P L D 1999 SC 504



FEDERATION OF PAKISTAN through Ministry of Law, Justice and

(a) Constitution of Pakistan (1973) Art. 6-
As a fall out, our country had been experiencing instability in the polity. The Doctrine of Necessity cannot be invoked if its effect is to violate any provision of the Constitution, particularly keeping in view Article 6 thereof which provides that “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason”.[p. 596] P

(b) Constitution of Pakistan (1973) Arts, 5 & 6

In this case, the country is not under the umbrella of Martial Law and Fundamental rights have not been suspended. Article 5 of the Constitution provides that loyalty to the States is the basic duty of every citizen and that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. Article 6 of the Constitution stipulates that any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason; any person aiding or abetting the acts mentioned in clause (1) of article 6 shall likewise be guilty of high treason and that Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason. The Judges of the superior Courts have also sworn an oath under the Constitution that they shall preserve, protect and defend the Constitution of the Islamic Republic of Pakistan and shall discharge their duties and perform their functions honestly to the best of their abilities and faithfully ion accordance with the Constitution and the law and that in all circumstances, they will do right to all manner of people, according to law, without fear or favour, affection or ill-will.

It would, therefore, be seen that the civil liberties and Military Courts cannot endure the scheme of our Constitution. There is no doubt, as pointed out by Chief Justice Earl Warren, that so far as the relationship of the military to its own personnel is concerned, the basic attitude of the Court as to jurisdiction of the Civil Court to review the decision of Military Courts by invoking the Constitutional jurisdiction has been limited to examination of cases which are found to be mala fide, coram non judice and without jurisdiction. [p. 804 & 805] H

(c) Constitution of Pakistan (1973), Art. 2A-
r/w Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance (XII of 1998) S. 3-

The Constitution of the Islamic Republic of Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2A) declares that “the independence of the Judiciary shall be fully secured “therein. According to a consensus of the jurists, the independence of the Judiciary means that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature. This Court vide its judgement in the case of Sharaf Afridi (supra) has separated the Judiciary from the Executive. [p. 807] J

Some cases from American jurisdiction may also be referred to wherein validity of the Military trials had been dilated upon, a bare reading of which would urge us to draw a safe inference as to the establishment of Military Courts that they ought never to exist where the Civil Courts are open and performing their functions properly nor should they be obstructed in the proper exercise of their jurisdiction by replacement thereof. [p. 811] K

In the case of O’ Callahan v. Parker 89 SCt. 1683, 395 US 258 it was, inter alia, observed that history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. [p 814] L

In Reid v. Covert (77 S. Ct. 1222, 354 US 1), it was noticed that the trial of soldiers by Courts-Martial and the interference of the Military with the Civil Courts had aroused great anxiety and antagonism not only in Massachusetts but throughout the colonies. [p. 815] M

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