P L D 1997 SC 11




Per Ajmal Mian, J.

(a) Constitution of Pakistan (1973) Art-187–

The above reports do not lay down that an independent proceeding can be initiated under Article 187 of the Constitution but the ratio of the above reports seems to be that once this Court is seized of a lis competently under the relevant law, its power to grant appropriate relief is not controlled by the technicalities of the pleadings or otherwise as clause (1) of Article 187 lays down that subject to clause (2) of Article 175 of the Constitution, the Supreme Court shall have power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery of production of any document. We may point out that the key-word employed in the above clause are “in any case or mater pending before it”. The above words clearly indicate that the relief referred to in the aforesaid clause can be granted in the case or matter pending before the Supreme Court. It may further be observed that the word “pending” means competently brought before this Court. The provision of Rule 6 of Order XXXIII of the Rules is in line with above Clause (1) of Article 187 of the Constitution as it provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The above Rule can be pressed into service only in a matter which is competently filed before this Court but it does not give an independent right to initiate proceedings of the nature in question. [p. 21, 22] A

(b) Constitution of Pakistan (1973), Articles 184(3), 32 & 7

We are also unable to subscribe to the submission of Mr. Maqbul Elahi Malik that proceedings can be brought under Article 184(3) for the violation of Article 32 read with Article 7 of the Constitution. It may be pertinent to mention that Article 32, which is contained in Chapter II of the Constitution relating to Principles of Policy, provides that the State shall encourage local council institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women. Whereas Article 7 gives that definition of the term “State” which inter alia includes local or other authorities in Pakistan as are by law empowered to impose any tax or cess. Since the above Article 32 of the Constitution is not a part of the Chapter containing Fundamental Rights any alleged violation of the same cannot be assailed through Article 184(3). [p. 22] B

(c) Constitution of Pakistan (1973), Article 2A

We are also not impressed by Mr. Maqbul Elahi Malik’s submission that the Repeal Act is violative of Article 2A of the Constitution as admittedly the same has been passed by the chosen representatives of the people, namely, the members of the Provincial Assembly, who were competent to pass the same under the Constitution. [p. 22] C

(d) Constitution of Pakistan (1973), Article 184(3)

From the review of the above case-law, it is evident that the Court is not at liberty to inquire into the motives or mala fide on the part of the Legislature. Once a statute is competently made, the Court is not entitled to question the wisdom or fairness of the Legislature. Nor the Court can refuse to enforce a law competently made on the ground that the result would be to nullify its own judgment. The later proposition of law has been enunciated by this Court inter alia in the case of the State v. Zia-ur-Rehman (supra), M/s Mamunkanjan Cotton Factory v. The Punjab Province and others (supra) and Haji Ghulam Rasul and others v. The Government of Punjab (supra). In the above second case, the Governor by issuing the Punjab Cotton Control (Validation of Levy of Fee) Ordinance: 1971, nullified the effect of the judgment of the erstwhile High Court of West Pakistan rendered in the case of Hakimuddin v. Chief Cotton Inspector (PLD 1960 Lahore 709), wherein it was held that the recovery of the cotton fee from the petitioner’s ginning factory was ultra vires the West Punjab Cotton (Control) Act, 1949. This Court upheld the above Validation Ordinance. Whereas in the above second unreported judgment relating to Darbar of Hazrat Data Ganj Bakhsh, this Court upheld the Ordinance No. XVI of 1971 promulgated by the Governor of Punjab, the effect of which was that it had taken away the rights conferred upon the Mujawaran by the judgment of this Court reported in PLD 1971 SC 376. It may also be pointed out that in the case of Piare Dusadh and others v. Emperor (supra) the Governor-General promulgated an Ordinance inter alia validating the convictions which were held illegal by the Federal Court of India. When the matter again brought before the Federal Court assailing the above validating Ordinance, it upheld the validity of the said Ordinance. [p. 26, 27] D

The Repeal Act had taken away the rights of the petitioners to remain as the members of the local councils up to 9-2-1997 conferred by the above judgment of this Court of 26-6-1996. Keeping in view of the ratio decidendi of the above judgments of this Court, the Repeal Act cannot be struck down on the above ground. [p. 27] E

We may again observe that in fact the vires of the Repeal Act were not assailed before us by Mr. Iffrikhar Hussain Gillani, through Mr. Maqbul Elahi Malik contended that it was colourable exercise of the Legislative power and that the same was promoted with ulterior motive to keep the councillors out of office, but this is also not substainable ground in law as pointed out herein above. [p. 27] F

(e) Constitution of Pakistan (1973), Article 184(3)

This leads us to the submission of Mr. Ifrikhar Hussain Gilani that since section 2 of the Repeal Act has not expressly provided for nullifying the above judgment dated 26-6-1996 of this Court, the same holds the field. No doubt that in above section 2 the words “notwithstanding the judgment of the Supreme Court or of any other Court” have not been used, but the language employed therein clearly manifests the legislative intent to nullify the above judgment of this Court as to the reinstatement of the members of the local councils for the remaining period expiring on 9-2-1997 by providing in above-quoted subsection (2) of section (2) of section 2 that the members of the local councils shall cease to hold office. In this view of the matter, the omission to employ non obstante clause in the above section is of no legal consequence. The above provision in fact and in law has nullified the effect of the above judgment of this Court. [p. 27] G

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