The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Ajmal Mian, C.J.

(a) Constitution of Pakistan (1973), Arts 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Appellate Tribunal—Provision of S.24 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution—Section 24 of the Act needs to be suitable amended so as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words “High Court” in place of “appellate Tribunal”—Such declaration by supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [pp. 1462, 1495, 1490] D, I, GG & V

(b) Constitution of Pakistan (1973) Arts. 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Appeal—Provision of S.25 of the anti-Terrorism act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts.175 203 of the Constitution—Section 25 of the Act needs to be suitably amended so as to vest the Appellate power in a “High court” in place of “Appellate Tribunal”—Such declaration by supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [p. 1462, 1495, 1490] D, I, GG & V

(c) Constitution of Pakistan (1973) Arts. 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Punishment for defective investigation—Provision of S.27 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and needs to be suitably amended so as to vest power in a “High Court” instead of “Appellate Tribunal”—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [pp. 1462, 1495, 1490] D, I, GG & V

(d) Constitution of Pakistan (1973) Arts. 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Transfer of cases—Provision of S.28 of the anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts.175 & 203 of the Constitution—Section 28 of the Act needs to be amended as to vest power of transfer of cases in a High court instead of Appellate Tribunal and to use the words “High Court” in place of “Appellate Tribunal”—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions record under the Act and the pending trials may continue subject to this order. [pp. 1462, 1495, 1490] D, I, GG & V

(e) Constitution of Pakistan (1973) Arts 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Modified application of certain provisions of the Criminal Procedure code, 1898—Provision of S.30 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution—Section 30 of the Act needs to be suitably amended so as to vest the appellate power in a High Court instead of appellate Tribunal and word “High Court” be substate for ” Appellate Tribunal”—Such declaration by supreme Court, however, will not affect the trials already conducted and convictions recorded under the act and the pending trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [pp. 1462, 1495] D, I & GG

(f) Constitution of Pakistan (1973), Arts. 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Contempt of Court—Provision of S.37 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts.175 & 203 of the Constitution—Section 37 of the Act needs to be amended suitably so as to vest power to punish for contempt in a High Court instead of Appellate Tribunal and to use the words “High Court” in place of “Appellate Tribunal” —Such declaration by Supreme Court, however will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [pp.1462, 1495] D, I & GG

(g) Constitution of Pakistan (1973), Arts.175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Power to make rules—Provision of S.35 of the Anti-terrorism Act, 1997 in its present form is not valid as the same militates against the concept of independence of Judiciary and is also violative of Arts. 175 & 203 of the Constitution—Section 35 of the said Act needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government—Such declaration by Supreme Court, however, will no affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

Section 35 of the Anti-Terrorism Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government. [p.1462] G

Section 35 of the Act empowers the Government to frame rules through a notification, which it may deem necessary for carrying out the purposes of the Act. Under sections 4, 25, 27, 28, 30 and 37 of the Act ‘High Court’ should be substituted in place of ‘Appellate Tribunal’ and as the Special courts are to operate/function under the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, the power to frame rules should vest in the High Court and not in the Government. We therefore, hold that section 35 of the Act in its present form is not valid as it militates against the concept of independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended. [p. 1494] CC

Declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as ordered by the Court in the short order. [p. 1495] GG

(h) Constitution of Pakistan (1973), Arts. 212-B(4), 175 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Establishment of Special Courts for trial of heinous offences—Composition and appointment of Presiding Officers of Special Courts—Provision of S.14 of the anti-Terrorism Act, 1997 requires to be amended so as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of Judiciary—Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

Section 14 of the Anti-Terrorism Act, 1997 requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of Judiciary. [p. 1462] H

Section 14 of the Act which provides for composition and appointment of Presiding Officers of Special courts does not provide for the security of the tenure of the Judges appointed thereunder. The security of tenure of Judges is a sine qua non for independence of Judiciary. [p. 1494] DD

The farmers of Article 212-B of the Constitution were mindful of the fact that in the absence of security of tenure, no Judge can function impartially and independently. Therefore, section 14 is required to be suitably amended preferably in line with clause (4) of Article 212-B of the Constitution. [p. 1495] EE

Declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as ordered by the Court in the short order. [p. 1495] GG

(i)Constitution of Pakistan (1973) Arts, 175, 202 & 203

Establishment and jurisdiction of Courts—Framework—Words “Such other Court as may be established by law employed in Art.175(1) of the Constitution are relatable to the subordinate Courts referred to in Art.203 of the Constitution—Any Court or Tribunal which is not founded on any of the Articles of the constitution, cannot lawfully share judicial power with the Courts referred to in Arts175 & 203 of the Constitution—Supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation—Any Court or Tribunal which is not subject to judicial review and administrative control of the High Court/or the Supreme Court does not fit in within the judicial framework of the Constitution—Different laws though can validly be enacted for different sexes, persons in different age groups, persons having different financial standing and persons accused of heinous crimes, but that does not mean that a parallel Judicial system can be created in violation of Arts.175 202 & 203 of the Constitution—Special Courts can be constituted for trying heinous crimes expeditiously but the same should be within the framework of the Constitution—Court/Tribunals which are manned and run by executive authorities without being under the control and supervision, cannot met the mandatory requirement of the Constitution.

Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law.

The words “such other Courts as may be established by law” employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.

Constitution recognises only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself; Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It mush follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.

In view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.

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.

The right of “access to justice of 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 Court/Tribunal 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. [p. 14477] J

Indeed different laws can validly enacted for different sexes, persons in different age groups, persons having different financial standing and persons accused of heinous crimes. However, this does not mean that a parallel judicial system can be created in violation of Articles 175, 202 and 203 of the Constitution. There can be Special Courts trying heinous crimes expeditiously, but the same should be within the framework of the Constitution. [p. 1479] M

Declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as ordered by the Court in the short order. [p. 1495] GG

(j) Constitution of Pakistan (1973) Arts. 175, 202 & 203

Establishment and jurisdiction of Courts—Creation of Special—Courts—validity—Framework—Different laws though can validly be enacted for different sexes, person in different age groups, persons having different financial standing and persons accused of heinous crimes but that does not men that a parallel judicial system can be created in violation of Arts.175, 202 & 203 of the Constitution—Special Courts for trying heinous crimes expeditiously can be constituted but within the framework of the Constitution. [p. 1479] M

(k) Constitution of Pakistan (1973), Arts. 175, 202 & 203

r/w. Anti-Terrorism Act (XXVII of 1997)

Establishment and jurisdiction of Courts—Framework—Establishment of special Courts under Anti-Terrorism Act, 1997 is under an Act of the Parliament and is not founded on a Constitutional Provision, and therefore, if any of the provisions of the Anti-Terrorism Act, 1997 is in conflict with the Constitutional provions, the same cannot be sustained—Such declaration by supreme court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order. [pp. 1489, 1495] U & GG

(l) Constitution of Pakistan (1973), Arts. 175, 202 & 203

Establishment and jurisdiction of Court—Framework—Constitutional framework relating to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals, which are not under the judicial review and administrative control and supervision of the High Court—Where the constitution makers wanted to provide judicial forums other than what is envisage by Arts, 175, 202 & 203 of the Constitution, same has expressly been provided in the Constitution. [p. 1489] T

(m) Constitution of Pakistan (1973), Art. 185(3)

r/w. Anti-Terrorism Act (XXVII of 1997) Ss.302, 324 & 304

Petition for leave to appeal—Contention was that Special Court committed serious irregularities in the trial of the case inasmuch as the charge was wrongly framed and evidence was not recorded in terms of S.304, P.P.C. and therefore conviction and sentence could not be sustained—Held, such alleged irregularities could not be urged in the petition for leave to appeal before Supreme Court as same had arisen out of the dismissal of the petitioner’s Constitutional petition in the High Court—Such irregularities could have been urged before the Trial Court and/or before the Appellate Tribunal—Supreme Court would not interfere with impugned judgments on such technical grounds—If a Court was satisfied about the guilt of the accused person concerned, the technicalities should be overlooked without causing any miscarriage of justice—Special Court having found the accused guilty and Appellate tribunal having affirmed such finding, petition for leave to appeal was disposed of by Supreme court accordingly. [p. 1497] II & JJ