The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Ajmal Mian, C.J.

(a) Constitution of Pakistan (1973) Arts. 13(b) & 25

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

Admissibility of confession made before Police—Provision of S.26 of the Anti Terrorism Act, 1997 is not valid in its present form as it makes admissible the confession recorded by a Police Officer not below the rank of a Deputy superintendent of Police and is violative of Arts. 13(b) & 25 of the Constitution—Section 26 of the said Act, thus, requires to be suitably amended by substituting the words “by a Police Officer not below the rank of a Deputy Superintendent of Police” with the words ” Judicial Magistrate”—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 26 of the Anti-Terrorism Act, 1997 is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words ‘by a police officer not below the rank of a Deputy Superintendent of Police’ by the words “by Judicial Magistrate”. [p. 1462] E

Section 26 of the Anti-Terrorism Act provides that notwithstanding anything contained in Qanun-e-Shahadat Order, 1984 (President’s Order 10 of 1984), 7 or section 8 of the Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape, before a police officer not below the rank of a Deputy Superintendent, may be proved against such person. The above provision seems to be violative of Articles 13(b) and 25 of the Constitution. Clause (b) of Article 13 of the Constitution confers a fundamental right by providing, inter alia, that no person shall, when accused of an offence, be compelled to be a witness against himself. Indeed a judicial confession is recorded by a Magistrate which is admissible as a piece officer with a Magistrate. Additionally, there are very strict requirements which a Magistrate is required to comply before recording a judicial confession of an accused person. These requirements do not find place in section 26 of the Act. It is true that it will be for the Special court concerned or for the Appellate Tribunal to accept or not to accept a confession recorded by a police officer specified in the above section, but the fact remains that such a confession is not in consonance with the law and the Constitution. Under Islamic Jurisprudence confession cannot be accepted lightly and it has certain mandatary requirement [p. 1490] W

Under Hanfi school of thought a confession is admissible if an accused person admits his guilt/crime four times at four different places.[p.1491]X

Section 26 cannot be sustained, the same requires to be suitable amended by substituting the words “police-officer not below the rank of a Deputy Superintendent of Police” by the words “Judicial Magistrate” [p.1491]Y

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 pending trials may continue subject to the above as ordered by the Court in the short order. [p. 1495] GG

(b) Constitution of Pakistan (1973) Art. 2A

Independence of Judiciary—Separation of Judiciary from Executive—Hallmark of Constitution is that same envisages separation of the Judiciary from the Executive—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. [p. 1477] J & K

(c) Constitution of Pakistan (1973) Art. 25

Equality of citizens—Classification—Principles.

Following are the principles on the question of classification with regard to equality of citizens:

(i) That equal protection of law does not envisage that every citizen
is treated alike in all circumstances, but it contemplates that persons similarity situated or similarly placed are to be treated alike:

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis:

(iii) that different laws can validly be enacted for different sexes persons of different age groups, persons having different financial standard and persons accused of heinous crimes:

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable classification in the other set of circumstances:

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based–

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification. [p. 1478] L