The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Sh. Riaz Ahmad, J.

(a) Constitution of Pakistan (1973), Arts. 199 & 4:

Mr. Sharifuddin Pirzada also argued that the Ordinance was privilegium and an enactment without legislative competence, is to be struck down. It was also rightly contended by him that it was a bill of attainder being one of pains and penalties. Mr. Sharifuddin Pirzada next contended that the impugned Ordinance was repugnant to the Injunction of Islam. [p. 494] M

In the judgment of Shariat Appellate Bench of the Supreme Court referred to above, it was also laid down that right of hearing was acknowledged in Islam and the application of this principle would depend upon the circumstances and the situation vis-a-vis the law, each case and in the context of the particular action. As we have already observed that the report of the Commission, the source ont he basis of which, the impugned Ordinance was made, was not a judgment but was an enquiry confined to the terms of Reference and, therefore, in the light of its recommendations, the law could be made and it had to conform with the Injunctions of Islam, Constitution and the fundamental principles enshrined in our jurisprudence and, therefore, such Legislative judgment declaring 102 societies undesirable enumerated in the schedule to the Ordinance cannot be upheld. The declaration of these Cooperative Societies as “undesirable” without a criterion or yardstick in the Ordinance itself amounts to usurpation of the judicial power by the legislature and such adverse action must have preceded by a finding in exercise of the judicial power and the report of the Commission in the light of its own observation cannot be equated with the judgment. However, following the judgment of the Shariat Appellate Bench of the Supreme Court reported as Federation of Pakistan v. The General Public PLD 1988 SC 645, we would further suggest amendment in the impugned Ordinance so as to make it workable and intra view of the Constitution.

It would have been in the fitness of things if the Ordinance making authority would have provided a definition of “Undesirable socieities” and to have also laid down a yardstick or criterion to hold it so as provided under the Cooperative Societies Act, 1925. It would have been further advantageous for the Legislature to have left it to the Court concerned to determine whether a particular cooperative society falls within the jurisdiction of the aforesaid definition or not. It would have been appropriate if alongwith this, the Court was also given the power to consider the question of the winding up of such society or not. [p. 495] N

FEDERATION OF PAKISTANA V. THE GENERAL PUBLIC PLD 1988 SC 645.

Adverting to the repugnancy of the Ordinance with Article 14 of the Constitution, we are of the view that acquiring the properties and assets of the Societies and then to vest the same in the Registrar is nothing but the exercise of depotic and arbitrary power. The provision ought to have been made to see as to whether such property could be made to vest without a proper enquiry as to the nature of its ownership. [p. 496]P

We have carefully considered and gone through these judgments but without respect, we are unable to agree with the principles laid down in the aforesaid judgments because they do not relate to the legislative judgments as has been done by virtue of this Ordinance. Furthermore, at the time when these cases were decided, Article 2A was not available as enforceable clause in the Constitution. As already held by us, we would reiterate that the impugned Ordinance by usurping judicial power was passed and framed to declare 102 societies as undesirable which was a function exclusively resting upon the exercise of the judicial power rather than the legislative power. [p.496]Q.

Syed Sharifuddin Pirzada v. Federation of Pakistan PLD 1973 Karachi and Fauji Foundation’s case PLD 1983 SC 457 distignuished.
On the first day of hearing by the Full Bench, Mr. Sharifuddin Pirzada appearing for the petitioners in Writ Petitions Nos. 4607 and 4699 of 1992 sought permission to amend the petitions so as to pray that a writ in the nature of quo warranto be issued against the Cooperative Judge. Considering the challenge thrown to the Ordinance and its various provisions, we allowed the incorporation of the aforesaid amendment. [p. 476]A

It was also half-heartedly attempted to contend that after the insertion of Chapter 3-A in the Constitution and in the light of Article 203-G and after the establishment of Shariah Courts, Article 2-A cannot be enforced under Article 199 of the Constitution of Islamic Republic of Pakistan. The argument is devoid of force because as already observed that the grund norm, the Objectives Resolution having become enforceable in the Constitution, no clog or fetter can be on the powers conferred upon this Court under Article 199 of the Constitution to examine any act on the touchstone of Article 2A. There is no clog or fetter nor it can be placed upon the powers of this Court to examine the validity of any act or law and to declare it unconstitutional if repugnant to Islam. Hence we are not impressed with this argument. [p. 497]S

Adverting to the Writ Petition No. 5353 of 1992 Faisal Dilawar Khan v. Government of Punjab etc. it was argued that 17 members of the same family have formed themselves into a cooperative society and the society never dealt with the banking business and no deposit was taken and only a house was purchased. Obviously when there is no liability, this society cannot be declared as undesirable and to treat it as such is also without lawful authority and jurisdiction. Similar is the position is Writ Petition No. 4858 of 1992 filed by Muhammad Ramzan against Registrar, Cooperative Societies. [p. 502]Y

Obviously the transaction on the face of it requires scrutiny and it cannot be declared as undesirable. [p. 503]Z
It was argued that 17 members constituted the society and no business was transacted and it was not a financial institution but was a housing society and purchased only one property and an enquiry had been conducted into its affair under section 43 of the Cooperative Societies Act and it was found that it had not liability and the members belonged to the same family and, therefore, such society cannot be treated as undesirable. We are inclined to agree with the arguments advanced by the learned counsel and, therefore, treating the society as undesirable is also declared to be without lawful authority and jurisdiction. [p. 503]AA

In this view of the matter, we are of the view that such statement of Ch. Abdul Majid of National Industrial Finance Corporation could not have furnished any basis to the Provincial Government to promulgate an Ordinance. The law-maker ought to have taken note of the aforesaid legal position and thus, we are persuaded to hold that such statement could not provide an adequate basis to promulgate an Ordinance. Such statement could at the most highlight the msmanagement of the affairs. Similarly, those Cooperative Societies which were heard by the Commission and were treated as defaulting societies could not have empowered the Provincial Governor to promulgate an Ordinance without complying with the other prerequisites for framing such laws. In nutshell, the adverse finding by the Commission would not absolve the Provincial Governor or the Provincial Legislature to depart from the law and the Constitutional provisions. [p. 487] B and C

We would unhesitatingly observe that findings arrived at by the Commission would not clothe any authority or confer or enable or authorize any authority whatsoever to make any law or to pass any such order in derogation of the law and the Constitution. On the other hand, the report of the Commission would have put the Authorities including the Legislature at guard to proceed strictly in accordance with law to follow or to adopt its recommendations. Furthermore, such finding by the Commission cannot permit any Legislature or the Provincial Governor as the case may be to act in disregard to the principles of natural justice and the law on the subject. [p. 489] D

The report of the Commission cannotbe considered as a legal or proper substitute for the strict compliance of the principles of natural justice and law and, therefore, the argument that in a way, indirectly, the societies have been heard by the Commission is fallacious. In this behalf, the salutary principle contained in Article 4 of the Constitution. [p. 489]F

The precise question in the light of the Articles reproduced above is whether the impugned Ordinance is ex facie discriminatory and if not, what is the criterion or yardstick on the basis of which 102 societies specified in the schedule have been held to be undesirable. Unfortunately, the Ordinance is silent on this issue. In this view of the matter, we can legitimately hold that the Provincial Governor while promulgating the Ordinance also assumed and exercised judicial powers which he could not have done under the scheme of the Constitution. [p. 491]H