and jurisdiction as the former. This delegation is total, embracing the sum of the District Judge’s functions unless a specific statute expressly designates the District Judge as a persona designata or explicitly bars such delegation. Thus, constitutionally and statutorily, while the District Judge remains the administrative head and the “Principal” court, the judicial power of that office flows concurrently to the Additional District Judges upon assignment, creating a unified tier of superior civil adjudication within the district.

8.This hierarchy must be distinguished from, yet viewed in harmony with, “Special Courts.” While such tribunals are distinct entities, they are nonetheless courts constituted under Article 175 Page 5 of 13

of the Constitution and remain judicially inferior to the High Court, as observed in Altaf Hussain v. The State [PLD 1985 Lahore 10].

Their legitimacy and independence are secured through meaningful consultation with the High Court regarding appointments. [Ref: Imran v. Presiding Officer, PLD 1996 Lahore 542]. To understand their distinct operation, one must look to the “special law” that creates them. A “special law” is a law applicable to a particular subject. In case of Ch. Abid Saeed v. The State [2002 PCrLJ 1818 Karachi], special law, however in the context of criminal law, is defined as:

“Where the statute creates a special offence and lays down special procedure for investigation/inquiry as well as for trial of such offences and the special forum for trial.”

In the case of United Bank Limited Messrs J. Tylor & Co. Limited [2002 CLD 917 Karachi], it was held regarding the jurisdiction of special court under a special law:

From the discussion made above, it is clear that where a special law confers exclusive jurisdiction by creating a Special Court or forum then ordinary jurisdiction conferred under the general law would not be available.

9.In the framework of our jurisprudence, a “Special Court” is a tribunal of limited and exclusive jurisdiction, established by a specific statutory enactment to adjudicate distinct categories of cases that lie outside the general domain of ordinary civil courts.

While the term is not explicitly defined in a single statute, its nature is inferred from Article 175 of the Constitution as a forum “established by law,” functioning not through inherent powers but strictly within the “four corners of the jurisdiction” conferred by its enabling statute [Ref: Ghulam Shabbir v. Punjab Special Court 1992 PCr.LJ 1932 Lahore]. Crucially, the creation of such a Special Court Page 6 of 13

acts as an implied bar under Section 9 of CPC, effectively “eclipsing” general civil jurisdiction; as noted by the Apex Court in State Life Insurance v. Sardar Begum [2017 SCMR 999], where a special law provides a separate remedy, general provisions “stand eclipsed.”

These courts possess the attributes of a judicial forum—presided over by qualified judges often acting as persona designata rather than in their original capacity [See Ministry of Interior v. Special Court PLD 2020 Islamabad 82—and operate under the maxim generalia specialibus non derogant, meaning their specific procedural mandates prevail over general civil procedure [Ref: M/s Frontier Foundry Steel v. NEPRA 2025 MLD 26 Islamabad]. Thus, a Special Court is an exclusive adjudicatory body where the “ouster of jurisdiction” of general courts is a necessary consequence of its establishment to deal with rights and liabilities unknown to the common law.

10.It is settled law that a Special Court, being a creature of statute, cannot ordinarily extend its jurisdiction beyond the scope of the law creating it. As held in Inayat Ali v. The State [1992 PCr.LJ 1485 Lahore], it is a court of “limited jurisdiction,” and any attempt to exercise powers not expressly conferred would be ultra vires.

However, the insertion of Section 12A introduces a novel legal paradigm. By employing the fiction of law through the “deeming clause” in sub-section (3), the Legislature has essentially superimposed the general jurisdiction of a District Judge onto the limited framework of a Special Court for the transferred cases. This creates a unique hybridization: a forum that is structurally a “Special Court” but functionally, for the purposes of the transferred case, deemed to be a “Court of original jurisdiction” with all Page 7 of 13

attendant powers. The “ouster of jurisdiction” that typically defines a Special Court is here conversely met with a “conferment of jurisdiction” by the general civil law (the Ordinance of 1962), effectively piercing the veil of exclusivity that usually surrounds special tribunals.

11.Through the impugned notification dated 08.09.2025, Civil Suit No.38/1, titled “Anwar Saeed Vs Dr. Azhar etc.”, pending before the Additional District Judge, Abbottabad, was transferred to the Special Court/Consumer Court established under Section 11A of the Khyber Pakhtunkhwa Consumers Protection Act, 1997, which is reproduced as under:

11A. Establishment of Consumer Courts. --- Government may, by notification in the official Gazette, establish a Consumer Court in each District of the Province to be presided by a District and Session Judge or Additional District and Sessions Judge.

Thus, the Special Court/Consumer Court is being presided over by a District Judge/Additional District Judge.

12.Consequently, the argument that a Special Court lacks the competence to try a civil suit transferred under Section 12A loses its force when viewed through the lens of this specific statutory empowerment. The “deeming” provision operates to cure the inherent jurisdictional disability of the Special Court regarding general civil matters. Just as a special law can oust the jurisdiction of a civil court, the amendment to the Ordinance of 1962—which governs the hierarchy and powers of civil courts—can conversely vest a Special Court with the powers of a District Judge. The Special Court, therefore, acts in a dual capacity: retaining its character as a special tribunal for its scheduled matters, while simultaneously Page 8 of 13

exercising the deemed powers of a Principal Court of Civil Jurisdiction for the cases transferred under the command of the High Court.

13.To fully appreciate the mechanics of this jurisdictional transfer, one must examine the legal nature of the “deeming provision” employed in Section 12A(3). A deeming clause is a well- recognized legislative device used to create a statutory fiction, mandating that a certain subject matter or situation, which may not exist in reality, must be treated as if it exists for the purposes of that law. The legal effect of such a provision is profound. As held by the Lahore High Court in Noor Muhammad Khan v. Board of Revenue [1976 PLD 1061 Lahore], when the law commands the Court to treat an imaginary state of affairs as real, the Court must look at the fiction and not the actual facts. The Court observed: “If you are bidden to treat an imaginary state of affairs as real, you must surely...

also imagine as real the consequences and incidents which... must inevitably have flowed from or accompanied it.” This principle, often referred to as the “Rule of Inevitable Corollaries,” was reaffirmed by the Supreme Court of Pakistan in Syed Muddasar Shah Termizi v.

Peshawar High Court [2021 SCMR 116]. The Apex Court held that once the legislature commands that a certain status is “deemed” to exist, the Court must give full effect to this fiction and accept all inevitable corollaries flowing from it. The judicial imagination must not “boggle” or hesitate simply because the reality is different.

Therefore, when Section 12A(3) deems the Special Court to be the court in which the case was originally instituted, we are legally bound to imagine that the Special Court possesses every attribute, power, and competence of the District Judge for that specific case. Page 9 of 13

To argue otherwise would be to deny the statutory command and allow the imagination to boggle at the very threshold of the legislative intent.

14.However, it is equally settled that this legal fiction is not boundless. As clarified by the Supreme Court in Muhammad Mubeen-us-Salam v. Federation of Pakistan [2006 PLD 602 SC], a deeming clause is strictly limited to the specific purpose for which it was created and cannot be extended beyond the language of the section to import additional fictions or collateral consequences not intended by the legislature. In the instant case, the “deeming” is precise: it is for the purpose of the transferred case’s trial and adjudication. It does not permanently transform the Special Court into a District Court for all other matters, nor does it grant it general civil jurisdiction outside the specific transferred lis. It creates a functional jurisdiction, encapsulated strictly within the proceedings of the transferred case, satisfying the requirement that jurisdiction must be conferred explicitly and not by implication.

15.In our understanding of the scheme, this deeming provision acts as an express conferment of jurisdiction, satisfying the stringent test laid down in Syed Mohammad Hassan Raza Rizvi v.

Federation of Pakistan [2022 MLD 227], which requires that jurisdiction must be “explicitly expressed and definitive.” Here, the statute does not leave the matter to implication; it unequivocally clothes the Special Court with “all the powers and jurisdiction” of the transferor court. Therefore, for the limited purpose of the transferred case, the distinction between the Special Court and the Page 10 of 13

Civil Court is statutorily erased. The Special Court does not merely try the case; it becomes the Civil Court in the eyes of the law, exercising plenary powers that would otherwise be foreign to its original jurisdiction. The argument that a Special Court is strictly confined to its creating statute must yield to the express authorization of the Ordinance of 1962—the very parent legislation that establishes the hierarchy and jurisdiction of Civil Courts in the province.

16.Furthermore, the operation of Section 9 of the CPC complement this interpretation rather than contradicting it.

Section 9 provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In the present case, far from being barred, the cognizance of these civil suits by the Special Court is expressly authorized by Section 12A. The provision acts as a statutory bridge, effectively removing any implied bar that might otherwise exist due to the special nature of the court. Since both the ordinary Civil Courts and the Special Courts (specifically where their presiding officers are drawn from the cadre of District Judges) operate under the umbrella of state judicial power, the legislature is fully competent to expand the jurisdiction of a Special Court to include general civil suits through such an amendment.

17.Therefore, the logical conclusion is that when a District Judge or Additional District Judge presides over a Special Court and receives a case via transfer under Section 12A, they do not sit merely as a persona designata—an individual selected for a specific, narrow purpose—but rather as a judicial officer exercising Page 11 of 13

a dual capacity: one under the special law and another under the express statutory mandate of the Ordinance of 1962. To argue otherwise would be to render the words “shall have all the powers and jurisdiction of such court” in sub-section (3) redundant, a result which established principles of statutory interpretation strictly forbid. The Special Court, for the purpose of the transferred case, steps into the shoes of the District Court, fully clothed with the requisite jurisdiction to adjudicate the dispute.

18.Therefore, we find no merits in the petition. The order dated 18.12.2025 passed by the learned Judge Consumer Court, Abbottabad is well reasoned and warrant no interference.

19.As regards the impugned notification, the challenge raised herein is fundamentally misconceived under the constitutional scheme. The Petitioner has arrayed the Peshawar High Court as a respondent; however, it is a settled principle that the High Court, as defined under Article 192 of the Constitution, consists of its Chief Justice and other Judges, and any action taken by them in their official capacity is the action of the Court itself. On the touchstone of the ratio laid down by the Supreme Court of Pakistan in Gul Taiz Khan Marwat v. Registrar, Peshawar High Court [PLD 2021 SC 391], which overruled prior contrary views, the executive, administrative, and consultative actions of the Chief Justice or Judges are not amenable to the constitutional jurisdiction of a High Court under Article 199. The Apex Court held that Judges “do not act as persona designata, rather act for and on the behest of, and as a High Court... and are therefore not amenable to the constitutional jurisdiction.”

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20.This principle reaffirms the earlier authoritative stance taken in Asif Saeed v. Registrar, Lahore High Court [1999 PLD 350], which clarified that Article 199(5) creates an absolute bar, preventing the High Court from being conferred with two distinct characters—one judicial (immune) and one administrative (amenable). This view was subsequently approved by the Supreme Court in Muhammad Iqbal v. Lahore High Court through Registrar [2010 SCMR 632], where the Court warned that permitting such challenges would run “diametrically opposed to the principles of comity and can lead to the complete destruction of judicial as well as administrative fabric of the institution.” Consequently, the impugned notification, being an administrative act of this Court, is immune from challenge in writ jurisdiction. To hold otherwise would lead to the anomalous position of the Court issuing a writ against itself, a result that is legally unsustainable.

21.Resultantly, the petition stands dismissed.

22.The Additional Registrar (Judicial) of this Court is directed to circulate this judgment amongst all the Courts (including the Special Courts) of the Province for information and compliance.

Sd/--

JUDGE

JUDGE

Date of hearing and announcement of judgment ............ 23.01.2026 Date of preparation and signing of Judgment ............... 21.02.2026

(D.B) Hon’ble Mr. Justice Syed Arshad Ali and Hon’ble Justice Ms. Farah Jamshed Mahmood Shah, SSS

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