The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Iftikhar Muhammad Chaudhry, C.J–

Constitution ofPakistan(1973) Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3) r/w Proclamation of Emergency dated 3-11-2007-Provisional Constitution Order [1 of 2007]-Oath of Office (Judges Order, 2007-Provisional Constitution (Amendment) Order, 2007-Constitution (Amendment) Order [5 of 2007]-Constitution

(Second Amendment) Order [6 of 2007]-IslamabadHigh Court (Establishment) Order [7 of 2007]-High Court Judges (Pensionary Benefits) Order [18 of 2007]-Supreme Court Judges (Pensionary Benefits) Order [9 of 2007]-Supreme Court (Number of Judges) Act (XXXIII of 1997)-

In the instant case, the actions of 3rd November 2007 taken by General Pervez Musharraf, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan Shaukat Aziz to the President of Pakistan General Pervez Musharraf, in which he wrote as under: –

“SUBJECT: NATIONAL SECURITY SITUATION

Dear Mr. President,

I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future ofPakistan.

2. The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally inKarachion18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April – October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.

3. There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular. The corner stone of the economic policies of the government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.

4. It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review, however, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.

5. Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens ofPakistanand negatively impacting the economy. Wide-ranging suo motu actions of the courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.

6. A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.

7. There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.

8. On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.

9. The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.

10. Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest.Pakistanis a country that achieved independence after immense sacrifices and has tremendous potential to develop. Prosper and be recognized among the comity of nations as a country with an exciting future.”

Yours sincerely,

Sd/-

(Shaukat Aziz)

General Pervez Musharraf

President

IslamicRepublicofPakistan

Aiwan-e-Sadr,Islamabad”

As is evident from the opening paragraph of the letter, the Prime Minister wrote to the President “to share his thoughts on the national security situation and the risks” that it represented for the “future ofPakistan”. In Paragraph 2, the Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi on 18th October, 2007, etc., and the writ of the government being eroded as non- State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible. Paragraphs 3 to 8 dilated upon the interference by some members of the judiciary in the executive functions and in Paragraph 9 he stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security. In Paragraph 10, the Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future.

From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter. With a slight change in the modus operandi, it was a replay of the events of 25th March, 1969 where President Ayub Khan wrote a letter to the Commander-in-Chief of Army General Yahya Khan asking him to discharge his constitutional and legal duty of restoring law and order situation in the country, which had worsened on account of agitation and riots throughout the length and breadth of the country. In turn, General Yahya Khan, imposed martial law, abrogated the Constitution of 1962 and brought the country under the control of the Armed Forces and took upon himself the governance of the affairs of the country by means of the PCO of 1969. In Asma Jilani’s case, such assumption of power by General Yahya Khan was declared to be illegal and he was termed as a usurper because no such power vested in the Commander-in-Chief of Army to take the kind of steps that he took in pursuance of the letter of President Ayub Khan. In the instant case too, no power vested in the Chief of Army Staff General Pervez Musharraf under the Constitution and the law to issue Proclamation of Emergency and PCO No. 1 of 2007 on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary. If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency.

Nowhere the Prime Minister asked the President to take the actions that he took on3rd November, 2007. In any case, it was not an advice tendered by the Prime Minister in terms of Article 48 of the Constitution. Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps. The Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No.1 of 2007. Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan, issued Oath Order, 2007, illegally assumed to himself power to remove Judges of the superior Courts in violation of Articles 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts.

In the cases of Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan, such acts of the concerned Chief of Army Staff were described as extra-constitutional steps or measures and were dealt with on an extra-constitutional plane. We, however, take the view that the aforesaid acts of General Pervez Musharraf were violative of the Constitution, pure and simple. In Begum Nusrat Bhutto’s case, Syed Sharifuddin Pirzada, Sr. ASC, while appearing as Attorney General forPakistan, described such assumption of power by the Chief of Army Staff General Ziaul Haq as “supra-constitutional”. Anwarul Haq, CJ, while dilating upon such submission of the learned Attorney General, chose to term it as “extra-constitutional” and granted validity keeping aside the provisions of the Constitution. It was not right to expend so much judicial talent, legal acumen, industry, time and energy on the part of the Bench and the bar to coin the terms of “supra-constitutional” and “extraconstitutional”, that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases. In our view, such terminology would hardly change the unconstitutional nature and character of the said actions, which not only ex facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law.

The statement of Hamoodur Rahman, CJ, just quoted, referring to “any document or of any provision in any law which gives the Commander of the Armed Forces the right to proclaim martial law” could in no manner be treated as restricted to the assumption of power by General Yahya Khan alone. Further, in holding that “looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March 1969, either by Field-Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation”, he minced no words.

It was a general statement and would apply to each and every situation in which an authority not mentioned in the Constitution assuming power would be treated as usurper. We lay it down firmly that the assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any court, including the Supreme Court. Henceforth, a Judge playing any role in future in the recognition of such assumption of power would be guilty of misconduct within the ambit of Article 209 of the Constitution.

As noted earlier, on3rd November, 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff. In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughoutPakistanand holding the Constitution in abeyance. By Article 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other Order made by the President be governed, as nearly as may be, in accordance with the Constitution. Under the proviso to the above Article, it was provided that the President may amend the Constitution, as may be deemed expedient.

By clause (3) of Article 2 it was provided that all courts shall continue to function subject to PCO No. 1 of 2007 and Oath Order, 2007, but the Supreme Court, a High Court or any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority. By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Articles 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him.

Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, an Ordinance issued by the President or by a

Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution. He purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of clause (1A) of Article 243 of the Constitution.

To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial court.

Seen in the above perspective, the actions of General Pervez Musharraf dated3rd November, 2007were the result of his apprehensions regarding the decision of Wajihuddin Ahmed’s case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneouvring another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words “I, General Pervez Musharraf…….” used in it.

There is force in the submission of the learned counsel for the petitioners that the continuation in power of General Pervez Musharraf was all along the result of maneouvring. The holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the Seventeenth Amendment to the Constitution was passed on 31st December, 2003 under the umbrella of an accord between the PML (Q) and the MMA, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th November, 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid Seventeenth Amendment. He promised to relinquish the office of Chief of Army Staff on or before 31st December, 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004. That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami’s case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed’s case. The majority decision in Jamat-e-Islami’s case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners. However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President.

It is noteworthy that contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18th February, 2008, too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd November, 2007, which displayed their commitment to the rule of law and supremacy of the Constitution.

In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which this Court is entitled to, in the light of the law laid down in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006 SC 697) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130).

In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, it is further held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.

General Pervez Musharraf, during the period of the emergency from 3rd November, 2007 to 15th December, 2007, in pursuance of the instruments and measures of 3rd November, 2007, which have been held and declared to be unconstitutional, illegal and void ab initio in the preceding paragraph, promulgated some more instruments, which are noted hereinafter. On15th November, 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO No. 1 of 2007 so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of3rd November, 2007.

On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Articles 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution). By the same Order, he purported to add Article 270AAA in the Constitution (validation and affirmation of laws etc.).

On 14th December, 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.

By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th December, 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders etc. of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, etc., were provided.

By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th December, 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court. A Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office with effect from3rd November, 2007would not be entitled to full pension and other retirement benefits.

Finally, on15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on3rd November, 2007was revoked on and with effect from15th December 2007and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of theFederal Shariat Courtand Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution.

The learned counsel for the petitioners vehemently contended that General Pervez Musharraf could not have introduced his own amendments into the Constitution for self-service and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan’s case.

Therefore, all such instruments and measures including constitutional amendments along with the judgments were required to be done away with. They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani’s case. We have considered this aspect of the matter. An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Articles 270C and 270AAA in the Constitution. The provision of Article 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, the elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the Seventeenth Amendment to the Constitution. Further, when the elections were held on18th February, 2008, the Constitution was in force having already been revived on15th December, 2007.

To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the Judicature and a High Court established for theIslamabadCapitalTerritory, to be known as the Islamabad High Court. Indeed, the establishment of a High Court or a Federal Court for theIslamabadCapitalTerritorywas an act, which could have been done under and in accordance with the Constitution. It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein.

Therefore, it was not possible to condone it. However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law. Even while making amendments relating to the Judicature, an amendment was made in Article 186A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf.

Again, in the second phase of amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court etc., which could be considered to “have been done for the ordinary orderly running of the State” were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd November 2007 and that the Judges including Chief

Justices of Supreme Court,Federal Shariat Courtor High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution.

Last, but not the least, the objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on3rd November, 2007was revoked on and with effect from15th December 2007and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of theFederal Shariat Courtand Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall take oath under the Constitution. On the pattern of Zafar Ali Shah’s case, this was made to appear like “transactions which are past and closed, for, no useful purpose can be served by reopening them” as held in Asma Jilani’s case.

It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. Why, because –

Firstly, they were void ab initio because they were made by an authority not competent to do so under the Constitution;

Secondly, Article 237, as presently worded, provides for indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person only in respect of any act done in connection with the maintenance or restoration of order in any area inPakistan, and nothing else. It does not provide for validation of unconstitutional, illegal and void ab initio acts of usurpers of power by the Majlis-e-Shoora (Parliament). It is noteworthy that Article 278 of the Interim Constitution provided as under: –

“278. Nothing in this Constitution shall prevent the Federal Legislature from making any law indemnifying any person in the service of the Federal or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area. [Emphasis supplied]

However, the above provisions of Article 278 were not adopted in the Constitution of 1973, as they were, and the words “where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area” were omitted.

On a consideration of the above two provisions, Ajmal Mian, CJ, in his leading judgment in Liaquat Hussain’s case, held that imposition of martial law in connection with the maintenance or restoration of order in any area in Pakistan had been done away with in the Constitution of 1973. Thus, unless Article 237 was first amended, no validation, affirmation or adoption of unconstitutional, illegal and void ab initio acts of a usurper of power could be made by Majlis-e- Shoora (Parliament), otherwise one provision would render the other redundant and nugatory; the two of such provisions stand in an irreconcilable conflict, leaving no room for the Court except to ignore the one, or at the best to prefer one provision over the other, as it did in Al-Jehad Trust case and gave effect to Article 209 as against Article 203C, which was found to be violative of the independence of judiciary – a salient feature of the Constitution. By the Proclamations of Emergency of 14th October, 1999 and of 3rd November, 2007 only emergency was proclaimed (though it was nothing short of martial law as earlier imposed in the country), hardly realizing that emergency could be imposed by the President under Article 232 of the Constitution only in the given

circumstances, which too would be justiciable as per the law laid down in Farooq Ahmed Khan Leghari’s case (supra), and Chief of Army Staff had nothing to do with it – the activity and the functions of the Armed Forces being restricted within the parameters of Article 245 as discussed in the preceding paragraphs. We would hasten to observe that as a matter of fact, in the garb of emergency, same objectives were sought to be achieved as were previously done through the imposition of martial law up to 1977. A new dimension in 2007 was that this time, even the whole ofPakistanwas not brought under the control of the Armed Forces and the executive and legislative organs of the State were kept intact. While proclaiming emergency throughoutPakistan, it was simply ordered and proclaimed that the Constitution of Pakistan shall remain in abeyance;

Thirdly, the Constitution, for its amendment, has not envisaged any mode other than the one prescribed in Articles 238 and 239. Even if it were to be repealed, the same procedure would be required to be followed. These Articles, actually, provide the Constitution with the inner strength so as to withstand the invasions from within. On the eve of every military takeover, either it was said that the Constitution had become unworkable, or a situation had arisen for which the Constitution provided no solution. It was so, not because the Constitution had, in fact, become unworkable or in reality a situation had arisen for which indeed the Constitution provided no solution, but because of the fact that the people at the helm of affairs did not want to follow the Constitution;

Fourthly, Article 6 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. As a matter of fact, Article 6 has built a stronghold around the body of the Constitution to safeguard it from any encroachment or violation from without. If each time an authority were to put it aside at his will, and do whatever he liked to do with it, that too, by the use or show of force or by other unconstitutional means, the provisions of Article 6 would be rendered redundant and nugatory, rather meaningless, which was not the intent, nor was the same permissible. Indeed, the Constitution is an organic whole and a living document meant for all times to come. We, therefore, are of the view that the holding in abeyance of the Constitution and/or making amendments therein by any authority not mentioned in the Constitution otherwise than in accordance with the procedure prescribed in the Constitution itself, is tantamount to mutilating and/or subverting the Constitution. Thus, so long as Article 6 is part of the Constitution, the Parliament is debarred from even condoning unconstitutional acts of a usurper, what to talk of validating, affirming and adopting the same, or deeming the same to have been made by the competent authority on any ground whatsoever. It is noteworthy that the acts of General Yahya Khan were neither validated nor condoned by the Parliament while framing Articles 269 and 270 of the Constitution. The language of Article 237, which opens with the words, “Nothing in the Constitution shall prevent Majlis-e-Shoora (Parliament) from making any law indemnifying any person……” clearly points to the inhibitions contained in the Constitution itself, under which Majlis-e-Shoora (Parliament) might not be able to do certain things, such as, its inability to legislate against Fundamental Rights, the Injunctions of Islam as laid down in the Holy Quran and Sunnah, etc. Therefore, Majlis-e-Shoora (Parliament) is not supreme over everything else as is put in the common parlance, or as it is said of the Parliament of theUnited Kingdom, rather it is independent of other organs of the State, but it certainly operates within certain parameters. The validations, affirmations or adoptions made under the Eighth and the Seventeenth Amendments stand on a different footing and we would not like to go into the circumstances in which those amendments were passed.

But, we would certainly observe that the amendments made by an authority not mentioned in the Constitution, and otherwise than in accordance with the procedure prescribed in the Constitution could hardly be given any sanctity vis-à-vis the amendments made by the Majlis-e-Shoora (Parliament) in accordance with the procedure laid down in Articles 238 and 239 of the Constitution, even on considerations such as the elected Parliaments were reduced to mere rubber stamps by the leaders of the Houses, or the representatives of the people, who were responsible for running the affairs of the State were themselves accused of massive corruption and corrupt practices, they had misdeclared their assets before the Election Commission and tax authorities, or they were resisting establishing good governance in the country, bank loans defaults were rampant, there was no economic or political stability, etc. etc. A wrong committed by one person does not furnish justification for, or give licence to, others to commit wrongs, even more blatant. In the above perspective, it is noteworthy that the Parliament elected in the General Elections of 18th February 2008 has not, and rightly so, put a seal of approval upon the unconstitutional, illegal and void ab initio acts/actions of General Pervez Musharraf of 3rd November, 2007 including the amendments made by him from that date up to 15th December, 2007. Unless such an approach is firmly entrenched into the body politic and the jurisprudence of this country, military takeovers previously in the name of martial law, and later in the garb of proclamation of emergency will continue to recur as heretofore, and there will be nothing stopping the repetition of the actions of the nature of 7th October, 1958, 25th March, 1969, 5th July, 1977,

12th October, 1999and3rd November, 2007using unconstitutionally and illegally the cover of the Armed Forces.

Such exercise of power, therefore, cannot be indemnified by the Parliament under Article 237 of the Constitution. There is no other provision in the Constitution under which they can be validated, affirmed or adopted on any consideration whatsoever;

Fifthly, this Court, in Al-Jehad Trust case, has already given preference to the provisions of Article 209 over those of Article 203C on considerations, such as, Article 203C providing for appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court without his consent was violative of Article 209; Article 203C was incorporated by the Chief Martial Law Administrator while Article 209 was enacted by the framers of the Constitution,

which was a beneficial provision promoting independence of judiciary, inasmuch as it guaranteed the tenure of a Judge, therefore, in case of conflict between the two, Article 209 would prevail over Article 203C, which detracted from the dominant intent and spirit of the Constitution, namely, the guarantee of tenure of a Judge of the Supreme Court or a High Court and the independence of judiciary and consequently, such an appointment would be void. Likewise, it is not possible to reconcile the provisions of the Constitution validating, affirming and adopting the amendments made by an authority not competent to do so under the Constitution with the provisions of Articles 6 and 237 as also Articles 238 and 239 of the Constitution. The provisions containing successive validations, affirmations and adoptions have defeated the dominant intent and spirit behind aforesaid Articles by which the framers of the Constitution, by consensus, desired to secure the inviolability and the sanctity of the Constitution. It should be noted that Articles 6 and 237 were framed in the backdrop of the successive abrogation of the Constitutions and imposition of martial laws in the country from time to time by the General commanding the Army at his will and whim. It is the bounden duty of all the three organs of the State to ensure the inviolability and the sanctity of the Constitution. Amendments made by an authority not mentioned in the Constitution cannot be validated by any Court including the Supreme Court. Even otherwise, none of the judgments ever laid down that in future the Army Chief would have the power to amend the Constitution and such exercise of power by him or by any other authority not mentioned in the Constitution would always be protected. In any case, it is clarified that neither the Supreme Court itself possesses any power to amend the

Constitution, nor can it bestow any such power on any authority or any individual. The amendment of the Constitution is the exclusive domain of Majlis-e-Shoora (Parliament) in terms of Articles 238 and 239 of the Constitution and this Court only claims, and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.

In Asma Jilani’s case, Hamoodur Rahman, CJ, held that a Legislature could not validate an invalid law if it did not possess the power to legislate on the subject to which the invalid law related, the principle governing validation being that validation being itself legislation, one could not validate what one could not legislate upon. However, it appears that the above ruling as also the kind of acts that were found to be liable to be condoned in that case have been used by the successive military regimes for ulterior purposes of usurping power and retaining it indefinitely. To appreciate this aspect of the matter, it is necessary to examine the various categories of acts of the usurper, which were condoned in that case. They read as under: –

(1) All transactions which are past and closed, for, no useful purpose can be served by reopening them;

(2) All acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order;

(3) All acts which tend to advance or promote the good of the people; and

(4) All acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, the objectives mentioned in the Objectives Resolution of 1954.

On a perusal of the above four categories of acts, it becomes clear that the exercise of power by the usurper was accepted and condoned in totality because, all transactions which were past and closed were protected. Next, all acts and legislative measures which were in accordance with, or could have been made under, the abrogated Constitution or the previous legal order were protected. Through this, absolute power of amendment of the Constitution, as exercised, was protected which, in the ordinary course, a duly constituted Parliament would find difficult most of the times to make for not having the requisite majority. In protecting all acts which tended to advance or promote the good of the people, every conceivable power exercised by the stroke of pen, at the will and whims of the person doing the same was protected. What the successive military rulers, on the strength of the above criteria, did was that they made amendments for their illegal and unlawful personal gain and then mixed the same with few amendments here and there giving them complexion of advancing or promoting good of the people. In our view, only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, as explained in this judgment, including passing of order dated 3rd

November, 2007 by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.

In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President’s Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect.

The factual matrix on which Proclamations of Emergency were based differed in every case. There were entirely different sets of facts and circumstances prevailing on each takeover. The ground for takeover on5th July 1977was an alleged widespread agitation against the rigging in elections held in March 1977 and the consequential huge loss of human life. On12th October, 1999, it was alleged that the State machinery at the centre and provinces had completely broken down, the Constitution had been rendered unworkable and a situation had arisen for which the Constitution provided no solution. On3rd November, 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the courts, which negated the fundamentals of an adversarial

system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular. Therefore, it was ‘a situation for which the Constitution provided no solution.’ If we were to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and we would end up seeing each time a new scenario. Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more – up to what time, it is not possible to predict. Therefore, we have to pause for a while and see where the wrong lies, what options and remedies are available with us, and then make an objective analysis and reach some conclusion. Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable.

On the first two occasions, it was abrogated, but thereafter it was held in abeyance. Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 really such that the Constitution provided no solution? Do similar situations not arise in other countries? Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries? Is there no corruption in the other countries? Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State? Does rigging in elections not take place in other countries? What was the wrong with the judiciary in 1958, 1969, 1977 and 1999? Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable?

Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions. It is for the nation to address these questions in all earnestness.

As to the validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, in our view, it was wrongly examined earlier on the factual plane. On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle.

Further, he cited the principle of necessity, enunciated by Lord Mansfield in his address in the proceedings against George Stretton, as earlier noted by Muhammad Munir, CJ in his judgment in The Reference No. 1 of 1955, as “subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution”, and as affirming Chitty’s statement that “necessity knows no law”, and the maxim cited by Bracton that “necessity makes lawful which otherwise is not lawful.” In the first place, reference to the judgment in The Reference No. 1 of 1955 was off the mark. The Court there was confronted again with an ex post facto situation, the question of validation of the acts of Constituent Assembly, which had been rendered invalid by a decision of the Federal Court on account of lack of assent of the Governor-General being before it.

The facts of the case were entirely different and the law laid down there was hardly attracted to the facts of Begum Nusrat Bhutto’s case. Secondly, he never addressed the “condition of absoluteness, extremeness and imminence”, or “the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution”. Nothing was said about absoluteness, extremeness or imminence of the action of5th July, 1977and the principle of necessity was invoked for the destruction rather than preservation of the Constitution.

The Constitution is the cementing force of the State and the society. By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made. It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means. Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution.

That is the destruction of the Constitution and if the Constitution were to be destroyed, State and the society in the modern times could be preserved in no manner. Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the civil and the State necessity and the welfare of the people, or in the name of “expediency”, as ably put by Sardar Muhammad Raza Khan J, in the case of Jamat-e-Islami, by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non-existing facts? It has already been held that the acts/actions of3rd November 2007of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court. It is held and declared that the doctrine of civil and state necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd November, 2007 until 15th December, 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people. It is further held and declared that the doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court.

The submission of the learned counsel is well founded. In the instant case, none of the Judges who did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah’s case. It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people. Even at the international level, grave concerns were expressed on the actions of3rd November, 2007. Statements and resolutions were made by the Bar Associations across the globe, such as International Bar Association, American Bar Association, Australian Bar Association, Atlanta Bar Association, Beverly Hills Bar Association, Boston Bar Association, Bar Association of the District of Columbia, Connecticut Bar Association, Dupage County Bar Association, the Florida Bar, Hawaii Bar Association, Houston Bar Association, International Bar Association, Los Angeles County Bar Association, Maryland State Bar Association, State Bar of Michigan, National Association of Criminal Defence Lawyers, New Jersey State Bar Association, New York City Bar Association, New York State Bar Association, North Carolina Bar Association, Ohio State Bar Association, Tennessee Bar Association, Pennsylvania Bar Association, Philadelphia Bar Association, Vermont Bar Association and State Bar of Wisconsin.

From a perusal of the above excerpts from the print media, it is evident that the nation had stood up against the unconstitutional and illegal acts of3rd November, 2007. Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt. All this was a healthy sign in the nation’s journey on the path of rule of law, constitutionalism and democracy.

However, we are inclined to take the view that in a situation where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and apathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases. Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievances of the people against the denial of their Fundamental Rights guaranteed under the Constitution. It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence. Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved. It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence. It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and October 1999 by certain quarters, which would always be politically motivated. We hold and declare that the unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, etc. This country owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam Muhammad Ali Jinnah within the constitutional and legal framework. We, thus, disapprove the approach adopted in the said cases.

Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se having been found to be unconstitutional, illegal and ultra vires, the next limb of the contention of Mr. Hamid Khan, Sr. ASC was that all the acts based upon, or flowing from, the actions of 3rd November, 2007 were too, unconstitutional, illegal and ultra vires, therefore, all such acts including the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, the oath made by other Judges of the Supreme Court and High Courts, including Chief Justices, etc., and the appointment of Judges of the Supreme Court and High Courts in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case and the appointments made in consultation with Abdul Hameed Dogar, J, were a nullity in the eye of law and of no legal effect and were liable to be so declared by this Court and such Judges had also rendered themselves liable for action under and in accordance with the Constitution and the law including action for contempt of Court.

Thus, on 3rd November, 2007 certainly it was the first time in the history of Pakistan that the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past. A seven-member Bench of this Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed’s case. This was the most striking distinction between the action of 3rd November, 2007 on the one hand and those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior courts rejected the actions of3rd November, 2007and did not make oath in pursuance with the order dated3rd November, 2007passed by a seven -member Bench of this Court in Wajihuddin Ahmed’s case. The lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country. Abdul Hameed Dogar, J, and some other Judges violated the aforesaid order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. These Judges, whether they were in this Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of3rd November, 2007.

To appreciate the above contention, it is necessary in the first instance to examine the relevant provisions of the Constitution. To begin with, Article 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President.

Thus, there is a provision of one Chief Justice of Pakistan alone. Next provision relating to the office of Chief Justice of Pakistan is Article 180. It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan. On3rd November, 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office. Mr. Akram Sheikh, Sr. ASC was right in contending that the Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed. On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice. Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Article 180.

Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan. In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice. For the same argument, it may be mentioned that in case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him. The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution. Therefore, it is held and declared that the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd November, 2007. In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, J, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice. His purported appointment as Chief Justice of Pakistan per se is, therefore, declared to be unconstitutional, illegal and ultra vires. It is further held and declared that Abdul Hameed Dogar, J, was never a constitutional Chief Justice of Pakistan.

Under Article 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e-Shoora (Parliament). Until the number of Judges is so determined, it may be such as may be fixed by the President. By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen. However, by section 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words “be sixteen”, the words “not be more than twenty-nine” were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of November, 2007. We have considered the contention of the learned counsel for the petitioners and the submission made in reply by the learned Attorney General forPakistan. Clearly, under Article 176, the number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President. An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Article 176 of the Constitution. Increase of number of Judges in such a manner also militates against the independence of the judiciary. Strength of Judges is only to be increased keeping in view its needs. It is also to be ensured that the courts are not packed with persons in disregard of merit. It may be noted that after3rd November, 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not men of integrity, were appointed on quid pro quo basis. Against one such appointee, there were serious allegations of misconduct and impropriety. However, after restoration of the Judges to the position they were holding prior to3rd November, 2007, he resigned from office. Thus, it is declared that the number of Judges of the Supreme Court for purposes of the said Article 176 would continue to remain sixteen.

At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges. Even one Ad hoc Judge, namely, Ghulam Rabbani, J, had also been appointed as such. Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, J, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law.

Further, the purported appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan also stood vitiated by virtue of notification No. F.12(4)/2007-A.II dated 17th March, 2009 whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before3rd November, 2007.

The learned counsel for the petitioners contended that notwithstanding the restoration of the Chief Justice of Pakistan to the position he was holding before 3rd November, 2007, by the terms of the said notification a wrong impression was created that the appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan could be interpreted to have been recognized on the de facto doctrine, because the assumption of office by the incumbent Chief Justice of Pakistan was made effective from 22nd March, 2009, i.e. after the retirement of Abdul Hameed Dogar, J, which was taking place on 21st March, 2009. In the first instance, the purported appointment of Abdul Hameed Dogar, J, or for that matter the appointments of other Judges have already been declared to be unconstitutional, illegal and void ab initio. Further, the above recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to3rd November, 2007. It was a loud and clear recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Article 209 of the Constitution and the said position, on the same considerations, was reversed in totality. A wrong stood declared wrong with no mincing of words, for all times to come.

The ratio of the above case-law fully fits Abdul Hameed Dogar, J, and other Judges. They all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers.

They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence. Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. The same are so held and declared.

The other four Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case were fully aware of the aforesaid restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences.

Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance. The detail of faxes sent on 3rd November, 2007 from telephone/fax No. 9213452, installed in the office of Registrar, Supreme Court is given below: –

DATE TIME NO CALLED DURATION

03.11.200719:25:29021920326300:00:29

[Sindh High Court]

03.11.200719:29:51042921227900:01:02

[LahoreHigh Court]

03.11.200719:40:18091921048200:02:14

[PeshawarHigh Court]

03.11.200720:19:51081920136500:01:12

[Balochistan High Court]

The TV channels repeatedly televised the contents of the aforesaid order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges. That continued even after4th November, 2007. As seen above, the order was also published in the newspapers of4th November, 2007. It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows.

On a perusal of the aforesaid excerpts from the print and the electronic media, we are left with no manner of doubt that the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case was widely covered both in the electronic and print media.  The fact that the said order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the law laid down in the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lah. 130) wherein the following parameters for the purpose of taking judicial notice of press reports, quoted with approval by this Court in the case of Watan party (supra) were laid down:–

(i)         Where direct evidence  is not available ;

(ii)        Where it is sought to be proved that a person has notice of the contents of the newspaper report ;

(iii)       Where it is sought to be shown that a person is an author or otherwise responsible for the statement of article published in a newspaper, which is to be used against him;

(iv)       In cases of defamation; and

(v)        If the issue/occurrence is rather old any eyewitnesses are either wanting or less reliable.

Even CMA No. 2874 of 2007 was moved by the Federation in Wajihuddin Ahmed’s  case on 6th November, 2007 seeking clarification regarding the order dated 3rd November, 2007 passed by a seven-member Bench of this Court in the said case stating, inter alia, therein that certain news items had appeared in the newspapers that after issuance of Proclamation of Emrgency, PCO NO. 1 of 2007 and Oath Order, 2007, “some of the former Judges, reportedly seven in number including the then Chief Justice” had passed some order restraining, inter alia, the Judges of the Supreme Court and High Courts, including Chief Justice from making oath under PCO or any other extra-constitutional step.  Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order.  In fact, all and sundry in the length and breadth of the country knew about it. All such Judges, therefore, willfully violated the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed Ahmed’s case.

The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. It was held in Al-Jehad Trust case that the consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. It was further held that the independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. It was also held that an Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

Accordingly, at declaration No. (xiii) of the Short Order passed in Al-Jehad Trust case, it was held that since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid. In the instant case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. At page 528 of the cited case, it was unequivocally held that to have access to free, fair and independent court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.

We, therefore, uphold the contention of the learned counsel that Abdul Hameed Dogar, J, who was holding office in violation of the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, was not authorized to be consulted for such appointments. All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from3rd November, 2007to21st March, 2009were violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, are held and declared to be unconstitutional, illegal, void ab initio and of no legal effect.

Besides, the purported appointment of four persons as Judges on 5th November, 2007, noted above, two such Judges, namely, Muhammad Akhtar Shabbir, J, a retired Judge of the Lahore High Court and Zia Pervez, J, a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, were appointed vide notification No. F.1(1)/2007-A-II(A) dated12th November, 2007in this Court. Three such Judges, namely, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, sitting Judges of the Lahore High Court and Syed Zawwar Hussain Jaffery, a retired Judge of the High Court of Sindh were appointed vide notification No. F.1(1)/2007-A.II. dated9th December, 2007. All these appointments stood vitiated on account of the above declaration. Out of the above, the Judges who were sitting Judges of the High Courts violated the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, which was enforceable and binding upon them under Articles 187, 189 and 190 of the Constitution, particularly after it had come to their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution.

As to the remaining Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove.

Furthermore, all these Judges were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office. Accordingly, the appointments of all the above Judges are held and declared to be unconstitutional, illegal and void ab initio.

Similarly, the appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Two such Judges, namely, Sh. Hakim Ali, J, a sitting Judge of the Lahore High Court and Muhammad Farrukh Mahmood, J, a retired Judge of the Lahore High Court were appointed vide notification No. F.2(1)/2008-A-II(A) dated7th February, 2008. Two Judges, namely, Sabihuddin Ahmed, CJ, and Sarmad Jalal Osmany, J of the High Court of Sindh, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven- member Bench of this Court in Wajihuddin Ahmed’s case, were appointed vide notification No. F.2(3)/2008-A-II. dated19th September, 2008. One Judge, namely, Sardar Muhammad Aslam, CJ,IslamabadHigh Court was appointed vide notification No. F.2(1)/2009-A.II dated7th March, 2009. Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution, as discussed hereinabove. All the aforesaid Judges shall immediately cease to hold office forthwith.

However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, J, shall revert to their respective High Courts subject to their age of superannuation.

Another category of appointments made during the period from 15th December, 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time.

However, the actions of 3rd November, 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Article 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself. They continued to be such Judges throughout without interruption of a single day.

Zia Parwez J did not make oath as a Judge of High Court on or after 3rd November, 2007 after the order dated 3rd November, 2007 was passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, and was deposed from office. But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. Therefore, his appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio. Accordingly, he would cease to hold office of Judge of the Supreme Court.

The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd November, 2007 to 15th December, 2007, or thereafter, shall be governed in the same terms. However, any of such Judges who was District & Sessions Judges prior to his appointment as Judge of High Court shall revert to his original positions subject to age of superannuation.

Now we proceed to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd November, 2007 and who made oath in violation of order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J. The actions of3rd November, 2007have already been held and declared to be unconstitutional, illegal and ultra vires. The appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd November,

2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case all have been held to be unconstitutional, illegal and ultra vires. Therefore, as rightly contended by Mr. Hamid Khan, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court. It has also been held that they exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts. As such, the decisions rendered by them would be illegal and nullity in the eye of law.

A prime contention of the learned counsel for the petitioners on the status of the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case and the decisions rendered in Tikka Iqbal Muhammad Khan’s case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd November, 2007. They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed’s case, which lay at the root of the actions of3rd November, 2007. That is why, according to Mr. Hamid Khan, the anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. The said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again maneouvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff. In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of3rd November, 2007. On5th November, 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available atIslamabad, therefore, they could not pass any order in the said case on that day. However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength. Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of5th November, 2007, four persons, namely, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Mohammad Moosa K. Leghari and Ch. Ejaz Yousaf were purportedly appointed as the Judges of this Court. With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of3rd November, 2007. Accordingly, on 6th November, 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed’s case stating, inter alia, that – An application was sought to be submitted in Court on behalf of petitioner Wajihuddin Ahmed in Constitution Petition No. 73 of 2007 during its hearing, seeking a restraint order against the respondents, but it was not entertained, rather it was directed that the same be filed in the office and the same would be heard when the matter was fixed; To the utter surprise of the applicant, a news item was reported in a section of the press that after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, some of the former Judges including the Chief Justice of Pakistan had passed the aforesaid order;

To the best of the knowledge of the applicant, no such order was passed, or if passed, the same was non est because the said Judges had ceased to hold office in view of the actions of3rd November, 2007and they had no right or authority to

pass any such order;

No notice was given to the applicant nor any hearing had taken place, therefore, the order was totally without jurisdiction; and

Since the “so-called” order was published in the press, it had created confusion and had the potential of creating complications:

Thus, a clarification was sought that no such order as aforesaid had been passed, and if there was such an order, it was a nullity in the eye of law, having no legal value or binding force. By order of even date, it was held that in pursuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, Judges of the Supreme Court, Federal Shariat Court and High Courts including Chief Justices of those Courts immediately on Promulgation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, ceased to hold office and could not have performed their functions or exercised judicial powers and consequently, the Chief Justice and Judges who passed the order in question, could not have passed such an order as they had ceased to be the Judges. It was further held that the order in question was even otherwise not a valid order because it was passed without notice to the parties, or to the Attorney General for Pakistan under Order 27-A CPC read with Order XXIX of the Supreme Court Rules, 1980.

It was also held that the perusal of the order dated 3rd November, 2007, prima facie, showed that the question of validity or otherwise of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, was not as such examined and their operation was also not suspended, therefore, they were not called upon to express any opinion on those questions at that stage. Placing reliance on the case of Federation of Pakistan v. Aitezaz Ahsan (PLD 1989 SC 61), it was held that in presence of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the order dated3rd November, 2007was a nullity in law. And finally, allowing the application, the prayed for clarification issued was that the impugned order dated 3.11.2007 was declared to be illegal and without jurisdiction and that the same would be deemed to have never been passed. [Underlining is for emphasis]

In the first place, since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case as well as those in Tikka Iqbal Muhammad Khan’s case were coram non judice and a nullity in the eye of law.

Secondly, the order dated 6th November, 2007 marked the presence of Mr. Arshad Ali Chaudhry, ASC/AOR on behalf of the Federation (applicant), and the learned Attorney General for Pakistan was shown to have appeared on Court’s call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, though one of them, namely, Barrister Aitezaz Ahsan was in respondent Government’s own custody and it was quite convenient to procure his attendance. Therefore, this order suffered from the very flaw, which was wrongly alleged in respect of order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, i.e. it was passed without notice to the other side.

147. Coming to the invalidity of the order dated6th November, 2007passed in Wajihuddin Ahmed’s case, it is noteworthy that the order of3rd November, 2007was passed in an entirely different setting. The application was presented before the Bench on2nd November, 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz.5th November, 2007. Since the apprehensions expressed in the application came true and Proclamation of Emergency was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of3rd November, 2007and the order was passed thereon, as prayed earlier. It was not something, which was cooked up in the meantime. The filing of application was an already existing fact to the notice of all parties, including the learned Attorney General forPakistan. No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court. In any case, it was not a final order and the matter was ordered to be put up before theFull Courton5th November, 2007. However, the situation on6th November, 2007was entirely different. The unconstitutional acts of 3rd November, 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceedings, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th November, 2007, as it existed on 3rd November, 2007. But the point was that if the order of6th November, 2007was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J, and other Judges would not have been served.

Now, two orders are before us. One was passed on3rd November, 2007by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, i.e. by the Judges appointed under the Constitution, and the other of6th November, 2007passed by Abdul Hameed Dogar, J, and other Judges. The former order was passed to preserve, protect and defend the Constitution and the law. The latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of November, 2007, PCO No. 1 of 2007 and the law. The one had constitutional and moral authority and power behind it. The other had the gun at its backing. The Judges in the former case were bound to abide by the code of conduct issued by the Supreme Judicial Council. The Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct. There is no manner of doubt left that the order dated6th November, 2007was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of3rd November, 2007and onward. By all recognized principles, the order dated 6th November, 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case. Therefore, the order dated6th November, 2007is declared to be unconstitutional, illegal and void ab initio.

While considering the question of validity of the aforesaid order dated6th November, 2007, we also discovered a grave error when we examined the record and proceedings. It appeared that Constitution Petition No. 73 of 2007 along with another petition viz. Criminal Original Petition No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th November, 2007 by a subsequently constituted ten-member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLD 2008 SC 13 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v.Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner,Islamabadand others). The relevant portions from the order are reproduced as follows: –

“4. When the petition was taken up for hearing today i.e. 19-11-2007, Mr. M.S Khattak, learned Advocate -on-Record for the petitioner presented before the Full Court two applications dated 10-11-2007 and 19-11-2007, wherein, prima facie, derogatory and contemptuous language was used. Soon after the learned Advocate-on-Record had started addressing the arguments in support of the applications he realized that he was running a risk of being proceeded against. He, therefore, tendered unconditional apology in writing as well as orally for submission of both the applications and withdrew the same with permission of this Court. He further stated that he had no instructions to argue Constitutional Petition No.73 of 2007 and Criminal Original Petition No.51 of 2007. He was repeatedly asked to argue the same but he showed his inability to perform his legal duty which he owed to the Court as laid down in the cases of Messrs Pearl Builders (Pvt.) Ltd. v. Ardsher Cowasjee and others (PLD 2003 SC 946), Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others (2003 SCMR 965) and Habib-Al-Wahab Alkhairi and others v. Commissioner, Rawalpindi Division and

others (PLD 1992 SC 587).

5. Be that as it may, we find that the impugned order dated 29-9-2007, was passed by the Chief Election Commissioner of Pakistan in the light of the well-reasoned judgments of this Court in the cases of Qazi Hussain Ahmed v. General Pervez Musharraf (PLD 2002 SC 857) (by a 9 Member Bench) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) (by a 5-Member Bench). In the case of Qazi Hussain Ahmed (supra), it was held as under:-

“It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are

also the qualifications for election to the office of the President, cannot be read into Article 41 (2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as Member of the National Assembly. The disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Iltaf Hussain (PLD 1995 Lahore 541).”

In Pakistan Lawyers Forum (supra), it was laid down that:-

“69. The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after31 December, 2004by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.

70. Any other clause or paragraph of Article 63 of the course does not apply, to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as Provided by the Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in the Qazi Hussain Ahmed’s case.

71. The argument that the COAS could not have assumed the office of the President because of the definition of the “Service of Pakistan” in Article 260 and the disqualifications in respect of such persons contained in Article 63 is untenable as these have no application to the President.

72. The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41, therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.

73. Since Article 63 (1) (d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except an office declared by law not to disqualify its holder’. All that has happened in the instant case is that by virtue of Another Office Act, parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, .therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63(1)(d).”

In our opinion, the President General Pervez Musharraf, the respondent No.3 was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for presidential election, 2007. The view taken by the Chief Election Commissioner is unexceptionable.

6. As to the question of maintainability of this petition, it would suffice to follow the majority judgment of this Court in the recent case of Jamat-e-Islami v. Federation of Pakistan (Constitutional Petition No.59 of 2007, decided on 28-9-2007) (PLD 2008 SC 30) wherein it was held that “the questions involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Part-II, Chapter I of the Constitution (Articles 8 to 28). Therefore, the petitions under Article 184(3) of the Constitution were not maintainable.”

Even otherwise, in view of clause (6) of Article 41 of the Constitution, the validity of the election of the President cannot be called in question by or before any Court.

7. For the foregoing reasons, Constitutional Petition No.73 of 2007 and Criminal Original Petition No.51 of 20007 are hereby dismissed. Consequently, the interim stay order dated5-10-2007of withholding the issuance of final notification of the result of election of the returned candidate to the office of the President is hereby vacated. The Chief Election Commissioner ofPakistanand Federal Government are directed to take all the necessary steps by1st December, 2007, for final announcement of the result of the presidential election and issuance of public notification in accordance with the Constitution and the law. As already undertaken in writing on 18-9-2007 before this Court by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for ‘the respondent No.3 and Malik Muhammad Qayyum, learned Attorney General for Pakistan, the President General Pervez Musharraf shall relinquish the office of the Chief of Army Staff before taking oath of office of President of Islamic Republic of Pakistan, for the second term.” (Emphasis supplied) 150.

The record, however, showed that the same day the same Bench had already dismissed the above mentioned two petitions for want of instructions. Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame anew the abovenoted order, surprisingly without making any reference to, rather ignoring its own earlier order so passed.

It will be noteworthy to state that in Petition No. 73 of 2007, the petitioner had, inter alia, sought a declaration that “General Pervez Musharraf be declared ineligible, lacking in qualifications under Article 62 and other provisions of the Constitution and is disqualified under Article 63 of the Constitution to contest the election of the office of the President of Pakistan.” On5th October, 2007, the Bench passed an injunctive order, reproduced in the earlier part of the judgment, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions. The Bench had been hearing learned counsel for parties on day-to-day basis till2nd November, 2007i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007.

153. After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd November, 2007, Abdul Hameed Dogar, J, and other members of the Bench again took up Petition No. 73 of 2007, dismissed the same for want of instructions, as is evident from record yet framed the order supra without issuance of notice to the petitioner. The order dated 19th November, 2007 so passed reflects that a host of learned counsel, namely, Malik Muhammad Qayyum, Attorney General for Pakistan, Mst. Nahida Mehboob Ellahi, DAG, Raja Niaz Ahmed Rathore, DAG, and five other advocates appearing for respondent No.2, Federation of Pakistan, and Syed Sharifuddin Pirzada, Sr. ASC, and Mr. Muhammad Ibrahim Satti, ASC, appearing for respondent No.3, General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, this petition along with Original Petition No. 51 of 2007 was dismissed on merits. Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th October, 2007 earlier passed by a 10-member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification.

In our estimation, the above order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally. In such a situation, we are of the opinion that Constitution Petition No. 73/2007 was dismissed for want of instructions, as is borne out from the official record of this Court duly supported by the press reports of20th November, 2007.

The learned counsel referred to a number of countries where emergencies or martial laws were imposed, but nowhere the judiciary alone was targeted. The action of3rd November, 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well. It was not so laid down in Zafar Ali Shah’s case. What was laid down was that the action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened.

Again, it was not laid down that if such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar oaths. Nothing could be more fallacious. Enough is enough. There has to be an end to it somewhere. Fortunately, the end to a vicious circle came on3rd November, 2007. The order dated 3 rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf.

One fails to understand what connection the above incidents referred to by Mr. Sharifuddin Pirzada, or the cover story relied upon by him in the same terrain had with the erosion of trichotomy of power, which was made a ground for the unconstitutional and illegal Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. On the other hand, as rightly pointed out by the learned counsel for the petitioners, the law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on15th December, 2007.

Be that as it may, the remedies for curbing terrorism, extremism and militancy lay elsewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order. As noted earlier, Proclamation of Emergency, if any, could be promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority mentioned therein.

165. The law and order being a provincial subject, necessary legislative and administrative steps would be required to be taken under the provisions of Article 234, which empowered the President to assume to himself or direct the Governor of the Province to assume on his behalf, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, etc, in a situation in which the government of the province could not be carried on in accordance with the provisions of the Constitution.

But the imposition of any such emergency too, would be subject to judicial review, as held in Farooq Ahmed Khan Leghari’s case. Relevant portion from the said judgment is reproduced below: –

“Notwithstanding the ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the relevant provision of the Constitution or of a statute is to be based on the satisfaction of a State functionary mentioned therein, the Court has the jurisdiction to examine whether the prerequisites provided for in the relevant provision of the Constitution/statute for the exercise of the power thereunder existed, when the impugned order was passed. If the answer of the above question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Court.

The satisfaction provided for in clause (1) of Article 232 of the Constitution is the subjective satisfaction of the President. The said subjective satisfaction of the President is final subject to judicial review to the limited extent. The satisfaction of the President is a condition precedent to the exercise of power and if it can be shown that there was no satisfaction of the President at all, or that the satisfaction was absurd or perverse or mala fide or based on extraneous or irrelevant grounds, it would be no satisfaction.”

166. The learned counsel contended that the other ground for imposing unconstitutional and illegal emergency, PCO No. 1 of 2007 and Oath Order, 2007 was the alleged erosion of trichotomy of powers enshrined in the Constitution as a result of suo motu actions taken and orders passed in some cases by some of the Judges of the Supreme Court and High Courts, particularly the Chief Justice of Pakistan and the Supreme Judicial Council having been rendered ineffective and redundant by the Supreme Court. The learned counsel vehemently contended that such flimsy and baseless grounds for the unconstitutional and illegal acts of 3rd November, 2007 could only be pleaded before, and upheld and

approved by, a forum comprising Abdul Hameed Dogar, J, and other Judges of the same hue. Had the matter been heard by the Judges appointed under the Constitution, they would certainly have acted independently to preserve, protect and defend the Constitution. Such flimsy grounds would not have found favour with them as a basis for the decision of the case. In Tikka Iqbal Muhammad Khan’s case, the scope of the exercise of power of judicial review by the superior Courts was examined in an unconstitutional perspective and the material relied upon was either irrelevant or would lend support to the contrary view, viz., the jurisdiction of the Courts would be used to further the rights of the people against arbitrary infringements by the executive.

167. At this stage, it is necessary to elucidate through our own jurisprudence and that of other jurisdictions the principle of trichotomy of powers and the power of judicial review vested in the superior Courts.

Case-law from the Indian jurisdiction is particularly instructive on account of the common origins of constitutionalism springing from the Government of India Act, 1935 read with the Indian Independence Act, 1947. The Supreme Court of India, in the case of Minerva Mills Ltd v. Union of India (AIR 1980 SC 1789) held that the judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. It may be advantageous to reproduce below relevant excerpts from the judgment of the Indian Supreme Court delivered by Bhagwati J, in the said case: –

“92. ……….. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over

it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.

93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution. Derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the Legislature and the Judiciary. Under our Constitution we have no rigid separation of powers as in theUnited States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that “the concentration of powers in any one organ may” to quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi’s case (AIR 1975 SC 2299) “by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which were pledged.” Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be, left to the determination of the legislature. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution. Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on9th December, 1948:

“If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity – I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance”. (CAD debates, Vol. VII, p, 953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that “the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law”. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub- version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure. and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would. in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional and void as damaging the basic structure of the Constitution.

94. That takes us to clause (5) of Article 368. This clause opens with the words “For the removal of doubts” and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the. meaning of the opening words “For the removal of doubts” because the majority decision in Kesavananda Bharati’s case (AIR 1973 SC 1461) clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the mandatory power of Parliament and in Smt. Indira Gandhi’s case (supra) all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329A(4) was to be judged. Therefore, after the decisions in Kesavananda Bharati’s case and Smt. Indira Gandhi’s case, there was no doubt at all that the amendatory. power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What A clause (5) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one.”

In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an action of an authority functioning under the Indian Constitution was discussed as under: –

“The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the constitution in order to ensure that the authority exercising the power conferred by the constitution does not transgress the limitations placed by the Constitutions on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable.”

168. In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 184] while dilating upon the role of the Supreme Court of India, it was held that it was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. Relevant portion from the judgment is reproduced below: –

“651. We have a written Constitution which confers powers of judicial review on this Court and on all High Courts. In exercising power and discharging duty assigned by the Constitution, this Court has to play the role of a ‘sentinel on the qui vive’ and it is the solemn duty of this Court to protect the fundamental rights

guaranteed by Part III of the Constitution zealously and vigilantly.

652. It may be stated that initially it was contended by the respondents that this Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of this Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a coordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House.

653. In my opinion, the submission is well-founded. This Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. This Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection.”

It was further held as under: –

“656. In this connection, I may only observe that in Searchlight [Pandit Sharma (1)] as well as in Keshav Singh, it has been observed that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also, for instance, in State of Karnataka v. Union of India, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State, (1998) 4 SCC 626. But what has been held is that such decision of Parliament/State Legislature is not ‘final and conclusive’. This Court in all earlier cases held that in view of power of judicial review under Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have jurisdiction to decide legality or otherwise of the action taken by State- authorities and that power cannot be taken away from judiciary. There lies the distinction between British Parliament and Indian Parliament. Since British Parliament is also ‘the High Court of Parliament’, the action taken or decision rendered by it is not open to challenge in any court of law. This, in my opinion, is based on the doctrine that there cannot be two parallel courts, i.e. Crown’s Court and also a Court of Parliament (‘the High Court of Parliament’) exercising judicial power in respect of one and the same jurisdiction.Indiais a democratic and republican State having a written Constitution which is supreme and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other.

Under the said Constitution, power of judicial review has been conferred on higher judiciary (Supreme Court and High Courts).”

In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that the judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was further held that it was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.

169. On the above survey of the case-law, it is clear that the power of judicial review is a cardinal principle of the Constitution. The Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government. It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. At this stage, reference may also be made to our own jurisdiction where a robust defence of judicial review has been expounded: –

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369) “The Constitution provides for separation of Judiciary from the Executive. It aims at an independent Judiciary which is an

important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the Judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation.

Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely a semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry: Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it

achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent Judiciary separate from the Executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25.

“The lower judiciary is a part of the judicial hierarchy inPakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and ‘High Court shall supervise and control all Courts subordinate to it’. Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people.”

Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) “Adverting to the above second peculiar feature that our country has Federal system of Government which is based on trichotomy of power, it may be observed that each organ, of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this juncture, it may be stated that a written Constitution, is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people; Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court’s efforts should be to construe the same broadly, so that ‘it may be able to meet the

requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.

“24. The above principles will have to be kept in view while construing the, provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary. “The Constitution contemplates trichotomy of power inter se the pillars of the State, namely, Legislature, Executive and the Judiciary, each of the organs of the State has to function within the limits provided in Constitution. The Constitutional provisions relating to the appointments transfers of Judges of the superior Courts, therefore, need to be examined in light of the Islamic concept of justice. Islam had always attached unparalleled importance to the concept of justice.”

Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445)

“(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and. therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution;

“(vi) That the right of ‘access to justice to all’ is a fundamental right, which right cannot be exercised in the absence of an independent Judiciary ‘providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution;

“(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions.” Liaquat Hussain v. Federation of Pakistan (P L D 1999 SC 504) “Now take up the main controversy arising in these petitions, whether setting up of Military Courts for trial of civilians for offences not connected with the Armed Forces, is constitutionally valid? As stated above, our Constitution is based on the theory of trichotomy of power which makes the three limbs of the State, the Legislature, the Executive and the Judiciary, independent of each other in their respective spheres. Chapter I of Part VII of the Constitution deals with the judicature. The judicature according to Article 175(1) of the Constitution, consists of the Supreme Court, a High Court for each Province and such other Courts as may be established by law. The Courts created under Article 175(1) (ibid) exercise such jurisdiction which is conferred on them either by the Constitution or by or under any law as provided in Article 175(2) ibid. The judicature stands separated from the executive as provided in Article 175(3) of the Constitution. Creation of Courts outside the control and supervision of Supreme Court or the High Courts, therefore, not only militates against the independence of Judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution.”

Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869) “It is also mentioned in the Objectives Resolution that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be enabled to order their lives in accordance with teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah and independence of judiciary shall be fully secured. Objectives Resolution was even retained in the Interim Constitution of 1972 as Preamble.

“Independence of Judiciary is a basic principle of the constitutional system of governance inPakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that “the independence of Judiciary shall be fully secured”; and with a view to achieve .this objective. Article 175 provides that “the Judiciary shall be separated progressively from the executive”.

“In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens’ inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.

The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of “separation of powers” based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development.”

170. The exercise of suo motu powers has been dwelt at length by the superior Courts ofPakistanin a large number of cases. Reference may usefully be made to the following cases: –

Darshan Masih v. State (PLD 1990 SC 513 at page 544) “It is necessary at this stage to clarify certain aspects of this case. It is indeed necessary because, this being the first case of its nature, the procedural and other elements thereof are likely in due course, to come under discussion.

(i) True, a telegram, it has never been earlier made the basis by the Supreme Court of Pakistan for action, as in this case; but, there is ample support in the Constitution for the same. Under Article 184 (3) “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.” The questions of procedural nature relating to the entertainment of proceedings and/or cognizance of a case under this provision, have been dealt with in the case of Miss Benazir Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this case

is covered by the said authority as also by the due extension of the principles laid therein. Such extension/s would depend upon the facts and circumstances of each case and nature of public interest involved and importance thereof. The element of “public importance” in this case now stands demonstrated by the resume (a part only) of the proceedings, given earlier.

It needs to be mentioned that in our Supreme Court, though letters and telegrams are sent to individual Judges, but it is not considered as an appropriate and proper method of initiating proceedings. Some times it leads to embarrassment. Accordingly such an information has to go to the Hon’ble Chief Justice for initiating proceedings. In this case the telegram was addressed directly to him and he marked it to me.

As to what other form/s of taking cognizance of a matter under Article 184 (3) are possible, will depend upon the nature and importance thereof.

(ii) The “nature” of the orders which can be passed in such cases is also indicated in Article 184 (3); that is: such as can be passed under Article 199. Even if for the time being it be assumed that the “nature” of the order is confined only to the Orders under sub-clause (c) of Article 199(l) and not to the other Orders under “Article 199”, it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Art. 199(1)(c): “an order giving such directions to any person or authority ——- as may be appropriate for the enforcement of the Fundamental Rights cannot be abridged or curtailed by the law. As to how far it can be extended, will depend upon each case.

It is so also because of the other provisions of the Constitution, the rules of this Court and the principles and Rules comprising the Constitutional set up ofPakistan. For instance, according to Article 187 (1) this Court some times has to satisfy the dictates of “Complete Justice”. What goes with it, is the subject or ample authority as well as of future application in given cases. When this power is exercised the Court will have the necessary additional power to “issue such directions, orders or decrees as may be necessary.” Besides the binding effect of the judgment/order of this Court on all other “Courts” when it “decides” a question of law or it is based upon or enunciates a principle of law under Article 189; another provision Art. 190, gives a similar command to all executive and judicial “authorities” throughoutPakistan”. This is, so as to act “in aid of Supreme Court”. When Art. 199(l) (c) is read together with Articles, 187, 189 and 190, as stated above, it becomes clear that in a fit case of enforcement of Fundamental Rights, the Supreme Court has jurisdiction, power and competence to pass all proper/ necessary orders as the facts justify.

(iii) The question as to whether this is a case of enforcement of Fundamental Right/s has not been raised. Everybody accepted that it is so. The provisions of Article 9 relating to security of person;

Article 11 in so far as it relates to forced labour, traffic in human beings and child labour; Article 14 relating to dignity of man; Article 15 ensuring freedom of movement; Article 19 relating to freedom of trade, business or profession; and Article 25 relating to equality, particularly in the protection of law and bar against discrimination on the basis of sex, as also the safeguards for women and children, amongst others, are applicable to the various aspects of the matter. However, it is a different matter that some Fundamental rights are more directly attracted than the others and some elements involved in any one of them are relevant while the others are meant for other situations. In view of lack of contest on this issue it is not necessary to go into a detailed discussion in this behalf. It is, however, remarked that for purposes of convenience of all concerned, it might be necessary to define the expression “forced labour with illustrations of its different forms; in such a manner, so as to minimize any confusion about its real purport as also the resultant unproductive litigation. For the same purpose the other important elements in these Fundamental Rights may be collected together and put in a self-contained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam. This Court has in the Shariat jurisdiction dealt with some of them. There is no bar in the Constitution to the inclusion in such law of these rights, in addition to the Fundamental rights contained in Chapter I Part II thereof. This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights; the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen. These aspects of the enforcement of Fundamental rights guaranteed by the Constitution and other basic human rights ensured by Islam can, by law be made also into an independent inalienable right, with self – operating mechanism for enforcement as well.

Muhammad Nawaz Sharif v. President of Pakistan ( P L D 1993 Supreme Court 473 at page 805)

“First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions; one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance

which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the fundamental rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the

Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order

of the nature mentioned in Article 199. The word ‘nature’ is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to secure and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached.

However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance.

Shehla Zia v. WAPDA ( PLD 1994 SC 693 at page 712)

“The learned counsel for the respondent has raised the objection that the facts of the case do not justify intervention under Article 184 of the Constitution. The main thrust was that the grid station and the transmission line are being constructed after a proper study of the problem taking into consideration the risk factors, the economic factors and also necessity and requirement in a particular area. It is after due consideration that planning is made and is being executed according to rules. After taking such steps possibility of health hazards is ruled out and there is no question of affecting property and health of a number of citizens nor any fundamental right is violated which may warrant interference under Article 184. So far the first part of the contention regarding health hazards is concerned, sufficient discussion has been made in the earlier part of the judgment and need not be repeated. So far the fundamental rights are concerned, one has not to go too far to find the reply.

Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word `life’ is very significant as it covers all facets of human existence. The word `life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law, be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward and this has happened so in the present case.

13. According to Oxford dictionary, `life’ meant state of all functional activity and continual change peculiar to organized matter and specially to the portion of it constituting an animal or plant before death and animate existence.”

In Black’s Law Dictionary, `life’ means “that state of animals, humans, and plants or of an organised being in which its natural functions and motions are performed, or in which its organs are capable of performing their functions. The interval between birth and death, the sum of the forces by which death is resisted, “life” protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the right to marry, establish a home and bring up children, freedom of worship, conscience; contract, occupation, speech, assembly and press”.

The Constitutional Law in America provides an extensive and wide meaning to the word `life’ which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word ‘life’ constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable.

Dr. Pervez Hasan, learned counsel has referred to various judgments of the Indian Supreme Court in which the term `life’ has been explained with reference to public interest litigation. In Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting the word `life’ used in Article 21 of the Indian Constitution, reliance was placed on the judgment of Field, J. in Munn v. Illinois (1876) 94 US 113 at page 142 where it was observed that `life’ means not merely the right to the continuance of a person’s animal existence but a right to the possession of each of his organs –his arms and legs etc.” In Francis Corgi v. Union Territory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that right to life includes right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading and writing in diverse form”. Same view has been expressed in Olga Tellis and others v. Bombay Municipal Corporation (AIR 1986 SC 180) and State ofHimachal Pradeshand another v. Umed Ram Sharma and others (AIR 1986 SC 847). In the first case right to life under the Constitution was held to mean right to livelihood. In the latter case the definition has been extended to include the “quality of life’ and not mere physical existence. It was observed that “for residents of hilly areas, access to road is access to life itself. Thus, apart from the wide meaning given by US Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate nutrition, clothing and shelter and cannot be restricted merely to physical existence. The word `life’ in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Under our

Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to `life’ under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions. Dr. Pervaz Hasan has also referred to several judgments of the Indian Supreme Court in which issues relating to environment and ecological balance were raised and relief was granted as the industrial activity causing pollution had degraded the quality of life. In Rural Litigation & Entitlement Kendra and others v. State ofUPand others (AIR 1985 SC 652) mining operation carried out through blasting was stopped and directions were issued to regulate it. The same case came up for further consideration and concern was shown for the preservation and protection of environment and ecology. However, considering the defence need and for earning foreign exchange some queries were allowed to be operated in a limited manner subject to strict control and regulations. These judgments are reported in AIR 1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 SC 594. In Shri Sachidanand Pandey and another v. The State ofWest Bengaland others (AIR 1987 SC 1109) part of land of zoological garden was given to Taj Group of Hotels to build a five-star hotel. This transaction was challenged in the High Court without success. The appeal was dismissed. Taking note of the fact that society’s

interaction with nature is so extensive that “environmental question has assumed proportion affecting all humanity”, it was observed that: —

“Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public.”

In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were being thrown in River Ganges whereby it was completely polluted, the tanneries

were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article 184(3) of the Constitution may grant relief to the extent of stopping the functioning of factories which create pollution and environmental degradation.

Employees of the Pak. Law Commission v. Ministry of Works ( 1994 S C M R 1548 at page 1551)

“Before dealing with the merits of the case, it seems necessary to first dispose of the preliminary objection raised by the learned Standing Counsel. The learned counsel for the respondents contended that the Court has no jurisdiction to grant the relief under Article 184 (3) of the Constitution and the present case is not covered by the said provision. The scope and object of Article 184 (3) has been comprehensively discussed in several judgments of this Court including Ms. Benazir Bhutto’s case (PLD 1988 SC 416) and Mian Muhammad Nawaz Sharif s case (PLD 1993 SC 473). It is now well-settled that if there is violation of fundamental rights of a class of persons who collectively suffer due to such breach and there does not seem to be any possible relief being granted from any quarter due to their inability to seek or obtain relief, they are entitled to file petition under Article 184 (3). The dispute should not be mere an individual grievance, but a collective grievance which raises questions of general public importance. In Benazir Bhutto’s case it was observed as follows:–

“The plain language of Article 184 (3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated.”

It was further observed that “the inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184 (3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam”. While further dilating upon the provisions of the Constitution, particularly Articles 3, 37 and 38 of the Constitution, which enshrine socio-economic principles, it was observed that “these provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy”. In this background it was observed as follows: —

“The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed atLagosin 1961 in the World Peace Through Law Conference:

Adequate levels of living are essential for full enjoyment of individual’s freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population? The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations’. “

“The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-economic change through this medium of interpretation to all sections of the citizens. “This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to Constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population.

“It is thus clear that Article 9 of the Constitution which guarantees life and liberty according to law is not to be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. In this background the petitioners’ claim to be provided accommodation during tenure of service, which is necessary for maintaining adequate level of living, in our opinion, is covered by Article 9. It is true that the terms and conditions of service perhaps do not require the respondents to provide residential accommodation to the petitioners, but if other Government servants similarly placed are being provided accommodation there is no reason to deprive the petitioners from such relief. In this view of the matter petition under Article 184(3) is competent.”

General Secretary v. Director, Industries (1994 SCMR 2061 at page 2071)

“It is well-settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court.

This Court has vast power under Article 184(3) to investigate into questions of fact as well independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline for exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should be in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case.”

Asad Ali v. Federation ofPakistan(PLD 1998 SC 161 at 294)

“It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situation. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the ‘remedy’ that makes the right real. It is often said that without ‘remedy’ there is no right. It is for this reason that Constitutionmakers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.”

Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page 1005)

“It will not be out of context at this stage to observe that our country has a Federal System of Government which is based on trichotomy of power, each organ of the State is required to function/operate within the bounds specified in the Constitution.

Though one can say that Judiciary is the weakest limb as it does not have the resources or powers which the Legislature or the Executive enjoy, but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of

the Constitution or any other law and because of the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an independent Judiciary. However, I may add that the Judiciary is also constitutionally obliged to act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175 thereof. Clause (2) of the above Article provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the relevant Constitutional provisions are to be construed in a manner that neither the Judiciary nor the Legislature transgresses its own limit and an equilibrium is to be maintained inter se between the three organs of the State. However, at the same time, it should not be overlooked that our Constitution has enshrined and emphasized independence of Judiciary and, therefore, the relevant provisions are to be construed in a manner which would ensure the independence of Judiciary. We have a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus the approach while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen effectively. The interpretation cannot be narrow and pedantic but the Courts’ efforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from the context.”

Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page 717)

“19. Syed Sharif-ud-Din Pirzada learned counsel for the Privatization Commission contended that to invoke jurisdiction of this Court under Article 184(3) of the Constitution, two conditions are required to be fulfilled namely infringement of the fundamental rights and absence of alternate remedy. In the case in hand no fundamental right has been infringed and under the scheme of Privatization Commission Ordinance No. LII, 2000 (hereinafter referred to as “Ordinance”), two alternate remedies are available in terms of section 27 and section 28 of the Ordinance. According to learned counsel the judgment relied upon by the petitioner in S.P. Gupta’s case ibid, in the circumstances of the instant case is not applicable because thereafter the Indian Supreme Court in the case of BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has explained the scope of the public interest litigation.

“20. Learned Attorney General, however, at the outset contended that after hearing the case at length by this Larger Bench for a long period, it will not be fair on his part to say that, “no point of public importance is involved in this case”, therefore, he will not be questioning locus standi of the petitioners particularly in view of the judgments in the cases of Multiline Associates and Ardeshir Cowasjee ibid.

“21. This Court in the referred cases and the Indian Supreme Court in the case of S.P. Gupta ibid have laid down a rule namely that any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision.

“In the case of Benazir Bhutto ibid, it was held that only when the element of public importance is involved, the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein.

“In Al-Jehad Trust ibid, it has been held that, “question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution.

“In Malik Asad Ali ibid it was observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo motu, without having any formal petition.

“In Multiline Associates ibid this Court held that requirement of the locus standi in the case of pro bono publico (public interest litigation is not so rigid) has extended scope. This principle has been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263).”

At page 739, it is further held –

“Thus it is held that in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review.”

It is clear from the above survey of the case law that it is a fundamental principle of our jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and Judges. It is to this end that the power of judicial review was being exercised by the judiciary before3rd November, 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution.

Though the exercise of suo motu powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan’s case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision – except a bald reference in Para 2(ii) of the short order – to point to any undue interference in the functioning of the other branches of the government.

In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court. But, no such step was ever taken in any case whatsoever. Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan’s case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3 rd November, 2007. It was a contradiction in terms.

As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578.

Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred from commenting upon the matter.

 As seen above, the whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but in issuing the unconstitutional and illegal Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case.

The detailed reasons in support of the short order passed in Tikka Iqbal Muhammad Khan’s case were released on13th February, 2008. The same day, Civil Review Petition No. 7 of 2008 was filed, which was heard on15th February, 2008by a thirteen-member Bench and was dismissed by a short order of even date. The learned counsel for the petitioner contended that the entire proceedings lacked in bona fides, which were conducted by persons who were acting in collusion with General Pervez Musharraf and consequently in their own interest. We find force in the submission of the learned counsel. A perusal of the record of the aforesaid review petition shows that the office had raised objection that the Constitution Petition was not entertainable, inasmuch as the main petition was argued by Mr. Irfan Qadir, ASC, whereas Mr. Arshad Ali Chaudhry, who had drawn, and was filing, the review petition, was only AOR at the main petition stage and had not argued the matter. Further, security amount of Rs.10,000/- was also not deposited. However, on 14th February, 2008, the security amount was deposited and Abdul Hameed Dogar, J, granted the learned AOR special permission to draw and file the review petition contrary to the provisions of Order XXVI rule 6 of the Supreme Court Rules, 1980 and the law laid down in Muhammad Younas v. State (PLD 2005 SC 93), Mukhtar Ahmad v. State (PLD 2003 SC 126) and Feroze Din v. Mehr Sardar Muhammad (2002 SCMR 1993). It is noteworthy that no application was filed by the learned AOR seeking permission to draw and file the review petition or argue the same in absence of the learned counsel who had argued the main petition. In the circumstances, the entire exercise was done in haste with the sole objective of purportedly conferring validity and legitimatization on the unconstitutional and illegal actions taken by General Pervez Musharraf on3rd November, 2007and onward.

It has already been held that Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people.

In the light of the above discussion, the judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan’s case and Wajihuddin Ahmed’s case, that is to say, the short order dated 23rd November, 2007 passed in Tikka Iqbal Muhammad Khan’s case, reported as PLD 2008 SC 6, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th February, 2008 passed in Civil Review Petition No. 7 of 2008 in the said case, reported as PLD 2008 SC 615 and the order dated 6th November, 2007 passed in Wajihuddin Ahmed’s case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio.

However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd November, 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali’s case (supra).

All the acts/actions done or taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned. These include Proclamation of Emergency and the PCO No.1 of 2007 issued by him as Chief of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the aforesaid two instruments, all dated 3rd November, 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th November, 2007;

Constitution (Amendment) Order, 2007 (President’s Order No.5 of 2007 dated 20th November, 2007); Constitution (Second Amendment) Order, 2007 (President’s Order No.6 of 2007 dated 14th December, 2007); Islamabad High Court (Establishment) Order 2007 (President’s Order No.7 of 2007 dated 14th December 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President’s Order No.8 of 2007 dated 14th December, 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President’s Order No.9 of 2007 dated 14th December, 2007). The aforesaid actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan’s case. The said decisions have themselves been held and declared to be coram non judice and nullity in the eye of law. The amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd November, 2007 till 15th December, 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Article 270AAA.

The Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: (1) the amendments introduced in the relevant Articles of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of the acts/actions of General Pervez Musharraf of 3rd November, 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President’s Order No. 7 of 2007 dated 14th December, 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Article 193 of the Constitution, as held in the Al-Jehad Trust case. However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation. The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd November, 2007 and had made such an oath.

However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day-to-day business of the Islamabad High Court from 15th December, 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali’s case. All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other court, or were instituted before it, shall stand transferred to the courts which had jurisdiction in such matters before its establishment.

The Islamabad High Court having ceased to exist as mentioned above, all posts on its establishment stand abolished. In consequence, all the officers and employees of the said Court have become surplus. They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/absorption in accordance with law. However, if any such officer or employee was an officer or an employee of some other court, department or office, such officer or employee shall revert to his respective court, department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation.

Under Article 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice. In Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341), it was held that the right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution. Similarly, in the case of Al-Jehad Trust (supra) and Sharaf Faridi v. Federation of Pakistan (PLD 1989 Karachi 404) it was held that the right to have access to justice through an independent judiciary was a Fundamental Right. The establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the above constitutional mandate and the law laid down in the aforesaid cases.

However, it was unfortunate that the said court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, as held in the preceding paragraphs, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Article 270AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament, as had happened in the cases of Begum Nusrat Bhutto and Zafar Ali Shah. Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it. It is, therefore, added that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution and law.

This brings us to the question of protection, if any, of other acts done during the period of the unconstitutional and illegal Proclamation of Emergency, i.e. from3rd November, 2007to15th December, 2007(both days inclusive). A distinct feature of the instant case was that though on 3rd November, 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued. The Federal and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office. The Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office. The National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years. Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of18th February, 2008was held. Thus, all along the day-to-day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution. Therefore, all acts/actions of the said branches of the government from3rd November, 2007to15th December, 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law.

Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. The umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool. Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No. 1 of 2007. The Proclamation of Emergency having been revoked on15th December, 2007, the acts/actions done or taken from16th December, 2007onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in

accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way.

It may be noted that Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution.

Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan’s case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.

It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws.

Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.

In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.

We make it clear that the present decision is confined to the questions in issue before this Court, namely, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc.

It is noteworthy that the elections of18th February, 2008were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution. Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed. Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007. The fact that the initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of3rd November, 2007in no way affects the process whereby elections were held and the people ofPakistanexpressed their will. Nor are the elections affected by Article 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general elections. We, therefore, hold that the elections of18th February, 2008were held in accordance with the Constitution and the law. This Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically elected government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law.

This Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and selfenrichment, and will devote themselves to the service of the people.

Needless to add that the Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises.

In any case, it is made clear that any declaration made in this judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions. However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground.

On a perusal of the above case-law, some propositions emerge very clearly: The Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association’s case reproduced above; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Articles 177 and 193 of the Constitution, as interpreted in Al-Jehad Trust case, has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary. At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus-oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates.

However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. The law laid down in Al-Jehad Trust case that “the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference” admits of no other interpretation. In this view of the matter, the view taken by the learned High Court, being contrary to the independence of judiciary cannot be sustained. Accordingly, the same is set aside.

In Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), it was held that in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime Minister under Article 48(1) would be attracted, but the same would be further qualified by, and subject to the ratio decidendi of the judgment passed in AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).

Following the principles enunciated in the aforesaid two judgments, it is declared that in the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the recommendations of the Governor in the case of the respondents Nos. 3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J.

The efforts of Supreme Court of Pakistan to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd) Pervaiz Musharraf who despite Order dated 3.11.2007 passed by this Court but following ill-advice, in his capacity as Chief of Army Staff, promulgated Const. P. 9 & 8/2009 349 Provisional Constitution Order No.1 of 2007 followed by the oath of Office (Judges) Order, 2007, the details whereof and their aftermath have been narrated in the erudite judgment of the Hon’ble Chief Justice, hence, reiteration is not required.

It is pertinent to mention here that the Constitution of 1973 for the first time has prescribed Oath for the members of the armed forces.

Earlier they only took oath prescribed in the Army Act, 1952. Article 245 was also interpreted by this Court reported as Mehram Ali & others Vs. Federation of Pakistan & others (PLD 1998 SC 1445) and laid down a principle that military courts cannot be equated with the original courts on the basis of well known principle that establishment of military courts militates the independence of judiciary. The aforesaid Articles of the constitution do not show that the Chief of Amy Staff has any authority whatsoever to impose emergency which is in violation of Articles 232 to 236.

Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the aforesaid provisions of the Constitution. There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended. The President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior courts through extra constitutional instruments i.e. Proclamation of emergency, PCO and oath of judges order. It is also interesting to note that President of Pakistan is the supreme commander of the forces. Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President.

It is settled law that delegation ought not to be permitted unless it is authorized by Statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect. See Ghulam Mohi ud Din Vs. Chief Settlement Commissioner (Pakistan) Lahore etc. (PLD 1964 SC 829), M/s Oberoi Motors & another Vs. The Union Territory Administration,Chandigarhand others (AIR 1978 Punjab Haryana 294). In view of the rules of business Minister has authority to delegate power to any Officer of that department. See H Lavender and Son Ltd. Vs. Minister of Housing and Local Government (1970 Vol. III AELR 871) R v Police Complaints Board, (1983 Vol. II AELR 353), B.Rajagopala Naidu V. The State Transport (AIR 1964 SC 1573), Ellis Vs. Dubowski (1921 Vol. 3 KB 621). It is not known to any cannon of justice in any part of the world that subordinate can delegate powers to superior. Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of the President was fixed before this Court. Bench was constituted by the Hon’ble Chief Justice of Pakistan consisting of 11 judges. Counsel of the petitioner had concluded their arguments and according to the newspapers till 16.10.2007 Government was happy qua the performance of the Supreme Court of Pakistan. Thereafter, it appears that views of the government were changed qua performance of apex Court. This fact was borne out from the order especially as his counsel did not want to conclude the case. In spite of the request of the Bench that the Bench was ready to hear the case even after Friday Prayer. The counsel did not agree. Therefore, case of Justice ® Wajjahuddin was adjourned for 5.11.2007 vide order dated 2.11.2007. Justice ® Wajjahuddin has filed application in main case with the prayer that General Pervez Musharraf and other authorities be restrained to impose emergency or any action beyond the parameters of the Constitution. This application was heard by a Bench consisting of 7 Judges and the restraining order was passed on 3.11.2007 which was communicated immediately to all concerned.

Actions of3-11-2007are based on mlafide therefore they are not sustainable in the eyes of law. In fact it was admitted by the Gen. Pervez Musharaf that he had taken extra constitutional actions which tantamounts to amend the constitution, which is not permissible. It is pertinent to mention here that power to amend the Constitution is vested in the parliament by part II vide Articles 238 and 239. Constitution may be amended by Parliament vide Article 238 whereas Article 239 prescribes procedure for amending the Constitution. Even the parliament cannot change the salient features of the constitution to destroy one organ of the judiciary in view of Article 238 and 239 of the Constitution. See Mehmood Achakzai’s case (PLD 1997 SC 426).

In case all the three instruments be read together then emergency plus, does not remain within the parameters of emergency as constitution was in fact abrogated under the garb of emergency coupled with the fact that action was taken by him for his personal benefit which does not fall in the category of good faith.Pakistanis a very rich country where in short span of 52 years three martial laws were imposed i.e. by late Muhammad Ayub Khan, Gen. Yayha Khan and Zia-ul-Haq whereas Musharaf had imposed martial law firstly on14-10-1999and subsequently on3-11-2007.

The said actions were taken by him at night in spite of the fact that the order dated3-11-2007of this Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening news papers dated 3.11.2007 which contained this news. This fact was further borne out that all the daily news papers contained this news in the news papers published on4-11-2007. Almost more than 60 judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO) and Oath of Office of Judges order, 2007. Mr. Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other judges of this Court had taken oath on the said night as judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the chief justice had not resigned or removed or had gone out of the country. Four other judges had also taken oath as the order dated3-11-2007was passed by seven judges Bench, therefore new four judges were also appointed with the consultation of Chief Justice Abdul Hameed Dogar for the purpose to complete the quorum. The said application was taken up for hearing on6-11-2007wherein the said order set-aside by the Court and subsequently petition was also dismissed. The case was decided by the Court which was coram non judice in terms of Articles 175, 177 and 184(3). See Chittaranjan Cotton Mills Ltd. Vs. StaffUnion(PLD 1971 S.C 197). The relevant observation is as follows:

“Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existence in the eye of law. There can also be no doubt that in such circumstances ‘it could never be too late to admit and give effect to the plea that the order was a nullity’ as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone V. Chief Kwame Tawia {9 DLR 686 (PC)}”,

The judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses. This fact was also known to every one. Not only in this country but also in the whole world it was considered a unique action that the judges of the superior courts were detained. According to me Judges and Advocates are two parts of one body i.e. Judiciary. Every part of the body had played un precedented historical role for the supremacy of Constitution & law. Their struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution & law, duly supported by the civil society. People ofPakistanhad also joined hand in the struggle of the lawyers. On account of this unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the judges of the superior courts vide notification dated17-3-2009. All the appointments of the judges of the Superior Courts from3-11-2007to24-3-2009were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar which was not in terms of the mandate of the Constitution. He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law laid down by this Court as well as Indian Supreme court.

See:-

i) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1996 SC 324 at 408).

ii) Malik Asad Ali and others V. Federation ofPakistanthr. Secretary, Law, Justice & Parliamenmt Affairs,Islamabad& others (PLD 1998 SC 161).

iii) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1997 SC 84).

iv) L. Kalra and others Vs. President of India and others etc (AIR 1982 SC 149).

v) S.P. Gupta V. Union of India AIR 1994 SC 268)

vi) Presidential Reference. (AIR 1999 SC 1 at 1).

When the constitution of the Court falls in the category of coram non judice then any order passed by such tribunal comes within the purview of without lawful authority as law laid down by this Court mentioned hereinabove. General Muhmmad Yahya Khan was declared as usurper in Asma Jillani case (PLD 1972 SC 139) when he was not in power whereas General Musharaf was restrained to pass any order on3-11-2007when he was in full power. It is pertinent to mention here that this Court has been validating actions of the usurper since imposition of Martial Law by General Muhammad Ayub Khan in Dooso’s case (PLD 1958 SC 533) till Zafar Ali Shah’s case (PLD 2000 SC 869). General Pervez Musharraf wanted to contest the election of the President of Pakistan while in service ofPakistanas Chief of Army Staff. Justice ® Wajjauddin Ahmed had also filed nomination papers to participate in the election of President and had filed objections before the Chief Election Commissioner qua his candidature. On rejection by the Chief Election Commissioner he filed petition before this Court which was pending adjudication at that time before the Bench consisting of 11 Judges of this Court. As mentioned above, General Pervez Musharraf had the apprehension that case would be decided against him as his counsels were not ready to conclude their arguments inspite of the suggestion of the Bench to hear the case after Jummah Prayer and even on Saturday. The manner of appointing the judges after 3-11-2007 for the purpose to complete the strength to form a bench of seven judges as the earlier order was passed by a Bench of this Court consisting of seven judges whereas the other case was fixed before a Bench of 11 Judges. Therefore, assumption of jurisdiction by this Court to decide the case of Wajihuddin Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous with the precedents of this court apart from the orders passed for their benefit, therefore, such type of judgments are not sustainable in the eyes of law as submitted by the learned counsel for the petitioner and such types of orders/judgments are without lawful authority as is evident from the contents of the orders reported in the following cases as per submissions of the learned counsel for the petitioner:-

i) Wajihuddin Ahmed Vs. Chief Election commissioner & others (PLD 2008 SC 25)

ii) Jamat e Islami thr. Amir and others Vs. Federation of Pakistan and others (PLD 2008 SC 30)

iii) Tika Iqbal Muhammad Khan’s case Vs. General Pervez Musharaf and others (PLD 2008 SC 178)

iv) Tika Iqbal Muhammad Khan Vs. General Pervez Musharraf, Chief of Army Staff,Rawalpindiand 2 others (PLD 2008 SC 615).

It is interesting to note that petition filed by Muhammad Iqbal Tikka and Wattan party did not seriously challenge the proclamation of emergency, PCO and Oath of Judges Order, 2007 as is evident from the contents of the judgment mentioned hereinabove. It is better to note here that review was filed by Tikka Muhammad Iqbal as the main petition was decided by seven judges bench simply to increase the number of the judges of this Court. Review was filed in violation of the Supreme Court Rules.

Office had raised four objections which are as follows:-

a) Rs. 10,000/- as security have not been deposited.

b) Review was time barred by 39 days

c) Certificate by the Sr. Counsel was not filed alongwith the review petition.

d) Review petition was not signed by Sr. Counsel.

Inspite of the aforesaid objections review petition was entertained in the Chambers. After filing one objection regarding fee as security was removed as the Rs. 10,000/- were deposited on 14.11.2007 whereas review petition was filed on13-12-2007. Review petition was argued by the AOR without securing permission from the court in violation of Supreme Court Rules and the law laid down by this Court. Finally review petition was dismissed by merely re-affirming earlier order by observing that judges who had not taken oath under the PCO ceased to be the judges of the superior courts. Main order was passed by seven judges Bench in violation of the dictum laid down by this Court by 12 judges Bench in Zaffar Ali Shah case (PLD 2000 SC 869) wherein it was categorically without ambiguity held that judges of the superior courts cannot be removed without adopting the procedure prescribed in Article 209 of the Constitution. Simply rectifying that mistake, review was filed which was dismissed by 13 judges of this Court. This fact shows that the matter was not decided in good faith. Even if review was competent and while deciding by 13 judges bench and reaffirming the judgment/order of the seven judges bench cannot be termed as decided by 13 judges bench. The main order remains passed by seven judges bench, who had decided the same in violation of the dictum laid down in Zaffar Ali Shah’s case Supra particularly without adverting to the relevant paragraphs of the judgment of the Zafar Ali Shah case, therefore, both the orders/judgments in Tikka Muhammad Iqbal’s case are judgments per incurrium. This court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law. It is settled principle of law that judgment of larger Bench of this Court has binding effect on the bench consisting of lesser number. See Multinine Associates Vs. Ardeshir Cowasjee and others (PLD 1995 SC 423) and Ardeshir Cowasjee and 10 others Vs. Karachi Building Control Authority & others (1999 SCMR 2883 at 2912) & N.S. Giri Vs. The Corporation of City of Mangalore and others (AIR 1999 SC 1958). The aforesaid judgments/orders of this Court are not sustainable in the eyes of law and in terms of well known maxim per incurrium and Sub-silentio. These doctrines parted as exceptions to the rule of precedents.

It is also settled principle of law that decision which is not based on reason is not judgment in the eyes of law. See:-

i) State ofU.P.and another Vs. Synthetics Chemicals Ltd. & another (1991 Vol. 4 SCC 139),

ii) State ofManipur Vs. Thingujam Brojen Meetei(AIR 1996 SC 2124).

iii) Ajit Kumar Rath Vs. State of Orissa & others (1999 Vol. 9 SCC 596 para 32).

iv) State ofGujarat& another Vs. S.S. Murthy and others (AIR 1998 SC 2735 para 2).

v) Gouranga Mohan Sikdar Vs. The Controller of Import and Export and 2 others ( PLD 1970 SC 158).

vi) Mollah Ejahar Ali Vs. Government of East Pakistan and others (PLD 1970 SC 173).

30. The following are three basic ingredients of every decision:-

a) Findings of fact both direct and inferential.

b) Statement of principles of law applicable to the legal terms disclosed by the facts.

c) The judgment passed on the combined effect of the above ingredients. SeeUttaranchal RoadTransport Crop. Vs. Manseram Nainwal (2006 Vol. 6 SCC 366 at 370)

It is pertinent to mention here that the reasons or principles on which the question is decided is alone binding as precedent. The word decision or decisions means decision of Supreme court binding only when it fulfills the following three conditions:-

a) It decides a question of law

b) It is passed upon the basis of law

c) It enunciates a principle of law. See Maj. Gen. (Retd) Mian Ghulam Jilani Vs. The Federal Government Thr. The Secretary, Govt. ofPakistan, Interior Division,

Islamabad(PLD 1975 Lahore 65).

To determine whether the decision has ‘declared law’, it is immaterial whether the Supreme Court gave the decision ex-parte or after a hearing. But no law is laid down when a point is disposed of on the concession. Lakshmi Shanker Srivastava Vs. State (DelhiAdministration) (AIR 1979 SC 451). However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view not withstanding the earlier judgments; Lily Thomas etc. Vs. Union of India and others (AIR 2000 SC 1650).

Since the judgment of Tikka Muhammad Iqbal’s case is under review, therefore, I intend to highlight certain principles for the purpose of re-visiting/re-examining the judgment of the aforesaid case.

i) REVIEW.

It is pertinent to re-capitulate the principles of re-consideration and review of the earlier judgments and other principles which are as follows:-

“This court has ample power to reconsider, revise its earlier decisions, nothing in the constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests. This power vests in this Court in terms of Article 188 of the Constitution. See K. Mills Co. case (AIR 1965 SC 1636 at 1643 and 1644), Corporation of Calcutta case (AIR 1967 SC 997 at 1001 para 5), Lt. Col. Nawabzada Muhammad Ameer Khan’s case (PLD 1962 SC 336), Asima Jillani’s case (PLD 1972 SC 139), Greater Bombay Municipality’s case (AIR 1974 SC 2009 at 2043 and 2044 paras 44 & 45), Dwarkadas’case (AIR 1954 SC 119 at 137), State of Bihar’s case (AIR 1955 SC 661 at 672 ), State of Washington Vs. Dasen and Com {1924 (264) U.S. 219}, London Street Tram Ways Com.Ltd. Vs. London City Council (1898 A.C.375), Municipal Committee Amritsar Vs. State of Punjab (AIR 1969 SC 1100) and Sajjan Singh’s case (AIR 1965 SC 845 at 855 para 21)”.

The ratio of the aforesaid judgments is as follows:-

“Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the surrounding circumstances of each case brought to our notice but we do not consider it right to confine our power with rigidly fixed limits as suggested before us. If on a re-examination of the question we come to the conclusion as indeed we have that the previous majority decision was plainly erroneous then it will be our duty to say and not to perpetuate our mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection. We should do so all the more readily as our decision is on constitutional question and our erroneous decision has imposed illegal tax burden on the consuming public and has otherwise given rise to public inconvenience or hardship, for it is by no means easy to amend the Constitution. This Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people ofPakistanto have an independent judiciary”.

It is no doubt that in Iqbal Tikka’s case, the earlier decision of the larger bench was noted but it was neither followed in its true sense nor made any attempt to distinguish it and infact had taken a counter view to the one adopted by larger Bench in Syed Zafar Ali Shah’s case. Therefore, judgment of Iqbal Tikka’s case is liable to be reviewed. See State ofBihar’s case (AIR 1955 SC 661 at 672).

ii) MAXIM “PER INCURRIUM”.

‘Incuria’ literally means “carelessness”. In practice per incurrium is taken to mean per ignoratium and ignored if it is rendered “in ignoratium of a statute or other binding authority.

What is mean by giving a decision per incurrium is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Nirmal Jeet Kaur’s case {2004 SCC 558 at 565 para 21}, Cassell and Co. Ltd.’s case (LR 1972 AC 1027 at 1107, 1113,1131), Watson’s case {AELR 1947 (2) 193 at 196}, Morelle Ltd.’s case (LR 1955 QB 379 at 380), Elmer Ltd.’s case {Weekly Law Reports 1988 (3) 867 at 875 and 878}, Bristol Aeroplane Co.’s case {AELR 1944 (2) 293 at page 294} and Morelle Ltd.’s case {AELR 1955 (1) 708}.

The ratio of the aforesaid judgments is that once the court has come to the conclusion that judgment was delivered per-incurrium then Court is not bound to follow such decision on the well known principle that the judgment itself is without jurisdiction and per-incurrium, therefore, it deserves to be over-ruled at the earliest opportunity. In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this Court, as mentioned above, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Article 4, 5 (2) read with Article 189 and 190 of the Constitution.

iii) MAXIM “SUB-SILENTIO”.

 When the particular point of law involved in the decision is not perceived by the court or present to it its mind. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. See State of U.P’s case {1991 (4) SCC 139 at 163}, State of Punjab Vs. Baldev Singh etc. (AIR 1999 SC 2378) and Lancaster Motor Co.’s case {AELR 1941 (2) 11 at page 13}.

The ratio of the aforesaid principle on the basis of the mentioned judgments is that decisions rendered, without reference to crucial words of rule and without any citation of authority are not binding and would not be followed.

iv) “LARGER BENCH”

Principle laid down by any provision of law or constitution by the larger Bench has binding effect over the smaller Bench. See All Pakistan Newspapers Society’s case (PLD 2004 SC 600 at 618), Multilines Associates’ case (PLD 1995 SC 423), Muhammad Saleem’s case (1997 SCMR 314), Babar Shahzad’s case (1999 SCMR 2518), Union of India’s case (AIR 1976 SC 2433 at 2437 para 12), Trilok Nath Mehrotra’s case {1982 (2) SCC 289 at 290 para 4}, Abdullah Kunhi’s case (AIR 1991 SC 574).

The ratio of the aforesaid judgments is that it is a long standing convention that decision of the larger Bench is binding upon the smaller Bench. It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as this Court will not permit a wrong decision to operate as a good law of the land.

v) “SOURCE AND AUTHORITY OF JUDICIAL PRECEDENTS HAVE A BINDING EFFECT”.

The binding nature of judicial decisions may be derived either from a constitutional or statutory provision or it may be derived from the conventions which the Courts observe in the administration of justice. The judgment of this Court is binding on each and every organ of the State by virtue of Article 189 and 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ except this Court by virtue of Article 201 of the Constitution. In case there is a conflict between the judgment of this Court and the High Court, then the judgment of this Court is binding on all state organs. See Judgment Debtor Vs. Central Bank of India Ltd,Bombay{AIR 1943 Nag 340 (345) (FB)} & Kishori Lal Potdar Vs. Debi Prasad Kejriwal and another {AIR 1950 Pat 50 (FB)}.

Decision of this Court is binding not only under Article 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article.

vi) “PRECEDENTS”

Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it. The purpose and object of principle of precedent is to achieve consistency in judicial pronouncements, the courts have evolved the role of precedents, principle of stare decises etc. which are based on public policy and if these are not followed by courts and not implemented in letter and spirit by the other Organs of the State then there will be chaos in the administration of justice.

48. It is pertinent to mention here that in case two irreconcilable decisions of this Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench – Latter decision, per incurrium in that important aspect of the matter considered by earlier Bench not considered by latter Bench.

49. I have examined the judgment of Tikka Iqbal’s case keeping in view the aforesaid principles and maxims. Judgment in Tikka Iqbal’s case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali’s case which was rendered by a larger Bench. The judgment was delivered in Tikka Iqbal’s case in violation of ratio of Syed Zafar Ali Shah’s case. The relevant paragraphs were not even noted specially paragraphs No.282 and 283. The judgment of Tikka Iqbal’s case is not sustainable in the eye of law on any canon of justice. The action of3rd November, 2007by General Pervaiz Musharraf former Chief of Army Staff is not within the parameters of the constitution as highlighted herein above and also accepted by him, therefore, the same is declared to be void and is hereby set-aside.

50. For what has been discussed above, I agree with the judgment of the Hon’ble Chief Justice of Pakistan.

(Justice Ch. Ijaz Ahmed)

377

JAWWAD S. KHAWAJA J.- I have gone through the judgment proposed to be delivered by Hon’ble the Chief Justice. It forcefully asserts the independence of the Judiciary as a cardinal principle of our Constitution. I respectfully agree with the conclusions arrived at, but wish to record this additional note in support of this dominant theme of the judgment.

2. In my humble opinion, the whole case before us can be reduced to one foundational question. Can Constitutional legitimacy flow from the force of arms or – as is more graphically put at times – from the barrel of a gun? This is the basic issue here because General Musharaf, on 3rd November, 2007 took actions in his capacity as the Chief of Army Staff (and then purportedly, as President) without the slightest pretence that these actions were permitted to him by the Constitution. As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of3rd November, 2007. He, however, chose not to avail this opportunity.

3. For reasons which have been spelt out in the main judgment, there can be no doubt at all that the aforesaid actions of3rd November, 2007were un-Constitutional. It is for this

obvious reason that General Musharaf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command. This constituted a frontal attack on the Constitution and directly undermined the writ of the State. It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted. If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan.

4. It is not for this Court to embark on a discussion on questions which do not directly arise in this case. It would, however, be for the representatives of the people and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today. I can only venture to say that the causal connection very strongly suggests itself. 378

5. In the main judgment, a letter addressed by the then Prime Minister ofPakistan, Mr. Shaukat Aziz to the President, General Pervez Musharaf has been reproduced. The contents of the letter have also been commented upon but at this stage I would like to make a few observations in relation to the same. At two places in the said letter the term ” writ of the government” has been used and interference with the said ‘writ’ by the judiciary has been criticised. It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by them. It is the writ of the State which has to be enfo rced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution.

6. It has to be noted that in a constitutional system such as ours, it is the duty of Courts to call in question all executive measures which transgress and are not in line with constitutional norms. Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to constitutional principles. The wholly specious and untenable reasoning in the Prime Minister’s letter was used by General Musharaf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the State. On 3.11.2007, with utter disdain for the Constitution and in a manner which was brazenly imperious, General Musharaf arrogated on himself the right to decide what was good for the people ofPakistanand the manner in which they ought to be governed. This was an anachronistic throw-back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say “l’Etat, c’est moi.” Surely, as President of Pakistan, General Musharaf cannot be presumed to have been ignorant of the Constitution of the country. The people ofPakistanhave consciously chosen the method for their own governance. The Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State. The initial lines appearing in the preamble to the Constitution stipulate, inter alia, “that it is the will of the people ofPakistanto establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people.” The operative part of the preamble in the clearest possible terms, states that “we the people ofPakistan…do hereby adopt, enact and give to ourselves this Constitution.” In this context it was nothing but haughty arrogance on the part of General Musharaf to claim to be above the Constitution and to assume the power of arbitrarily amending it. Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people ofPakistanwho had chosen their own method of governance, were incapable of knowing what was best for them. There can be no other explanation for the actions of3rd November, 2007when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people ofPakistan, the troubled events starting on9th March, 2007enabled them to see behind the false face and deceptive veneer of an essentially anti-people dispensation.

These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain-head) of power. This heady realization must, however, be tempered with the awareness that judges can exercise constitutional and moral authority, but they alone cannot thwart un-Constitutional forces without the people actively standing up in defence of their Constitution. As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith in themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:[p. 1034, 1037, 1038,1039,1041,1055,1056,1057, 1058,1059, 1060, 1061, 1064, 1070, 1080, 1082, 1083, 1107, 1110,1111, 1112, 1113, 1116, 1118, 1141, 1142, 1143, 1144, 1145, 1146, 1147,1149, 1151,1153, 1156,1162, 1165, 1167, 1168, 1173, 1178, 1180, 1198, 1199, 1200, 1201,1202, 1203, 1205, 1212, 1213, 1218, 1230, 1232, 1233, 1235, 1237, 1238, 1239, 1240, 1241,  ] J,K,L,M,N,O,P,Q,R,S,T,U,V, W, X, Y, Z, AA, BB, CC, DD,EE, FF, GG,HH,II, JJ, KK,LL,MM,NN, OO, PP, QQ, RR,SS,TT, UU,VV,WW,XX,YY,ZZ,AAA, BBB, CCC, DDD, EEE, FFF, GGG, HHH III, JJJ, KKK, LLL, MMM ,NNN, OOO, PPP, QQQ, RRR, SSS, TTT, UUU, VVV, WWW, XXX, YYY, ZZZ, AAAA, BBBB, CCCC, DDDD, HHHH,OOOO, PPPP, QQQQ, RRRR, SSSS, TTTT, UUUU, VVVV, WWWW, XXXX, YYYY, ZZZZ, AAAAA, BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, GGGGG, HHHHH, IIIII

Constitution ofPakistan(1973) Arts. 177, 193 & 105-

133. The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. It was held in Al-Jehad Trust case that the consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. It was further held that the independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. It was also held that an Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

Accordingly, at declaration No. (xiii) of the Short Order passed in Al-Jehad Trust case, it was held that since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid. In the instant case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. At page 528 of the cited case, it was unequivocally held that to have access to free, fair and independent court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.

134. We, therefore, uphold the contention of the learned counsel that Abdul Hameed Dogar, J, who was holding office in violation of the order dated3rd November, 2007passed by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, was not authorized to be consulted for such appointments. All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from3rd November, 2007to21st March, 2009were violative of the provisions of the Constitution as interpreted in Al-Jehad Trust case. Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, are held and declared to be unconstitutional, illegal, void ab initio and of no legal effect.

On a perusal of the above case-law, some propositions emerge very clearly: The Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association’s case reproduced above; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Articles 177 and 193 of the Constitution, as interpreted in Al-Jehad Trust case, has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary. At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus-oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates.

However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. The law laid down in Al-Jehad Trust case that “the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference” admits of no other interpretation. In this view of the matter, the view taken by the learned High Court, being contrary to the independence of judiciary cannot be sustained. Accordingly, the same is set aside.

In Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), it was held that in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime Minister under Article 48(1) would be attracted, but the same would be further qualified by, and subject to the ratio decidendi of the judgment passed in AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).

Following the principles enunciated in the aforesaid two judgments, it is declared that in the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the recommendations of the Governor in the case of the respondents Nos. 3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J. [p. 1143, 1212, 1213] VV, CCCC, DDDD

Contitution offPakistan(1973) Arts. 270AAA, 89 & 128-

185. It may be noted that Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution.

186. Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan’s case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.

187. It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws.

Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.

188. In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.

190. We make it clear that the present decision is confined to the questions in issue before this Court, namely, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc.

It is noteworthy that the elections of18th February, 2008were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution. Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed. Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007. The fact that the initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of3rd November, 2007in no way affects the process whereby elections were held and the people ofPakistanexpressed their will. Nor are the elections affected by Article 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general elections. We, therefore, hold that the elections of18th February, 2008were held in accordance with the Constitution and the law. This Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically elected government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law.

191. This Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and selfenrichment, and will devote themselves to the service of the people.

Needless to add that the Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises.

192. In any case, it is made clear that any declaration made in this judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions. However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground.[p. 1203, 1205] AAAA & BBBB

Constitution ofPakistan(1973) Art. 177-

The President has to appoint the judges of the superior courts after consultation with the following consultees.

i) According to Article 177 Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas judges of the High Court are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the Chief Justices of the High courts, with the Chief Justices of the High Courts. The consultation must be meaningful and Const. P. 9 & 8/2009 358 executive has no authority whatsoever to ignore the recommendations of the chief justices. The Governor has no right to disagree with the recommendations of the chief Justice.

However executive has authority to judge/evaluate the antecedents of the appointees. See :-

i) P.L. Lakhanpal V. Ajit Nath Ray Chief Justice ofIndia(AIR 1975 Delhi 66 at 73).

ii) Tara Singh and others V. The State ofPunjab(AIR 1991 SC 63 at 640 to 641, 645 to 646).

iii) L. Kalra and others Vs. President of India and others etc (AIR 1982 SC 149).

iv) Presidential Reference. (AIR 1999 SC 1)

v) S.P. Gupta V. Union ofIndia(AIR 1994 SC 268 at 437,342,431,434,438,439,356)

vi) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1996 SC 324).

vii) Al-Jehad Trust thr. Raeesul Mujahideen Habib ul Wahabb ul Khairi and others Vs. Federation of Pakistan and others (PLD 1997 SC 84).

viii) Malik Asad Ali and others V. Federation ofPakistanthr. Secretary, Law, Justice & Parliamenmt Affairs,Islamabad& others (PLD 1998 SC 161).

ix) Mr. Justice Ghulam Hyder Lakho, High Court of Sindh,Karachi& others Vs. Federation ofPakistanthr. Secretary Law, Justice and Parliamentary Affairs,Islamabad& others (PLD 2000 SC 179).

17. The ratio of the aforesaid cases is that opinion of the Chief Justices must be given preference and the Governor has no right to directly send the proposal for appointment of Supreme Court or High Courts Judges.[p. 1227] MMMM