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Tuesday, January 19, 2010

NRO Judgment

Exclusively Shared By:
Mohammed Yousuf Advocate, (AMICUS)



IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Javed Iqbal
Mr. Justice Sardar Muhammad Raza Khan
Mr. Justice Khalil-ur-Rehman Ramday
Mr. Justice Mian Shakirullah Jan
Mr. Justice Tassaduq Hussain Jillani
Mr. Justice Nasir-ul-Mulk
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Ch. Ijaz Ahmed
Mr. Justice Muhammad Sair Ali
Mr. Justice Mahmood Akhtar Shahid Siddiqui
Mr. Justice Jawwad S. Khawaja
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Khilji Arif Hussain
Mr. Justice Rahmat Hussain Jafferi
Mr. Justice Tariq Parvez
Mr. Justice Ghulam Rabbani
CONSTITUTION PETITION NOS. 76 TO 80 OF 2007 & 59/2009,
AND
CIVIL APPEAL NO. 1094 OF 2009
(On appeal from the order dated 15.1.2009
passed by High Court of Sindh at Karachi
in Const.P.No.355 of 2008)
AND
HRC NOS.14328-P TO 14331-P & 15082-P OF 2009
Dr. Mobashir Hassan (Const.P.76/07)
Roedad Khan (Const. P.77/07)
Qazi Hussain Ahmad (Const.P.78/07)
Muhammad Shahbaz Sharif (Const.P.79/07)
Muhammad Tariq Asad (Const.P.80/07)
Syed Feroz Shah Gillani (Const.P.59/09)
Fazal Ahmad Jat (C.A.1094/09)
Shaukat Ali (H.R.C.14328-P/09)
Doraiz (H.R.C.14329-P/09)
Zulqarnain Shahzad (H.R.C.14330-P/09)
Abid Hussain (H.R.C.14331-P/09)
Manzoor Ahmad (H.R.C.15082-P/09)
… … … Petitioners.
Const.P.76/2007, etc. 2
Versus
Federation of Pakistan, etc. … … Respondents.
For the petitioners : Mr. Abdul Hafeez Pirzada, Sr. ASC.
Mr. Salman Akram Raja, ASC.
Mr. Ejaz Muhammad Khan, AOR.
Assisted by:
Abdul Mujeeb Pirzada, Sr.ASC
Mr. M.Afzal Siddiqui, ASC
Mian Gul Hassan Aurangzeb, ASC
Mr. Sikandar Bashir Mohmand, ASC
Barrister Feroze Jamal Shah, Adv.
Mr. Hameed Ahmeed, Adv.
Mr. Mustafa Aftab Sherpao, Adv.
Mr. Sameer Khosa, Adv.
Mr. Umar Akram Chaudhry, Adv.
Malik Ghulam Sabir, Adv.
(in Const. P. 76/2007)
Mr. Muhammad Ikram Ch. ASC.
Mr. G. N. Gohar, AOR.
(in Const. P. 77/2007)
Dr. Farooq Hassan, Sr.ASC
Mr. Hashmat Ali Habib, ASC
Ch. Muhammad Akram, AOR
(in Const.P.78/07)
Mr. Ashtar Ausaf Ali, ASC
(In Const.P.79/07)
Mr. Tariq Asad, ASC (in person)
(In Const.P.80/07)
Mr. A.K. Dogar, Sr. ASC
(In Const.P.59/09)
Mr. Shahid Orakzai (in person)
(In CMA 4842/09)
Raja Muhammad Ibrahim Satti, Sr. ASC
(in CA.1094/2009)
NEMO (in HR.Cases)
For the Respondents:
For M/o Law : Mr. Kamal Azfar, Sr. ASC.
assisted by
Mr. K.K. Agha, ASC.
Raja Abdul Ghafoor, AOR.
(in Const.P.76-77/07)
Const.P.76/2007, etc. 3
Raja Abdul Ghafoor, AOR.
(in Const.P.78-80/07 & 59/09)
For the NAB : Dr. Danishwar Malik, PG.
Mr. Abdul Baseer Qureshi, Addl: PG
Dr. Asghar Rana, ADPG,
Ch. Akhtar Ali, AOR.
Mr. Naveed Ahsan, Chairman NAB
On Court Notice : Mr. Shah Khawar,
Acting Attorney General for Pakistan.
Assisted by:
Agha Tariq Mehmood Khan, DAG.
Mr. Dil Muhammad Alizai, DAG.
Raja Aleem Abbassi, DAG.
For Govt. of Balochistan : Dr. Salahuddin Mengal, AG.
For Govt. of NWFP. : Mr. Zia-ur-Rehman, A.G.
Mr. Zahid Yousaf, Addl. A.G.
Mr. Naveed Akhtar, A.A.G.
For Govt. of the Punjab : Mr. M. Hanif Khattana, Addl: AG.
Ch. Khadim Hussain Qaiser, Addl: AG.
For Govt. of Sindh : Mr. Yousaf Leghari, AG.
On Court’s Call: : Malik Muhammad Qayyum, Sr. ASC
Former Attorney General for Pakistan
Mr. Justice (R) M. Riaz Kiani
Secretary Law & Justice.
Dr. Riaz Mehmood, Sr. Joint Secretary.
Syed Nasir Ali Shah, Solicitor General.
Mr. M. Salman Faruqui,
Secretary General to the President.
Amicus Curiae : Mian Allah Nawaz, Sr. ASC.
Mr. Shaiq Usmani Sr. ASC.
Mr. M. Sardar Khan, Sr. ASC.
Assisted By Mr. Idrees Ashraf, Adv.
Const.P.76/2007, etc. 4
Dates of hearing : 07th -10th & 14th - 16th December, 2009.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. –
Constitution Petition Nos. 76 to 80 of 2007 and 59 of 2009
have been filed, challenging the constitutionality of the
National Reconciliation Ordinance, 2007 [hereinafter referred
to as “the NRO, 2007”], whereas Civil Appeal No. 1094 of
2009 (by leave of the Court), has been filed against the order
dated 15th January 2009, passed by High Court of Sindh in
Constitution Petition No. 355 of 2008, whereby the benefit of
the NRO, 2007 has been declined to the appellant. Similarly,
in Human Right cases, the applicants have prayed that the
benefit of the NRO, 2007 may also be extended to them.
2. Brief facts, leading to filing of the listed petitions
are that on 5th October 2007, the President of Pakistan
[hereinafter referred to as “President”], while exercising his
power under Article 89 of the Constitution of the Islamic
Republic of Pakistan, 1973 [herein after referred to as “the
Constitution”], promulgated the NRO, 2007 vide Ordinance
No.LX of 2007.
3. The above Ordinance came under challenge,
immediately after its promulgation, before this Court, by
Const.P.76/2007, etc. 5
invoking jurisdiction under Article 184(3) of the Constitution,
in the listed Constitution Petitions, when, on 12th October
2007, after hearing the learned counsel for the petitioners at a
considerable length and examining the case law, the Court
passed an order, which is reproduced hereinbelow:-
“These petitions have been filed under Article 184(3) of the
Constitution of Islamic Republic of Pakistan, 1973 [herein
after referred to as “the Constitution”] challenging the
National Reconciliation Ordinance, 2007 (No. LX of 2007)
[herein after referred to as “the impugned Ordinance”].
2. Mr. Salman Akram Raja, learned counsel appearing
on behalf of petitioner in Constitution Petition No. 76 of
2007 argued that:-
a) Section 7 of the impugned Ordinance being
self-executory in nature amounts to
legislative judgment, which is impermissible
intrusion into the exercise of judicial powers
of the State and thus falls foul of Article 175
of the Constitution which envisages
separation and independence of the
judiciary from other organs of the State.
b) Legislative judgment cannot be enacted by
the Parliament. [ Smt. Indira Nehru Gandhi
v. Raj Narain (AIR 1975 SC 2299)].
c) By promulgating Section 7 of the impugned
Ordinance, Article 63(1)(h) and 63(1)(l) of
the Constitution have been made ineffective,
as regards chosen category of people,
therefore, it is ultra vires the Constitution as
it amounts to defeat the constitutional
mandates.
d) Impugned Ordinance exhorts about or
indemnifies a particular class of people i.e.
public office holders from proceedings,
actions and orders passed by the competent
authorities, whereas no such powers are
available to the Parliament or, for that
Const.P.76/2007, etc. 6
matter, to the President of Pakistan under
Federal or Concurrent Legislative List.
Further; the President is empowered only to
pardon an accused person, under Article 45
of the Constitution, after passing of sentence
by a Court of law, whereas by means of
impugned Ordinance, the President has
been empowered to indemnify or pardon an
accused, against whom proceedings are
pending before Investigating Agency or a
Court of law or in appeal by giving a
blanket cover.
e) The impugned Ordinance violates the
provisions of Article 25 of the Constitution
because it is not based on intelligible
differentia, relatable to lawful objects,
therefore, deserves to be struck down.
f) The impugned Ordinance is against the
public policy because it also provides
protection against future action in terms of
its Section 7 and it had also rendered
Articles 62 and 63 of the Constitution
ineffective.
g) Sub-sections (2) and (3) of Section 494 of
Cr.P.C. added by means of impugned
Ordinance are contrary to provisions of Subsection
(1) of Section 494 of Cr.P.C. where it
has been provided that cases can only be
withdrawn with the consent of the Court,
whereas, in newly added Sub-Sections,
powers of the “Court” have been conferred
upon the Review Boards of the Executive
Bodies, therefore, these Sub-sections are also
contrary to Article 175 of the Constitution.
and
No criteria has been laid down as to why the
cases falling between the 1st day of January
1986 to 12th day of October 1999 have been
covered under these provisions, inasmuch
as definition of political victimization has
not been provided in these Sub-sections, as a
result whereof it has been left at the
subjective consideration of Review Board/
Executive Bodies to determine the same.
Thus such provisions cannot exist in any
manner.
Const.P.76/2007, etc. 7
h) The impugned Ordinance has been
promulgated in colorable exercise of
Legislative powers and its various
provisions have created discrimination
among ordinary and classified accused,
therefore, all these provisions tantamount to
malice in law.
i) The provisions of impugned Ordinance are
so overbroad that these have provided
blanket cover to all the holders of public
offices, including chosen representatives
and ordinary employees, therefore, the
object of national reconciliation cannot be
achieved by allowing it to exist.
j) The provisions of Sections 4 and 5 of the
impugned Ordinance are highly
discriminatory in nature, therefore, are
liable to be struck down.
k) Section 6 of the impugned Ordinance is
contrary to the basic principles relating to
annulment of judgments, even if passed in
absentia, in accordance with existing law,
according to which unless the basis for the
judgment, in favour of a party, is not
removed, it could not affect the rights of the
parties, in whose favour the same was
passed but when the Legislature
promulgated the impugned Ordinance, in
order to remove the basis on which the
judgment was founded, such judgment shall
have no bearing on the cases. [Facto Belarus
Tractor Ltd. v. Government of Pakistan
(PLD 2005 SC 605)]. Hence, provisions of the
impugned Ordinance as a whole are against
the concept of equality of Islamic Injunction,
provided under Article 2A of the
Constitution, therefore, on this score as well,
deserves to be struck down being ultra vires
the Constitution.
3. Mr. Muhammad Ikram Chaudhry, learned Sr. ASC
for petitioner in Constitution Petition No. 77 of 2007, while
adopting the above arguments, added that :-
i) The impugned Ordinance is purpose
specific and period specific, therefore,
violates Article 25 of the Constitution.
Const.P.76/2007, etc. 8
4. Dr. Farooq Hassan, Sr. ASC appearing in
Constitution Petition No. 78 of 2007 on behalf of petitioner,
while adopting the arguments raised by Mr. Salman
Akram Raja, ASC contended that:-
i) The impugned Ordinance is contradictory to
and violative of the United Nation’s
Convention Against Corruption, enacted in
2005 and ratified by Pakistan on 31st of
August 2007.
ii) Under the Constitution, no indemnity or
amnesty can at all be given to any one,
except granting pardon in terms of Article
45 of the Constitution.
iii) Sections 2, 4, 5 and 6 of the impugned
Ordinance are violative of the doctrine of
trichotomy of powers.
iv) The impugned Ordinance has in fact
changed the basic structure of the
Constitution.
v) The impugned Ordinance has also violated
the principles of political justice and
fundamental rights because it allows
plundering of national wealth and to get
away with it. More so, it tried to condone
dishonesty of magnitude which is
unconscientious and shocking to the
conscience of mankind.
5. Mr. M.A. Zaidi, AOR appeared on behalf of Mr.
Muhammad Akram Sheikh, Sr. ASC in Constitution
Petition No.79 of 2007 and adopted the above arguments of
the learned counsel for the petitioners.
6. Mr. Tariq Asad, ASC appearing in Constitution
Petition No. 80 of 2007 also adopted the above arguments,
while adding that:-
a) The impugned Ordinance has been
promulgated on the basis of personal
satisfaction of the President of Pakistan but
for extraneous reasons and to provide
Const.P.76/2007, etc. 9
indemnity/immunity to the public office
holders, therefore, is liable to be struck
down.
7. Learned counsel appearing in Constitution Petition
Nos. 76, 77 and 78 of 2007 prayed for suspension of
operation of Sections 6 and 7 of the impugned Ordinance
as according to their apprehension, both these Sections
contain self-executory powers, therefore, if allowed to
continue, the very object of filing of petitions will be
frustrated because of extension of benefit to a public office
holder, who intends to derive benefit out of the same.
8. It has been pointed out to them that ordinarily the
provisions of a law cannot be suspended because this
Court can only suspend a particular order, judgment or
action, etc. However, we are inclined to observe in
unambiguous terms that any benefit drawn or intended to
be drawn by any of the public office holder shall be subject
to the decision of the listed petitions and the beneficiary
would not be entitled to claim any protection of the
concluded action under Sections 6 and 7 of the impugned
Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its
these provisions are ultra vires the Constitution.
9. Issue notices to the respondents as well as to
Attorney General for Pakistan as required in terms of
Order XXVIIA CPC and Order XXIX Rule 1 of the Supreme
Court Rules, 1980. As important questions of
public/national interest have been raised in these petitions,
therefore, a request be sent to Mian Allah Nawaz, ASC
(former Chief Justice of Lahore High Court), Mr. Shaiq
Usmani (former Judge of Sindh High Court) and Mr. M.
Sardar Khan, former Attorney General for Pakistan, to
appear and assist the Court as amicus curiae.
Const.P.76/2007, etc. 10
Let these petitions be set for hearing for a date after
three weeks.”
4. Here it comes the episode of 3rd November 2007,
when General Pervez Musharraf, the then President and also
the Chief of Army Staff, proclaimed emergency in the
country by means of Proclamation of Emergency Order, 2007
and apart from issuing Provisional Constitution Order, 2007,
also issued Oath of Office (Judges) Order, 2007 and under the
garb of these unconstitutional instruments, the Judges of
Supreme Court, including Chief Justice of Pakistan, were
restrained to perform their constitutional functions and many
of them were put under house arrest, whereas, Abdul
Hameed Dogar (the then Judge of this Court) took the oath of
the office of Chief Justice of Pakistan along with four other
Judges, out of eighteen Judges of this Court, on the same day
i.e. 3rd November 2007.
5. It is pertinent to note that by means of Article 5
(1) of the Provisional Constitution Order, 2007 dated 3rd
November 2007 and then under Article 270AAA of the
Constitution, inserted through the Constitution
(Amendment) Order, 2007, all the laws including the
Ordinances, issued by the then President, which were in
force at the time of revocation of the proclamation of
Const.P.76/2007, etc. 11
emergency, were provided permanency, as a result whereof
the NRO, 2007 was also declared to be a permanent law.
6. On 6th February 2008, instant petitions were fixed
before a Bench, comprising unconstitutional Chief Justice and
four other Judges, when, on the request of the counsel, the
same were adjourned for a date in office during last week of
February 2008. Again, these matters were taken up on 27th
February 2008 by the same Bench, when Dr. Mubashir
Hassan (petitioner in Const. P.76/2007) requested for
adjournment of the case on the ground that his counsel Mr.
Abdul Hafeez Pirzada, Sr. ASC is undergoing medical
treatment abroad. However, the Court, while dismissing
Constitution Petition Nos.78, 79 & 80/2007 for want of
prosecution, adjourned the Constitution Petition Nos. 76 &
77/2007, to a date in office, due to indisposition of the
learned counsel but without providing opportunity of
hearing to the counsel for the petitioners and without issuing
notices to amicus curiae, proceeded to modify order dated
12th October 2007, to the following effect:-
“The petitioners seek adjournment of these cases as
their learned counsel (Mr. Abdul Hafeez Pirzada, Sr.
ASC) is undergoing medical treatment abroad.
2. On the other hand, Malik Muhammad
Qayyum, learned Attorney General for Pakistan has
opposed the adjournment. He has further pointed out
Const.P.76/2007, etc. 12
that in view of the provisions of Article 270-AAA of
the Constitution of Islamic Republic of Pakistan, 1973
and the detailed judgment passed by this Court in the
case of Tikka Iqbal Muhammad Khan vs. General
Pervez Musharraf (Constitution Petition No. 87 of
2007), the National Reconciliation Ordinance (No.LX
of 2007), herein after referred to as ‘the Ordinance’,
would continue in force.
3. These Constitution Petitions are adjourned to a
date in office due to indisposition of the learned
counsel for the petitioners. Meanwhile, in view of the
rule laid down in the case of Federation of Pakistan
vs. Aitzaz Ahsan (PLD 1989 SC 61), the observations
made by this Court in Para 8 of the order dated
12.10.2007 in Constitution Petition Nos.76-80 of 2007
to the effect that “however, we are inclined to observe in
unambiguous terms that any benefit drawn or intended to
be drawn by any of the public office holder shall be subject
to the decision of the listed petitions and the beneficiary
would not be entitled to claim any protection of the
concluded action under Sections 6 and 7 of the impugned
Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its
these provisions are ultra vires the Constitution” are
deleted. Resultantly, the Ordinance shall hold the
field and shall have its normal operation. The Courts
and authorities concerned shall proceed further
expeditiously in the light of the provisions of the
Ordinance without being influenced by the pendency
of these petitions.”
7. It is to be noted that this Court vide judgment
dated 31st July 2009, in the case of Sindh High Court Bar
Const.P.76/2007, etc. 13
Association v. Federation of Pakistan (PLD 2009 SC 879),
declared the Proclamation of Emergency, 2007, Provisional
Constitutional Order, 2007, Oath of Office (Judges) Order,
2007, Provisional Constitution (Amendment) Order, 2007 and
the Constitution (Amendment) Order, 2007, to be
unconstitutional, illegal and void ab initio. Consequently all
the Ordinances (including the NRO, 2007) were shorn of the
permanency, which was provided under Article 270AAA of
the Constitution, as validated in Tikka Iqbal Muhammad
Khan v. General Pervez Musharraf (PLD 2008 SC 178).
But the Court, while adhering to the doctrine of
constitutional trichotomy, referred the NRO, 2007 along with
other Ordinances, to the Parliament for consideration to
make them Act of the Parliament, or the Provincial
Assemblies, as the case may be, with retrospective effect. The
relevant paras from the said judgment are reproduced
hereinbelow for ready reference:-
“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
Const.P.76/2007, etc. 14
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
Const.P.76/2007, etc. 15
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.” (emphasis
provided).
8. It seems that the NRO, 2007 was laid before the
National Assembly from where it travelled to the Standing
Committee of the National Assembly on Law & Justice,
where the matter was taken up in its meetings held on 29th &
30th October 2009, and subsequently, it was again brought on
the floor of the National Assembly from where it was
withdrawn as is evident from the documents placed on
record. Details in this behalf, if needed, shall be considered
subsequently.
Const.P.76/2007, etc. 16
9. These petitions remained pending in the office. In
the meantime, another petition being, Civil Petition No.142-K
of 2009 (now Civil Appeal No.1094/2009), was filed by one
Fazal Ahmed Jat, praying therein that the benefit of the NRO,
2007 extended to the other accused of or convicted under the
National Accountability Ordinance, 1999 [herein after
referred to as “the NAO, 1999”] be also extended to him. The
Constitution Petition Nos. 78, 79 & 80 of 2007, on the request
of petitioner and with the consent of learned Acting Attorney
General for Pakistan were restored on 7th, 14th & 8th October
2009, respectively. Meanwhile, Constitution Petition No. 59
of 2009 was also filed, challenging the vires of the NRO, 2007.
Human Right Case Nos.14328-P to 14331-P & 15082-P of 2009
filed by several convicts, claiming the benefit of the NRO,
2007 were also clubbed with the other petitions on the
subject.
10. In all the Constitution Petitions, almost same
prayers have been made, however, for reference, prayer
clause from one of the petitions i.e. Constitution Petition
No.78 of 2007, filed by Qazi Hussain Ahmed, Amir Jamat-e-
Islami, is reproduced hereinbelow for convenience:-
“The Ordinance entitled ‘National Reconciliation
Ordinance, 2007’ be declared as being utterly
unconstitutional and violate both the Constitution,
Const.P.76/2007, etc. 17
law of the land, and International Treaties & the UN
Law.
It is further prayed that it be declared that the said
Ordinance enacted on 5th October is contrary to Law
and the Constitution as being mala fide, ultra vires and
corum non judice and of no consequential effect ab
initio.
Any identical relief pendente lite due to the petitioner
ex debito justitae be graciously granted.”
11. In response to notices of hearing, no defence was
put up on behalf of the Federation of Pakistan and others,
including all the Federating Units as well as the National
Accountability Bureau [herein after referred to as ‘the NAB’].
On 7th December, 2009, learned Acting Attorney General for
Pakistan, however, placed on record a written statement
before the Court, wherein significantly, in unambiguous
terms, it was mentioned that “the Federation of Pakistan
reiterates as repeatedly stated by the Prime Minister of Pakistan
Syed Yousaf Raza Gillani that Seventeenth Amendment is not
valid, as much as it violates the basic features of the Constitution.
Therefore, as Parliamentary Committee of both the Houses is in the
process of preparing its recommendations”. As far as the
remaining clauses relating to supremacy of the Constitution
and non-defending of the NRO, 2007 are concerned, same
were incorporated therein as well. Accordingly, relevant
Const.P.76/2007, etc. 18
contents of the letter and the stand of the Federating Units
and the NAB were reduced in writing, during the hearing,
which is reproduced hereinbelow:-
“Mr. Shah Khawar, Acting Attorney General for
Pakistan, who is otherwise appearing in response to
notice under Order XXVII-A CPC, has placed on record
a written statement on behalf of Federation of Pakistan,
relevant paras wherefrom, being No. 2&3, are
reproduced hereinbelow:-
2. That the Federation believes in supremacy of the
Constitution of 1973 and the Parliament.
3. That the National Reconciliation Ordinance, 2007
was promulgated by the previous regime and I am
under instruction not to defend it.
2. Learned Advocates General of Sindh, NWFP &
Balochistan, and Additional Advocate General Punjab,
when enquired about their reaction in respect of
statement, so filed by the Acting Attorney General for
Pakistan, stated that they agree with the stance taken by
the Federation of Pakistan. Learned Additional
Prosecutor General NAB also adopted the above stance
of the Federation of Pakistan.”
12. During the course of hearing, Federation of
Pakistan has submitted Civil Misc. Application Nos. 4875 &
4898 of 2009, of identical nature, wherein attention of the
Court was drawn towards its earlier judgment passed in
Sindh High Court Bar Association’s case (PLD 2009 SC 879)
and at pages 11 & 12 of the said applications, apprehension
Const.P.76/2007, etc. 19
of destabilization of the system was expressed in the
following terms:-
“If however, this Hon’ble Court wishes to rule upon
wider issues other than those raised in the petition
and prayer the Federation requests that fresh
petitions be filed precisely stipulating these issues
whereupon the Federation will seek instructions on
such new petition.
Pak Today is poised at the cross roads. One
road leads to truly federal democratic welfare state
with the balance of power between an Independent
judiciary, a duly elected Govt. representing the will
of the people a determined executive which is
fighting the war against terrorism and poverty. The
second road leads to destabilization of the rule of
law. The people of Pakistan await your verdict.”
As in above statement apprehension of destabilization of the
system has been expressed, therefore, Mr. Kamal Azfar,
learned Sr. ASC, who had filed the Applications, referred to
hereinabove, was called upon to submit an affidavit,
clarifying the stand taken by him. Surprisingly, he, verbally,
contended that “apprehension of destabilization of the
democratic system is from GHQ and CIA”. The words so
uttered by him are as follows:-
“There are extra constitutional forces in Pakistan and
outside Pakistan which are trying to destabilize this
country. I say more openly, the dangers to Pakistan
come from the CIA & GHQ.”
Const.P.76/2007, etc. 20
The above statement on behalf of Federation was
prominently noted by the leading newspapers. On the same
day, learned Acting Attorney General once again made a
categorical statement of accepting the decision, whatsoever,
will be recorded by this Court. His such statement has also
been recorded vide order dated 15th December, 2009, which is
reproduced hereinbelow for convenience:-
“Learned Attorney General for Pakistan has
concluded his submissions, while reiterating his
stand, taken on the first day of hearing that the
Federal Government is not defending the NRO.
……...”
On the next date of hearing, another written statement was
filed by Mr. Kamal Azfar, learned Sr. ASC, which reads as
follows:-
“STATEMENT
In Compliance of the orders of the Hon’ble
Supreme Court of Pakistan to appraise the Hon’ble
Court as to how the Federation would interpret the
wording “the second road leads to the destabilization of
the rule of law”, it is submitted as follows:-
(1) There is no mention of the wording ‘threat to
democracy’ in the Statement.
(2) The Federation supports the Prosecution, in
accordance with law, of persons alleged to have
done wrong doing. The Federation does not
oppose the Petitions seeking a declaration that
the National Reconciliation Ordinance 2007
(NRO) is illegal and unconstitutional.
Const.P.76/2007, etc. 21
(3) With regard to the “wider issues” mentioned in
paragraph No.9 these refer to those matters
which were raised by the Petitioner’s counsel
during oral arguments and which find no
mention whatsoever in the Petitions. For
example, submissions made in respect of Articles
89 (in particular the alleged concept of “implied
Resolution”) and A.264 on the effect of Repeal.
(4) The Federation’s view is that those who have
benefited under the NRO should be proceeded
against under the appropriate laws before the
courts having the competent jurisdiction. As
factual matters need to be determined by the Trial
Courts.
(5) So far as my comments made yesterday before
this Hon’ble Court concerning the threat from
GHQ, the CIA and the contents of paragraph 9 of
the CMA are concerned these were my personal
views and were not made on the instructions of
the Federation of Pakistan. As such I withdraw
the same, which should not be considered by this
Hon’ble Court in any manner whatsoever and the
same should be deleted and expunged from the
record.
(6) It is emphasized that the Federation of Pakistan
holds this Hon’ble Court in the highest esteem
and has the greatest respect for the same.”
The above statement, filed on behalf of Federation of
Pakistan, has disclosed the intention of Federation of
Pakistan, particularly to the effect that those who have
acquired benefit under the NRO, 2007 should be proceeded
against under the relevant laws, before the Courts of
competent jurisdiction, as factually matters need to be
determined by the Trial Court. Learned Acting Attorney
General for Pakistan and learned counsel appearing for
Const.P.76/2007, etc. 22
Federation of Pakistan have reiterated this stand, time and
again, during the course of hearing.
13. Mr. Salman Akram Raja, ASC for the petitioner in
Constitution Petition No. 76 of 2007, submitted as under:-
a) ‘Reconciliation’ is not a new phenomenon,
as the same has been adopted in various
jurisdictions of the World, going back right
from the Fatah-e- Makkah, when a general
amnesty was announced by the Holy
Prophet (PBUH) for the people of Makkah,
till 1995 when the same was provided in
South Africa through Promotion of
National Unity and Reconciliation Act of
1995. Although, in the NRO, 2007 the word
‘national reconciliation’ has been borrowed
from the history but it has nothing to do
with it, in any sense.
b) Section 7 of the NRO, 2007 is patently
discriminatory on the ground that it has
created unreasonable classification between
the ‘holders of public office’ and the general
public and then further created
classification amongst the ‘holders of public
office’ on the basis of time period, therefore,
being promulgated in colourable exercise of
legislative power, it is tantamount to malice
in law.
c) The classifications made through the NRO,
2007 are overbroad as a wide array of
Const.P.76/2007, etc. 23
persons including politicians, bureaucrats,
Army personnel and others have been
included in it under the label of ‘holders of
public office’. It is inclusive on the basis of
time specification, as it does not cover the
cases/ proceedings initiated after 12th
October 2007, as such, having irrational
classification is liable to be struck down.
d) The NRO, 2007 provides indemnity and
potential cover to a particular class of
persons involved in criminal cases
including the ‘holders of public office’ from
the operation of law by withdrawing cases
and termination of proceedings pending
against them. This is tantamount to an
affirmative action in favour of elite class.
e) Section 7 of the NRO, 2007 is self executory
provision, which took effect on its own
terms, with effect from 5th October 2007.
f) The NRO, 2007 although has lapsed on the
expiry of its constitutional life but its effect
is likely to remain intact, therefore, it has to
be declared void ab initio and nullity in the
eye of law.
g) The preamble of the NRO, 2007 is not in
consonance with the text of the statute and
do not reconcile with each other. [reliance
placed on the cases of Abdul Baqi v.
Muhammad Akram (PLD 2003 SC 163) and
Const.P.76/2007, etc. 24
Ghulam Mustafa Insari v. Govt. of the
Punjab (2004 SCMR 1903)].
h) The NRO, 2007 is time specific as it has
created further classification amongst its
subject i.e. period commencing from 1st
January 1986 to 12th October 1999, therefore,
being not based on intelligible differentia
relatable to lawful object, is violative of
Article 25 of the Constitution and is liable to
be struck down. [reliance placed on the case
of Govt. of Balochistan v. Azizullah
Memon (PLD 1993 SC 341)].
i) The provisions of Section 2 of the NRO,
2007 provides benefit to the persons
involved in the cases of murder, rape,
kidnapping for ransom and Hudood cases,
therefore, it is ultra vires to Article 2A of the
Constitution being violative of the
Injunctions of Islam.
j) In view of Section 494 Cr.P.C., the
permission to withdraw cases has to be
given by the Court judiciously after due
application of mind. By means of Section 2
of the NRO, 2007 sub-Sections (2) & (3)
have been added in Section 494 Cr.P.C.,
whereby judicial powers of the Court have
been vested in a Review Board (Executive
body), which amounts to usurping such
power of the Court, therefore, Section 2 of
the NRO, 2007 is liable to be struck down
Const.P.76/2007, etc. 25
being violative of Article 175 of the
Constitution, regarding separation of
powers between Executive and Judiciary.
[reliance placed on the cases of Mehram Ali
v. Federation of Pakistan (PLD 1998 SC
1445), Bihar v. Ram Naresh Pandey (AIR
1957 SC 389), Rahul Agarwal v. Rakesh
Jain {(2005) 2 SCC 377=AIR 2005 SC 910},
Liyanage v. The Queen {(1967) 1AC 259},
& Brandy v. Human Rights Commission
(183 CLR 245)].
k) The NRO, 2007 is a special law, which
cannot purport to amend the general law
i.e. Cr.P.C., therefore, such attempt is not
allowable. It is also against the principle
that a temporary law cannot amend the
permanent law, as the maximum life of an
Ordinance is 120 days and no amendment
can survive beyond that period and lapses
with the lapse of temporary legislation.
[reliance placed on the cases of
Government of Punjab v. Zia Ullah Khan
(1992 SCMR 602) & Shabir Shah v. Shad
Muhammad Khan (PLD 1995 SC 66)].
l) Section 7 of the NRO, 2007 whereby the
cases and proceedings pending against the
‘holders of public office’ have been declared
to stand withdrawn and terminated,
amounts to legislative judgment, as such it
is violative of the principles of
Const.P.76/2007, etc. 26
independence of Judiciary and separation
of powers as enshrined in Article 175 of the
Constitution because it is impermissible
intrusion in the domain of the judiciary.
[reliance placed on the cases of Govt. of
Balochistan v. Azizullah Memon (PLD
1993 SC 341) & Smt. Indra Nehru Gandhi
v. Raj Narain (AIR 1975 SC 2299)].
m) Section 3 of the NRO, 2007 whereby the
Representation of the People Act, 1976 has
been amended, has no relevancy with the
preamble of the NRO, 2007.
n) Sections 4 & 5 of the NRO, 2007 whereby
the sitting members of the Parliament and
Provincial Assemblies have been provided
protection from arrest, without
recommendations of Special Parliamentary
Committee on Ethics, are no more in field,
after expiry of the constitutional life of the
NRO, 2007.
o) Section 6 of the NRO, 2007 whereby the
orders or judgments passed by the Courts
against an accused in absentia have been
declared to be void ab initio and not to be
acted upon, amounts to create a permanent
hindrance in Article 63(1)(p) of the
Constitution, as through the amendment in
Section 31A of the NAO, 1999, certain
persons, who were kept out of the
Const.P.76/2007, etc. 27
Parliament have been allowed to enter into
the Parliament.
p) Section 7 of the NRO, 2007 also defeats the
provision of Article 62(f) of the
Constitution, as all the persons, against
whom the cases or proceedings have been
withdrawn or terminated would claim to be
righteous and Ameen.
q) The provisions of the NRO, 2007 i.e.
Sections 6 & 7, are contrary to the basic
principle relating to annulment of
judgments, because the proceedings, orders
or judgments passed by the competent
Court in accordance with the existing law in
favour of a party, cannot be annulled
through a legislative instrument unless the
law, underlying the basis of such
proceedings, orders and judgments, will be
removed. [reliance placed on the case of
Fecto Belarus Tractor Ltd. v. Government
of Pakistan (PLD 2005 SC 605)].
r) The NRO, 2007 exhorts about or
indemnifies a particular class of persons
including the ‘holders of public office’, from
proceedings, actions and orders passed by
the competent authorities whereas neither
the legislature nor the executive has power
to grant pardon by promulgation of an
instrument or an Act of amnesty, except the
power of the President to grant such
Const.P.76/2007, etc. 28
pardon to an accused person under Article
45 of the Constitution. Such indemnity or
protection under the NRO, 2007 cannot be
equated with the pardon.
He concluded his arguments while stating that the NRO,
2007 is bad in the eye of law whereby judicial functions have
been vested in an executive body arbitrarily; it is, ex facie,
might not be discriminatory but in fact it is discriminatory,
promulgated in total violation of the constitutional
provisions by the lawmaker, with mala fide intention. If it is
allowed to remain on the statute book, it will be a permanent
blot on conscience of nation.
14. Mr. Abdul Hafeez Pirzada, Sr. ASC also appeared
on behalf of petitioner in Constitution Petition No. 76 of 2007
and submitted his formulations as under:-
a) The NRO, 2007 is, as a whole, void ab initio,
non est and never took birth, therefore,
nothing, which is the product of this
Ordinance, or done in pursuance of this
Ordinance or under it, ever came into
existence or survived.
b) The NRO, 2007 is void because it is a fraud
on the Constitution and transience well
beyond the limited legislative power
conferred by Article 89 of the Constitution
Const.P.76/2007, etc. 29
on the President, as the President cannot go
beyond the limits circumscribed therein.
c) Word “reconciliation” has been defined in
number of dictionaries but when the word
‘national’ is prefixed with it, its meaning
becomes entirely different and it means
“the reconciliation of the whole nation”.
The NRO, 2007 has no nexus with the
‘national reconciliation’ rather it has
trampled over the fundamental rights of the
entire nation of Pakistan. [referred to the
concluding part of the Preamble of the
Constitution to define the word ‘national
reconciliation’].
d) The NRO, 2007 is ex facie void for the
reason that surprisingly its operation has
been confined to a specific period
commencing from 1st January 1986 to 12th
October 1999.
e) The NRO, 2007 is void ab initio because it
violates the dictum laid down by this Court
in Mahmood Khan Achakzai v.
Federation of Pakistan (PLD 1997 SC 426),
improved upon in Zafar Ali Shah v.
General Pervez Musharraf (PLD 2000 SC
869), wherein, after a great deal of efforts
the Court virtually treated Article 4 of the
Constitution as ‘due process clause’.
Const.P.76/2007, etc. 30
f) The four salient features of the
Constitution, identified in the judgments of
this Court are; Parliamentary form of
Government; Federating character of the
State; Independence of Judiciary; and
Fundamental Rights of the people along
with Islamic provisions. Even the
Parliament has no power to alter these
salient features of the Constitution. The
NRO, 2007 is clear invasion on the 3rd pillar
of the State i.e. judiciary, without which the
modern society cannot exist. [reliance
placed on the case of Zafar Ali Shah (PLD
2000 SC 869)].
g) The NRO, 2007 is not only usurpation of
judicial powers but also usurpation of
constitutional powers of the Parliament.
h) The NRO, 2007 has directly violated and
overridden the provisions of Articles 62 &
63 of the Constitution. It vitally affects the
democratic rule in the country, by
tampering and interfering with the
qualifications and disqualifications of a
candidate to be elected or chosen as a
member of the Parliament and subsequent
disqualification after having become the
member of the Parliament.
AND
The Article 62 of the Constitution applies
only at the time of filing of nomination
Const.P.76/2007, etc. 31
papers or contesting elections, however,
Article 63 of the Constitution continues to
be in force even after a candidate has been
elected as a member of the Parliament and
he can be removed by the writ of quo
warranto, by the Speaker of the National
Assembly through reference or by the Chief
Election Commissioner. This Court in
number of judgments has held that
conviction awarded in absentia is void, but
this view needs to be revisited on the
touchstone of Article 63(1)(p) of the
Constitution because how a person can
become a member of the Parliament if he is
an absconder.
i) Through the promulgation of the NRO,
2007, the conscience of the Constitution has
been divorced. There are mixed
constitutional and moral aspects and one
cannot divorce the morality from the
Constitution. [reliance placed on the cases
of R.S.Jhamandas v. Chief Land
Commissioner (PLD 1966 SC 229) and
Benazir Bhutto v. Federation of Pakistan
(PLD 1988 SC 416)].
j) Even a validly enacted Ordinance does not
necessarily have to have the statutory life of
120 days because before the expiry of the
same, the National Assembly can strike it
down through a resolution. In the case of
Const.P.76/2007, etc. 32
NRO, 2007 the National Assembly has
refused to own this law, even after expiry of
its statutory life and this is tantamount to
its rejection by the Parliament.
k) The Constitution envisages for trichotomy
of powers between the executive, legislative
and judicial organs of the State. The NRO,
2007 is a clear intrusion by the legislature
into the sphere of the judiciary, as such
liable to be struck down being violative of
doctrine of trichotomy of powers.
l) The Judiciary is custodian of the
Constitution and the fundamental rights. It
is the superior observer of what is
happening and to see that there is no
transgression in the separation of power. It
has its legal obligation, based upon the
principle of checks and balances. That is
why the Judiciary has not been made part
of the State under Article 7 of the
Constitution, which has to be read with
Article 175 of the Constitution.
m) The preamble of the NRO, 2007 poses the
official avowed reason to promulgate this
Ordinance, which is not the real object
behind its promulgation as it was a deal
between two persons, for their personal
objectives and even the persons
representing the people of Pakistan at that
time in the Parliament, were not made
Const.P.76/2007, etc. 33
aware of it. Therefore, it cannot be said a
‘national reconciliation’ as there is total
variance between the opening statement
and the contents of the Ordinance.
n) The Constitution does not make an
Ordinance a permanent law unless it is
made an Act of Parliament. Applying the
principle enshrined in Section 6 of the
General Clauses Act, 1897, there are two
types of repeals; first one is ‘deeming
repeal’ and the other is ‘actual repeal’ and
this Court has to consider both of them
accordingly. Therefore, in order to save an
Ordinance, the law has to be enacted
retroactively by the Parliament. But, this
Court could not extend the life of the
Ordinance beyond the constitutional life i.e.
120 days. More so, since the Article
270AAA of the Constitution has been
declared null and void by means of
judgment in Sindh High Court Bar
Association’s case (PLD 2009 SC 879), the
NRO, 2007 has lost its permanency,
provided by the said Article.
o) The Executive has to act intelligently and
responsibly in classifying actions, which
ought to be saved under temporary law,
particularly when fundamental rights are
involved. The NRO, 2007 is a ‘bill of
attainder’ against the people of Pakistan
Const.P.76/2007, etc. 34
which violates their fundamental rights
enshrined in the Constitution and the spirit
of Article 4 of the Constitution has been
destroyed, which has been equated with the
‘due process clause’. [reliance placed on the
case of Jamat-i-Islami Pakistan v.
Federation of Pakistan (PLD 2000 SC 111)].
Learned counsel concluded his arguments. However, when
questioned about the consequences, in case the Court
ultimately comes to the conclusion that the NRO, 2007 is void
ab initio being ultra vires the Constitution, he replied that the
consequence would be that the beneficiaries of the NRO, 2007
shall be relegated to the position as prevailing on 4th October
2007, prior to promulgation of the NRO, 2007.
15. Dr. Mubasher Hassan (petitioner in Constitution
Petition No. 76/2007) appeared and stated with special
permission of the Court that when the two organs of the
State, as defined in Article 7 of the Constitution, become
incapable of performing their duties entrusted to them under
the Constitution, it is incumbent upon the third organ i.e.
judiciary to come forward for rescue of the State.
16. Mr. Ikram Chaudhry, ASC for the petitioner in
Constitution Petition No. 77 of 2007, appeared and argued
that:-
Const.P.76/2007, etc. 35
a) The NRO, 2007 is person specific, purpose
specific and period specific, therefore, it
violates the provisions of Article 25 of the
Constitution.
b) The Judiciary has been vested with
important function of supervising the other
organs of the State that is why Article 7 of
the Constitution purposely excluded it from
the definition of the State.
c) The primacy and supremacy of the Chapter
of fundamental rights remain the salient
feature of the Constitution and when laws
are examined on the touchstone of various
provisions of the Constitution, Article 8
comes into play which provides that any
law inconsistent with or in derogation of
fundamental rights is void.
d) The NRO, 2007 does not meet the criterion,
laid down in Article 89 of the Constitution,
particularly with regard to ‘satisfaction’ of
the President, which should always be fair,
just and never arbitrary, therefore, the
NRO, 2007 having inherent mischief in it, as
it conceives to protect the interest of a
particular person, is a bad law.
e) Article 89 of the Constitution does not save
the President from its intents and the
purposes as in view of Article 5 of the
Constitution he is bound to follow the law.
Const.P.76/2007, etc. 36
Therefore, the promulgation of the NRO,
2007 is clear violation of Article 4 & 25 of
the Constitution. [reliance placed on the
case of Jibendra Kishore, etc. v. Province
of East Pakistan (PLD 1957 SC 9)].
While concluding his arguments he referred to ‘United
Nations Convention Against Corruption’, ‘Al-Farooq’ by
Allama Shibli Noumani, ‘Grammar of Politics’ by Harold J.
Laski, ‘Spirit of Liberty, Papers & Addresses of Learned
Hand’ by Irving Dilliard, ‘The Supreme Court, America’s
Judicial Heritage’ by Patricia C. Acheson. He lastly argued
that if the Court comes to the conclusion that the impugned
Ordinance is bad law, then the consequential relief would be
the restoration of all the cases to their original stage.
17. Dr. Farooq Hassan, Sr. ASC appearing for the
petitioner, in Constitution Petition No.78 of 2007, submitted
his written formulations, while adding that:-
a) The NRO, 2007 is void being violative of the
fundamental rights contained in Article 25,
9 and possibly Articles 14, 24, 2 & 2A of the
Constitution.
b) The NRO, 2007 is the result of abuse of
power, mala fides, and corum-non-judice as
its objects are clearly outside the purview of
Const.P.76/2007, etc. 37
ordinary and normal law making authority
of the President under Article 89 of the
Constitution, as such it is void in entirety.
c) The NRO, 2007 amounts to subversion of
the Constitution as it is the result of a deal
between the dictator and next set of rulers.
[referred to clippings of different
newspapers].
d) The subject matter of the NRO, 2007 is not
found in either of the Legislative lists
provided in Fourth Schedule of the
Constitution, as such it is ultra vires the
Constitution.
e) Under the International Treaties i.e.
“United Nations Convention Against
Corruption”, to which the Pakistan is also a
signatory, no law can be passed which
provides protection to corruption and
corrupt practices.
He concluded his arguments while saying that the property
of the Government is the property of the people of Pakistan,
which has been misappropriated by the persons to whom
protection has been provided under the NRO, 2007 therefore,
it is liable to be struck down.
18. Mr. Tariq Asad, ASC for the petitioners in
Constitution Petition No. 80 of 2007 argued that Article 89 of
the Constitution referred to ‘satisfaction’ of the President
Const.P.76/2007, etc. 38
which would be either ‘subjective’ or ‘objective’. On the basis
of material, available on record, there were no such
circumstances to promulgate the NRO, 2007 therefore, the
‘subjective’ satisfaction of the President is missing, as such it
becomes the ‘objective’ satisfaction, which is justiciable and
subject to judicial review by the Court. [reliance placed on
State of Rajasthan v. Union of India (AIR 1977 SC 1361),
A.K. Roy v. Union of India (AIR 1982 SC 710) and also to
definition of the words ‘satisfaction’ & ‘subjective’ from
Black’s Law Dictionary].
19. Raja Muhammad Ibrahim Satti, Sr. ASC,
appearing for appellant in Civil Appeal No. 1094 of 2009,
while defending the NRO, 2007 made his submissions as
follows:-
a) It is nobody’s case that the President has no
power to promulgate the Ordinance under
Article 89 of the Constitution or the said
Article is redundant.
b) The NRO, 2007 was validly promulgated as
the pre-conditions for promulgation of an
Ordinance by the President, under Article
89 of the Constitution were fulfilled.
c) It is the duty of the Court to interpret the
Constitution and to adjudge the validity of
a law, whether proper assistance has been
rendered or not. [reliance placed on
Const.P.76/2007, etc. 39
Federation of Pakistan v. M. Nawaz
Khokhar (PLD 2000 SC 26) & Ghulam
Hassan v. Jamshaid Ali (2001 SCMR
1001)].
d) During the statutory life of the NRO, 2007
both the Houses of the Parliament did not
disapprove it through any resolution and
allowed it to continue, therefore, if the
Court ultimately comes to the conclusion
that it was validly enacted and the benefits
derived from its operation are allowed to
continue, then the appellant shall also be
entitled for the same benefit.
20. Mr. A.K. Dogar, learned Sr. ASC for the petitioner
in Constitution Petition No. 59 of 2009, stated that his
arguments are two fold i.e. on factual plane as well as on legal
plane. On factual plane he argued that:-
The NRO, 2007 is a power sharing deal
between the then President and the head of
a political party. [reliance placed on the
books i.e. ‘Reconciliation, Islam,
Democracy and the West’ by late
Mohtarma Benazir Bhutto and ‘the Way of
the World’ by Ron Suskind].
On legal plane, he made the following submissions:-
a) The NRO, 2007 is the result of abuse of
‘public office’ for private gain.
AND
Const.P.76/2007, etc. 40
Because, corruption vitiates like fraud,
which vitiates all transactions, therefore, the
NRO, 2007 stands vitiated by the effect of
abuse of public office for private gain.
AND
The NRO, 2007 is a document which is non
est. It is like a still born which dies in
mother’s wombs. [reliance placed on Zafar
Ali Shah’s case (PLD 2000 SC 869) &
Black’s law Dictionary for the definition of
‘corrupt’].
b) Though Article 89 of the Constitution
empowers the President to promulgate an
Ordinance but Article 48(1) of the
Constitution provides that such power lies
with the Prime Minister and his Cabinet,
who have to advise the President, therefore,
the President cannot in his individual
capacity issue an Ordinance, or enter into
some negotiations and then issue an
Ordinance. [reliance placed on Tirathmal
v. The State (PLD 1959 Karachi 594)].
c) The Ordinance making power, vested in the
President, is a legacy of the British Rule,
because in both kinds of democracies i.e. in
the Parliamentary form of Government in
UK and the Presidential form of
Government in America, such power does
not exit. This power is anti-democratic and
only provided in the Constitutions of
Const.P.76/2007, etc. 41
Pakistan and India, who remained under
the British rule for such a long period.
d) Gen. Pervez Musharraf was not
constitutionally elected President, therefore,
within the meaning of Article 89 of the
Constitution, he had no such power to issue
such Ordinance because he seized power by
force and was self imposed President
through Legal Framework Order, 2002 and
17th Amendment. [reliance placed on Sindh
High Court Bar Association’s case (PLD
2009 SC 879)].
e) By virtue of Article 264 of the Constitution,
a law, which is repealed can give rise to
rights and obligation but not a law which
does not exist from its very inception (as
per statement of learned Attorney General)
and is still born, therefore, under the NRO,
2007 no rights exist.
f) This Court has no Ordinance issuing
power, therefore, it could not give life to the
NRO, 2007 which has lapsed on
5th February 2008 and this Court, could only
extend its time under the law of necessity
and not otherwise.
g) The circumstances mentioned in the
preamble of the NRO, 2007 itself are of
permanent nature and do not require any
immediate, emergent and quick treatment.
Const.P.76/2007, etc. 42
h) A law cannot be amended through the
Ordinance because it is violation of Articles
238 & 239 of the Constitution.
i) Withdrawal from prosecution, as provided
in Section 2 of the NRO, 2007 without
hearing the complainants in the cases of
murder, rape, etc. is violation of the
principles of natural justice as such no such
amendment can stay. [reliance placed on
Zia Ullah Khan’s case (1992 SCMR 602)].
j) Section 4 of the NRO, 2007 by means of
which immunity has been provided to
sitting members of the Parliament from
arrest, offends Articles 24 & 25 of the
Constitution.
k) Helping the rich and powerful persons,
who have misappropriated millions of
rupees, as against the victims of
exploitation, is violation of Article 3 of the
Constitution.
l) With the advancement of civilizations, the
moral and ethical codes have been
converted into enforceable legal
formulations. [reliance placed on D.S.
Nakara’s case {(1983) 1 SCC 305 = AIR 1983
SC 130} and Sindh High Court Bar
Association’s case (PLD 2009 SC 879)].
Learned counsel, while concluding his arguments stated that
there are two enemies of mankind i.e. desire of wealth and
Const.P.76/2007, etc. 43
desire of power and time is witness to it. According to him
the NRO, 2007 is destructive to the entire nation.
21. Mr. Shahid Orakzai, appearing in Civil Misc.
Application No. 4842 of 2009 in Constitution Petition No. 76
of 2007, argued that:-
a) Any Ordinance promulgated by the
President under Article 89 of the
Constitution lapses on the day when the
National Assembly is dissolved either by
the President, Prime Minister or due to
expiry of its constitutional term. [relied
upon Article 76(3) of the Constitution].
b) While issuing an Ordinance by the
President, the advice of the Prime Minister
or Cabinet is necessary in view of Article 48
of the Constitution and in absence of such
advice, it will be the act of an individual.
c) The word ‘or’ used in Article 70 (1) means
that a bill can be placed before the
Parliament, regarding only one subject,
either from the Federal Legislative List or
from the Concurrent Legislative List and
not regarding subjects from both the lists.
As the NRO, 2007 contains the subjects of
both the Legislative lists, therefore, it is
violative of Article 70 (1) of the
Constitution.
Const.P.76/2007, etc. 44
d) Through the NRO, 2007 amendment has
been made in the Cr.P.C. which has more
application in the Provinces, as such the
consent of Provincial Governments was
necessary, while making such amendment.
Therefore, the NRO, 2007 is violative of
Article 142(c) of the Constitution.
e) The word ‘any’ used in Article 70 of the
Constitution, means ‘similar and more than
one’, therefore, the Ordinance cannot make
laws relating to more than one subject at a
time.
f) The word ‘any’ used in Article 184(3) of the
Constitution refers to violation of one of the
fundamental rights, therefore, the
jurisdiction of this Court under the said
provision would be attracted if only one
fundamental right has been infringed and
the same would not be available in a case
which involved violation of more than one
fundamental rights. Now this Court has to
examine which one of the fundamental
rights has been infringed by the NRO, 2007.
22. Mr. Ashtar Ausaf Ali, ASC appearing for
petitioner in Constitution Petition No.79 of 2007 adopted the
arguments rendered Mr. Abdul Hafeez Pirzada, Sr. ASC.
However, he placed on record some material in support of
his petition.
Const.P.76/2007, etc. 45
23. Mr. Shah Khawar, Acting Attorney General for
Pakistan, reiterated the stance taken by the Federal
Government in the written statement dated 7th December
2009, to the effect that the NRO, 2007 was promulgated by
the previous regime and he is under instructions not to
defend it. He further stated that whatever decision will come,
it will be honoured by the Government. On Court’s query
about the consequences, if ultimately the NRO, 2007 is
declared to be void ab initio, he replied that let allow these
petitions and let the law take its own course.
24. Mr. Kamal Azfar, learned Sr. ASC appeared and
reiterated the stand taken in the statement dated 15th
December 2009, to the effect that the Federation does not
oppose the petitions seeking a declaration that the NRO, 2007
is illegal and unconstitutional.
25. Learned Advocates Acting General of the
Provinces adopted the arguments of the Attorney General for
Pakistan. However, except Advocate General Sindh, all the
other Advocates General filed statements, stating therein that
neither any Review Board was constituted nor the benefit of
the NRO, 2007 was extended to any under trial accused,
except those who were accused under the NAO, 1999.
Const.P.76/2007, etc. 46
26. Mr. M. Sardar Khan, Sr. ASC appeared as Amicus
Curiae argued as follows :-
a) The NRO, 2007 is not only inconsistent with
fundamental rights enshrined in Article 25
of the Constitution but also is in conflict
with other provisions of the Constitution
such as Article 175. Therefore, it is not a
valid law rather it is a bad law.
b) The NRO, 2007 is violative of Article 5 of
the Constitution, which postulates that it is
inviolable obligation of every citizen to
obey the Constitution and the law.
c) Promulgation of the NRO, 2007 is
intentional violation of Article 8(2) of the
Constitution, which provides that the State
shall not make any law which takes away
or abridges the fundamental rights
conferred by the Constitution, if it does so,
then it shall be void.
d) The NRO, 2007 is violative of Article 2A of
the Constitution which requires that the
authority, which is conferred, is to be
exercised in accordance with the
Constitution and within the limits
prescribed by the Almighty.
e) The provisions of the NRO, 2007 i.e.
Sections 2, 3, 4, 6 & 7, are void and invalid
for being against the Injunctions of Islam,
violative of the mandate of Article 175 of
Const.P.76/2007, etc. 47
the Constitution, and repulsive to the
provisions of Article 62 & 63 of the
Constitution as it has given way to the
ineligible persons to enter the Assemblies
and to become public representatives.
f) The object of this law for all intents and
purposes does not seem to be
‘reconciliation’ but to pave way and
facilitate to those persons charged with
corruption, plunders of national wealth and
fraud, to come back, seize and occupy the
echelons of power again. Its aim seems to
legalize corruption and the crimes
committed by those in power in the past.
g) Courts have been deprived by virtue of this
law of their judicial functions by conferring
powers on administrative bodies.
h) The NRO, 2007 is not only a discriminatory
law but it has also been applied
discriminately, therefore, liable to be struck
down. [reliance placed on Sabir Shah v.
Shad Muhammad Khan (PLD 1995 SC 66)].
j) Section 3 of the NRO, 2007 although is very
innocent, but it has no nexus with the
reconciliation. It is merely a cosmetic
provision just to give colour of
respectability to the NRO, 2007 and has no
nexus with its preamble. [referred to
Const.P.76/2007, etc. 48
Section 40 of the Representation of the
People Act, 1976.]
27. Mian Allah Nawaz, Sr. ASC also appeared as
Amicus Curiae. He, after elaborating the philosophy of
morality, theory of law, theory of kleptocracy and the
philosophy of the Constitution, contended as follows:-
a) The NRO, 2007 is not a good law as it
violates the intrinsic value of the law and
intrinsic value of behaviors, therefore, liable
to be struck down, otherwise it would
create anarchy and greed in the society.
b) Any law which flagrantly violates the
theory of basic instincts and promotes the
theory of satanic instincts should be struck
down, otherwise the society will be
swamped by the satanic instincts.
c) The protection of the fundamental rights of
the people is the soul of the Constitution.
The NRO, 2007 is violative of the basic soul
of the Constitution.
d) The NRO, 2007 is classical manifestation of
theory of kleptocracy, as it has been
promulgated for the benefit of two persons,
one who wanted to remain in power and
the other who wanted to come to power.
e) The NRO, 2007 is so bad and kleptocratic in
nature that neither any provision of the
Const.P.76/2007, etc. 49
Constitution validates it nor any law gives
conscious to it.
f) The actions taken and the benefits derived
from the NRO, 2007 cannot be protected on
the touchstone of Article 264 of the
Constitution, as it is not applicable to the
NRO, 2007 which is not just void but
immoral. [reliance placed on Ram Prasad
v. Union of India (AIR 1978 Raj. 131) and
Bachan Singh v. State of Punjab (AIR 1982
SC 1325)].
While concluding his arguments he added that in case the
NRO, 2007 is declared void ab initio then as a consequence
whereof all the cases, which have been withdrawn under the
NRO, 2007 will take rebirth.
28. Mr. Shaiq Usmani, Sr. ASC appeared as Amicus
Curiae and made his submissions as follows:-
a) The NRO, 2007 cannot be justified on the
ground that it was just an amnesty because
even if it be considered so, it is not
legitimate, as legitimate amnesty is one,
which is accountable.
b) The NRO, 2007 is violative of Article 8 of
the Constitution, therefore, liable to be
struck down.
c) The NRO, 2007 being discriminatory, is
violative of Article 25 of the Constitution,
Const.P.76/2007, etc. 50
therefore, is liable to be struck down.
[reliance placed on the case of I.A.
Sherwani v. Government of Pakistan
(1991 SCMR 1041)].
d) The NRO, 2007 is void ab initio as it is
violative of the salient features of the
Constitution and the principle of
trichotomy of powers.
e) The NRO, 2007 is violative of Article 89 of
the Constitution.
He concluded his arguments while adding that the then
Attorney General apparently had no authority to correspond
with the foreign authorities for withdrawal of proceedings,
as such if something contrary to law is done, the person, who
has done so, is liable to be proceeded against.
29. Arguments addressed on behalf of the learned counsel
appearing in support of petitions, inter alia, are that the
NRO, 2007 be declared ultra vires the Constitution, void ab
initio and non-est. During the course of arguments, they
persuaded the Court to test the constitutionality of the NRO,
2007 in view of provisions of the Constitution
30. The learned Acting Attorney General for
Pakistan, counsel for the Federation and the NAB as well as
Advocates General of Punjab, Sindh, Balochistan & NWFP,
Const.P.76/2007, etc. 51
did not oppose the petitions and consistently reiterated the
stand that they were not supporting the NRO, 2007.
31. It is a settled practice of the Courts that legal
proceedings are not undertaken merely for academic
purposes unless there are admitted or proven facts to resolve
the controversy. As it has been pointed out hereinabove that
till 12th October, 2007, when the petitions were filed,
presumably, the benefit of the NRO, 2007 was not extended
to any of the parties. Therefore, learned Prosecutor General,
NAB and the Provincial Governments through their
Advocates General were called upon to place on record
accurate information of the accused persons, who had drawn
benefit under Sections 2, 6 and 7 of the NRO, 2007. In
response to Court’s order, learned Advocate General Sindh
placed on record the list of the persons, whose criminal cases
falling under Sections 302, 307, 324, 365, 381, 381-A PPC,
Section 16 of Offences of Zina (Enforcement of Hadood)
Ordinance, 1979 and Section 14, 17(3) and 20 of Offences
Against Property (Enforcement of Had) Ordinance, 1979, etc.
were withdrawn. According to him more than 3000 criminal
cases were withdrawn under Section 494 Cr.P.C. providing
the benefit of Section 2 of the NRO, 2007 to approximately
8000 accused persons involved in above said heinous crimes.
The statement of facts also showed the manner in which
Const.P.76/2007, etc. 52
these cases were withdrawn. Similarly, the NAB through its
Prosecutor General and Additional Prosecutor General also
placed on record the list of beneficiaries (accused), who
derived benefit under Sections 6 and 7 of the NRO, 2007. As
per the list, 248 persons were extended benefit of the NRO,
2007 and the cases or proceedings pending against them,
within and outside the country, were withdrawn or
terminated. The authenticity of such details furnished by the
NAB was required to be verified from them but
unfortunately accurate list or details of the cases registered
within and outside the country under the NAO, 1999, despite
repeated directions of the Court, were not furnished.
However, the Chairman and others brought on record the
material, on the basis of which, cases on the basis of requests
for mutual assistance and civil party to proceedings on
request of Federal Government were withdrawn on the
request of the then Attorney General for Pakistan. It is
pertinent to mention here that the material information
regarding the fact that the Ministry of Law & Justice, on the
request of one of the Advocates of a beneficiary, had not
conceded for issuance of directions for withdrawal of such
cases, was withheld by them. More so, the Secretary General
and Military Secretary of the President as well as Secretary to
President (public side) also appeared on Court’s call and
Const.P.76/2007, etc. 53
when asked, placed on record their written statements,
mentioning therein that no file, regarding permission to
withdraw such cases and proceedings, was available in the
office of the President.
32. It is to be observed that except in the Province of
Sindh, in all other Provinces, no accused or convict has been
extended the benefit of Section 2 of the NRO, 2007, therefore,
learned Advocates General were quite comfortable in making
statements in this regard. However, in the list furnished by
the NAB, there were names of persons belonging to various
Provinces, who had been extended the benefit of Sections 6 &
7 of the NRO, 2007.
33. Before dilating upon the respective arguments of
the petitioners’ counsel, we consider it appropriate to
mention here that while hearing Sindh High Court Bar
Association's case (PLD 2009 SC 879), which has been
decided on 31st July, 2009, detailed reasons of which were
released later, a fourteen member Bench of this Court, when
confronted with the proposition i.e. ‘whether the Court, itself,
can give decision that as the permanency attached to
temporary legislation i.e. an Ordinance, through
unconstitutional provision of Article 270AAA of the
Constitution, should examine itself or the matter should be
left for the Parliament to examine them’; there was no
Const.P.76/2007, etc. 54
difficulty in declaring that Ordinance would stand repealed
at the expiration of four months and three months, under
Articles 89 and 128 of the Constitution, as the case may be.
Prima facie, there was no justification for placing such
legislations before the Parliament but on having taken into
consideration the principle of trichotomy of powers, coupled
with the fact that on the basis of bona fide apprehension, all
the Ordinances, issued during the period, when the
emergency was imposed in the country, commencing from
3rd November, 2007 up to 15th December, 2007, and all those
temporary legislations, which were in force on 15th December
2007, were not placed before the Parliament, after attaining
perpetuity through Article 270AAA of the Constitution,
because such Ordinances had conferred rights and
obligations upon the parties; therefore, it was considered
appropriate to strengthen the Parliament, by sending these
Ordinances for making them the Acts of the Parliament with
retrospective effect, so the benefit derived by the masses,
could also be protected. Relevant paras from the Sindh High
Court Bar Association's case (PLD 2009 SC 879) have already
been reproduced hereinabove. This is a fact that National
Assembly, having 342 Members, who represent the nation,
did not agree to make the NRO, 2007 as an Act of the
Parliament, with retrospective effect, and ultimately it was
Const.P.76/2007, etc. 55
withdrawn from the Assembly vide letter dated
7th December, 2009. Contents of the said letter are reproduced
hereinbelow for convenience:-
“In continuation of this Secretariat’s D.O. letter of even
number, dated the 7th December, 2009 on the above
subject, it is to state that report of the Standing
Committee on National Reconciliation Ordinance, 2007
was finalized but before its approval by the
Chairperson of the Committee, the Minister concerned
had withdrawn the Bill under Rule 139 of the Rules of
Procedure and Conduct of Business in the National
Assembly, 2007 with the consent of the Honorable
Speaker.
2. The minutes of the meeting of the Committee and
draft report are submitted herewith.”
We must mention here that this Court cherishes
the democratic system and the will of the electorate. It also
wants the Federation to remain strong and stable.
34. Admittedly, as it has been discussed hereinabove
that, neither the Federation of Pakistan nor the Provincial
Governments have defended the NRO, 2007 before this
Court. It is also to be borne in mind that Constitution
envisages the trichotomy of powers amongst three organs of
the State, namely the legislature, executive and the judiciary.
The legislature is assigned the task of law making, the
executive to execute such law and the judiciary to interpret
the laws. None of the organs of the State can encroach upon
Const.P.76/2007, etc. 56
the field of the others. [State v. Ziaur Rahman (PLD 1973 SC
49), Federation of Pakistan v. Saeed Ahmad Khan (PLD
1974 SC 151), Government of Balochistan v. Azizullah
Memon (PLD 1993 SC 341), Mahmood Khan Achakzai v.
Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain
v. Federation of Pakistan (PLD 1999 SC 504), Syed Zafar
Ali Shah v. General Pervez Musharrf (PLD 2000 SC 869),
Nazar Abbas Jaffri v. Secy: Government of the Punjab
(2006 SCMR 606), Sindh High Court Bar Association's case
(PLD 2009 SC 879), Smt. Indra Nehru Ghani v. Raj Narain
(AIR 1975 SC 2299) and Minerva Mills Ltd. v. Union of
India (AIR 1980 SC 1789)].
35. Necessary inference can be drawn that the
National Assembly and the Senate (the Parliament), which
were required to approve or otherwise the NRO, 2007, and
the same was sent along with other Ordinances to them, to
make it an Act of the Parliament, with retrospective effect,
did not consider it to be a valid temporary legislation, being
an Ordinance promulgated under Article 89 of the
Constitution on 5th October 2007.
36. Another factual aspect, relevant for disposal of
these petitions and examination of the constitutionality of the
NRO, 2007 pertains to the date of its promulgation i.e. 5th
Const.P.76/2007, etc. 57
October, 2007, which seems to be the result of a deal between
the representatives of a political party and the then President
/Chief of Army Staff, General Pervez Musharraf, who was
about to contest election for another term, in uniform, for the
office of the President, as it is apparent from uncontroverted
news, appeared in Daily Dawn dated 5th October, 2007
(Friday), referred to by Mr. Abdul Hafeez Pirzada, Sr. ASC,
which reads as under:-
37. Mr. Abdul Hafeez Pirzada, Sr. ASC also referred
to the book “Reconciliation: Islam, Democracy and the
West” by late Mohtarma Benazir Bhutto, and read its
Const.P.76/2007, etc. 58
different pages to substantiate the authenticity of the above
news item. Similarly, Mr. A.K. Dogar, learned Sr. ASC also
referred to the book “The Way of the World” by Ron
Suskind and read its different pages to establish that the
NRO, 2007 was nothing but the result of a deal between the
two individuals.
38. It is equally important to note that candidature of
General Pervez Musharraf, to contest the election for the
office of the President, in uniform, was challenged before this
Court, by invoking jurisdiction under Article 184(3) of the
Constitution, in the case of Jamat-e-Islami v. Federation of
Pakistan (PLD 2009 SC 549), when a nine member Bench,
disposed of the same as per majority view of 6 to 3, wherein,
as per the majority view, petitions were held not
maintainable within the contemplation of Article 184(3) of
the Constitution, whereas, as per the minority view of three
Hon’ble Judges of this Court namely Mr. Justice Rana
Bhagwandas (as he then was), Mr. Justice Sardar Muhammad
Raza Khan and Mr. Justice Mian Shakirullah Jan, all the
petitions were held maintainable under Article 184(3) of the
Constitution and were accepted. Against the acceptance of
nomination papers of the General Pervez Musharraf by
Election Commission of Pakistan, another Petition under
Const.P.76/2007, etc. 59
Article 184(3) of the Constitution was filed by Justice (R)
Wajih-ud-Din Ahmed, being Constitution Petition No.73 of
2007. However, this petition was under consideration before
eleven members Bench, when, on 3rd November, 2007,
emergency was proclaimed in the country, which now has
been declared unconstitutional, illegal, mala fide and void ab
initio vide judgment dated 31st July 2009 in Sindh High
Court Bar Association's case (PLD 2009 SC 879).
39. There is another principle of law, which casts
duty upon this Court to the effect that it should normally
lean in favour of constitutionality of a statute and efforts
should be made to save the same instead of destroying it.
This principle of law has been discussed by this Court on a
number of occasions. Reference in this behalf may be made to
the cases of Abdul Aziz v. Province of West Pakistan (PLD
1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq
Patwari (PLD 1966 SC 854), Inam-ur-Rehman v. Federation
of Pakistan (1992 SCMR 563), Sabir Shah v. Shad
Muhammad Khan (PLD 1995 SC 66), Multiline Associates
v. Ardeshir Cowasjee (PLD 1995 SC 423), Tariq Nawaz v.
Government of Pakistan (2000 SCMR 1956), Asif Islam v.
Muhammad Asif (PLD 2001 SC 499) and Federation of
Pakistan v. Muhammad Sadiq (PLD 2007 SC 133). This
Const.P.76/2007, etc. 60
principle has been appropriately dealt with in the case of
Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD
1997 SC 582) in the following terms:-
“that the law should be saved rather then be
destroyed and the Court must lean in favour of
upholding the constitutionality of legislation,
keeping in view that the rules of constitutional
interpretation is that there is a presumption in
favour of the constitutionality of the legislative
enactments unless ex facie it is violative of a
constitutional provision.”
40. M/s Salman Akram Raja, ASC, Abdul Hafeez
Pirzada, Sr. ASC, A.K. Dogar, Sr. ASC and M. Sardar Khan,
Sr. ASC (Amicus Curiae) explained the objects and the
purposes of the ‘national reconciliation’ in the name of which
the NRO, 2007 was promulgated. According to them, the
NRO, 2007 would have been a valid legislation, had it
promoted the national reconciliation in the country, but
unfortunately it was the result of a deal between two persons
for their personal objectives. Inasmuch, the persons
representing the people of Pakistan, at that time, in the
Parliament, were not made aware of it, as it was enacted on
5th October, 2007, through an Ordinance, issued under Article
89 of the Constitution, which is a temporary legislation,
instead of enacting it through the Act of Parliament. They
Const.P.76/2007, etc. 61
further stated that the NRO, 2007 is a power sharing deal
between the then President and the head of a political party.
This fact is evident from the contents of the two books; first is
“Reconciliation: Islam, Democracy and the West” by late
Mohtarma Benazir Bhutto and second is “The Way of the
World” by Ron Suskind. Mr. M. Sardar Khan, learned
Amicus Curiae has gone to the extent that the object of this
law, for all intents and purposes, does not seem to be
reconciliation but to pave the way and facilitate the persons,
charged for corruption and corrupt practices, plundering of
national wealth and commission of fraud, to come back, to
seize and occupy the echelons of power again and to legalize
corruption and crimes committed by those in power in past.
41. Mr. Abdul Hafeez Pirzada, Sr. ASC relied upon
the proceedings of the National Assembly available in the
shape of collection under the heading “Constitution Making
in Pakistan” and contended that the Constituent Assembly,
at the time of framing the Constitution of Pakistan, 1973, had
taken all possible measures, to ensure that, on the basis of
participation of the chosen representatives from all over the
country, the document i.e. the Constitution, should be
promulgated with national reconciliation. He further
contended that in South Africa through promulgation of
Const.P.76/2007, etc. 62
“Promotion of National Unity and Reconciliation Act, 1995, a
historic bridge was provided between the past of a deeply
divided society, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and
peaceful co-existence for all South Africans, irrespective of
color, race, etc. He further stated that although in the NRO,
2007 the word ‘national reconciliation’ has been borrowed
from the history but it has nothing to do with the national
reconciliation.
42. As it has been noted hereinabove that the NRO,
2007 was promulgated, reportedly, as a result of deal, as is
too evident from the contents of the newspaper ‘Daily Dawn’
dated 5th October, 2007, which has already been referred to
hereinabove and the said report so published in this
newspaper, has not, so far, been contradicted. It is well
settled by the time that, in forming the opinion, generally, as
to the prevailing state of affairs, having bearing on the issue
involved in a case, reports of the relevant period, from
electronic and print media, can be taken into consideration.
In this behalf we are fortified with the judgments in Islamic
Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57),
Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain
(1986 SCMR 1736), Benazir Bhutto v. Federation of Pakistan
Const.P.76/2007, etc. 63
(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), Pakistan Lawyers Forum v.
Federation of Pakistan (PLD 2004 Lahore 130, Muhammad
Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583),
Watan Party v. Federation of Pakistan (PLD 2006 SC 697)
and Sindh High Court Bar Association's case (PLD 2009 SC
879).
43. We are conscious that non-denial of a solitary
newspaper report, or even more reports for that matter, may
not, in appropriate cases, form the basis of an opinion, one
way or the other, therefore, we rely upon the written word of
the late Mohtarma Benazir Bhutto herself. That will have
more authenticity.
44. Relevant extract from the book “Reconciliation:
Islam, Democracy and the West” by late Mohtarma Benazir
Bhutto, as relied upon by M/s Abdul Hafeez Pirzada and
A.K. Dogar, Sr. ASC are also reproduced hereinbelow for
ready reference:-
“In August I called PPP leaders to New York.
There we discussed giving General Musharraf a
“nonpaper” of what we expected. Makhdoom Amin
Fahim gave the “nonpaper” to General Musharraf on
August 18. The “nonpaper” said that unless there
Const.P.76/2007, etc. 64
was movement, by the end of August both sides
would be free to go their own ways. General
Musharraf and I had a long conversation over the
phone that night. He said he would send a team to
see me at the end of August.
The August team met me in London at my flat
in Queens Gate. They discussed a whole new
constitutional package. We increased the political
price for the new package. They said they would
come back in two days. They didn’t. As the deadline
approached for calling off talks, I got a call that the
deadline would be extended. It was, but there was
silence from the Musharraf camp.
The PPP and I met in London in September,
and I announced that the date of my return to
Pakistan would be given on September 14, 2007 from
all the capitals and regions of Pakistan. I wanted the
date announced from my homeland. The talks with
Musharraf remained erratic. He didn’t want us
resigning from the assemblies when he sought
reelection. There wouldn’t be much difference in his
winning whether we boycotted or contested, but we
used this to press him to retire as army chief. He cited
judicial difficulties. It was a harrowing period. After
many, many late-night calls, he passed a National
Reconciliation Order, rather than lift the ban on a
twice-elected prime minister seeking office a third
time, which he said he would do later. In exchange
for the NRO, we reciprocated by not resigning from
the assemblies, although we did not vote for him. We
knew the matter still had to be decided by the
Supreme Court. We thought Musharraf took the
wrong decision to seek reelection from the existing
Const.P.76/2007, etc. 65
Parliament, that it would only compound the crisis.
But he had made his choice.”
45. It appears from the above extract of the book,
itself, of late Mohtarma Benazir Bhutto that the NRO, 2007
was designed to benefit a certain class of individuals against
whom cases were registered between 1st January, 1986 to
12th October, 1999 subject to the scheme laid down therein.
Thus we, prima facie, hold that the NRO, 2007 was not
promulgated for achieving the object of national
reconciliation as according to its substantive provision i.e.
Section 2, it was meant to extend benefit to the accused
persons, against whom cases were registered between 1st
January, 1986 to 12th October, 1999, subject to the scheme laid
down therein. Likewise, under Section 7 of the NRO, 2007,
the cases against ‘holders of public office’, involved in the
offences, inside and outside the country, deemed to have
been withdrawn, including the proceedings, initiated under
Section 33 of the NAO, 1999 outside the country, through
request for mutual assistance and civil party to proceedings,
by the Federal Government, before the 12th October, 1999.
These two provisions, abundantly, make it clear that the
NRO, 2007 has extended benefit only to the criminals,
involved in the minor or heinous crimes and ‘holders of
public office’ involved in corruption and corrupt practices, as
Const.P.76/2007, etc. 66
such it cannot be considered to be a legislation for achieving
the object of national reconciliation.
46. We have yet to see a law pari materia with the
NRO, 2007 according to which an accused, who being
‘holder of public office’, indulged into corruption and
corrupt practices, plundering and looting of national wealth,
etc., has been extended the benefit of withdrawal of his cases
from the Court of competent jurisdiction. In order to
understand the word ‘reconciliation’ reference may be made
to ‘Black’s Law Dictionary’ wherein it has been defined as
‘restoration of harmony between persons or things that had been in
conflict’. Likewise in ‘Corpus Juris Secundum’ the word
‘reconciliation’ has been defined as ‘the renewal of amicable
relations between two persons who had been at enmity or variance
usually implying forgiveness of injuries on one or both sides; it is
treated, with respect to divorce’. The word ‘reconciliation’ has
been defined in ‘Advanced Law Lexicon’ 2005 Ed. as ‘the
restoration to friendship and harmony; renewal of amicable
relations between two person having been in conflict; literally the
restoration of friendly relations after an estrangement’. As it has
been argued by Mr. Abdul Hafeez Pirzada, Sr. ASC that
when the word ‘national’ is prefixed with the word
‘reconciliation’, its meaning changes absolutely from its
Const.P.76/2007, etc. 67
ordinary dictionary meanings, and ‘national reconciliation’
means ‘the reconciliation of the entire nation’. Therefore,
keeping in view the fact, noted hereinabove, that the NRO,
2007 was the result of deal between two individuals for their
personal objectives, coupled with its dictionary meaning, it
cannot be called ‘national reconciliation’.
47. Mian Allah Nawaz, learned Sr. ASC has also
placed on record the thesis by Barrister Saifullah Ghouri on
‘The Acquiescence of UK Courts to Foreign Legislation in
Particular the NRO’, in which, he while discussing the NRO,
2007, has made the reference to ‘National Commission for
Forced Disappearance’ in Argentina; ‘Indian Residential
Schools Trust and Reconciliation Commission’ in Canada;
‘National Truth & Reconciliation Commission’ and
‘National Commission on Political Imprisonment &
Torture’ in Chile; ‘United Nations Truth Commission’ in El.
Salvador; ‘Reconciliation & Unity Commission’ in Fiji;
‘Truth & Reconciliation Commission’ in South Africa;
‘Truth & Reconciliation Commission’ in South Korea;
‘Greensboro Truth & Reconciliation Commission’ and
‘Joshua Micah Marshall’ in USA; etc. Interestingly, none of
these commissions have dealt with the financial and ordinary
crimes but amazingly the NRO, 2007 is the only law, wherein
Const.P.76/2007, etc. 68
cases pertaining to ordinary and financial crimes, committed
by the accused and ‘holders of public office’, who indulged
themselves into corruption and corrupt practices, have been
declared to be withdrawn or terminated.
48. For the foregoing reasons, we are of the opinion
that the NRO, 2007 was not promulgated for ‘national
reconciliation’ but for achieving the objectives, which
absolutely have no nexus with the ‘national reconciliation’
because the nation of Pakistan, as a whole, has not derived
any benefit from the same. Contrary to it, it has been
promulgated for achieving the individuals’ reconciliation,
explained before this Court with the help of admitted
evidence, noted hereinabove.
49. Learned counsel appearing for the petitioners
stated that the NRO, 2007 has violated the provisions of
Articles 4, 8, 25, 62(f), 63(1)(p), 89, 175 and 227 of the
Constitution, therefore, it may be declared void ab initio with
all consequences, likely to flow after declaring it so.
50. There is no cavil with the proposition that Article
8 of the Constitution provides that any law, or any custom or
usage having the force of law, in so far as it is inconsistent
with the rights conferred by this Chapter, shall, to the extent
of such inconsistency, be void; and the State shall not make
Const.P.76/2007, etc. 69
any law which takes away or abridges the rights so conferred
and any law made in contravention of this clause shall, to the
extent of such contravention, be void. Needless to observe
that Article 8 of the Constitution is covered under Chapter I
of the Constitution, which deals with fundamental rights.
Article 25 of the Constitution, being one of the important
Articles of the Constitution, professes that all citizens are
equal before law and are entitled to equal protection of law.
51. At this stage, reference to Article 4 of the
Constitution is also necessary, which deals in respect of the
rights of individuals to be dealt with in accordance with law.
This Article of the Constitution is not placed in the Chapter
of fundamental rights, perhaps on account of its implications,
as is evident from the language employed therein; namely, to
enjoy the protection of law and to be treated in accordance
with law is the inalienable right of every citizen, wherever he
may be and of every other person for the time being within
Pakistan. So, a uniform protection of law, being an
inalienable right of every citizen and the person, who is, for
the time being within Pakistan, has been provided under this
Article. Nexus of Article 4 of the Constitution can
conveniently be made with Article 25 of the Constitution or
Const.P.76/2007, etc. 70
any other Article, relating to fundamental rights, including
Article 9 of the Constitution.
52. It is important to note that on proclamation of
emergency, fundamental rights, guaranteed under Articles
15, 16, 17, 18, 19 & 24, of the Constitution, can be suspended
in terms of Article 233 of the Constitution, but during the
emergency, the provisions of Article 4 of the Constitution
remain operative. The phrase ‘rule of law’ has been used
since the time of Aristotle, in the fourth century B.C.; it has
meant different things to different authors and theorists;
Aristotle’s concept of rule of law is contained in his simple
saying: “the rule of law is to be preferred to that of any
individual” – In other words, the rule of law is anathema to
the rule of men; in the words of the Constitution of the State
of Massachusetts, it means “a government of law and not of
men”; in brief, it means supremacy of law. [Comparative
Constitutional Law by Hamid Khan & Muhammad Waqar
Rana (page 48)]. The prominent Jurist A.V. Dicey in his work
“Law of the Constitution” said that ‘rule of law’ was one of
the main features of the Constitution of United Kingdom. He
highlighted the following three distinct concepts:-
i) No man is punishable or can be lawfully
made to suffer in body or goods except for
Const.P.76/2007, etc. 71
a distinct breach of law established in the
ordinary legal manner before the ordinary
courts of the land. In this sense the rule of
law is contrasted with every system of
government based on the exercise by
persons in authority of wide, arbitrary, or
discretionary powers of restraint.
ii) When we speak of the “rule of law” as a
characteristic of our country, not only that
with us no man is above the law, but
(which is a different thing) that here every
man, whatever be his rank or condition, is
subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary
tribunals.
iii) The general principles of the constitution
(as for example the right to personal liberty,
or the right to public meeting) are with us
as the result of judicial decisions
determining the rights of private persons in
particular cases brought before the courts;
whereas under many foreign constitutions
the security (such as it is) given to the rights
of individuals results, or appears to result,
from the general principles of the
constitution. ……”
Elaborating upon the second concept Dicey commented:
“with us every official, from the Prime Minister down to
constable or a collector of taxes, is under the same
Const.P.76/2007, etc. 72
responsibility for every act done without legal justification as
any other citizen.” He further wrote on the second concept
that “the rule of law” in this sense excludes the idea of any
exemption of officials or other from the duty of obedience to
the law which governs other citizens or from the jurisdiction
of the ordinary tribunals……..; the notion which lies at the
bottom of the administrative law known to foreign countries
is, that affairs or disputes in which the government or its
servants are concerned are beyond the sphere of the civil
courts and must be dealt with by special and more or less
official bodies.”
53. The above concepts of ‘rule of law’ highlighted
by A.V. Dicey, have been noted with approval by the
eminent Jurists of our country. Reference may be made to the
book “Access to Justice in Pakistan” by Justice Fazal Karim.
The above concepts have been discussed more elaborately by
him in his another book “Judicial Review of Public
Actions”. Looking in depth to the concept of “rule of law”
one can conveniently follow that:-
i) The rule of law excludes arbitrariness; its
postulate is ‘intelligence without passion’ and
‘reason freed from desire’;
Const.P.76/2007, etc. 73
ii) Wherever we find arbitrariness or
unreasonableness there is denial of the rule of
law;
iii) What is a necessary element of the rule of law
is that the law must not be arbitrary or
irrational and it must satisfy the test of reason
and the democratic form of policy seeks to
ensure this element by making the framers of
the law accountable to the people.
[Bachan Singh v. State of Punjab (AIR 1982
SC 1325)].
Therefore, now we have to consider as to whether a law,
which is inconsistent with the fundamental rights, is liable to
be declared void to the extent of such inconsistency. Article
13 of the Indian Constitution is pari materia to Article 8 of the
Constitution of Pakistan and according to the former, “all
laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void”. This Article is covered
by Part-III of the Indian Constitution, which deals with the
fundamental rights. More so, Article 14 of the Indian
Constitution deals with one of the fundamental rights i.e.
‘equality before the law’, whereas in our Constitution, Article
25 deals with the said subject.
Const.P.76/2007, etc. 74
54. As far as jurisdiction of this Court to examine the
constitutionality of a law is concerned, there is no dispute
either. Sub-Article (1) of Article 8 of the Constitution uses the
word ‘inconsistent’ purposely, regarding any law which was
promulgated in the past or is in existence presently. Whereas,
sub-Article 2 of Article 8 of the Constitution debars the State
not to make any law which takes away or abridges the rights
so conferred and any law made in contravention of this
clause shall, to the extent of such contravention, be void.
Same is the position in the Indian Constitution, as it has been
noted hereinabove. So, inconsistency or contravention of a
law passed, or the existing law, shall be examined to the
extent of violation of fundamental rights and such laws are
not void for other purposes.
55. As far as the term ‘void’ is concerned, it has been
defined in Black’s Law Dictionary, 7th Edn. (1999), as “of no
legal effect; null.” Corpus Juris Scecundum, Vol.92 at pp 1021
to 1022 defines ‘void” as follows:-
“The word ‘void’ may be used in what is variously
referred to as its literal, absolute, primary, precise, strict,
and strictly accurate sense, and in this sense it means
absolutely null; null and incapable of confirmation or
ratification; of no effect and incapable of confirmation;
of no force and effect; having no legal force or binding
effect, having no legal or binding force; incapable of
Const.P.76/2007, etc. 75
being enforced by law; of no legal force or effect
whatever; that which has no force and effect; without
legal efficacy, without vitality or legal effect; ineffectual;
nugatory; unable in law to support the purpose for
which it was intended”. (emphasis added).
56. The expression ‘void’ has also been commented
upon in Province of East Pakistan v. M.D. Mehdi Ali Khan
(PLD 1959 SC 387), Syed Abul A’la Maudoodi v.
Government of West Pakistan (PLD 1964 SC 673), Bhikaji
Narain v. State of M.P. (AIR 1955 SC 781). This Court in
Haji Rehmdil v. Province of Balochistan (1999 SCMR 1060)
defines that “term "void" signifies something absolutely null,
incapable of ratification or confirmation and, thus, having no
legal effect whatsoever”. Similarly, the word ‘void ab initio’
has been defined in Black’s Law Dictionary, 7th Edn. (1999)
as “null from the beginning”.
57. However, the powers of this Court to examine
the constitutionality of a law have been discussed in number
of judgments at number of times. Reference in this behalf
may be made to Fauji Foundation v. Shamimur Rehman
(PLD 1983 SC 457 at 596), Benazir Bhutto’s case (PLD 1988
SC 416 at 485), Azizullah Memon’s case (PLD 1993 SC 341 at
354), Government of NWFP v. Muhammad Irshad (PLD
1995 SC 281 at 296), Civil Aviation Authority v. Union of
Const.P.76/2007, etc. 76
Civil Aviation Employees (PLD 1997 SC 781 at 796), Wukala
Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan
(PLD 1998 SC 1263 at 1313 & 1357), Wattan Party v.
Federation of Pakistan (PLD 2006 SC 697 at 731) and
Pakistan Muslim League (N) v. Federation of Pakistan
(PLD 2007 SC 642 at 671, 675, 676).
58. It is important to note that as per the command of
Article 4 of the Constitution all the citizens without any
discrimination shall be dealt with in accordance with law, so
enforcement of the law leaves no room for creating any
distinction between the citizens, except a particular class, on
the basis of intelligible differentia. The principle challenge to
the NRO, 2007, is of its being discriminatory in nature. It is
the case of the petitioners’ that the NRO, 2007, being violative
of Article 25 of the Constitution, deserves to be declared void
ab initio, non est, thus never took birth, therefore, nothing,
which is the product of the NRO, 2007 or done in pursuance
of it or under it, ever came into existence or survive. It is also
contended that the NRO, 2007 is void because it is a fraud on
the Constitution. According to the learned counsel for the
petitioners, the NRO, 2007 has violated the dictum laid down
by this Court in Mahmood Khan Achakzai’s case (PLD 1997
SC 426) improved upon in Syed Zafar Ali Shah’s case (PLD
Const.P.76/2007, etc. 77
2000 SC 869), wherein, after a great deal of efforts, the Court
eventually came to treat Article 4 of the Constitution as ‘due
process clause’. So far as the provision of Article 25 of the
Constitution is concerned, it has been discussed time and
again by this Court in a good number of cases, reference to
which may not be necessary, except the one i.e. Azizullah
Memon’s case (PLD 1993 SC 341), wherein inconsistency of
the provisions of Criminal Law (Special Provisions)
Ordinance, 1968 were examined on the touchstone of Articles
8 and 25 of the Constitution, and ultimately appellant’s
(Government of Balochistan) appeal was dismissed,
declaring the Criminal Law (Special Provisions) Ordinance,
1968, to be void being inconsistent with the fundamental
rights enshrined in Article 25 of the Constitution. In this
judgment, with regard to ‘reasonable classification’,
following two principles have been highlighted:-
“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.”
Const.P.76/2007, etc. 78
As far as ‘intelligible differentia’ is concerned, it
distinguishes persons or things from the other persons or
things, who have been left out. The Indian Supreme Court,
while relying upon the statement of Professor Willis in
Charanjit Lal v. Union of India (AIR 1951 SC 41), observed
that “any classification which is arbitrary and which is made
without any basis is no classification and a proper classification
must always rest upon some difference and must bear a reasonable
and just relation to the things in respect of which it is proposed”.
Same principle has been highlighted in Shazia Batool v.
Government of Balochistan (2007 SCMR 410).
59. Thus, keeping in view the above principles and
the definition of classification “intelligible differentia” means,
in the case of the law differentiating between two sets of the
people or objects, all such differentiations should be easily
understood as logical and lucid and it should not be artificial
or contrived.
60. It may be noted that the NRO, 2007 has extended
benefit to three categories of persons in the following
manner:-
1) By virtue of amendment of Section 494 Cr.P.C.
the cases of accused persons, including the
absconding accused, involved in criminal
cases, for political reasons or through political
Const.P.76/2007, etc. 79
victimization, initiated between 1st January,
1986 to 12th October, 1999 including those
against whom, judgments have been
pronounced by the Trial Court, were to be
withdrawn.
2) By adding clause (aa) in Section 31A of the
NAO, 1999, it is declared that an order and
judgment passed by the Court in absentia
against an accused is void ab initio and shall
not be acted upon.
3) By inserting Section 33F in the NAO, 1999, the
proceedings under investigation or cases
pending in any Court including a High Court
and the Supreme Court of Pakistan, initiated
by or on a reference by the NAB, inside and
outside Pakistan, including the proceedings
initiated under Section 33 (ibid) by making
requests for mutual assistance and civil party
to proceedings, by the Federal Government,
before the 12th day of October, 1999, against
‘holders of public office’ stood withdrawn
and terminated and such ‘holders of public
office’ shall also not be liable for any action in
future as well under this Ordinance for acts
having been done in good faith before the said
date.
61. Now the constitutionality of amended Section 494
Cr. P.C. (Act V of 1898) by means of Section 2 of the NRO,
Const.P.76/2007, etc. 80
2007 shall be examined. It would be appropriate to reproduce
Section 494 Cr.P.C in its original form hereinbelow:-
“494. Effect of withdrawal from prosecution.
Any Public Prosecutor may, with the consent of
the Court, before the judgment is pronounced,
withdraw from the prosecution of any person
either generally or in respect of any one or more
of the offences for which he is tried, and upon
such withdrawal:
(a) if it is made before a charge has been
framed, the accused shall be discharged in
respect of such offence or offences;
(b) if it is made after a charge has been framed,
or when under this Code no charge is
required, he shall be acquitted in respect of
such offence or offences.
In above provision, emphasis is upon “effect of withdrawal
from the prosecution with the consent of the Court”. A plain
reading of above provision categorically provides for an
important role of the Court as without its consent, no effect
of withdrawal from prosecution shall take place. In Saad
Shibli v. State (PLD 1981 SC 617), it has been observed as
follows:-
“It follows therefore, that on disclosure of
satisfactory objective grounds, relatable to public
policy, or public peace, and administration of
justice, an application under Section 494 Cr.P.C.,
for seeking Court’s permission to withdraw from
the prosecution can be filed. The Court’s duty is
Const.P.76/2007, etc. 81
to ensure that such a course “is not an attempt to
interfere with the normal course of justice for
illegitimate reason or purposes”– AIR 1957 SC 389
or that Courts “own functioning is not thereby
pre-empted”– PLD 1977 SC 451.”
To extend the benefit of the NRO, 2007 following amendment
was made in Section 494 Cr.P.C. which is reproduced
hereinbelow:-
“2. Amendment of section 494, Act V of 1898.
In the Code of Criminal Procedure, 1898 (Act V of
1898), section 494 shall be renumbered as sub-section
(1) thereof and after sub-section (1) renumbered as
aforesaid, the following sub-section (2) and (3) shall
be added, namely:
“(2) Notwithstanding anything to the contrary
in sub-section(1), the federal government or a
provincial government may, before the
judgment is pronounced by a Trial Court,
withdraw from the prosecution of any person
including an absconding accused who is found
to be falsely involved for political reasons or
through political victimization in any case
initiated between 1st day of January, 1986 to
12th day of October, 1999 and upon such
withdrawal clause (a) and clause (b) of subsection
(1) shall apply.
(3) For the purposes of exercise of powers
under sub-section (2) the federal government
and the provincial government may each
constitute a review board to review the entire
record of the case and furnish
recommendations as to their withdrawal or
otherwise.
(4) The review board in case of Federal
Government shall be headed by a retired judge
of the Supreme Court with Attorney-General
and Federal Law Secretary as its members and
in case of Provincial Government it shall be
headed by a retired judge of the high court with
Const.P.76/2007, etc. 82
Advocate-General and/or Prosecutor-General
and Provincial Law Secretary as its members.
(5) A review board undertaking review of a
case may direct the public prosecutor or any
other concerned authority to furnish to it the
record of the case.”
A cursory glance on amended Section 494 Cr.P.C. leads to
conclude that powers of the Court under Section 494 (1)
Cr.P.C were conferred upon the Review Board, to be
constituted by the Federal Government and the Provincial
Government, composition of which has been provided under
sub-Section (4) of Section 494 Cr.P.C. In simple words
consent of the Court has been replaced with the
recommendations of the Review Board i.e. an executive
body, for all intent and purposes. The Review Board on
whose recommendations, all the cases, in which judgment
has not been pronounced by the Trial Court, are to be
withdrawn from the prosecution, including the cases of
absconding accused, who were found to be falsely involved
for the political reasons or political victimization. Essentially,
declaring a person absconder is the job of the Trial Court,
after submission of challan and observing codal formalities
under Sections 87 and 88 Cr.P.C. As far as involving a person
falsely for political reasons or through political victimization,
is concerned, it is a question which could only be examined
by the Court of law, before whom challan has been submitted
Const.P.76/2007, etc. 83
because once a challan is filed, the accused can be discharged
or acquitted under Cr.P.C., if there is no evidence against the
accused, as the case may be, or by applying for quashment of
the case under Section 561-A Cr.P.C. or approaching the
Revisional Court for terminating the proceedings, if the same
are not founded on correct disclosure of information for
involvement of the accused. However, as far as absconding
accused is concerned, prima facie, he is considered to be
fugitive from law. Therefore, without surrendering to the
Court, legally no concession can be extended to him by the
executive authority. Surprisingly, action initiated under the
NRO, 2007 in terms of above provision is tantamount, in
clear terms, to deny the independence of judiciary, which is
hallmark and also one of the salient features of the
Constitution, as it has been held in Syed Zafar Ali Shah’s
case (PLD 2000 SC 869). Relevant paras therefrom are
reproduced hereinbelow for convenience:-
“We are of the considered view that if the Parliament
cannot alter the basic features of the Constitution, as
held by this Court in Achakzai's case (supra), power
to amend the Constitution cannot be conferred on the
Chief Executive of the measure larger than that which
could be exercised by the Parliament. Clearly,
unbridled powers to amend the Constitution cannot
be given to the Chief Executive even during the
transitional period even on the touchstone of `State
Const.P.76/2007, etc. 84
necessity'. We have stated in unambiguous terms in
the Short Order that the Constitution of Pakistan is
the supreme law of the land and its basic features i.e
independence of Judiciary, federalism and
parliamentary form of government blended with
Islamic Provision cannot be altered even by the
Parliament. Resultantly, the power of the Chief
Executive to amend the Constitution is strictly
circumscribed by the limitations laid down in the
Short Order vide sub-paragraphs (i) to (vii) of
paragraph 6.”
It may be noted that as far as independence of Judiciary is
concerned its security has been provided by the Constitution
itself in Article 2A of the Constitution but the principle and
concept of the same shall be discussed after examining the
constitutionality of various provisions of the NRO, 2007
including the one which is under discussion.
62. In order to decide the issue of withdrawal of
criminal cases, registered against the accused persons, during
the specific period, commencing from 1st January, 1986 to 12th
October, 1999, Mr. Yousaf Leghari, Advocate General Sindh
was called upon to place on record the details of all cases.
However, except furnishing one list of the cases, he could not
handover the list of all other cases, which according to his
statement, noted by this Court vide order dated 14th
December 2009, is to the effect that the Department has not
Const.P.76/2007, etc. 85
been able to get a detailed list/ names of absconders, whose
cases were recommended by the Review Board and
thereafter withdrawn under amended Section 494 Cr.P.C. In
respect of other Provinces, neither any benefit of the NRO,
2007 was extended to any of the accused, nor was any
Provincial Review Board constituted, as submitted by the
Advocates General of the respective Provinces. However, a
perusal of the material so furnished by the Advocate General
Sindh, reveals that Provincial Review Board constituted
under the above provision of amended Section 494 Cr.P.C.,
examined criminal cases on 9th October 2007 and has drawn
the conclusion on the same day that after having gone
through the available record and bearing in mind the
provisions contained in the amended Section 494 Cr.P.C. the
Board is of unanimous view that all the cases were falsely
registered and for political reasons, therefore, it would be
futile exercise to keep them pending particularly when most
of the cases are very old and there is hardly any cogent
evidence to connect the accused with the alleged offences, as
none of them would result in conviction, if tried by the
respective Courts, as such, notwithstanding the fact that any
one of the accused has been declared absconder, the Board
recommended the Provincial Government that those cases
may be withdrawn forthwith. Exact figure of such cases has
Const.P.76/2007, etc. 86
not been brought on record but as per verbal statement of the
learned Advocate General Sindh, there were more than three
thousand cases which have been withdrawn, in which about
eight thousand accused were involved. We fail to understand
whether hundreds of cases can be decided within few hours,
for the purpose of making recommendations by the
Provincial Review Board. Therefore, inference would be that
just to fulfill the formality, meeting of the Board was
convened in order to get recommendations for the
withdrawal of cases. The list so made available by the
learned Advocate General Sindh indicates that the cases
including the criminal cases, involving murder, attempt to
murder, dacoity, kidnapping for ransom, robbery,
gunrunning, theft, extortion, etc. have been recommended by
the Board for withdrawal forthwith. Needless to observe that
after the amendment in PPC, in pursuance of judgment of
this Court in Federation of Pakistan v. Gul Hassan Khan
(PLD 1989 SC 633), the cases pertaining to Qisas, Diyat, Arsh,
etc. were not allowed to be compounded without the
permission of the victim or the heirs of deceased and even if
such permission is sought by entering into compromise,
under Chapter XVI of the PPC, no withdrawal or
compromise of such cases is permissible in noncompoundable
cases. Interestingly, in the list, submitted by
Const.P.76/2007, etc. 87
the learned Advocate General Sindh, there are cases, relating
to offences, which are non-compoundable and even the
Court of law, before whom matter is subjudice, is not
empowered to make recommendations for withdrawal of the
same or allowed to enter into compromise. Admittedly, the
victim or heirs of the deceased, in body-hurt cases, covered
by Chapter XVI PPC, had an inalienable right to be heard by
a Court of law, as sometimes permission is accorded by the
Court to compound the offence, subject to payment of Diyat,
Daman, Arsh, etc., as the case may be. But by substituting the
Court with the Review Board, mandatory procedure of law
has been compromised. At this juncture, reference to the
following para from the Hakim Khan v. Govt. of Pakistan
(PLD 1992 SC 595) would not be out of context:-
19. As regards the merits of the question involved in the
case, the punishments of death awarded were not by
way of Qisas. The sentences of death awarded were
under Ta'zir. Just as a sentence of Ta'zir is imposed on
State's command and not as a right of the individual
under God's law, the State as represented by the
President, has and continues to have in respect of Ta'zir
punishments, the right of commutation, remission etc.
As per the above principle of law, no question of pardon
arises if the punishment of Qisas has been awarded.
However, in respect of Ta’zir, the President continues to
Const.P.76/2007, etc. 88
enjoy the power to grant pardon. It is further observed that in
terms of Articles 45 and 2A of the Constitution, the Court has
no power to apply the test of repugnancy by invoking Article
2A of the Constitution for striking down Article 45 of the
Constitution. This principle has been highlighted by the
seven member bench of this Court in the case of Abdul
Malik v. The State (PLD 2006 SC 365). Relevant para
therefrom is reproduced hereinbelow for convenience:-
23. It was argued that the power enshrined in the aforereferred
Article is violative of the spirit of Article 2A of
the Constitution. Any theological debate in this context
is unnecessary as Article 2A is not a self-executing
provision and unless there is proper legislation or
amendment in the Constitution, the provision as it
stands has to be given effect to. The power of the
President to grant pardon, reprieve or respite and to
remit or suspend commute any sentence is a power
which is given to Heads of the States in most of the
Constitutions of the world. The import and ambit of this
provision were considered by this Court in Bhai Khan v.
State PLD 1992 SC 14 wherein at page 25, it was held as
under: -
"The exercise of the discretion by the President
under Article 45 is to meet at the highest level the
requirements of justice and clemency, to afford
relief against undue harshness, or serious mistake
or miscarriage in the judicial process, apart from
specific or special cases where relief is by way of
grace alone, as for instance to celebrate an event
or when a new President or Prime Minister is
installed, where relief or clemency is for the
honour of the State. In the former case, the
discretion has to be exercised with care, keeping
Const.P.76/2007, etc. 89
in mind the duty to maintain justice, so as to
prevent the erosion of the deterrent effect that
judicial punishment must retain. The scope of the
power of the President under Article 45 is
basically discretionary, in view of Article 48(2) of
the Constitution. The power under Article 45
being at the apex and unfettered, the President,
whilst commuting a sentence (on a number of
counts) or different sentences, can order the
commuted sentences to run concurrently inter se
and/or concurrently with any other or others
imposed by the Court."
63. No assertion could be made by either of the
parties about the punishment to an accused, whose case has
been withdrawn despite likelihood of his getting punishment
under Qisas or Ta’zir. The Court, trying an accused for a
particular crime, based on a particular charge, prayed against
him by the prosecution, has no reasons to enter into
discussion whether on account of political victimization, he
has been involved in the case or otherwise; because the Court
is required to decide the case on merits, in exercise of its
jurisdiction, following the consistent principles of
administration of justice in criminal cases that if no case is
made out on merits, it is free to discharge or acquit the
accused without waiting for conclusion of the trial.
64. The amendment in Section 494 Cr.P.C. has not
only undermined the independence of judiciary by
substituting the Court, before whom the trial of an accused
was pending, with the Review Board, but, at the same time,
Const.P.76/2007, etc. 90
had also created discrimination with the accused, who were
facing trial prior to 1st January, 1986 or had been charged for
the offence after 12th October, 1999. The preamble of the
NRO, 2007 coupled with any of its substantive part, had not
disclosed the reasons, calling for so called ‘national
reconciliation’ in between this period, presuming that an
accused, facing charge entailing major penalty of death, is not
entitled for discharge, by means of extra judicial forum, or for
the same treatment, if he has committed the crime after 13th
October, 1999, and up till now. We have posed a question to
ourselves i.e. whether there had been no political
victimization after 12th October, 1999 uptill now, on account
of which accused persons were involved falsely in the
commission of the offence but we could not succeed in
getting the answer of the same except observing that specific
dates were incorporated in the NRO, 2007 for achieving
specific object as well as the specific purpose, which has been
highlighted by one of the learned counsel, whose argument
in this behalf has been noted hereinabove.
65. Somehow, the Indian Supreme Court had to face
with identical situation in Rajender Kumar v. State (AIR
1980 SC 1510). As per the facts of the case, the Government of
India, in exercise of powers conferred by Section 196(1)(a) of
Const.P.76/2007, etc. 91
the Code of Criminal Procedure 1973, and Section 7 of the
Explosive Substances Act, 1908, by its order dated 6th
September, 1976 accorded sanction for the prosecution of
George Mathew Fernandes alias George Fernandes,
Chairman of Socialist Party of India and Chairman of All
India Railwaymen's Federation and 24 others, for alleged
offences under Sections 121-A & 120-B of Indian Penal Code,
read with Sections 4, 5 and 6 of Explosive Substances Act,
1908 and Sections 5(3)(b) and 12 of the Indian Explosives Act,
1884, on the allegations that after the issuance of the
proclamation of Emergency on 25th June, 1975 by the
President of India in exercise of the powers conferred by
clause (1) of Article 352 of the Constitution, George Mathew,
sought to arouse resistance against the said emergency by
declaring that the said emergency had been "clamped" on the
country by the "despotic rule" of Smt. Indira Gandhi, Prime
Minister of India and to entertain an idea that a conspiracy be
hatched with the help of the persons of his confidence, to
over-awe the Government and in pursuance of the
conspiracy do such acts which might result in the destruction
of public property and vital installations in the country. On
24th September, 1976 the Deputy Superintendent of Police,
Special Police Establishment Central Bureau of Investigation,
filed a charge-sheet in the Court of the Chief Metropolitan
Const.P.76/2007, etc. 92
Magistrate, Delhi, against the said accused persons for the
offences mentioned in the order sanctioning the prosecution.
Besides the accused, who were sent up for trial, two accused,
namely, Shri Bharat C. Patel and Rewati Kant Sinha were
granted pardon by the Court and were examined as approver
under Section 306(4) Cr.P.C., notwithstanding the fact that
the case was exclusively triable by the Court of Session. Out
of 25, two accused namely Ladli Mohan Nigam and Atul
Patel were declared proclaimed offenders by the Court. At
that stage, on March 26, 1977, N. S. Mathur, Special Public
Prosecutor filed an application under section 321 of the
Criminal Procedure Code 1973, for permission to withdraw
from the prosecution. On the same day the Chief
Metropolitan Magistrate, expressed the opinion that it was
"expedient to accord consent to withdraw from the
prosecution", granted his consent for withdrawal from the
prosecution. One Dr. Rajender Kumar Jain, an Advocate,
filed a petition in the High Court of Delhi, under Section 397
of the Criminal Procedure Code for revision of the order of
the Chief Metropolitan Magistrate giving his consent to the
Special Public Prosecutor to withdraw from the prosecution,
but the same was dismissed on the ground that the applicant
had no locus standi. Dr. Rajender Kumar Jain filed appeal
before the Supreme Court of India, after obtaining special
Const.P.76/2007, etc. 93
leave from the Court, mainly on the ground that the Public
Prosecutor had abdicated his function and had filed the
application at the behest of the Central Government without
applying his mind, and that S. N. Mathur who had filed the
application for withdrawal from the prosecution was not the
Public Prosecutor, in-charge of the case and the application
was therefore, incompetent. The Supreme Court, ultimately,
while dismissing the petitions for leave to appeal, concluded
as under:-
25. Before bidding farewell to these cases it may be
appropriate for us to say that Criminal justice is not a
plaything and a Criminal Court is not a play-ground for
politicking. Political fervour should not convert
prosecution into persecution, nor political favour
reward wrongdoer by withdrawal from prosecution. If
political fortunes are allowed to be reflected in the
processes of the Court very soon the credibility of the
rule of law will be lost. So we insist that Courts when
moved for permission for withdrawal from prosecution
must be vigilant and inform themselves fully before
granting consent. While it would be obnoxious and
objectionable for a Public Prosecutor to allow himself to
be ordered about, he should appraise himself from the
Government and thereafter appraise the Court the host
of factors relevant to the question of withdrawal from
the cases. But under no circumstances should he allow
himself to become anyone's stooge.
Const.P.76/2007, etc. 94
The provision of Section 2 of the NRO, 2007, is also contrary
to the dictum laid down in Saad Shibli’s case (PLD 1981 SC
617), wherein it has been held as under:-
13. A bare reading of this section discloses that the
statute conferring the power of withdrawal on the
Public Prosecutor prescribes no guidelines and indicates
no controlling features, except that such a power can be
exercised before the judgment is pronounced and is
subject to "consent of the Court". From such a general
dispensation certain consequences necessarily follow. In
the first place, the power conferred is of the widest
amptitude but not so wide as to amount to a fiat or ipsi
dixit of the Public Prosecutor. Such a limitation
necessarily follows the requirement of "consent of the
Court." It has been held that "where Court's permission
is sought or required, such a motion seeks the active
exercise of the sound judicial discretion of the Court"
(22 A C J S 7). Judicial discretion of the Court is required
to be exercised according to reasonably well settled
principles, which are capable of being formulated and
applied as standards by higher Courts when
entertaining appeals against the manner in which they
have been exercised. In this sense, therefore, "judicial"
refers to the exercise of discretion in accordance with
"objective" standards as opposed to subjective
considerations of policy and expediency."
66. Above discussion, in the light of the facts
disclosed by the learned Advocate General Sindh, persuades
us to hold that the classification amongst the accused
persons, facing trial during the specific period i.e. 1st January
Const.P.76/2007, etc. 95
1986 to 12th October 1999, is based on arbitrariness and no
reasons have been disclosed in the NRO, 2007 for entering
into so called ‘reconciliation’ with particular group of
accused persons, except in the name of ‘national
reconciliation’ on the pretext that the cases were politically
motivated against them. Therefore, the NRO, 2007 to the
extent of discussion on Section 2, is arbitrary and irrational as
it has failed the test of reason to conclude in its favour that it
is not a bad law. Similarly on the basis of intelligible
differentia for reasonable classification, the differentiation
has not been understood logically and it seems that for
specific purpose, an artificial grouping was made, causing
injustice to the accused persons, who were placed in the
same position and instead of achieving the ‘national
reconciliation’ the NRO, 2007 had served the purpose of
‘individual reconciliation’.
67. It has been argued by one of the learned counsel
i.e. Mr. Abdul Hafeez Pirzada, Sr. ASC that by means of
Section 6 of the NRO, 2007, a new provision i.e. (aa) has been
added in Section 31A of the NAO, 1999 and stated that this
provision is contrary to Article 63(1)(p) of the Constitution,
for the reason that if ‘holder of public office’ is an absconder,
in view of conviction recorded against him in absentia under
Const.P.76/2007, etc. 96
Section 31A of the NAO, 1999, such ‘holder of public office’ is
not competent to sit in the Parliament on the basis of his
conviction as well as morality. Therefore, by promulgation of
Section 6 of the NRO, 2007, conscience of the Constitution
has been divorced. Reliance in this behalf has been placed by
him upon Jamal Shah v. Election Commission (PLD 1966 SC
1) and Benazir Bhutto v. Federation of Pakistan (PLD 1988
SC 416). On the Court’s question, he replied that if Section 6
of the NRO, 2007 is declared void for these two reasons, then
the convicts must surrender before the will of the
Constitution. He added that this is the mandate of the
Constitution. According to him if Article 63(1)(p) of the
Constitution could not be considered to be self-executory
then no other provision of the law could be so dealt with.
68. It would be advantageous to reproduce
hereinbelow Section 31A of the NAO, 1999:-
“31A. Absconding to avoid service of warrants
Whoever absconds in order to avoid being served with
any process issued by any Court or any other authority
or officer under this Ordinance or in any manner
prevents, avoids or evades the service on himself of
such process or conceals himself to screen himself from
the proceedings or punishment under this Ordinance
shall be guilty of an offence punishable with
imprisonment which may extend to three years
notwithstanding the provisions of section 87 and 88 of
Const.P.76/2007, etc. 97
Code of Criminal Procedure, 1898, or any other law for
the time being in force.”
The above Section has been amended by means of Section 6
of the NRO, 2007, which reads as under:-
“6. Amendment of section 31A, Ordinance XVIII of
1999.
In the said Ordinance, in section 31A, in clause (a), for
the full stop at the end a colon shall be substituted and
thereafter the following new clause (aa) shall be
inserted, namely:-
“(aa) An order or judgment passed by the Court in
absentia against an accused is void ab initio and
shall not be acted upon.”
As far as Article 63(1)(p) of the Constitution, referred to by
the learned counsel, relating to disqualification for becoming
the member of the Parliament, is concerned, it provides that a
person shall be disqualified from being elected or chosen, as
and from, being a member of the Majlis-e-Shoora
(Parliament) if he has been convicted and sentenced to
imprisonment for having absconded by a competent Court
under any law for the time being in force. On Court’s query,
NAB has provided the list of the persons, convicted under
Section 31A of the NAO, 1999 because we wanted to
ascertain whether there is any case of convict/absconder
who has been extended benefit of this provision. In view of
available material, it was considered appropriate to examine
Const.P.76/2007, etc. 98
the constitutionality/ vires of this provision of the NRO, 2007
as well.
69. It is important to note that this Court has earlier
granted relief to the convicts under Section 31A; firstly in an
unreported judgment in Gulzaman Kasi v. The State
(Criminal Appeal No. 269 of 2003), wherein allegation
against the appellant was that he in his capacity as the
Minister for Development Government of Balochistan/
Chairman, Quetta Development Authority, in connivance
with Mr. Abdus-Saleem Durrani, Director General, converted
a plot meant for school/play ground, into six residential
plots and allotted the same to their close relatives and
associates and thereby committed offence under Section 9(b)
of the NAO, 1999. The learned Bench of three Hon’ble Judges
of this Court, has held that the impugned conviction of the
appellant cannot be sustained for two reasons; firstly that
trial in absentia has been declared violative of Article 9 of the
Constitution in Mehram Ali v. Federation of Pakistan (PLD
1998 SC 1445); and secondly appellant was subsequently
arrested in the matter and was tried on the allegations which
form subject matter of the reference, in which he was
convicted in absentia; his appeal was dismissed by High
Court of Balochistan and his Criminal Petition No. 68-Q of
2003 is pending decision before this Court and would be
Const.P.76/2007, etc. 99
decided along with this appeal; therefore, the convict was
released.
70. It is to be noted that this case is distinguishable
from the case relating to disqualification of a person being
elected as a member of the Parliament, or from being a
member of the Parliament, because the question as to
whether he has been rightly convicted in absentia or
otherwise, is to be decided by the Court of law and the
powers of the Court could not be substituted or conferred
according to Section 6 of the NRO, 2007 on the legislature to
declare that an order or judgment passed by a Court of
competent jurisdiction in absentia is void ab initio and shall
not be acted upon. It may also be kept in mind that; firstly
Section 6 of the NRO, 2007 is general in its nature and benefit
of the same can be derived by a candidate for becoming the
member of the Parliament, or a member of the Parliament, or
by other ordinary person; secondly, it has not been made
applicable for a specific period. Therefore, if it being an
amended provision continued to remain intact for all the
times to come, conviction in absentia under Section 31A of
the NAO, 1999 shall be void and for all practical purposes
Section 31A of the NAO, 1999 shall be deemed to have been
annulled. Before proceeding further, it is necessary to answer
that the observation made in Mehram Ali’s case (PLD 1998
Const.P.76/2007, etc. 100
SC 1445) and in Gulzaman Kasi’s case (Criminal Appeal No.
269 of 2003) could have not been made in view of the
distinctive facts, namely, in the said case Court was
authorized to remove the accused from the Court on his
misbehaviour and in his absence the trial was concluded and
he was sentenced to death, therefore, it was considered
violation of Article 9 of the Constitution. Be that as it may,
Hon’ble same Judge of this Court i.e. Mr. Justice Tassaduq
Hussain Jillani, in his subsequent judgment in the case of
Manzoor Qayyum v. The State (PLD 2006 SC 343) has held
as follows :-
“6. The question whether the petitioner had
absconded, "in order to avoid being served with any
process issued by any Court or any other authority or
officer under this Ordinance" would be a question of
fact to , be decided by the Trial Court in the light of
the material brought before it. The reference by
learned counsel for the petitioner to a judgment of the
Karachi High Court, Noor Muhammad Khatti and
others v. The State 2005 PCr.LJ 1889 may not be
relevant at this stage before this Court. It rather
contains instructive guidelines for a Trial Court
seized of a case under section 31-A of the NAB
Ordinance. In the said case, the learned Karachi High
Court delved at length on the scope of the aforereferred
section, the nature of evidence the
prosecution has to produce to prove the avoidance of
service of notice or of execution of warrants
particularly when an accused allegedly leaves the
Const.P.76/2007, etc. 101
country. But having observed all this, the Court
directed the appellant to appear before the Trial Court
"as and when required by the said Courts for further
proceedings in accordance with law". In the case of
N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR
(29) 1942 Madras 289, a trial Magistrate had issued
warrants of attachment and proclamation on account
of non-appearance of the accused and the same were
set aside by the High Court but the main complaint
pending before the said Magistrate was not interfered
with. The High Court held as under:-
"It is obvious that when the Magistrate was
informed that the petitioner had already left
India, the orders for attachment and
proclamation are without jurisdiction, unless he
was satisfied that the accused was willfully
absconding, knowing of the warrant. He could
not have known of the warrant which was
issued after he had left India. When it was clear
that the accused had left India in March, it
could not possibly be said that he absconded or
that he is concealing himself so that the warrant
cannot be executed, which is a condition
precedent under S.87, Criminal P.C. for the
issue of a proclamation. It is also a condition
precedent for the issue of attachment under
S.88. It was at first said that the petitioner was
still in India and that he is concealing himself
somewhere in India. If this is so, the action of
the Magistrate would be perfectly justified. I
asked the complainant whether he would state
so in an 'affidavit, and I gave him an
opportunity of stating it in an affidavit. In the
affidavit filed by him he has not contradicted
the statement made on behalf of the petitioner
that he left India in March. Under these
circumstances, I hold that the orders of
proclamation and attachment are without
jurisdiction and as such they are set aside."
7. In the instant case as well, the learned High Court
while setting aside the conviction under section 31-A
of NAB Ordinance, left the matter to Trial Court to
Const.P.76/2007, etc. 102
decide it afresh. The precise question which the
learned Trial Court would be seized of now is
whether the allegation of absconsion or avoidance of
service of the process of the Trial Court is borne out
from the record or material placed before it or not.
This Court would not pre-empt the function of the
Trial Court. In these circumstances, the judgment of
the learned High Court is unexceptionable. However,
the petitioner would be within his right to move an
application under section 265-K, Cr.P.C. and if such
an application is moved, the learned Trial Court shall
decide the same on merit with independent
application of mind within 15 days of its presentation
as assured by learned Deputy Prosecutor General of
NAB.”
71. On having gone through the above judgment, it is
crystal clear that offence falling within the mischief of Section
31A of the NAO, 1999 is distinct offence, from the allegations
made in the reference, which was filed against an accused
and if the convict has been acquitted in the reference or the
reference has been withdrawn, even then the conviction
under Section 31A of the NAO, 1999 remain operative and
the convict has to avail remedy, for getting it set aside, by
approaching the next higher judicial forum, as envisaged
under Section 32 of the NAO, 1999.
72. As discussed above, conviction in absentia is a
final order, therefore, no other forum can declare such
Const.P.76/2007, etc. 103
conviction as void, except a judicial forum, that too, by filing
an appeal. But in instant case, as it has been pointed out
hereinabove, by amending a law, such conviction has been
declared void, therefore, the amendment in Section 31A of
the NAO, 1999 by inserting clause (aa), by means of Section 6
of the NRO, 2007, is declared void being against the
provisions of Section 31A read with Section 32 of the NAO,
1999, which provides remedy to the convict to file appeal.
73. There is another judgment in the case of The
State v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), in
which appeal filed by the State against the acquittal of the
respondent, has been dismissed, inter alia, for the reason that
the respondent convict under Section 31A of the NAO, 1999,
voluntarily surrendered himself before the High Court,
where appeal against his conviction was pending; he was
acquitted of the charge under Section 31A by the High Court,
which was considered to be unexceptional and the State
appeal was dismissed. This Court in another judgment in
State v. Naseem-ur-Rehman (2004 SCMR 1943) in respect of
the respondent, convicted under Section 31A of the NAO,
1999 observed that it was obligatory upon the convict to
approach the Court; first of all he should surrender to the
order of his imprisonment, meaning thereby that on
Const.P.76/2007, etc. 104
surrendering before the Court he should be taken into
custody and the Court might order for his release in appeal
and if such person is not taken into custody or not admitted
to bail, then he will be deemed to be fugitive from law and
would not be entitled to any relief.
74. The above discussion poses another important
question, namely, whether the legislature by means of an
enactment can undo the effect of the judgment in which the
person has been convicted for an offence and if he is ‘holder
of public office’, his such conviction is a disqualification to be
elected as a member of the Parliament, or to be a member of
the Parliament, under Article 63(1)(p) of the Constitution? In
this behalf the simple answer would be that with reference to
a person, who intended to become the member of the
Parliament, or is a member of the Parliament, no legislation is
possible to grant him relief in presence of the provisions of
the Constitution, being a parent law. It is well settled by the
time that no legislation on any subject is permissible which is
against the specific provision of the Constitution. In this
behalf we are fortified with the judgment in Wattan Party v.
Federation of Pakistan (PLD 2006 SC 697), wherein it has
been held as under:-
“……………… Besides it is an accepted principle of the
Constitutional jurisprudence that a Constitution being a
Const.P.76/2007, etc. 105
basic document is always treated to be higher than
other statutes and whenever a document in the shape of
law given by the Parliament or other competent
authority is in conflict with the Constitution or is
inconsistent then to that extent the same is liable to be
declared un-Constitutional. This is not for the first time
that a law like Ordinance 2000 has come for
examination before the Court as in the past a number of
laws were examined and when found against the
Constitution the same were declared void and of no
legal effect. …………………….(emphasis provided).
75. It is also important to note that this law has
opened the door of the Parliament, for the persons, convicted
in absentia, as the disqualification for a person to become a
member of Parliament and for a member of Parliament under
Article 63(1)(p) of the Constitution has been removed by
means of clause (aa) inserted in Section 31A of the NAO,
1999, a person, who has been convicted under Section 31A of
the NAO, 1999, in absentia, with a stigma of a convict, has
been made qualified to enter into the Parliament, contrary to
the Constitutional provisions as well as law laid down in the
case of Abdul Baqi v. Muhammad Akram (PLD 2003 SC
163).
76. As far as nullifying the effect of a judgment by
means of a legislation is concerned, there are certain
limitations including the one i.e. by amending the law with
Const.P.76/2007, etc. 106
retrospective effect, on the basis of which the order or
judgment has been passed, thereby removing the basis of the
decision. Reference in this behalf can be made to Tofazzal
Hossain v. Province of East Pakistan (PLD 1963 SC 251),
Tirath Ram Rajindra Nath v. State of U.P. (AIR 1973 SC
405), Mamukanjan Cotton Factory v. Punjab Province
(PLD 1975 SC 50) and Misrilal Jain v. State of Orissa (AIR
1977 SC 1686). However, in the case of I.N. Saksena v. State
of Madhya Pradesh (AIR 1976 SC 2250), following principle
has been laid down:-
“Firstly, whether the legislature possesses competence
over the subject matter, and, secondly, whether by
validation the legislature has removed the defect which
the courts had found in the previous law. To these we
may add a third. Whether it is consistent with the
provisions of Part III of the Constitution.
It is to be noted that the NAB has placed on record the
material pointing out the names of the beneficiaries, who
have derived benefit under Section 6 of the NRO, 2007 but
applying the test laid down hereinabove, we can safely
conclude that the insertion of clause (aa) in Section 31A of the
NAO, 1999 is without lawful authority, as it has not amended
the original Section 31A of the NAO, 1999, which is still
intact with all its consequences and effects. It is pertinent to
mention here that the language used in an enactment must
Const.P.76/2007, etc. 107
show the intention of the lawgiver that it would apply with
retrospective effect and shall be deemed always to have been
so inserted in the respective statute. In this behalf reference
may be made to Fecto Belarus Tractor v. Government of
Pakistan (PLD 2005 SC 605). Relevant para therefrom is
reproduced hereinbelow for convenience:-
54. Besides, the language used in both the
Ordinances manifests clear intention of the law giver
that it would apply with retrospective effect and shall
be deemed always to have been so inserted in
respective statutes. Identical language was used in
section 5 of the Finance Act 1988 in pursuance whereof
section 31-A was inserted in the Customs Act,1969 with
retrospective effect. This Court had occasion to examine
this provision of law in Molasses Trading and Export
(ibid). Relevant paras, therefrom read as under:-
“……..Before considering this question it would
be appropriate to make certain general
observations with regard to the power of
validation possessed by the legislature in the
domain of taxing statutes. It has been held that
when a legislature intends to validate a tax
declared by a Court to be illegally collected under
an invalid law, the cause for ineffectiveness or
invalidity must be removed before the validation
can be said to have taken place effectively. It will
not be sufficient merely to pronounce in the
statute by means of a non obstante clause that the
decision of the Court shall not bind the
authorities, because that will amount to reversing
a judicial decision rendered in exercise of the
judicial power which is not within the domain of
the legislature. It is therefore necessary that the
conditions on which the decision of the Court
intended to be avoided is based, must be altered
so fundamentally, that the decision would not
any longer be applicable to the altered
circumstances. One of the accepted modes of
Const.P.76/2007, etc. 108
achieving this object by the legislature is to reenact
retrospectively a valid and legal taxing
provision, and adopting the fiction to make the
tax already collected to stand under the reenacted
law. The legislature can even give its own
meaning and interpretation of the law under
which the tax was collected and by “legislative
fait” make the new meaning binding upon
Courts. It is in one of these ways that the
legislature can neutralize the effect of the earlier
decision of the Court. The legislature has, within
the bounds of the Constitutional limitations, the
power to make such a law and give it
retrospective effect so as to bind even past
transactions. In ultimate analysis, therefore, the
primary test of validating piece of legislation is
whether the new provision removes the defect
which the Court had found in the existing law
and whether adequate provisions in the
validating law for a valid imposition of tax were
made…………………………………………………
……… it is clear from the provisions of section 5
of the Finance Act, 1988 that by the device of the
deeming clause the newly-inserted section 31-A is
to be treated as part and parcel of the Act since its
enforcement in 1969. Undoubtedly, therefore, the
section is retrospective in operation. It is agreed
on all hands that the well-settled principles of
interpretation of statutes are that vested rights
cannot be taken away save by express words or
necessary intendment. It also cannot be disputed
that the legislature, which is competent to make a
law, has full plenary powers within its sphere of
operation to legislate retrospectively or
retroactively. Therefore, vested rights can be
taken away by such a legislation and it cannot be
struck down on that grounds. However, it has
also been laid down in Province of East Pakistan
v. Sharafatullah PLD 1970 SC 514 that A statute
cannot be read in such a way as to change
accrued rights, the title to which consists in
transactions past and closed or any facts or events
that have already occurred. In that case that
following postulation has been made:-
“In other words liabilities that are fixed or
rights that have been obtained by the
operation of law upon facts or events for or
perhaps it should be said against which the
existing law provided are not to be
disturbed by a general law governing
Const.P.76/2007, etc. 109
future rights and liabilities unless the law
so intends.”
This is an important principle which has to be kept in
mind in the context of the present case. Reference may
also be made to another principle followed is several
decisions but to quote from Mehreen Zaibun Nisa v.
Land Commissioner, Multan (PLD 1975 SC 397) where
it was observed:
“When a statute contemplates that a state of
affairs should be deemed to have existed, it
clearly proceeds on the assumption that in fact it
did not exist at the relevant time but by a legal
fiction we are to assume as if it did exist. The
classic statement as to the effect of a deeming
clause is to be found in the observations of Lord
Asquith in East End Dwelling Company Ltd. V.
Finsbury Borough Council (1952)AC 109)
namely:-
‘Where the statute says that you must
imagine the state of affairs, it does not say
that having done so you must cause or
permit your imagination to boggle when it
comes to the inevitable corollaries of that
state of affairs.”
However, in that case aforesaid principle was subjected
in its application to a given case to condition that the
Court has to determine the limits within which and the
purposes for which the legislature has created the
fiction. It has been quoted from an English decision that
“When a statute enacts that something shall be deemed
to have been done which in fact and in truth was not
done, the Court is entitled and bound to ascertain for
what purposes and between what persons the statutory
fiction is to be resorted to.”
77. The examination of the above principle
abundantly makes it clear that since the basis of the
judgment, in respect of conviction in absentia under Section
Const.P.76/2007, etc. 110
31A of the NAO, 1999, has not been removed, pointing out
any defect in the same by the legislature, therefore, the
legislature, by means of an enactment, could not give a
judgment that conviction in absentia was void ab initio, rather
for the purpose of declaring such judgments void ab initio, it
was incumbent upon the legislature to have repealed Section
31A of the NAO, 1999 because on the basis of the same the
absconder accused were convicted. More so, to nullify the
effect of a judgment, by means of a legislative enactment, we
have to examine the nature of each judgment separately and
individually but in instance case omni bus type order has
been passed, declaring all the judgments recorded under
Section 31A of the NAO, 1999 as void ab initio, without
pointing out any defect in the same. Under the civil
administration of justice, plethora of case law is available on
the point that how an effect of a judgment can be nullified or
neutralized, particularly the judgment in which, on the basis
of existing laws, the Courts have come to the conclusion that
the tax was not recoverable but the Government by issuing a
legislation, with retrospective effect, has removed the defect
in the law, thereby nullified the effect of the judgment, as a
result whereof the Government continued to effect the
recovery of tax. This is in respect of the civil matters, but in
the criminal administration of justice we have not succeeded
Const.P.76/2007, etc. 111
in laying hand on such identical principles, applied in civil
cases, on the point, therefore, we have to rely upon Treaties
on the Constitutional Limitation by Thomas M. Cooley,
wherein it has been held as follows:-
“If the legislature would prescribe a different rule for
the future from that which the courts enforce, it must be
done by statute, and cannot be done by a mandate to
the courts, which leaves the law unchanged, but seeks
to compel the courts to construe and apply it not
according to the judicial, but according to the legislative
judgment. But in any case the substance of the
legislative action should be regarded rather than the
form; and if it appears to be the intention to establish by
declaratory statute a rule of conduct for the future, the
courts should accept and act upon it, without too nicely
inquiring whether the mode by which the new rule is
established is the best, most decorous and suitable that
could have been adopted or not.
If the legislature cannot thus indirectly control the
action of the courts, by requiring of them a construction
of the law according to its own views, it is very plain it
cannot do so directly, by setting aside their judgments,
compelling them to grant new trials, ordering the
discharge of offenders, or directing what particular
steps shall be taken in the progress of a judicial
inquiry.”
78. However, in respect of criminal cases, this issue
has to be approached differently than the matters relating to
civil disputes, payment of taxes, etc. The legislative authority,
Const.P.76/2007, etc. 112
ordinarily is not required to enter into the domain of
judiciary. It has been noted, time and again, that under the
scheme of the Constitution, the judiciary has an independent
role, amongst three organs of the State, as it has been held in
Mahmood Khan Achakzai’s case (PLD 1997 SC 426),
Mehram Ali’s case (PLD 1998 SC 1445), Liaquat Hussain’s
case (PLD 1999 SC 504) and Syed Zafar Ali Shah’s case
(PLD 2000 SC 869). Relevant extracts from the last mentioned
judgment are reproduced hereinbelow for convenience:-
“210. The independence of Judiciary is a basic principle
of the constitutional system of governance in Pakistan.
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". The rulings of the
Supreme Court in the cases of Government of Sindh v.
Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra)
and Malik Asad Ali v. Federation of Pakistan (PLD 1998
SC 161), indeed, clarified the constitutional provisions
and thereby further strengthened the principle of the
independence of Judiciary, by providing for the
separation of Judiciary from the executive, clarifying the
qualifications for appointment of Judges of the High
Courts, prescribing the procedure and the time frame
for appointment of Judges, appointment of Chief
Justices and the transfer of a Judge from a High Court to
Const.P.76/2007, etc. 113
the Federal Shariat Court. Furthermore, the Supreme
Court judgments in the cases of Mehram Ali and
Liaquat Hussain (supra) are also in line with the above
rulings, in as much as, they elaborated and reiterated
the principle of judicial independence and the
separation of Judiciary from the executive.
211. 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.
212. 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
Const.P.76/2007, etc. 114
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.”
The above principle has been reiterated in Sindh High Court
Bar Association's case (PLD 2009 SC 879), with approval.
79. Undoubtedly, the legislative authority has to
perform those functions, which have been recognized by the
Constitution. There is no such provision on the basis of
which a judgment can be annulled, except in civil cases, that
too, subject to following the principles laid down
hereinabove. As far as matters relating to criminal
administration of justice are concerned, where a judgment
has been announced on the basis of law, the legislative
authority cannot annul such judgment without pointing out
any flaw in the law, which is the basis of such a judgment; as
in the instant case, no amendment has been made in the
original text of Section 31A of the NAO, 1999, therefore, it
would lead us to the conclusion that the judgment
pronounced under the law, by a Court of competent
jurisdiction, is a judgment which has been pronounced
legally, according to the mandate, conferred upon the Court
and such judgment or order cannot be annulled by means of
Const.P.76/2007, etc. 115
an enactment. It is well settled principle of law that upon
feeling aggrieved by any judgment pronounced in the
criminal administration of justice, the aggrieved person has
been provided with the remedies to invoke the jurisdiction of
the higher Courts, within the hierarchy. Similarly, in the case
in hand, if a person is aggrieved by an order of
conviction/sentence recorded against him under Section 31A
of the NAO, 1999, he has remedy under Section 32 of the
NAO, 1999 to file an appeal before the High Court.
80. As it has been noted hereinabove that if the
legislative authority is not aggrieved, in any manner, by the
judgment pronounced by the Courts discharging its
functions under Section 31A of the NAO, 1999, the said
judgment could only be set aside, varied, suspended as per
the procedure laid down in the NAO, 1999 and not by
enforcing or adopting legislative measures. In this behalf, this
Court, in Abdul Kabir v. State (PLD 1990 SC 823), has
highlighted this aspect, in the following manner:-
“……………… A conviction is complete as soon as the
person charged has been found guilty by a Court of
competent jurisdiction. During the pendency of an
appeal, appellate Court may suspend the sentence
under section 426, Cr.P.C. So execution of sentence of
petitioner is suspended and not his conviction which
remains operative till it is set aside by the higher
Const.P.76/2007, etc. 116
appellate Courts. Pendency of the appeal for decision
does not ipso facto mean that the conviction is wiped
out. The appellate Court has no authority under section
426 to suspend the conviction. Conviction and sentence
connote two different terms. Conviction means proving
or finding guilty. Sentence is punishment awarded to a
person convicted in criminal trial. Conviction is
followed by sentence. It cannot be accepted as principle
of law that till matter is finally disposed of by Supreme
Court against convicted person, the conviction would
be considered as held in abeyance. This interpretation is
not in consonance with the spirit of law and against
logical coherence. The suspension of sentence is only a
concession to an accused under section 426, Cr.P.C. but
it does not mean that the conviction is erased.
Therefore, in view of the fourth proviso, the third
proviso to section 497(1), Cr.P.C. is not attracted to the
case of the petitioner.”
In the case in hand, without any reasonable justification,
both, the conviction and the sentence, have been declared
void, by adding clause (aa) in Section 31A of the NAO, 1999,
which definitely is against the norms and the principles of
justice.
81. The legislature is competent to legislate but
without encroaching upon the jurisdiction of the judiciary. If,
it is presumed that the insertion of clause (aa) in Section 31A
of the NAO, 1999, by means of Section 6 of the NRO, 2007, is
constitutionally valid even then it would be tantamount to
Const.P.76/2007, etc. 117
allow the legislature to pronounce a judicial verdict against
an order or judgment of a competent Court of law, declaring
the same to be void ab initio. Therefore, following the
doctrine of trichotomy of powers, the action of the legislative
authority, whereby clause (aa) has been inserted in Section
31A of the NAO, 1999, by means of the NRO, 2007, would be
considered to be a step to substitute the judicial forum with
an executive authority. Thus, it would not be sustainable
being contrary to the principle of independence of judiciary,
as mentioned in Article 2A of the Constitution, which
provides that independence of judiciary shall be fully
secured read with Article 175 of the Constitution, which lays
down a scheme for the establishment of the Courts, including
the superior Courts and such other Courts as may be
established by law. In the case in hand, except an appeal
under Section 32 of the NAO, 1999 to the High Court of the
Province, no other remedy is available to a convict against his
conviction/sentence, to get it set aside. For convenience,
Section 32 of the NAO, 1999 is reproduced hereinbelow:-
32. Appeal [and revision]:
(a) Any person convicted or the Prosecutor General
Accountability, if so directed by Chairman NAB,
aggrieved by the final judgement and order of the
Court under this Ordinance may, within ten days
of the final judgement and order of the Court
prefer an appeal to the High Court of the
Province where the Court is situated:
Const.P.76/2007, etc. 118
Provided that no appeal shall lie against any
interlocutory order of the Court.
(b) All Appeals against the final judgement and
Order filed before the High Court will be heard
by a Bench of not less than two judges constituted
by the Chief Justice of the High Court and shall
be finally disposed of within thirty days of the
filing of the Appeal.
(c) No revision shall lie against any interlocutory
order of the Court.
Thus, no other forum including the legislature is empowered
to declare an order or judgment, whereby conviction has
been recorded under Section 31A of the NAO, 1999, to be
void ab initio except in civil cases pertaining to the tax
matters, etc., as discussed above. As far as Articles 2A and
175 of the Constitution are concerned, they furnish guarantee
for securing the independence of judiciary. This is not the
only case in which we are confronted with such situation.
Right from the case of Government of Sindh v. Sharaf
Faridi (PLD 1994 SC 105) to Mehram Ali’s case (PLD 1998 SC
1445), followed by in Liaquat Hussain’s case (PLD 1999 SC
504), this Court has always interpreted Article 175 of the
Constitution read with one of the items of the Objective
Resolution, which has been enshrined in Article 2A of the
Constitution, guaranteeing independence of judiciary.
The observations made above are not in
derogation to the powers of the Parliament. There may
indeed be cases in which Parliament may, by appropriate
Const.P.76/2007, etc. 119
legislation, and by manifestation of appropriate intent and
use of language, be competent to nullify the effect of a
judgment in the given circumstances of the case. This,
however, is not such a case as an unspecified number of
convictions, on differing facts and evidence, are sought to be
set aside in one swipe. This is going beyond legislative
competence and Parliament itself wisely decided not to
intervene to make permanent a temporary law (Ordinance)
by enacting as an Act of Parliament. We are only endorsing
the will of the elected representatives in following their
intent.
82. It may also be noted that Article 203 of the
Constitution is also another important provision of the
Constitution which provides that each High Court shall
supervise and control all Courts subordinate to it. In this
context following para from the Mehram Ali’s case (PLD 1998
SC 1445), being advantageous is reproduced hereinbelow:-
“11. From the above case-law the following legal
position obtaining in Pakistan emerges:-
(i) That 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.
(ii) That 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
Const.P.76/2007, etc. 120
subordinate Courts referred to in Article 203
thereof.
(iii) That our Constitution recognizes 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 must 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.
(iv) That in view of Article 203 of the Constitution
read with Article 175 thereof the supervision and
control over the subordinate judiciary vest in
High Courts, which is exclusive in nature,
comprehensive in extent and effective in
operation.
(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.”
Const.P.76/2007, etc. 121
83. It is to be borne in mind that as per the dictum,
laid down hereinabove, the intervention by the executive,
contrary to the principles of independence of judiciary, has
been declared unconstitutional. Reference in this behalf, if
needed, may be made to short order in Mehram Ali’s case
(PLD 1998 SC 1445) dated 15th May 1998, which is reproduced
hereinbelow for ready reference:-
"For the reasons to be recorded later on, we dispose of
the above cases as under:-
(i) Section 5(2)(i) is held to be invalid to the
extent it authorises the officer of Police, armed
forces and civil armed forces charged with the
duty of preventing terrorism, to open fire or
order for opening of fire against person who in
his opinion in all probability is likely to commit a
terrorist act or any scheduled offence, without
being fired upon;
(ii) section 10 of the Anti-Terrorism Act, 1997,
hereinafter referred to as the Act, in its present
form is not valid; the same requires to be suitably
amended as to provide that before entering upon
premises which is suspected to have material or a
recording in contravention of section 8 of the Act,
the concerned officer of Police, armed forces or
civil armed forces shall record in writing his
reasons for such belief and serve on the person or
premises concerned a copy of such reasons before
conducting such search;
(iii) section 19(10)(b) of the Act, which provides
for trial of an accused in absentia on account of
his misbehaviour in the Court, is violative of
Article 10 of the Constitution and, therefore, is
declared as invalid;
(iv) sections 24, 25, 27, 28, 30 and 37 of the Act
are also not valid in their present form as they
militate against the concept of independence of
judiciary and Articles 175 and 203 of the
Constitution. They need to be amended as to vest
the appellate power in a High Court instead of
Const.P.76/2007, etc. 122
Appellate Tribunal and to use the words "High
Court" in place of "Appellate Tribunal";
(v) section 26 of the Act 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 'Judicial
Magistrate';
(vi) that the offences mentioned in the Schedule
should have nexus with the objects mentioned in
sections 6, 7 and 8 of the Act;
(vii) section 35 of the 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;
(viii) section 14 of the Act 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.”
Subsequent thereto, Article 175 of the Constitution has been
interpreted in Liaquat Hussain’s case (PLD 1999 SC 504). As
per the facts of this case, petitioner Liaquat Hussain
challenged the Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 promulgated on 20th
November, 1998 whereby the civilians were to be tried by the
Military Courts for the civil offences, mentioned, inter alia, in
the schedule of the Ordinance, on various grounds
concerning the jurisdiction of the Courts to discharge judicial
Const.P.76/2007, etc. 123
functions. The Court, while taking into consideration the
principles highlighted in Mehram Ali’s case (PLD 1998 SC
1445) observed as follows:-
“15. The above-quoted extract from the above judgment
in the case of Mehram Ali and others v. Federation of
Pakistan and others (PLD 1998 SC 1445), indicates that it
has been inter alia held that our Constitution recognises
only such specific Tribunals to share judicial power
with the Courts referred to in Articles 175 and 203,
which have been specifically provided by the
Constitution itself, like Federal Shariat Court (Chapter
3-A of the Constitution), Tribunals under Article 212,
Election Tribunals (Article 225) and 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. Admittedly the Military Courts to be
convened under section 3 of the impugned Ordinance
do not fall within the category of the Courts referred to
in the above Articles. This was even so contended by
the learned Attorney-General as reflected from his
arguments reproduced hereinabove in para. 11. Neither
the above Military Courts nor the personnel to man the
same qualify the other requirements spelled out in the
case of Mehram Ali reproduced hereinabove in para.14.
The question which needs examination is, as to
whether by virtue of invocation of Article 245 of the
Constitution for calling the Armed Forces to act in aid
of civil power, the impugned Ordinance could have
been promulgated for convening Military Courts in
terms of section 3 thereof. This will, inter alia involve
Const.P.76/2007, etc. 124
the determination as to the meaning and import of the
expression "The Armed Forces shall………and, subject
to law, act in aid of civil power when called upon to do
so" used in clause (1) of Article 245 of the Constitution. I
may, at this stage, reproduce the above Article 245 of
the Constitution, which reads as follows:
"245. Functions of Armed Forces.-(1) The Armed
Forces shall, under the directions of the Federal
Government, defend Pakistan against external
aggression or threat of war, and, subject to law,
act in aid of civil power when called upon to do
so.
(2) The validity of any direction issued by the
Federal Government under clause (1), shall not be
called in question in any Court.
(3) A High Court shall not exercise any
jurisdiction under Article 199 in relation to any
area in which the Armed Forces of Pakistan are,
for the time being, acting in aid of civil power in
pursuance of Article 245:
Provided that this clause shall not be deemed to
affect the jurisdiction of the High Court in respect
of any proceeding pending immediately before
the day on which the Armed Forces start acting in
aid of civil power.
(4) Any proceeding in relation to an area referred
to in clause (3) instituted on or after the day the
Armed Forces start acting in aid of civil powers
and pending in any High Court shall remain
suspended for the period during which the
Armed Forces are so acting."
It may be highlighted that the original Article 245
comprised what is now clause (1) thereof. Clauses (2) to
(4) were added by the Constitution (Seventh
Amendment) Act, 1977 (Act 23 of 1977) with effect from
21st April, 1977.
It may be stated that the above-quoted clause (1)
imposes two Constitutional duties on the Armed Forces
Const.P.76/2007, etc. 125
to be performed upon the direction of the Federal
Government:
(i) To defend Pakistan against external
aggression or threat of war; and
(ii) subject to law, act in aid of civil power when
called upon to do so.
Whereas clause (2) thereof lays down that the validity
of any direction issued by the Federal Government
under clause (1) shall not be called in question in any
Court.
It may further be noticed that clause (3) thereof
provides that a High Court shall not exercise any
jurisdiction under Article 199 in relation to any area in
which the Armed Forces of Pakistan are, for the time
being, acting in aid of civil power in pursuance of
Article, but subject to the proviso that the jurisdiction of
the High Court is not to be affected in respect of the
proceedings pending immediately before the day on
which the Armed Forces start acting in aid of civil
power.
It may also be pointed out that clause (4) thereof lays
down that any proceedings in relation to an area
referred to in clause (3) instituted on or after the day the
Armed Forces start acting in aid of civil powers and
pending in any High Court shall remain suspended for
the period during which the Armed Forces are so
acting.”
84. It is worth mentioning that in the above referred
case, Military Courts were established to try the civilians to
meet the challenge of terrorism, inter alia, for one of the
reasons that the cases of terrorists are not being disposed of
Const.P.76/2007, etc. 126
expeditiously. This Court declared that the trial of the
civilians under the impugned Ordinance, so far as it laid
down the establishment of the Military Courts, was
unconstitutional. Contents of the operative para from the
short order dated 17th February, 1999 are reproduced
hereinbelow:-
“After hearing the learned counsel for the petitioners,
the petitioners in person, the learned Attorney-General
for Pakistan and the learned Advocate-General, Sindh,
for the reasons to be recorded later, we are of the view
that Ordinance No.Xll of 1998 as amended up to date in
so far as it allows the establishment of Military Courts
for trial of civilians charged with the offences
mentioned in section 6 and the Schedule to the above
Ordinance is unconstitutional, without lawful authority
and of no legal effect and that the cases in which
sentences have already been awarded but the same
have not yet been executed shall stand set aside and the
cases stand transferred to the Anti-Terrorist Courts
already in existence or which may hereinafter be
created in terms of the guidelines provided hereunder
for disposal in accordance with the law. The evidence
already recorded in the above cases and the pending
cases shall be read as evidence in the cases provided
that it shall not affect any of the powers of the Presiding
Officer in this regard as is available under the law. The
above declaration will not affect the sentences and
punishments already awarded and executed and the
cases will be treated as past and closed transactions.”
Const.P.76/2007, etc. 127
To ensure expeditious disposal of the case, the guidelines
have also been provided under para 3, which reads as under:-
“3. Since we are seized of these petitions in exercise
of our Constitutional jurisdiction under Article 184(3) of
the Constitution, we lay down the following guidelines
which may contribute towards the achievement of the
above objective:
(i) Cases relating to terrorism be entrusted to the
Special Courts already established or which may
be established under the Anti-Terrorism Act, 1997
(hereinafter referred to as A.T.A.) or under any
law in terms of the judgment of this Court in the
case of Mehram Ali and others v. Federation of
Pakistan (PLD 1998 SC 1445);
(ii) One case be assigned at a time to a Special
Court and till judgment is announced in such
case, no other case be entrusted to it:
(iii) The concerned Special Court should proceed
with the case entrusted to it on day to day basis
and pronounce judgment within a period of 7
days as already provided in A.T.A. or as may be
provided in any other law:
(iv) Challan of a case should be submitted to a
Special Court after full preparation and after
ensuring that all witnesses will be produced as
and when required by the concerned Special
Court;
(v) An appeal arising out of an order/judgment
of the Special Court shall be decided by the
appellate forum within a period of 7 days from
the filing of such appeal:
(vi) Any lapse on the part of the Investigating
and Prosecuting Agencies shall entail immediate
disciplinary action according to the law
applicable;
(vii) The Chief Justice of the High Court
concerned shall nominate one or more Judges of
the High Court for monitoring and ensuring that
the cases/appeals are disposed of in terms of
these guidelines;
Const.P.76/2007, etc. 128
(viii) That the Chief Justice of Pakistan may
nominate one or more Judges of the Supreme
Court to monitor the implementation of the above
guidelines. The Judge or Judges so nominated
will also ensure that if any petition for leave/or
appeal with the leave is filed, the same is
disposed of without any delay in the Supreme
Court;
(ix) That besides invoking aid of the Armed
Forces in terms of sections 4 and 5 of the A.T.A.,
the assistance of the Armed Forces can be pressed
into service by virtue of Article 245 of the
Constitution at all stages including the security of
the Presiding Officer, Advocates and witnesses
appearing in the cases, minus the process of
judicial adjudication as to the guilt and quantum
of sentence, till the execution of the sentence."
Inter alia, mechanism was provided for appointment of
monitoring teams by the Chief Justice of the High Court
concerned, who were required to nominate one or more
judges of the High Court for monitoring and ensuring that
the cases/appeals shall be disposed of in terms of these
guidelines. However, Chief Justice of Pakistan was also
allowed to nominate one or more Judges of the Supreme
Court to monitor the implementation of the above guidelines
and to ensure that if any petition for leave to appeal or any
appeal with the leave is filed, the same is disposed of without
any delay in the Supreme Court, etc.
85. Essentially, the above guidelines/directions for
expeditious disposal of cases were issued by this Court, in
exercise of its powers under Article 187 of the Constitution,
which provides that Supreme Court shall have power to
Const.P.76/2007, etc. 129
issue such directions, orders or decrees, as may be necessary
for doing complete justice in any case or matter pending
before it, including an order for the purpose of securing the
attendance of any person or the discovery or production of
any document. This Article of the Constitution has been
interpreted in so many cases. However, reference is being
made only to Sabir Shah’s case (PLD 1995 SC 66). Relevant
para therefrom is reproduced hereinbelow for convenience:-
“10. The Supreme Court is the apex Court. It is the
highest and the ultimate Court under the Constitution.
In my view the inherent and plenary power of this
Court which is vested in it by virtue of being the
ultimate Court, it has the power to do complete justice
without in any manner infringing or violating any
provision of law. While doing complete justice this
Court would not cross the frontiers of the Constitution
and law. The term "complete justice" is not capable of
definition with exactitude. It is a term covering variety
of cases and reliefs which this Court can mould and
grant depending upon the facts and circumstances of
the case. While doing complete justice formalities and
technicalities should not fetter its power. It can grant
ancillary relief, mould the relief within its jurisdiction
depending on the facts and circumstances of the case,
take additional evidence and in appropriate cases even
subsequent events may be taken into consideration.
Ronald Rotunda in his book "Treatise on Constitutional
Case Substance" (Second-Edition), Volume 2 at page 90
has stated that "The Supreme Court is an essence of a
continual Constitutional convention". The jurisdiction
Const.P.76/2007, etc. 130
and the power conferred on the Supreme Court does
empower it to do complete justice by looking to the
facts, circumstances and the law governing a particular
case. Article 187 does not confer any jurisdiction. It
recognises inherent power of an apex Court to do
complete justice and issue orders and directions to
achieve that end. Inherent justification is vested in the
High Court and subordinate Courts while dealing with
civil and criminal cases by virtue of provisions of law.
The inherent jurisdiction of this Court to do complete
justice cannot be curtailed by law as it may adversely
affect the independence of judiciary and the
fundamental right of person to have free access to the
Court for achieving complete justice. This enunciation
may evoke a controversy that as Article 175(2) restricts
Article 187 it will create conflict between the two. There
is no conflict and both the Articles can be read together.
The conflict in the provisions of the Constitution should
not be assumed and if apparently there seems to be any,
it has to be interpreted in a harmonious manner by
which both the provisions may co-exist. One provision
of the Constitution cannot be struck down being in
conflict with the other provision of the Constitution.
They have to live together, exist together and operate
together. Therefore, while interpreting jurisdiction and
power of the superior Courts one should look to the
fundamental rights conferred and the duty cast upon
them under the Constitution. A provision like Article
187 cannot be read in isolation but has to be interpreted
and read harmoniously with other provisions of the
Constitution. In my humble view this Court while
hearing appeal under a statute has the jurisdiction and
power to decide the question of vires of the statute
Const.P.76/2007, etc. 131
under which the appeal has arisen and can even invoke
Article 184(3) in appropriate cases.”
86. This Court, while hearing the petition under
Article 184(3) of the Constitution, enjoys ample powers
under Article 8 of the Constitution, to declare any law
inconsistent with the fundamental rights conferred by the
Constitution or to examine the constitutionality of such law,
on the touchstone of any other provision of the Constitution.
While exercising its constitutional powers, conferred upon
this Court under various provisions of the Constitution,
including Articles 184, 185, 187(1) and 212(3), it also enjoys
enormous powers of judicial review. Besides, it is well settled
by the time that the Apex Court had always been vested with
inherent powers to regulate its own authority of judicial
review, inasmuch as in Zafar Ali Shah’s case (PLD 2000 SC
869) this Court has elaborately discussed the powers of
judicial review, in the following terms:-
“216. Judicial power means that the Superior Courts can
strike down a law on the touchstone of the Constitution,
as this Court did in Mehram Ali's and Sh. Liaquat
Hussain's cases. The nature of judicial power and its
relationship to jurisdiction are all allied concepts and
the same cannot be taken away. The concept of judicial
review was laid down in the United States by Chief
Justice John Marshal in the case William Marbury v.
James Medison (2 Law Ed. 60), ruling that it was
Const.P.76/2007, etc. 132
inherent in the nature of judicial power that the
Constitution is regarded as the supreme law and any
law or act contrary to it or infringing its provisions is to
be struck down by the Court in that the duty and
function of the Court is to enforce the Constitution. The
concept of judicial review did not exist in England
because the supreme law in England was that the
Queen-in-Parliament can do anything and that once an
Act of Parliament has been passed, the Courts were to
follow it. The Founding Fathers of the United States
Constitution, however, deviated from it and in doing so
followed the view expounded by Montesquieu in his
treatise "Spirit of Law", which enumerates the concept
of Separation of Powers: the judicial, the legislative and
the executive powers. Montesquieu based his opinion
on the practice but not the law of England, in that, in
practice there was Separation of Powers in England but
not in theory. Unlike the Constitution of Pakistan, the
Constitution of United States does not confer any power
on the Supreme Court to strike down laws but the
Supreme Court of United States ruled so in the case of
William Marbury v. James Medison (supra).
217. ………………………………………………………….
218. ………………………………………………………….
219. While going through the case-law of Great Britain,
we came across the view expounded by Chief Justice
Coke, whose writings are regarded as an important
source of Common Law, to the effect that the Bench
should be independent of the Crown and arbiter of the
Constitution to decide all disputed questions whereas
Bacon took the view that the Court is under the King
but then following the Plato's theory he (Bacon) wanted
the King to be a philosopher. The evolution of judicial
power is co-terminus with the evolution of civilization
and this is so because judicial power has to check the
arbitrary exercise of powers by any organ or authority.
……..………………………………………………………..”
Const.P.76/2007, etc. 133
Similarly in Wattan Party (PLD 2006 SC 697), the power of
judicial review of this Court has been discussed in the
following terms:-
“47. Article 8 of the Constitution grants the power of
judicial review of legislation according to which this
Court is empowered to declare a law void if it is
inconsistent with or in derogation to the fundamental
rights. However, at the same time this Court is
empowered to declare any legislation contrary to the
provisions of Constitution under some of the identical
provisions of the Constitution as under Article 143 of
the Constitution on having noticed inconsistencies
between the Federal and Provincial laws the Court is
empowered to declare that which out of the two laws is
in accordance with the Constitution. Besides it is an
accepted principle of the Constitutional jurisprudence
that a Constitution being a basic document is always
treated to be higher than other statutes and whenever a
document in the shape of law given by the Parliament
or other competent authority is in conflict with the
Constitution or is inconsistent then to that extent the
same is liable to be declared un-Constitutional. This is
not for the first time that a law like Ordinance 2000 has
come for examination before the Court as in the past a
number of laws were examined and when found
against the Constitution the same were declared void
and of no legal effect. Reference may be made to the
case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf,
Chief Executive of Pakistan (PLD 2000 SC 869) wherein
it was held that judicial power means that the superior
courts can strike down a law on the touchstone of the
Constitution. The nature of judicial power and its
Const.P.76/2007, etc. 134
relation to jurisdiction are all allied concepts and the
same cannot be taken away. It is inherent in the nature
of judicial power that the Constitution is regarded as a
supreme law and any law contrary to it or its provisions
is to be struck down by the Court, as the duty and the
function of the Court is to enforce the Constitution.
Prior to the case of Zafar Ali Shah, this Court had
examined different laws and declared that provisions of
some of them were contrary to the provisions of the
Constitution. Reference to the cases of Mehram Ali ibid,
Sh. Liaquat Hussain v. Federation of Pakistan (PLD
1999 SC 504), Khan Asfand Yar Wali v. Federation of
Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in
view the principles defining the powers of judicial
review of this Court to examine a law at the touchstone
of the Constitution, we have considered the arguments
put forward by learned counsel for the petitioner and
have also minutely gone through the provisions/
sections of the Ordinance 2000 referred to by the
learned counsel in his arguments to ascertain as to
whether any of them negates the provisions of the
Constitution.”
87. In exercise of judicial powers, as it has been
discussed in above referred judgments, while examining the
vires of a statute, the powers of this Court are limited to
examine the legislative competence or to such other
limitations as are in the Constitution and while declaring a
legislative instrument as void, it is not because the judicial
powers are superior in dignity to the legislative powers but
because it enforces the Constitution as a paramount law or
Const.P.76/2007, etc. 135
where the legislative instrument is in conflict with the
Constitutional provisions so as to give effect to it or where
the legislature fails to keep it, within its constitutional
limitations. [Fauji Foundation v. Shamimur Rehman (PLD
1983 SC 457)]. There are cases wherein this Court has
examined the constitutional provisions challenged therein, as
well, but while remaining within its limited sphere, as noted
above. Reference may be made to Wukala Mahaz Barai
Tahafaz Dastoor’s case (PLD 1998 SC 1263).
88. Similarly, in the neighbouring country as well,
the constitutional provisions have been challenged from time
to time. Reference in this behalf may be made to Smt. Indira
Nehru Gandhi’s case (AIR 1975 SC 2299). Brief facts of this
case are that the High Court of Allahabad vide judgment
dated 12th June, 1975 observed that the appellant (Smt. Indra
Nehru Ghandi) held herself out as a candidate from 29th
December, 1970 and was guilty of having committed corrupt
practice by having obtained the assistance of Gazetted
Officers in furtherance of her election prospects; the High
Court further found the appellant guilty of corrupt practice
committed under Section 123(7) of the Representation of the
People Act, 1951, by having obtained the assistance of
Yashpal Kapur a Gazetted Officer for the furtherance of her
election prospects; the appellant was held to be disqualified
Const.P.76/2007, etc. 136
for a period of six years from the date of the order as
provided in Section 8(a) of the 1951 Act. Subsequently, the
matter was brought under challenge before the Supreme
Court in appeal, during the pendency whereof the
Constitution (Thirty-ninth Amendment) Act, 1975, was
enacted, whereby, apart from other amendments in the
Constitution, Article 329A was inserted in the Indian
Constitution. Clause (4) of Article 329A, provided that no law
made by Parliament before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so far
as it relates to election petitions and matters connected
therewith, shall apply or shall be deemed ever to have
applied to or in relation to the election of any such person as
is referred to in Clause (1) to either House of Parliament and
such election shall not be deemed to be void or ever to have
become void on any ground on which such election could be
declared to be void under any such law and notwithstanding
any order made by any court, before such commencement,
declaring such election to be void, such election shall
continue to be valid in all respects and any such order and
any finding on which such order is based shall be and shall
be deemed always to have been void and of no effect.
Consequently, the above noted Thirty-ninth amendment in
the Constitution of India was also brought under challenge
Const.P.76/2007, etc. 137
before the Supreme Court of India in above noted case.
Validity of the legislative judgment, whereby the above
referred amendments were made, was the moot question
before the Supreme Court including the questions that
whether by amending a law, action of judgment can be
nullified and whether it is upon the constitutional authority
to declare an order or findings to be void and of no effect or
whether such declaration can only be made under either any
judicial proceedings or on a proceedings before higher Court.
The answer to this proposition has been replied in the
following paras :-
“189. Another aspect of part (iv) of Clause (4) relates to
the question as to whether it is open to the constituent
authority to declare an order and a finding of the High
Court to be void and of no effect or whether such a
declaration can be made only either in separate judicial
proceedings or in proceedings before a higher court.
190. A declaration that an order made by a court of law
is void is normally part of the judicial function and is
not a legislative function. Although there is in the
Constitution of India no rigid separation of powers, by
and large the spheres of judicial function and legislative
function have been demarcated and it is not permissible
for the legislature to encroach upon the judicial sphere.
It has accordingly been held that a legislature while it is
entitled to change with retrospective effect the law
which formed the basis of the judicial decision, it is not
permissible to the legislature to declare the judgment of
Const.P.76/2007, etc. 138
the court to be void or not binding (see Shri Prithvi
Cotton Mills Ltd. v. Broach Borough Municipality,
(1970) 1 SCR 388 (at page 392) = (AIR 1970 SC 192),
Janapada Sabha, Chhindwara v. The Central Provinces
Syndicate Ltd. (1970) 3 SCR 745 (at page 751) = (AIR
1971 SC 57), Municipal Corporation of the City of
Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd.
etc. (1971) 1 SCR 288 = (AIR 1970 SC 1292) and State of
Tamil Nadu v. M.Rayappa Gounder (AIR 1971 SC 231).
191. The position as it prevails in the United States,
where guarantee of due process of law is in operation, is
given on pages 318-19 of Vol. 46 of the American
Jurisprudence 2d. as under:
“The general rule is that the legislature may not
destroy, annul, set aside, vacate, reverse, modify,
or impair the final judgment of a court of
competent jurisdiction, so as to take away private
rights which have become vested by the
judgment. A statute attempting to do so has been
held unconstitutional as an attempt on the part of
the legislature to exercise judicial power, and as a
violation of the Constitutional guarantee of due
process of law. The legislature is not only
prohibited from reopening cases previously
decided by the courts, but is also forbidden to
affect the inherent attributes of a judgment. That
the statute is under the guise of an act affecting
remedies does not alter the rule. It is worthy of
notice, however, that there are cases in which
judgments requiring acts to be done in the future
may validly be affected by subsequent legislation
making illegal that which the judgment found to
be legal, or making legal that which the judgment
found to be illegal.
10.- Judgment as to public right.
With respect to legislative interference with a
judgment, a distinction has been made between
public and private rights under which distinction
a statute may be valid even though it renders
ineffective a judgment concerning a public right.
Even after a public right has been established by
Const.P.76/2007, etc. 139
the judgment of the court, it may be annulled by
subsequent legislation.
192. Question arises whether the above limitation
imposed upon the legislature about its competence to
declare a judgment of the court to be void would also
operate upon the constituent authority?
193. View has been canvassed before us that the answer
to the above question should be in the negative.
Although normally a declaration that the judgment of a
court is void can be made either in separate proceedings
or in proceedings before the higher court, there is,
according to this view, no bar to the constituent
authority making a declaration in the Constitutional
law that such an order would be void especially when it
relates to a matter of public importance like the dispute
relating to the election of a person holding the office of
Prime Minister. The declaration of the voidness of the
High Court judgment is something which can
ultimately be traced to part (i). Whether such a
declaration should be made by the court or by the
constituent authority is more, it is urged, a matter of the
mechanics of making the declaration and would not
ultimately affect the substance of the matter that the
judgment is declared void. According to Article 31B,
without prejudice to the generality of the provisions
contained in Article 31A, none of the Acts and
Regulations specified in the Ninth Schedule nor any of
the provisions thereof shall be deemed to be void, or
ever to have become void, on the ground that such Act,
Regulation or provision is inconsistent with, or takes
away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the
Const.P.76/2007, etc. 140
contrary, each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to
repeal or amend it, continue in force. The effect of the
above article, it is pointed out, is that even if a statute
has been declared to be void on the ground of
contravention of fundamental rights by a court of law,
the moment that statute is specified by the constituent
authority in the Ninth Schedule to the Constitution, it
shall be deemed to have got rid of that voidness and the
order of the court declaring that statute to be void is
rendered to be of no effect. It is not necessary in such an
event to make even the slightest change in the statute to
rid it of its voidness. The stigma of voidness attaching
to the statute because of contravention of fundamental
rights found by the Court is deemed to be washed away
as soon as the statute is specified by the constituent
authority in the Ninth Schedule and the judgment of the
Court in this respect is rendered to be inoperative and
of no effect. In the case of Don John Douglas Liyange v.
The Queen 1967 AC 259 the Judicial Committee struck
down as ultra vires and void the provisions of the
Criminal Law (Special Provisions) Act, 1962 on the
ground that they involved the usurpation and
infringement by the legislature of the judicial powers
inconsistent with the written Constitution of Ceylon.
Their Lordships, however, expressly referred on page
287 to the fact that the impugned legislation had not
been passed by two-thirds majority in the manner
required for an amendment of the Constitution
contained in Section 29(4) of the Constitution. It was
observed:
“There was speculation during the argument as
to what the position would be if Parliament
sought to procure such a result by first amending
Const.P.76/2007, etc. 141
the Constitution by a two-thirds majority. But
such a situation does not arise here. In so far as
any Act passed without recourse to Section 29(4)
of the Constitution purports to usurp or infringe
the judicial power it is ultra vires. “
The above observations, it is urged, show that the
restriction upon the legislature in encroaching upon
judicial sphere may not necessarily hold good in the
case of constituent authority.
194. The above contention has been controverted by Mr.
Shanti Bhushan and he submits that the limitation on
the power of the legislature that it cannot declare void a
judgment of the Court equally operates upon the
constituent authority. It is urged that the constituent
authority can only enact a law in general terms, even
though it be a Constitutional law. The constituent
authority may also, if it so deems proper change the law
which is the basis of a decision and make such change
with retrospective effect, but it cannot, according to the
learned Counsel, declare void the judgment of the
Court. Declaration of voidness of a judgment, it is
stated, is a judicial act and cannot be taken over by the
constituent authority. Although legislatures or the
constituent authority can make laws including those for
creation of courts, they cannot, according to the
submission, exercise judicial functions by assuming the
powers of a super court in the same way as the Courts
cannot act as a super legislature. It is in my opinion, not
necessary to dilate upon this aspect and express a final
opinion upon the rival contentions, because of the view
I am taking of part (iii) of Clause (4).”
Const.P.76/2007, etc. 142
89. As far as sub-Article 4 of Article 329A, providing
constitutional protection to the amended law is concerned,
the Court, ultimately, held as under:-
“690. The Parliament, by Clause (4) of Article 329-A, has
decided a matter of which the country's Courts were
lawfully seized. Neither more nor less. It is true, as
contended by the learned Attorney-General and Shri
Sen, that retrospective validation is a well known
legislative process which has received the recognition of
this Court in tax cases, pre-emption cases, tenancy cases
and a variety of other matters. In fact, such validation
was resorted to by the legislature and upheld by this
Court in at least four election cases, the last of them
being Kanta Kathuria v. Manak Chand Surana (1970) 2
SCR 835 = (AIR 1970 SC 694). But in all of these cases,
what the legislature did was to change the law
retrospectively so as to remove the reason of
disqualification, leaving it to the Courts to apply the
amended law to the decision of the particular case. In
the instant case the Parliament has withdrawn the
application of all laws whatsoever to the disputed
election and has taken upon itself to decide that the
election is valid. Clause (5) commands the Supreme
Court to dispose of the appeal and the cross-appeal in
conformity with the provisions of Clause (4) of Article
329-A, that is in conformity with the "judgment"
delivered by the Parliament. The "separation of powers
does not mean the equal balance of powers" says
Harold Laski, but the exercise by the legislature of what
is purely and indubitably a judicial function is
impossible to sustain in the context even of our cooperative
federalism which contains no rigid
Const.P.76/2007, etc. 143
distribution of powers but which provides a system of
salutary checks and balances.
90. Likewise, recently the Constitutional Court of
Italy examined the constitutionality of Article 1 of law No.
124 of 23rd July 2008 [the provision ordering the suspension
of criminal proceedings against the high offices of state].
Brief facts of the said case are that the above said law was
promulgated in Italy to provide protection to some of the
politicians including the Silvio Berlusconi, the President of
the Council of Ministers. Article 1(1) of the said law provided
that “without prejudice to the cases governed by Articles 90 and 96
of the Constitution, any criminal proceedings against individuals
which occupy the offices of President of the Republic, President of
the Senate of the Republic, President of the Chamber of Deputies
and President of the Council of Ministers, shall be suspended from
the time when the office or function is taken up until the end of the
term in office; the suspension shall also apply to criminal
proceedings for conduct prior to taking up the office or function”.
Whereas Sub-Section 7 of the said Article provided that “the
provisions of the Article shall also apply to criminal proceedings in
progress, at every stage, state or instance, at the time when the
present law enters into force”. During the course of criminal
proceedings, the Tribunale di Milano, by referral order of 26th
September, 2008 (referral order No. 397 of 2008), raised the
Const.P.76/2007, etc. 144
question with regard to the constitutionality of Article 1(1)
and (7) of law No. 124 of 23rd July 2008, with reference to
Articles 3, 136 and 138 of the Constitution. However,
ultimately the matter came up before the Constitutional
Court of Italy, when the Court concluded that the procedural
suspension provided for, under the contested provision, is
aimed essentially at protecting the functions of the members
and Presidents of certain constitutional organs and, at the
same time, creates a clear difference in treatment before the
courts. Therefore, it was held that both of the prerequisites
for constitutional privileges are satisfied, which means that,
that matter is not susceptible to regulation through ordinary
legislation. It was further held that in particular, the
contested legislation confers on the holders of four high
institutional offices an exceptional and innovative protected
status, which cannot be inferred from the constitutional
provisions on privileges and which therefore is not covered
under constitutional law, therefore, it does not constitute a
source of law of an appropriate level to make provision over
this matter. Thus the Court, eventually, declared that Article
1 of law No. 124 of 2008 is unconstitutional due to violation
of the combined provisions of Articles 3 and 138 of the
Constitution, in relation to the arrangements governing
Const.P.76/2007, etc. 145
privileges contained in Articles 68, 90 and 96 of the
Constitution.
91. Thus, in view of above discussion, it is held that
amendment in Section 31A of the NAO, 1999 by inserting
clause (aa) in it, by means of Section 6 of the NRO, 2007 is
unconstitutional and void ab initio.
92. Section 7 of the NRO, 2007 further added Section
33F in the NAO, 1999, by means of which, following
categories of the persons have benefitted:
i) The persons, against whom investigation is
pending but no trial has commenced; the
investigation has come to an end.
ii) The persons, against whom the trial is pending
but no conviction/ acquittal has been recorded;
the trial comes to an immediate end.
iii) The persons, who have been convicted but have
merely filed an appeal or some proceedings,
against that conviction before the High Court or
the Supreme Court and whether or not such
conviction/sentence has been suspended, before
the promulgation of the NRO, 2007; everything
stands terminated and withdrawn.
iv) The persons, who have been acquitted and
against their acquittal an appeal is pending; they
also stand absolved.
Const.P.76/2007, etc. 146
v) The persons, against whom, request for mutual
legal assistance and civil party to proceedings,
have been initiated by the Federal Government;
that stand withdrawn or terminated.
vi) ‘holders of public office’, whose cases have been
withdrawn or terminated, shall also not be liable
to any action in future, as well, under the NRO,
2007, for acts having been done in good faith
before the cut off date.
93. It may be noted that Section 33E of the NAO,
1999 provides that any fine or other sum due, or as
determined to be due by a Court, shall be recoverable as
arrears of land revenue. Apparently, Section 33F of the NAO,
1999, inserted through Section 7 of the NRO, 2007 has
provided a mechanism for withdrawal and termination of
prolonged pending proceedings, initiated prior to 12th
October, 1999. For ready reference, Section 7 of the NRO,
2007 is reproduced hereinbelow:-
“7. Insertion of new section, Ordinance, XVIII of 1999.
In the said Ordinance, after section 33E, the following
new section shall be inserted, namely:
“33F. Withdrawal and termination of prolonged
pending proceedings initiated prior to 12th
October, 1999.
(1) Notwithstanding anything contained in this
Ordinance or any other law for the time being in
force, proceedings under investigation or
pending in any court including a High Court and
the Supreme Court of Pakistan initiated by or on
a reference by the National Accountability Bureau
Const.P.76/2007, etc. 147
inside or outside Pakistan, including proceedings
continued under section 33, requests for mutual
assistance and civil party to proceedings initiated
by the Federal Government before the 12th day of
October, 1999 against holders of public office
stand withdrawn and terminated with immediate
effect and such holders of public office shall also
not be liable to any action in future as well under
this Ordinance for acts having been done in good
faith before the said date;
Provided that those proceedings shall not be
withdrawn and terminated which relate to cases
registered in connection with the cooperative
societies and other financial and investment
companies or in which no appeal, revision or
constitutional petition has been filed against final
judgment and order of the Court or in which an
appellate or revisional order or an order in
constitutional petition has become final or in
which voluntary return or plea bargain has been
accepted by the Chairman, National
Accountability Bureau under section 25 or
recommendations of the Conciliation Committee
have been accepted by the Governor, State bank
of Pakistan under section 25A.
(2) No action or claim by way of suit, prosecution,
complaint or other civil or criminal proceeding
shall lie against the Federal, Provincial or Local
Government, the National Accountability Bureau
or any of their officers and functionaries for any
act or thing done or intended to be done in good
faith pursuant to the withdrawal and termination
of cases under sub-section (1) unless they have
deliberately misused authority in violation of
law.”
The above provision seems to be open ended, as on account
of non obstante clause, it directs that notwithstanding
anything contained in this Ordinance or any other law for the
time being in force, proceedings under investigation or
pending in any Court, including a High Court and the
Supreme Court of Pakistan, initiated by or on a reference by
Const.P.76/2007, etc. 148
the National Accountability Bureau, inside or outside
Pakistan, including proceedings continued under Section 33,
requests for mutual assistance and civil party to proceedings,
initiated by the Federal Government, before the 12th October,
1999, against holders of public offices, stand withdrawn
and terminated with immediate effect and such ‘holders of
public office’ shall also not be liable to any action in future, as
well, under this Ordinance, for acts having been done in
good faith, before the said date. This is for the first time that
in the newly inserted Section 33F of the NAO, 1999 by means
of Section 7 of the NRO, 2007, the connotation ‘holders of
public office’ has been used. The definition of the ‘holders of
public office’ has been provided in Section 5(m) of the NAO,
1999, which reads as follows:-
5(m). "Holder of Public Office" means a person who :-
(i) has been the President of Pakistan or the Governor
of a Province.
(ii) is, or has been the Prime Minister, Chairman
Senate, Speaker of the National Assembly, Deputy
Speaker National Assembly, Federal Minister,
Minister of State, Attorney General and other Law
Officer appointed under the Central Law Officers
Ordinance, 1970 (VII of 1970), Advisor to the
Prime Minister, Special Assistant to the Prime
Minister, Federal Parliamentary Secretary,
Member of Parliament, Auditor General, Political
Secretary, Consultant to the Prime Minister and
holds or has held a post or office with the rank or
status of a Federal Minister or Minister of State;
(iii) is, or has been, the Chief Minister, Speaker
Const.P.76/2007, etc. 149
Provincial Assembly, Deputy Speaker Provincial
Assembly, Provincial Minister, Advisor to the
Chief Minister, Special Assistant to the Chief
Minister, Provincial Parliamentary Secretary,
Member of the Provincial Assembly, Advocate
General including Additional Advocate General
and Assistant Advocate General, Political
Secretary, Consultant to the Chief Minister and
who holds or has held a post or office with the
rank or status of a Provincial Minister;
(iv) is holding, or has held, an office or post in the
service of Pakistan, or any service in connection
with the affairs of the Federation, or of a Province,
or of a local council constituted under any Federal
or Provincial law relating to the constitution of
local councils, cooperative societies or in the
management of corporations, banks, financial
institutions, firms, concerns, undertakings or any
other institution or organization established,
controlled or administered by or under the
Federal Government or a Provincial Government,
other than a person who is a member of any of the
armed forces of Pakistan, except a person who is,
or has been a member of the said forces and is
holding, or has held, a post or office in any public
corporation, bank, financial institution,
undertaking or other organization established,
controlled or administered by or under the
Federal Government or a Provincial Government
or, notwithstanding any thing contained in the
Pakistan Army Act, 1952 (XXXIX of 1952), or any
other law for the time being in force, a person who
is a civilian employee of the armed forces of
Pakistan;
(v) has been, the Chairman or Vice Chairman of a zila
council, a municipal committee, a municipal
corporation or a metropolitan corporation
constituted under any Federal or Provincial law
relating to local councils; and
“Explanation”- For the purpose of this sub-clause
the expressions "Chairman" and "Vice Chairman"
shall include "Mayor" and "Deputy Mayor" as the
case may be, and the respective councilors therein.
(va) is or has been a District Nazim or Naib Nazim,
Tehsil Nazim or Naib Nazim or Union Nazim or
Const.P.76/2007, etc. 150
Naib Nazim;
(vi) has served in and retired or resigned from or has
been discharged or dismissed from the Armed
Forces of Pakistan.”
94. It may be noted that NAO, 1999 was promulgated
on 16th November, 1999, after military takeover in the
country, on 12th October, 1999. Although in its application the
NAO, 1999 during the regime of General Pervez Musharraf
has been the subject of debate, pro and con, it has not been
amended by any succeeding Parliament. In fact, the
promulgation of the NAO, 1999 was claimed to have been
expedient and necessary to provide for effective measures for
the detection, investigation, prosecution and speedy disposal
of cases, involving corruption, corrupt practices, misuse or
abuse of power or authority, misappropriation of property,
taking of kickbacks, commissions and for matters connected
and ancillary or incidental thereto. [The underlined words
have been added in the preamble vide Ordinance
No.CXXXIII of 2002 dated 23rd November 2002]. Similarly, an
emergent need was also found for the recovery of
outstanding amounts from the persons, who have committed
default in the repayment of amounts to Banks, Financial
Institutions, Government agencies and other agencies.
Likewise, it was also felt that there was a grave and urgent
Const.P.76/2007, etc. 151
need for the recovery of State money and other assets from
those persons who have misappropriated or removed such
money or assets through corruption, corrupt practices and
misuse of power or authority. Yet there was another
important aspect of the preamble, which was inserted vide
Ordinance No. XXXV of 2001 dated 10th August 2001 which
speaks that there is an increased international awareness that
nations should co-operate in combating corruption and seek,
obtain or give mutual legal assistance in matters concerning
corruption and for matters connected, ancillary or incidental
thereto.
95. It may be noted that the word ‘corruption’ has
been defined by this Court in Syed Zafar Ali Shah’s case
(PLD 2000 SC 869), in the following terms:-
“233. ‘Corruption’ is generally defined as the abuse of
public office for private gain. In view of the fact that
scope of corruption has widened, this definition would
include the abuse of all offices of trust. It has diverse
meanings and far-reaching effects on society,
government and the people. Of late, the culture of
corruption and bribe has embedded in our society to the
extent that even routine works which should be done
without any approach or influence are commonly
known to be done only on some such consideration.
This bribe culture has plagued the society to the extent
that it has become a way of life. In Anatulay VIII (1988)
2 SCC 602 where Abdul Rahman Anatulay, Chief
Const.P.76/2007, etc. 152
Minister of Maharashtra was prosecuted for, corruption
Sabyasachi Mukharji, J. lamented as follows-.-
“Values in public life and perspective of values in
public life, have undergone serious changes and
erosion during the last few decades. What was
unheard before is common place today. A new
value orientation is being undergone in our life
and culture. We are at the threshold of the
cross-roads of values. It is for the sovereign
people of this country to settle these conflicts yet
the Courts have a vital role to play in these
matters.”
234. …………………………………… When corruption
permeates in the social, political and financial
transactions to such an extent that even proper and
honest orders and transactions are suspected to the
point of belief being a result of corruption, one is
compelled to infer all is not well and corruption has
gone deep in the roots. No doubt, this is an age of
"corruption eruption", but during the last few years
there have been large scale prosecutions of former
world leaders in various countries on the charges of
corruption and corrupt practices, in some cases leading
to convictions, which phenomenon must not be taken
lightly and the issue must be addressed adequately and
effectively through transparent institutionalized
processes.”
96. One of the learned counsel appearing for the
petitioners argued that the NRO, 2007 is the result of abuse of
public office for private gain, therefore, it is like a virus
which has infected the body of politics. According to him
corruption vitiates like fraud, which vitiates all transactions,
therefore, the NRO, 2007 stands vitiated by the effect of
Const.P.76/2007, etc. 153
abuse of public office for private gain. He further added that
the NRO, 2007 is a document which is non est; it is like a still
born, which dies in mother’s wombs.
97. Thus the theme of the NAO, 1999, as it is evident
from its preamble and substantive part, is to deal with the
cases of corruption and corrupt practices, strictly to achieve
the object spelt out in preamble. The expression “corruption
and corrupt practices” has been defined in Section 9 of the
NAO, 1999, as under:-
9. Corruption and Corrupt Practices
(a) A holder of a public office, or any other person, is
said to commit or to have committed the offence of
corruption and corrupt practices:-
(i) if he accepts or obtains from any person or
offers any gratification directly or indirectly,
other than legal remuneration, as a motive or
reward such as is specified in section 161 of
the Pakistan Penal Code (Act XLV of 1860) for
doing or for-bearing to do any official act, or
for showing or for-bearing to show, in the
exercise of his official functions, favour or
disfavour to any person, or for rendering or
attempting to render any service or disservice
to any person; or
(ii) If he accepts or obtains or offers any valuable
thing without consideration, or for a
consideration which he knows to be
inadequate, from any person whom he knows
to have been, or likely to be, concerned in any
proceeding or business transacted or about to
be transacted by him, or having any
connection with his official functions or from
any person whom he knows to be interested
in or related to the person so concerned; or
Const.P.76/2007, etc. 154
(iii) If he dishonestly or fraudulently
misappropriates or otherwise converts for his
own use, or for the use of any other person,
any property entrusted to him, or under his
control, or willfully allows any other person
so to do; or
(iv) If he by corrupt, dishonest, or illegal means,
obtains or seeks to obtain for himself, or for
his spouse and/or dependents or any other
person, any property, valuable thing, or
pecuniary advantage; or
(v) If he or any of his dependents or benamidars
owns, possesses, or has acquired right or title
in any assets or holds irrevocable power of
attorney in respect of any assets or pecuniary
resources disproportionate to his known
sources of income, which he cannot
reasonably account for, or maintains a
standard of living beyond that which is
commensurate with his source of income; or
(vi) If he misuses his authority so as to gain any
benefit or favour for himself or any other
person, or render or attempts to render or
willfully fails to exercise his authority to
prevent the grant, or rendition of any undue
benefit or favour which he could have
prevented by exercising his authority;
(vii) If he has issued any directive, policy, or any
SRO (Statutory Regulatory Order) or any
other order which grants or attempts to grant
any undue concession or benefit in any
taxation matter or law or otherwise so as to
benefit himself or any relative or associate or
a benamidar or any other person; or
(viii) if he commits an offence of willful default; or
(ix) if he commits the offence of cheating as
defined in section 415 of the Pakistan Penal
Code, 1860 (Act XLV of 1860), and thereby
dishonestly induces members of the public at
large to deliver any property including
money or valuable security to any person; or
Const.P.76/2007, etc. 155
(x) if he commits the offence of criminal breach
of trust as defined in section 405 of the
Pakistan Penal Code, 1860 (Act XLV of 1860)
with regard to any property including money
or valuable security entrusted to him by
members of the public at large;
(xi) if he, in his capacity as a banker, merchant,
factor, broker, attorney or agent, commits
criminal breach of trust as provided in section
409 of the Pakistan Penal Code, 1860 (Act
XLV of 1860) in respect of property entrusted
to him or over which he has dominion;
(xii) if he aids, assists, abets, attempts or acts in
conspiracy with a person or a holder of public
office accused of an offence as provided in
clauses (i) to (xi).]; and
(b) All offences under this Order shall be non-bailable
and, notwithstanding anything contained in
sections 426, 491, 497, 498 and 561A or any other
provision of the Code, or any other law for the time
being in force no Court shall have jurisdiction to
grant bail to any person accused of any offence
under this Order.
(c) If after completing the investigation of an offence
against a holder of public office or any other person,
the Chairman NAB is satisfied that no prima facie
case is made out against him and the case may be
closed, the Chairman NAB shall refer the matter to
a Court for approval and for the release of the
accused, if in custody.]
98. This Court in the case of Khan Asfandyar Wali
v. Federation of Pakistan (PLD 2001 SC 607), has spelt out a
mechanism for the NAB and the Courts thereunder, as
under:-
“266. A perusal of the Preamble of the NAB Ordinance
shows that it is a composite and an extensive law and
its interpretation has to be done in a manner different
Const.P.76/2007, etc. 156
from the normal interpretation placed on purely
criminal statutes. This law deals with, among others,
setting up of the National Accountability Bureau, which
is an executive as well as administrative authority and
an investigating agency; which deals with several
aspects of ‘corruption’ etc. The NAB does not merely
deal with crimes of corruption, it also deals with their
investigation and settlement out of Court. Bargain out
of Court is now an established method by which things
are settled in several developed societies. It was
necessary in cases where the criminal is a potential
investor and is inter-linked with the economy of the
society after he has cleared his liability. There appears
to be nothing amiss insofar as it does not oust the
jurisdiction of the Accountability Courts to exercise
their judicial power in appropriate proceedings. Rather
this is in the nature of a facility provided to the accused.
There is nothing wrong with the NAB Ordinance
providing for a procedure of bargaining.
267. Moreover, the scheme for exploring the
possibility of settlement during investigation/inquiry
stage by the Chairman NAB cannot be ignored straight
away. At the outset, most of the lawyers tend to
consider the question of settlement out of court. There is
need to focus attention on this significant fact of the
matter. The rationale behind the Ordinance is not only
to punish those who were found guilty of the charges
leveled under the Ordinance but also to facilitate early
recovery of the ill-gotten wealth through settlement
where practicable. The traditional compromise,
settlement, compoundability of offence during the
course of proceedings by the Courts after protracted
litigation is wasteful. Viewed in this perspective, a
Const.P.76/2007, etc. 157
power has been vested in the Chairman NAB to
facilitate early settlement for recovery of dues through
‘plea bargaining’ where practicable. Lawyers are often
interested in settling the disputes of their clients on just,
fair and equitable basis. There are different approaches
to settlement. Plea bargaining is not desirable in cases
opposed to the principles of public policy. Chairman
NAB/Governor, State Bank of Pakistan, while involved
in plea bargaining negotiations, should avoid using
their position and authority for exerting influence and
undue pressure on parties to arrive at settlement.
However, in the interest of revival of economy and
recovery of outstanding dues, any type of alternate
resolution like the ‘plea bargaining’ envisaged under
section 25 of the Ordinance should be encouraged. An
accused can be persuaded without pressure or threat to
agree on a settlement figure subject to the provisions of
the Ordinance. Establishing this procedure at the
investigation/inquiry stage greatly reduces
determination of such disputes by the Court. However,
as the plea bargaining/ compromise is in the nature of
compounding the offences, the same should be subject
to approval of the Accountability Court. Accordingly,
section 25 of the impugned Ordinance be suitably
amended.”
99. The provisions of the NAO, 1999 as well as their
interpretation, as noted in the preceding paras, provide high
moral authority to the functionaries, to discharge their duties
for curbing corruption and corrupt practices, to achieve the
object namely, conviction and effecting the recovery of
national wealth, even before the trial, keeping in view the
Const.P.76/2007, etc. 158
solid mechanism provided under Section 25 of the NAO. As
far as its provisions, embedded in Section 21, are concerned,
it lays down procedure for international cooperation and
request for mutual legal assistance. It reads as follows:-
21. International Cooperation - Request for mutual legal
assistance:
The Chairman NAB or any officer authorized by the
Federal Government may request a Foreign State to do
any or all of the following acts in accordance with the
law of such State:-
(a) have evidence taken, or documents or other articles
produced;
(b) obtain and execute search warrants or other lawful
instruments authorizing search for things relevant
to investigation or proceedings in Pakistan believed
to be located in that State, and if found, seize them;
(c) freeze assets, by whatever processes are lawfully
available in that State, to the extent to which the
assets are believed on reasonable grounds to be
situated in that State;
(d) confiscate articles and forfeit assets to the extent to
which the articles or assets, as the case may be, are
believed to be located in that State;
(e) transfer to Pakistan any such evidence, documents,
things, articles, assets or proceeds realized from the
disposal of such articles or assets;
(f) transfer in custody to Pakistan a person detained in
that State who consents to assist Pakistan in the
relevant investigation or proceedings;
(g) Notwithstanding anything contained in the Qanune-
Shahadat Order 1984 (P.O.10 of 1984) or any other
law for the time being in force all evidence,
documents or any other material transferred to
Pakistan by a Foreign Government shall be
receivable as evidence in legal proceedings under
this Ordinance; and
Const.P.76/2007, etc. 159
(h) notwithstanding anything to the contrary contained
hereinabove, the Chairman NAB may, on such
terms and conditions as he deems fit, employ any
person or organization, whether in Pakistan or
abroad, for detecting, tracing or identifying assets
acquired by an accused in connection with an office
under this Ordinance, and secreted or hoarded
abroad, or for recovery of and repatriation to
Pakistan of such assets.”
A perusal of above Section indicates that on account of
international cooperation, request for mutual legal assistance
means, the NAB or any officer, authorized by the Federal
Government, has been empowered to make a request to a
Foreign State to do any or all things mentioned therein; to
freeze assets by whatever processes are lawfully available in
that State, to the extent to which the assets are believed, on
reasonable grounds, to be situated in that State; and to
transfer to Pakistan any such evidence, documents, things,
articles, assets or proceeds, realized from the disposal of such
articles or assets. As far as, confiscation or realization of the
national wealth, situated within the country, is concerned,
there is no difficulty for the NAB to deal with it, in
accordance with the procedure provided under the NAO,
1999. However, for achieving the object to save the assets
outside the country, allegedly belonging to the nation, a
mechanism has been provided on the basis of international
cooperation.
Const.P.76/2007, etc. 160
100. It is to be noted that while making request to the
Foreign States for mutual legal assistance, no request for
criminal proceedings in such a State can be demanded.
However, Courts of the said States may proceed
independently for an action, which falls within the definition
of their municipal laws, governing criminal actions. Pakistan
is not the only country, which has demanded for such
mutual legal assistance; there are so many other countries, on
whose demand, subject to determination, the wealth of the
nation was reverted back to those States. In this behalf
reference may be made to the case of Ferdinand Emmanuel
Edralin Marcos, President of the Philippines. Detailed
marshaling of the facts of said case would not serve any
purpose, however, the crux of the matter in the form of brief
summery is as under:-
Marcos was elected as President of Philippines in
November 1965 and re-elected in 1969. On 21st
September 1972 he declared Marshal Law in the
country which was lifted on 7th January 1981. He was
re-elected as President in 1981 and remained on this
position till February 1986, when he was removed
through a popular revolt in 1986.
In 1986, on the basis of documents lost by him in the
Presidential palace, assets worth US$ 356 millions
were discovered in his name in Swiss Banks. The said
assets were freezed on the request filed through Swiss
Lawyers in February 1986.
On 28th February 1986 the Philippine Presidential
Commission on Good Government (PCGG) formed
Const.P.76/2007, etc. 161
under the Presidential Order No.1 of 1986 to recover
Marcos-linked assets in the Philippines and abroad.
On 24th March 1986 the Swiss Federal Council imposed
an unprecedented unilateral and exceptional freeze
order on Marcos assets, after it was informed by a
Swiss Bank that De Guzman, a Filipino Banker, with
power of attorney from Marcos and his wife, had
requested for the transfer of assets to an Australian
Bank belonging to him, in anticipation of the
Philippine Governmental claim. This was done
without any mutual legal assistance treaty on criminal
matters between Switzerland and Philippines, just on
the basis of the Swiss Federal Act on International
Mutual Assistance in criminal matters (Act on
International Criminal Assistance, IMAC).
On 18th April 1986 the Philippines Government made
informal request for continuation of freeze order but
the freezing order was rescinded on 23rd April 1986,
however, the assets were re-freezed on 20th July 1986,
after a formal request, made by the Philippines
Government through a diplomatic note, for
continuation of freeze order.
In 1989 the Government of Philippines brought Court
cases in the US District Courts, California and Hawaii,
however, these cases were dropped when the Marcos
family agreed to transfer certain assets held in US, to
the Philippine government.
On 20th December 1990, Swiss Federal Court (Supreme
Court) accepted that, in principle, the frozen assets
should be returned to the Philippines and also ordered
for transmission of Banking documents pertaining to
Marcos’s deposits to Philippines government, subject
to some conditions.
On 17th December 1991 the PCGG filed civil case in the
Filipino Court of Sadiganbayan seeking recovery of
Marcos properties and assets just four days prior to the
deadline of 21st December 1991.
On 28th December 1993 the government of Philippines
entered into 75/25(%) sharing agreement with Marcos
family through PCGG which was declared invalid by
the Philippines Supreme Court on 9th December 1998.
Const.P.76/2007, etc. 162
On 10th December 1997, the Swiss Federal Court
(Supreme Court) took decisive steps by issuing
decision to transfer US$ 540 million (increased to US$
658 million with interest) of Marcos, to the custody of
Sadiganbayan, under the IMAC. The revised law made
it, in principle, essential for the country to which the
funds are to be restituted, to prove the illegal origin
and the legal ownership of the funds through a legally
binding judgment. However, the Republic of
Philippines guaranteed that the decision about the
seizure or restitution of the assets to the entitled
parties would be taken in judicial proceedings, to
satisfy the requirement of Article 14 of the
International Covenant on Civil and Political Rights
1966 (ICCPR).
In September 2000 Filipino Anti-Corruption Court
Sadiganbayan’s first division, made, prima facie,
decision that the entire US$ 627 million of Marcos
funds, repatriated from Switzerland, were to be
considered the property of Philippines.
On 15th July 2003, Philippines Supreme Court ruled
that the funds transferred from Switzerland are illgotten
and must, therefore, be handed over to the
Philippine Government, confirming Swiss Federal
Court’s decision concerning the illegitimate origin of
the funds. The money was to be used for buying the
land for its distribution to poor farmers.
On 5th August 2003 Swiss and Filipino authorities
expressed their satisfaction on the said decision and
opined that the funds transferred from Switzerland to
PNB escrow account, can now be transferred into the
care of the government of Philippines, which was
ultimately remitted to the Philippine treasury on 4th
February 2004.
Afterwards the Federal Supreme Court of Switzerland
vide partial decision dated 18th August 2006, freezed
the assets of GEI Inc (owned by Marcos/associates)
and set a deadline of 31st December 2006 for filing or
decision of the Court of first instance about the seizer
of said assets, which was provided on 28th December
2006. The beneficiaries/associates of Marcos filed
appeals which were dismissed vide order dated 1st
June 2007.
Const.P.76/2007, etc. 163
It may be noted that on account of above proceedings
against Marcos, the money/funds belonging to Philippine
Government were returned by the Swiss Courts.
101. Similarly, there is another case, from Nigerian
jurisdiction, wherein the Head of the State namely Sani
Abacha, was found involved in corruption and corrupt
practices and proceedings, against him, were initiated for
return of his assets from Switzerland to Nigeria and from
1999 to 2009, approximately US$ 1.2 billion, had been
returned to the Federal Republic of Nigeria. Brief history of
this case is also narrated hereinbelow for reference:-
Sani Abacha began his career as second lieutenant
in the Nigerian Army in 1963, rose through the
ranks to the Armed Forces Ruling Council (AFRC)
and eventually became head of State. He died on 8th
June 1998 suddenly of a heart attack. He was listed
as the world's fourth most corrupt leader in recent
history by Transparency International in 2004.
General Abdulsalami Abubakar's interim
government had delivered a clear message that
Abacha had looted huge sums, and it had to be
restored. Members of the Abacha family and some
of their accomplice 'voluntarily' returned
approximately US$ 1 billion to the Federal
Government of Nigeria, during that tenure.
Obasanjo's government has implicated the deceased
General Abacha and his family in wholesale looting
of Nigeria's coffers. According to post-Abacha
government sources, some US$ 3 billion in the
shape of foreign assets have been traced, in the
name of Abacha, his family members,
representatives and accomplices.
Const.P.76/2007, etc. 164
In 1999 Nigeria transmitted a request for judicial
assistance to Switzerland against Sani Abacha and
fourteen other persons, for blocking of their assets,
channeled into Switzerland and also disclosing the
relevant banking documents. The FOG blocked
amount of US$ 83 million in the banks of Geneva
and Zurich.
In October 1999 Geneva’s judiciary initiated various
proceedings against family members and business
friends of Abacha including Mohammed Abacha
and Atiku Bagudu, on suspicion of money
laundering, fraud and taking part in a criminal
organisation. In furtherance whereof the accounts
already blocked in the judicial assistance
proceedings as well as other accounts, traced during
the criminal investigation, were blocked. In the
course of the proceedings, an amount of US$ 70
million was transferred to the bank of International
Settlement, in the year 2000.
In February 2005, the Swiss Federal Court rejected
the appeal filed by the Abachas against the
repatriation of the most of the funds frozen in
Switzerland, totaling about US$ 468 million,
approximately, however, US$ 40 million, the
remaining frozen until the Abachas were given the
opportunity to attempt to demonstrate that they
were not of criminal origin.
An additional US$ 700 million were 'voluntarily'
returned or forfeited in the context of criminal
proceedings initiated in Switzerland, Jersey and
Liechtenstein.
From September 1999 to date, approximately US$
1.2 billion have been repatriated to the Federal
Republic of Nigeria (including from Switzerland,
Luxembourg, Jersey, Liechtenstein, Belgium and the
UK).
102. Apart from above two cases, there is yet another
case from UK jurisdiction i.e. High Court of Justice, Queen’s
Bench Division, in Re: The Queen on the Application of
Const.P.76/2007, etc. 165
Corner House Research and Campaign Against Arms Trade
vs. The Director of The Serious Fraud Office and BAE
Systems PLC [(2008) EWHC 714]. The brief summary of the
facts is as under:-
The BAE Systems was under a contract with Saudi
Arabia for the purchase of Al-Yamamah aircrafts. In
relation to this contract, several allegations of
bribery had been made against the BAE. The
Serious Fraud Office (SFO) had been appointed to
investigate into the matter. In the course of this
investigation the BAE was asked to disclose the
details of payments to agents and the consultants
with respect to the contract of the aircrafts.
In response to this, the solicitors for BAE wrote back
to SFO saying that the investigations should be
halted; as the continuing investigations would
seriously affect the diplomatic relations between the
U.K and Saudi Arabia and also that the safety of the
British Citizens would be affected. Further, also that
the investigations would prevent UK from clinching
the largest export contract of Al-Yamamah aircrafts.
This however, did not stop the investigations from
continuing.
In July 2006, the SFO was about to access the Swiss
Bank accounts of BAE. This caused a stir and made
the Prince Bandar of Arabia to convey to the then
Prime Minister of UK, that if the SFO did not stop
looking at the Swiss Bank accounts of BAE, and also
cease other investigation, then the contract for the
aircrafts would be called off and both intelligence
and diplomatic relations between the two countries
would be seriously ceased.
This made the government to rethink its policy, and
it was agreed among the Prime Minister and other
ministers that if the investigation into this
continued then the relations between the two
countries would be affected and a severe blow
would also be dealt on UK’s foreign policy
objectives in the Middle East. Further, there would
be a threat to the internal security of the country.
Const.P.76/2007, etc. 166
In light of the above developments on 14 December
2006 the Director of SFO terminated all
investigation proceedings as it was felt that the
continued investigation posed a serious threat to
the country’s National and International security
and would also affect the lives of their citizens. It
was in this light that an NGO called Corner House
Research, applied for a judicial review of the
decision to terminate the investigation process.
The Court, apart from other findings, made the following
observations:-
The principle of separation of powers cannot be
applied in the cases of executive’s decisions
affecting foreign policy. The courts can take notice
of those cases where the threat involved is not
simply against the country’s commercial,
diplomatic and security interest but also against its
legal system.
It is the responsibility of the court to provide
protection. Threats to the administration of public
justice within a country are the concern primarily of
the courts, not the executive.
The rule of law requires that the Director should act
in a manner consistent, the well recognized
standards, which the courts impose by way of
judicial review. At the heart of the obligations of the
courts and of the judges lies the duty to protect the
rule of law
The Rule of law is nothing if it fails to constrain
overweening power.
The courts fulfill their obligation to protect the rule
of law by ensuring that a decision maker on whom
statutory powers are conferred , exercises those
powers independently and without surrendering
them to a third party.
The executive, Director and the attorney should not
make any decision in submission to the threats. The
courts cannot exercise jurisdiction on the foreign
Const.P.76/2007, etc. 167
state, however, the legal relationships of the
different branches of the government and the
separation of power depends upon internal
constitutional arrangements. They are of no concern
to foreign states.
A resolute refusal to any foreign threat is the only
way to protect national interest. While exercising
statutory power an independent prosecutor is not
entitled to surrender to the threat of a third party or
the foreign state.
The discontinuation of the investigation has in fact
caused actual damage to the national security, the
integrity of criminal justice system and the rule of
law.
The Director has acted on erroneous interpretation
of Art 5 of OECD and both the Director and the
government have failed to recognize that the rule of
law required the decision to discontinue to be
reached as an exercise of independent judgment, in
pursuance of power conferred by statute. To
preserve the integrity and independence of that
judgment demanded resistance to the pressure
exerted by means of a specific threat. That threat
was intended to prevent the Director from pursuing
the course of investigation. It achieved its purpose.
On the basis of above findings, the Court ultimately came to
the following conclusion:-
“The Court has a responsibility to secure the rule of
law. The Director was required to satisfy the court
that all that could reasonably be done had been
done to resist the threat. He has failed to do so. He
submitted too readily because he, like the executive,
concentrated on the effects which were feared
should the threat be carried out and not on how the
threat might be resisted. No one whether within
this country or outside is entitled to interfere with
Const.P.76/2007, etc. 168
the course of our justice. It is the failure of govt. and
the defendant to bear the essential principle in mind
that justifies the intervention of this court. We shall
hear further arguments as to the nature of such
intervention. But we intervene in fulfillment of our
responsibility to protect the independence of the
Director and of our criminal justice system from
threat. On 11 Dec 2006, Prime Minister said that this
was the clearest case for intervention in the public
interest he had seen. We agree.”
103. It is further to be noted that the international
cooperation, for the purpose of prevention of corruption, has
been considered in the comity of the nations, as their
commitment to achieving the object, under the United
Nation’s Convention Against Corruption, 2005. Relevant
portion therefrom is reproduced hereinbelow for
convenience:-
“The purposes of this Convention are:
(a) To promote and strengthen measures to prevent
and combat corruption more efficiently and effectively;
(b) To promote, facilitate and support international
cooperation and technical assistance in the prevention
of and fight against corruption, including in asset
recovery;
(c) To promote, integrity accountability and proper
management of public affairs and public property.
Recalling the work carried out by other
international and regional organizations in this field,
including the activities of the African Union, the council
of Europe, the Customs Cooperation Council (also
known as the World Customs Organization), the
European Union, the League of Arab States, the
Const.P.76/2007, etc. 169
Organization for Economic Cooperation and
Development and the Organization of American States,
Taking note with appreciation of multilateral
instruments to prevent and combat corruption,
including inter alia, the Inter-American Convention
against Corruption, adopted by the Organization of
American States on 29 March 1996, the Convention on
the Fight against Corruption involving Officials of the
European Communities or Officials of Member States of
the European Union, adopted by the Council of the
European Union on 26 May 1997, the Convention on
Combating Bribery of Foreign Public Officials in
International Business Transactions, adopted by the
Organization for Economic Cooperation and
Development on 212 November 1997, the Criminal Law
Convention on Corruption, adopted by the Committee
of Ministers of the Council of Europe on 27 January
1999, the Civil Law Convention on Corruption, adopted
by the Committee of Ministers of the Council of Europe
and 4 November 1999, and the African Union
Convention on Preventing and Combating Corruption,
adopted by the Heads of State and Government of the
African Union on 12 July, 2003.
Welcoming the entry into force on 29 September,
2003 of the United Nations Convention against
Transnational Organized Crime.”
104. The Government of Pakistan is also signatory to
the above UN Convention as it has been ratified by Pakistan
on 31st August, 2007, regarding international cooperation in
criminal matters in accordance with Articles 44 to 50 of the
above noted UN Convention, according to which, where
appropriate and consistent with their domestic legal system,
the State Parties shall consider assisting each other in
investigation or proceedings in civil and administrative
matters, relating to corruption.
Const.P.76/2007, etc. 170
105. Learned counsel appearing for the petitioners
vehemently contended that on the one hand, the Government
of Pakistan is signatory to the UN General Assembly
Regulation No. 58/41 of 31st October, 2003, on the
international cooperation relating to corruption but at the
same time, by means of adding Section 33F in the NAO, 1999
through Section 7 of the NRO, 2007, the prolonged pending
proceedings, initiated prior to 12th October 1999, against
‘holders of public office’, inside or outside the country, and
cases at the stage of investigation or pending before the High
Court or Supreme Court, have been ordered to be withdrawn
and terminated by means of the same legislative order;
therefore, this amendment is in clear contravention to the
provisions of the NAO, 1999 as well as to the above referred
international treaty. This act of the legislative authority is not
only unconstitutional but simultaneously against the
principle of the trichotomy of powers.
106. There is no need to undertake the lengthy
discussion relating to powers to withdraw cases. However,
as it has been pointed out hereinabove, that according to the
scheme of the NAO, 1999 Section 25 of the NAO, 1999
provides that notwithstanding anything contained in Section
15 or in any other law, for the time being in force, where a
Const.P.76/2007, etc. 171
‘holder of public office’ or any other person, prior to the
authorization of investigation against him, voluntarily comes
forward and offers to return the assets or gains, acquired or
made by him in the course, or as a consequence of any
offence, under this Ordinance, the Chairman NAB may
accept such offer and after determination of the amount, due
from such person, and its deposit with the NAB, discharge
such person from all his liability in respect of the matter or
transaction in issue. In this provision of law as well the word
‘withdrawal’ has not been used, which is akin to process of
discharge or acquittal of an accused under the system of
criminal administration of justice.
107. So far as withdrawal of a case is concerned, that is
possible only with the consent of the Court, as provided in
Section 494 Cr.P.C, detailed discussion, in respect whereof
has already been made in the preceding paras, while
examining the vires of Section 2 of the NRO, 2007.
108. The words “termination of the proceedings,
under investigation or pending in any Court, including a
High Court and the Supreme Court”, are not recognized
under any legal instrument, including the Constitution of
Pakistan, Cr.P.C. or NAO, 1999. Much discussion has already
been undertaken in this behalf, while examining the
Const.P.76/2007, etc. 172
constitutionality of newly inserted clause (aa) in Section 31A
of the NAO, 1999, whereby the judgments passed by the
Court in absentia under the NAO, 1999, have been declared
void ab initio by the legislative authority.
109. The President of Pakistan being an authority to
issue temporary legislation can discharge his functions under
Article 89 of the Constitution, subject to limitation provided
therein but admittedly, no such legislation can be issued,
which is against the fundamental rights or any of the
provisions of the Constitution. It seems that without caring
about the fundamental rights of the non-beneficiaries of the
NRO, 2007, on 5th October 2007, the then President had
promulgated the NRO, 2007. On our query, learned Acting
Attorney General for Pakistan (Mr. Shah Khawar) has placed
on record the summary regarding promulgation of the NRO,
2007, for the Prime Minster of Pakistan. A careful perusal of
the same indicates that on 5th October 2007, when the
summary was moved, the Cabinet in its meeting, held on the
same day, had approved the draft of the NRO, 2007, in
pursuance whereof, the Prime Minister was requested to
advise the then President to approve and sign the NRO, 2007,
as such on the same day i.e. 5th October 2007, the NRO, 2007
was promulgated. It is also interesting to note that both the
Const.P.76/2007, etc. 173
proceedings and the cases of corruption and corrupt
practices, were being terminated or withdrawn in terms of
Section 7 of the NRO, 2007, whereby Section 33F has been
added in the NAO, 1999 regarding withdrawal and
termination of prolonged pending proceedings initiated prior
to 12th October 1999. The object, disclosed in the summary for
the Cabinet, for issuance of the NRO, 2007 was that it was
expedient to promote national reconciliation, foster mutual
trust and confidence amongst ‘holders of public office’ and to
make the election process more transparent. Ultimately, on
the same day, the Ordinance was promulgated when the
election of General Pervez Musharraf as the President (in
uniform) was scheduled to be held on the very next day i.e.
6th October 2007. At that time, a petition filed by Jamat-e-
Islami (PLD 2009 SC 549), was pending and during the
course of hearing, vide order dated 5th October, 2007, General
Pervez Musharraf was allowed to contest the election
conditionally. However, remaining details with regard to
issuance of the NRO, 2007 have already been published in
Daily Dawn dated 5th October, 2007.
110. We are conscious of the fact that temporary
legislation cannot be struck down, taking into consideration
the mala fide or subjective consideration for the issuance of
Const.P.76/2007, etc. 174
such legislation but simultaneously this Court is empowered
to examine the contents of the temporary legislation, if it is
inconsistent with the fundamental rights, guaranteed by the
Constitution or of any of the provisions of the Constitution
has been violated. The Indian Supreme Court, when met
with this situation, in the case of State of Rajasthan’s case
(AIR 1977 SC 1361), observed as under:-
“144. But when we say this, we must make it clear that
the constitutional jurisdiction of this Court is confined
only to saying whether the limits on the power
conferred by the Constitution have been observed or
there is transgression of such limits. Here the only limit
on the Power of the President under Art. 356, cl. (1) is
that the President should be satisfied that a situation
has arisen where the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution. The satisfaction of the President is a
subjective one and cannot be tested by reference to any
objective tests. It is deliberately and advisedly
subjective because the matter in respect to which he is
to be satisfied is of such a nature that its decision must
necessarily be left to the executive branch of
Government. There may be a wide range of situations
which may arise and their political implications and
consequences may have to be evaluated in order to
decide whether the situation is such that the
Government of the State cannot be carried on in
accordance with the provisions of the Constitution. It is
not a decision which can be based on what the Supreme
Court of United States has described as "judicially
Const.P.76/2007, etc. 175
discoverable and manageable standards." It would
largely be a political judgment based on assessment of
diverse and varied factors, fast changing situations,
potential consequences, public reaction, motivations
and responses of different classes of people and their
anticipated future behaviour and a host of other
considerations, in the light of experience of public
affairs and pragmatic management of complex and
often curious adjustments that go to make up the highly
sophisticated mechanism of a modern democratic
government. It cannot, therefore, by its very nature be a
fit subject matter for judicial determination and hence it
is left to the subjective satisfaction of the Central
Government which is best in a position to decide it. The
Court cannot in the circumstances, go into the question
of correctness or adequacy of the facts and
circumstances on which the satisfaction of the Central
Government is based. That would be a dangerous
exercise for the Court, both because it is not a fit
instrument for determining a question of this kind and
also because the Court would thereby usurp the
function of the Central Government and in doing so,
enter the 'Political thicket', which it must avoid if it is to
retain its legitimacy with the people. In fact it would not
be possible for the Court to undertake this exercise,
apart from total lack of jurisdiction to do so, since by
reason of Art. 74 cl. (2), the question whether any and if
so what advice was tendered by the Ministers to the
President cannot be enquired into by the Court, and
moreover, "the steps taken by the responsible
Government may be founded on information and
apprehensions which are not known to and cannot
always be made, known to, those who seek to impugn
what has been done., (Vide Ningkan v. Government of
Const.P.76/2007, etc. 176
Malaysic, 1970 AC 379). But one thing is certain that if
the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would
have jurisdiction to examine it, because in that case
there would be (sic-no?) satisfaction of the President in
regard to the matter which he is required to be satisfied.
The satisfaction of the President is a condition
precedent to the exercise of power under Art. 356, cl. (1)
and if it can be shown that there is no satisfaction of the
President at all, the exercise of the power would be
constitutionally invalid. Of course by reason of cl. (5) of
Art. 356, the satisfaction of the President is final and
conclusive and cannot be assailed on any ground but
this immunity from attack cannot apply where the
challenge is not that the satisfaction is improper or
unjustified, but that there is, no satisfaction at all. On
such a case it is not the satisfaction arrived at by the
President which is challenged, but the existence of the
satisfaction itself.
Take, for example, a case where the President gives the
reason for taking action under Art. 356, cl. (1) and says
that he is doing so, because the Chief Minister of the
State is below five feet in height and, therefore, in his
opinion a situation has arisen where the Government of
the State cannot be carried on in accordance with the
provisions of the Constitution. Can the so called
satisfaction of the President in such a case not be
challenged on the ground that it is absurd or perverse
or mala fide or based on a wholly extraneous and
irrelevant ground and is, therefore, no satisfaction at all.
It must of course be concerned that in most cases it
would be difficult, if not impossible, to challenge the
exercise of power under Art. 356, cl. (1 ) even on this
Const.P.76/2007, etc. 177
limited ground, because the facts and circumstances on
which the satisfaction is based would not be known, but
where it is possible, the existence of the satisfaction can
always be challenged on the ground that it is mala fide or
based on wholly extraneous and irrelevant grounds.
This proposition derives support from the decision of
the Judicial Committee of the Privy Council in King
Emperor v. Banwari Lal Sarma (72 Ind App 57: (AIR
1945 PC 48) where Viscount Simon, L.C. agreed that the
Governor General in declaring that emergency exists
must act bona fide and in accordance with his statutory
powers. This is the narrow minimal area in which the
exercise of power under Art. 356, cl. (1) is subject to
judicial review and apart from it, it cannot rest with the
Court to challenge the satisfaction of the President that
the situation contemplated in that clause exists.”
However, subsequently, by means of 44th Amendment,
Clause (4) of Article 123 of the Indian Constitution, which
provided that "notwithstanding anything in this
Constitution, the satisfaction of the President mentioned in
clause (1) shall be final and conclusive and shall not be
questioned in any Court on any ground", has been omitted.
Therefore, in the case of A.K. Roy v. Union of India (AIR
1982 SC 710), the judgment passed in State of Rajasthan’s
case (AIR 1977 SC 1361), was considered and it was held that
“the Rajasthan case is often cited as an authority for the
proposition that the courts ought not to enter the "political
Const.P.76/2007, etc. 178
thicket"; it has to be borne in mind that at the time when that
case was decided, Article 356 contained clause (5) which was
inserted by the 38th Amendment, by which the satisfaction of
the President mentioned in clause (1) was made final and
conclusive and that satisfaction was not open to be
questioned in any court on any ground; clause (5) has been
deleted by the 44th Amendment and, therefore, any
observations made in the Rajasthan case, on the basis of that
clause, cannot any longer hold good; it is arguable that the
44th Constitution Amendment Act leaves no doubt that
judicial review is not totally excluded in regard to the
question relating to the President's satisfaction”. Be that as it
may, this Court, while dealing with the same proposition, in
Fauji Foundation’s case (PLD 1983 SC 457), has observed as
under:-
206. The statement formulated by the High Court,
namely: Notwithstanding the reference to Article 14 of
the Constitution the above two decisions adequately
support the contention of the learned counsel that no
Legislature could be permitted to pass a law for the
resolution of private dispute which could be decided by
the Courts alone and such action amounted to
infringement on the field of judiciary, is not discernible
from these two decisions, nor can such a statement, as
so widely stated, be enunciated in the context of the
discussion that I have undertaken in this judgment.
Const.P.76/2007, etc. 179
207. The learned counsel for the respondent relied on
Basanta Chandra Ghose and others v. Emperor (AIR
1944 FC 86), to impress that the Legislature cannot
usurp judicial power in the guise of enacting law. In this
case clause (2) of section 10 of the Restriction &
Detention Ordinance (3 of 1944) was challenged on the
ground that "it was an arrogation of judicial power by
legislative authority," as what it achieved was direct
disposal of cases by the Legislature itself. In accepting
this argument Spens, C. J., held that such a provision
was an exercise of judicial power and not an enactment
of law as it discharged the pending proceedings which
raised questions of fact which had to be determined in
reference to facts, as for example the competency of the
detaining authority or the colourable nature of the act
or the order though purporting to be passed by an
authority was not in reality the act of that authority ;
and as the determination did not depend on any rule of
law it was clearly a judicial act and not an enactment of
law. The ratio of this case brings out the distinction
between the exercise of judicial power and legislation.
Essentially as was held the High Court was called upon
to decide a controversy which involved the
determination of facts which did not depend on any
rule of law. Clearly there was, therefore, an exertion of
judicial power, which within its ambit involves an
inquiry and investigation of facts and then declaring
and enforcing liabilities as they stand on present or past
facts, and under any law which already exists, which
could not be done otherwise than by the High Court
which was seized of the matter. In this situation the
Federal Court construed this provision as an exercise of
judicial power by a legislative enactment. In Prentis v.
Atlantic Coast Line Co. (53 Law Ed. 158), at p. 158,
Const.P.76/2007, etc. 180
Justice Holmes distinguished the two (legislation and
judicial power) in the following words:
"A judicial inquiry investigates, declares, and
enforces liabilities as they stand on present or
past facts and under laws supposed already to
exist. That is its purpose and end. Legislation, on
the other hand, looks to the future and changes
existing condition by making a new rule, to be
applied thereafter to all or some part of those
subject to its power."
111. The present case is singular and on its own. We
do not even have to go into whether there was any objective
basis for the satisfaction required by Article 89 of
Constitution, nor into the issue whether such satisfaction is to
be entirely subjective. Present case can be resolved simply on
the ground that the Federal Government has not even
defended the NRO, 2007 and thus not even asserted that
there was indeed any such satisfaction at all, subjective or
objective. There should at least have been an assertion,
howsoever weak it may have been, for the Court to
undertake the exercise envisaged in the State of Rajasthan’s
case (AIR 1977 SC 1361). In the absence of even a simple
assertion by the Government we can easily hold that there
was no satisfaction at all.
112. As discussed hereinabove that firstly, the NRO,
2007 as a whole and in particular, its Sections 2, 6 & 7, are
inconsistent with Article 25 of the Constitution, as it has
Const.P.76/2007, etc. 181
created unreasonable classification, having no rational nexus
with the object of the NRO, 2007.
113. Besides above, the principle of equality
(Musawat), as enshrined in Article 25 of the Constitution, has
its origin in the Islamic teachings. Reference in this behalf
may be made to Muhammad (PBUH) Encyclopedia of
Seerah (Sunnah, Da’wah and Islam), 1st Edn. 1986. Vol.IV
(p:147-148). Relevant portion therefrom, on the subject of
“Equality” is reproduced hereinbelow for convenience:-
“Equality
Equality is an essential requisite of justice, because
when there is discrimination and partiality between
people, there is no justice. The Code of Allah demands
absolute equality of rights between all people without
any discrimination or favouritism between man and
man and between man and woman on any count.
The Qur’an declares. “O mankind! Behold, we have
created you all out of a male and a female, and have
made you into nations and tribes, so that you may
know each other. Surely, the noblest of you in the Sight
of Allah is the one who is most pious.” (49:13)
This verse clearly establishes equality of all men and
women on the basis of common parentage, and as such
discounts all claims of superiority or discrimination for
any person or group of persons. There is no rational or
logical ground for such claims, and therefore, it is
unreal and unnatural to demand discrimination
between man and man or between man and woman on
any count.
Const.P.76/2007, etc. 182
Besides’ all human beings are servants (ibid) of Allah
and therefore equal.
They are all created by Allah and all are His servants
alone. As such they are all equal and enjoy equal rights
in all areas of life. In His service and obedience, all
humans are equal and stand on the same level without
any discrimination all as one race and one people before
Him, no one claiming any special privileges and
honours.
In Surah al-A’raf we have these words: “When your
Lord drew forth from the children of Adam from their
loins their descendants, and made them testify
concerning themselves, saying: ‘Am I not your Lord?’
They said: Yes we do testify.’” (7:172). And then we find
these words; “Surely, this Brotherhood of yours is
single Brotherhood, and I am your Lord: therefore serve
and obey Me (and no other).” (21:92 and 23:52))
This concept of equality bestows equal rights upon all
members of the human race and leaves no room for any
discrimination of any kind, whether by colour, creed,
race or sex. If there is any discrimination anywhere, it is
man made, not divinely ordained, and therefore, must
be denounced, condemned and discarded.
Any such discrimination is unnatural and artificial and
goes against the basic Doctrine of Tawhid. As such it
will endanger the right balance and stability of human
social life.
If there is any discrimination for any man or woman in
Islam, it is on merit and on merit alone. Those who
develop their personal relationship with Allah fear
Const.P.76/2007, etc. 183
Allah, attain degrees of piety and taqwa of Allah, and
reach higher stations of excellence in the Sight of Allah.
However, even they stand equal with others in the
enjoyment of rights in society, and can claim no
superiority or favouritism over others so far as social
rights are concerned.
This basic doctrine also demands equality of all men
and women before the law and negates any kind of
discrimination between them. This is the essential
requirement of the Rule of Law in Islam: that all men
and women are equal in the eyes of the Law and must
be treated as such. Respect for human dignity, upon
which the Prophet of Islam laid so much emphasis, also
demands equality for all men and women in all fields of
human activity. (For details see under “Basic Human
Rights” in Volume III of this work)
Equality of Rights
It is implicit in the Doctrine of Tawhid and is also an
essential ingredient of justice and equality that all
people must enjoy equal rights without discrimination
on any count in all fields and departments of life. In the
enjoyment of social, political and religious rights, there
must not be any discrimination between ruler and
ruled, employer and employee, rich and poor and man
and woman: all should enjoy these rights freely, equally
and without any check or restriction. Denial of any of
these rights to any member would, in fact, be a denial of
the Doctrine of Tawhid.
Equal Treatment
The logical consequences of the above principle in
practice demands absolutely equal treatment of all
citizens, without any reservation, in all areas of life. It
Const.P.76/2007, etc. 184
also requires: (a) equality of opportunity of education,
training, employment and promotion in all services for
all citizens, irrespective of their social or political status
and influence; (b) equal treatment in all departments,
without discrimination of any kind between rich and
poor, big and small or workers and employers; (c) the
right to a livelihood of every member of the Muslim
state. It is the birthright of every person to have a
guaranteed decent living and decent wage from the
state. This calls indirectly for equitable distribution of
wealth between all the members of the state on the
principle of maximum circulation of the total wealth of
the nation, discouraging, as far as possible, the
concentration of wealth among a few people (59:7); and
(d) it is also implicit in the above principle that for the
political and social stability of society and state, matters
of national interest must be decided through a process
of consultation with the people, and all state affairs on
all levels must be decided on the basis of the concept of
consultation in its true sense, as envisaged by the
Qura’n (42:38) and practiced by the Prophet
Muhammad (PBUH).”
114. Corruption and corrupt practices, being a crime, if
proved, against a ‘holder of public office’ takes away his
qualification to contest the election because, prima facie, he
has breached the trust of his electorate. Therefore, by
inserting Section 33F in the NAO, 1999 by means of Section 7
of the NRO, 2007, possibility of raising objection on the
qualification of a person to be elected or chosen as a member
of the Parliament has been negated for limited purpose, in
Const.P.76/2007, etc. 185
view of Article 62(f) of the Constitution, a person having been
convicted/sentenced by the Court under the NAO, 1999 shall
stand absolved as the case has been withdrawn against him
or the proceedings have been terminated, pending in any
Court including the High Court and Supreme Court, in
appeal or whatever the case may be. Therefore, instead of
following the command of Article 5 of the Constitution,
Section 7 of the NAO has contravened Article 62(f) of the
Constitution. It is true that Section 62(f) of the Constitution
cannot be considered self-executory but if a person involved
in corruption and corrupt practices has been finally adjudged
to be so, then on the basis of such final judgment, his
candidature on the touchstone of Article 62(f) of the
Constitution can be adjudged to the effect whether he is
sagacious, righteous, non-profligate, honest or Ameen.
115. It is true that on an objection against a candidate,
without any support of evidence, the provisions of Article 62
of the Constitution cannot be pressed into service, because it
is a provision of Constitution which is not self executory.
Reference in this behalf may be made to Muhammad Afzal
v. Muhammad Altaf Hussain (1986 SCMR 1736).
116. However, with reference to examining the vires
of Section 7 of the NRO, 2007, in pursuance of which Section
Const.P.76/2007, etc. 186
33F has been inserted in the NAO, 1999, with an approach
that a ‘holder of public office’, as per the mandate of law, has
been absolved without following the legal course from the
allegations of corruption or corrupt practices, which also
keeps the element of trust in its fold, and washed him from
all such like sins, then how he can be considered qualified to
contest the election because conviction and sentence under
Section 9 of the NAO, 1999 has not been set aside legally, and
whether such ‘holder of public office’, with a stigma upon
him to be corrupt and involved in corrupt practices, can
become a member of the Parliament, which is a sovereign
body, representing the people of Pakistan. Article 62 (f) has
been incorporated in the Constitution by means of
President’s Order No.14 of 1985 (The Revival of Constitution
Order, 1985) and it being a part of the Constitution has to be
taken into consideration by the Courts, while examining the
case of a convict, involved in corruption and corrupt
practices, who has attained the status of innocent person by
means of a law which has washed away his conviction/
sentence by withdrawal or termination of cases or
proceedings, however, subject to furnishing strong evidence
for establishing the allegation mentioned in Article 62(f) of
the Constitution. As it has been noted hereinabove that this
provision was inserted by a dictator but it is still continuing
Const.P.76/2007, etc. 187
although five National Assemblies and Senate had been
elected and completed their terms, but no effective steps, so
far have been taken in this behalf.
117. Now turning towards the question under
consideration in respect of insertion of Section 33F in the
NAO, 1999 by means of Section 7 of the NRO, 2007, on the
basis of which either the proceedings have been terminated
or the cases have been withdrawn, as far as the withdrawal
of proceedings under Section 494 Cr.P.C. is concerned, it has
already been discussed hereinabove. while examining the
implications of Section 2 of the NRO, 2007 wherein it was
held that no withdrawal without the consent of the Court,
seized with the case, is possible and this provision itself
being discriminatory has been found in derogation to the
fundamental rights enshrined in Article 25 of the
Constitution and at the same time withdrawal of the criminal
cases, particularly the murder cases, without hearing the
heirs of victims. Likewise, while examining the vires of
Section 6 of the NRO, 2007 it has been held that the
legislature is not empowered to declare any judgment void
ab initio, however, subject to following the principles,
discussed hereinabove, which are lacking in the instant case.
Const.P.76/2007, etc. 188
As far as principles of withdrawal of cases under the NAO,
1999 is concerned, Section 25 of the NAO, 1999 contains that:-
“25. (a) Notwithstanding anything contained in
section 15 or in any other law for the time being in force,
where a holder of public office or any other person,
prior to the authorization of investigation against him,
voluntarily comes forward and offers to return the
assets or gains acquired or made by him in the course,
or as the consequence, of any offence under this
Ordinance, the Chairman NAB may accept such offer
and after determination of the amount due from such
person and its deposit with the NAB discharge such
person from all his liability in respect of the matter or
transaction in issue:
Provided that the matter is not sub judice in any court
of law.
(b) Where at any time after the authorization of
investigation, before or after the commencement of the
trial or during the pendency of an appeal, the accused
offers to return to the NAB the assets or gains acquired
or made by him in the course, or as a consequence, of
any offence under this Ordinance, the Chairman, NAB,
may, in his discretion, after taking into consideration
the facts and circumstances of the case, accept the offer
on such terms and conditions as he may consider
necessary, and if the accused agrees to return to the
NAB the amount determined by the Chairman, NAB,
the Chairman, NAB, shall refer the case for the approval
of the Court, or as the case may be, the Appellate Court
and for the release of the accused.
(c) The amount deposited by the accused with the
NAB shall be transferred to the Federal Government or,
as the case may be, a Provincial Government or the
Const.P.76/2007, etc. 189
concerned bank or financial institution, company, body
corporate, co-operative society, statutory body, or
authority concerned within one month from the date of
such deposit.”
Subject to exercise of above powers, a case can be withdrawn
on the basis of entering into plea bargain, with all
consequences. So far as, withdrawal from the prosecution
under Section 31B of the NAO, 1999, is concerned, that is also
subject to consent of the Court. Section 31B of the NAO, 1999
reads as follows:-
“31B. Withdrawal from Prosecution. The Prosecutor
General Accountability may, with the consent of the
Court, withdraw from the prosecution of any accused
Person generally or in respect of any one or more of the
offences for which he is tried and upon such
withdrawal:
(i) if it is made before a charge has been framed, the
accused shall be discharged in respect of such
offence or offences; and
(ii) if it is made after a charge has been framed, he
shall be acquitted in respect of such offence or
offences.”
118. It is important to note that a person, who enters
into plea-bargain as per the mandate of Section 25 of the
NAO, 1999, would be disqualified to contest the election or to
hold the public office. The language employed in Section 33F
of the NAO, 1999, inserted by means of Section 7 of the NRO,
2007 does not indicate that the withdrawal had to take place,
subject to any of the above provisions, either under Section
Const.P.76/2007, etc. 190
25 or under Section 31B of the NAO, 1999, with the consent
of the Court.
119. So far as withdrawal from the cases inside or
outside the country, as per Section 33F of the NAO, 1999,
inserted through Section 7 of the NRO, 2007, is concerned, it
would mean that the ‘holders of public office’ have been
absolved from the charge of corruption and corrupt practices,
therefore, by adopting such procedure, the legislative
authority had transgressed its jurisdiction, because such
powers are only available to the judiciary and the
Constitution provides guarantee to secure the independence
of the judiciary. Reference in this behalf may be made to
Article 175 of the Constitution, which has been extensively
interpreted in Mehram Ali’s case (PLD 1998 SC 1445) and
Liaquat Hussain’s case (PLD 1999 SC 504).
120. A perusal of Section 33F of the NAO, 1999,
inserted through Section 7 of the NRO, 2007 further reveals
that while using the expressions ‘withdrawal’ and
‘termination’, it was not considered that in the cases of the
offences, falling within the mischief of the NAO, 1999,
charged against the ‘holders of public office’, no such judicial
powers can be given to the legislature to withdraw or
terminate the cases or proceedings. As far as, the words
Const.P.76/2007, etc. 191
‘termination of prolonged pending proceedings’, are
concerned, these are alien to the system of criminal
administration of justice, prevailing in the country under
Criminal Procedure Code and the NAO, 1999.
121. In order to ascertain that as to how many persons
have benefited from Section 33F of the NAO, 1999, inserted
through Section 7 of the NRO, 2007, the NAB was asked to
furnish the details of the same. Accordingly, after a great deal
of difficulty, the list was provided by the Chairman NAB,
which indicates that there are two categories of the
beneficiaries i.e. ‘holders of public office’; whose cases were
pending (a) inside Pakistan and (b) outside Pakistan, in
which US$ 60 million are involved for which a request for
mutual legal assistance and civil party to proceedings, has
been made by the Federal Government. As far as the
category (a) is concerned, this Court, in exercise of its powers
conferred under Article 187 read with Article 190 of the
Constitution, may direct the NAB or any executive authority
to supply requisite information.
122. So far as Article 190 of the Constitution is
concerned, it imposes a constitutional obligation upon all the
executives and judicial authorities, throughout the country to
act in aid of the Supreme Court. Reference in this behalf may
Const.P.76/2007, etc. 192
be made to Al-Jehad Trust v. Federation of Pakistan (PLD
1997 SC 84), but in implementing the judgment, in letter and
spirit, regarding the cases outside the country, the Court may
feel handicapped. Therefore, it would be an obligation and
the duty of the executive to ensure initiation of proceedings
according to law.
123. At this juncture, it may be noted that as per the
list provided by the NAB, regarding cases falling within
category (b) in which a huge amount is involved, it was also
pointed out that to get back this money, subject to
determination, belonged to the people of Pakistan, an amount
ranging between 660 million to 2 billion rupees was spent but
despite our directions, the Chairman NAB could not furnish
the exact figure. This Court asked the learned Prosecutor
General to furnish the details in respect of the amount
involved in the cases out side the country, in pursuance of
request for mutual legal assistance and civil party to
proceedings, was made by the Federal Government.
124. In reply, the learned Prosecutor General NAB
furnished the following details:-
a) The Magistrate after considering the material
opined that, prima facie, case has been made
out and sent it to the Attorney General for
Const.P.76/2007, etc. 193
launching the proceeding and also passed the
order for freezing of account.
b) The accused filed appeal against the said
order, which was also dismissed being based
on vague grounds.
c) Our lawyer informed that the Attorney
General in Geneva had decided not to
prosecute the accused further and the Court
expressed its dissatisfaction over it.
d) The Magistrate in Geneva has passed an order
for de-freezing of the money.
In respect of item (c) above, the learned Prosecutor General
NAB admitted that in the proceedings, reference was made
to a letter sent by the then Attorney General for Pakistan
(Malik Muhammad Qayyum). Whereas, Malik Muhammad
Qayyum, the then Attorney General for Pakistan, who
appeared on Court’s call, informed the Court that he had sent
a letter to the Attorney General of Geneva, mentioning
therein the relevant provisions of the NRO, 2007, regarding
withdrawal of cases. Similarly, learned Acting Attorney
General for Pakistan (Mr. Shah Khawar) appeared and stated
that the request for mutual legal assistance and civil party to
proceedings, was made by the Federal Government through
the Attorney General, therefore, he would apprise the Court
of the position of cases etc. According to him, so far as the
Const.P.76/2007, etc. 194
amount lying in the Swiss Banks was concerned, 25 other
individuals had also filed claims against it; however, a
request was made by the former Attorney General for
Pakistan (Malik Muhammad Qayyum) for withdrawal of
money but as per his knowledge that request was not
acceded to by the Attorney General Office of Switzerland as
well as by the concerned Magistrate because their version
was that they would deal with the case in accordance with
their local laws. However, on 15th December 2009, the then
Attorney General for Pakistan (Malik Muhammad Qayyum)
again appeared on Court’s call; he read Section 7 of the NRO,
2007 with reference to withdrawal of cases and informed the
Court that Constitution Petition No. 265 of 2008 (Asif Ali
Zardari v. Government of Pakistan) was filed before the High
Court of Sindh, whereby directions were sought for the
Federation and the NAB, both, that they should withdraw all
the cases pending in Pakistan and specifically proceedings in
Geneva and in London and all others under the provisions of
the NRO, 2007; the NAB authorities appeared before the
Sindh High Court and made a statement that they would
make efforts to withdraw the proceedings from all the Courts
in and outside Pakistan; the Court, vide order dated 4th
March 2008, directed to do the needful within a period of two
weeks; he further stated that in pursuance of said order and
Const.P.76/2007, etc. 195
also under the instructions of the then President, he issued a
letter dated 9th March 2008 to the Attorney General of
Geneva regarding withdrawal of proceedings. Copy of said
letter has also been placed on record, which is reproduced
hereinbelow in extenso:-
“Re: P/11105/1997 and CP 289/97, Republic of
Pakistan Vs/ Asif Ali Zardari and Jens Schlegelmich
Dear Mr. Attorney General,
We write you further to our meeting of 7 April 2008.
We hereby confirm that the Republic of Pakistan having
not suffered any damage withdraws in capacity of civil
party not only against Mr. Asif Ali Zardari but also
against Mr. Jens Schlegelmich and any other third party
concerned by these proceedings. This withdrawal is
effective for the above captioned proceedings as well as
for any other proceedings possibly initiated in
Switzerland (national or further to international judicial
assistance). The Republic of Pakistan thus confirms
entirely the withdrawal of its request of judicial
assistance and its complements, object of the
proceedings CP/289/97.
Request for mutual assistance made by the then
government, which already stand withdrawn, was
politically motivated. Contract was awarded to preshipment
inspection companies in good faith in
discharge of official functions by the State functionaries
in accordance with rules.
The Republic of Pakistan further confirms having
withdrawn itself as a damaged party and apologizes for
the inconvenience caused to the Swiss authorities.
Your sincerely,
Sd/-
Malik Muhammad Qayyum
Attorney General for Pakistan.”
125. Despite our repeated queries that how request for
withdrawal of mutual assistance and civil party to
Const.P.76/2007, etc. 196
proceedings, initiated by the Federal Government, were
withdrawn, no satisfactory answer was given to us. We have
noticed that the Chairman NAB, who should have assisted
the Court diligently, was reluctant to do so for one or the
other reason. Therefore, having left with no option, the
Federal Secretary, Law & Justice Division, Government of
Pakistan was called upon to appear and place on record
copies of the file, pertaining to the Swiss cases. His statement
was as follows:-
“a letter was addressed to Law Ministry by Mr. Farooq
H. Naik, ASC (on behalf of Mohtarma Benazir Bhutto
and Asif Ali Zardari), requesting therein that since this
NRO, 2007 has been promulgated, as such all cases
should be dropped, emphasizing upon the cases in
Geneva Court; that application was processed and in
routine placed before the then Minister Law (Zahid
Hamid), who opposed the request and wrote a detailed
note that it is not within their ambit so kindly contact
the foreign office. After that file does not show
anything”.
126. Likewise, Mr. Salman Faruqui, Secretary General
to the President also appeared on Court’s call and informed
that no such file existed in his office or at President’s Camp
Office, Rawalpindi.
127. As far as issuing a letter to Attorney General of
Geneva dated 7th April 2008 by Malik Muhammad Qayyum
Const.P.76/2007, etc. 197
(the then Attorney General) is concerned, it seems that he
had done so in his personal capacity, against the Rules of
Business, 1973. In this behalf it may be noted that under Rule
14 of the Rules of Business, 1973, he was required to consult
the Law, Justice and Human Rights Division on all legal
questions, arising out of any case. Had he consulted the Law,
Justice & Human Rights Division, he would have been
advised not to send any letter in this regard because the
Ministry of Law & Justice had already declined such request
as was pointed out by the Secretary Law & Justice Division,
whose statement has been referred to hereinabove.
128. It is also important to note that under sub-Rule
(2) of Rule 14 of the Rules of Business, 1973, no Division shall
consult the Attorney General except through the Law, Justice
& Human Rights Division and in accordance with the
procedure laid down by that Division. Beside it, stand taken
by Malik Muhammad Qayyum that he was asked by the then
President of Pakistan to do so, does not seem to be correct
because under Rule 5(11-A) of the Rules of Business, 1973,
verbal orders given by a functionary of the Government
should, as a matter of routine, be reduced to writing and
submitted to the issuing authority; if time permits, the
confirmation shall invariably be taken before initiating
Const.P.76/2007, etc. 198
action; however, in an exigency, where action is required to
be taken immediately or it is not possible to obtain written
confirmation of the orders before initiating actions,
functionary to whom the verbal orders are given shall take
the action so required and at the first available opportunity,
obtain the requisite confirmation while submitting to the
issuing authority a report of the action taken by him. The
statement of Mr. Salman Faruqui, Secretary General to the
President, reflects that no such file exists. Since Malik
Muhammad Qayyum, the then Attorney General for
Pakistan has done so in violation of the Rules of Business,
1973, therefore, he is liable to account for his such action.
129. Section 21 of the NAO, 1999 is a comprehensive
provision of law, which spells out the nature of the request to
a Foreign State for mutual legal assistance including; freezing
of assets to the extent to which the assets are believed on
reasonable ground to be situated in that State; confiscate
articles and forfeit assets to the extent to which the articles or
assets, as the case may be, are believed to be located in that
State; transfer to Pakistan any such evidence, documents,
things, articles, assets or proceeds realized from the disposal
of such articles or assets, etc. We believe that to curb the
culture of corruption and corrupt practices globally it has
Const.P.76/2007, etc. 199
become necessary to enact such law on the basis of which the
objects noted hereinabove could be achieved.
130. Learned counsel appearing for the petitioners
impressed upon the arguments that on the one hand in
pursuance of the NRO, 2007, the cases against the ‘holders of
public office’ either have been withdrawn or terminated, who
should have been found guilty for the corruption or corrupt
practices (under Section 9 of the NAO, 1999) and sentenced
to imprisonment as well as fine, and on the other hand, the
‘holders of public office’ who have been convicted and
sentenced, and against their convictions, appeals pending
either before the High Court or the Supreme Court, have
been withdrawn. Similarly against those ‘holders of public
office’, who were acquitted but against their acquittal
proceedings were pending before the superior Courts, have
also been illegally provided clean-chit by withdrawal or
termination of the proceedings, contrary to constitution and
the law, knowing well that this country is signatory to the
UN Convention Against Corruption. A perusal of UN
Convention Against Corruption indicates that the state had
responsibility to develop and implement or maintain
effective, coordinated anti-corruption policies; to take
measures to prevent money laundering; to take measures for
Const.P.76/2007, etc. 200
freezing, seizure and confiscation of proceeds of crime,
derived from offences established in accordance with the
Convention, or the property the value of which corresponds
to that of such proceeds, property, equipment or other
instrumentalities used in or destined for use in offences
established in accordance with the Convention, etc.; State
parties shall consider assisting each other in investigations of
and proceedings in civil and administrative matters relating
to corruption; as well as affording to one another the widest
measure of mutual legal assistance in investigations,
prosecutions, and judicial proceedings in relation to the
offences covered by the Convention; prevention and
detection of transfers of proceeds of crime. On the other
hand, the promulgation of the NRO, 2007, instead of
preventing corruption and corrupt practices, has encouraged
the same. We have no option but to agree with the contention
of the learned counsel for the petitioners, as the same is based
on legal and logical premise.
131. We have already pointed out in the preceding
paras of this judgment that under the provisions of NAO,
1999, there is a separate scheme for the withdrawal of cases.
However, Article 45 of the Constitution confers power upon
the President of Pakistan to the effect that the President shall
Const.P.76/2007, etc. 201
have power to grant pardon, reprieve and respite, and to
remit, suspend or commute any sentence passed by any
Court, tribunal or other authority. The cases under Section
33F of the NAO, 1999, inserted through Section 7 of the NRO,
2007, are also not covered under Article 45 of the
Constitution and in this behalf no other law has been referred
to by any of the learned counsel appearing for the parties.
There is no cavil with the proposition that the criminal
Courts, including the Trial, Appellate and Revisional, are
empowered to acquit, set aside the conviction/ sentence or
quash the proceedings, but without adhering to this
provision, the legislative authority, in its wisdom, has
withdrawn or terminated the cases or proceedings,
purportedly, in exercise of power, not vested in it.
Consequently, all the ‘holders of public office’ have not been
dealt with in accordance with law, principle of which has
been enshrined in Article 4 of the Constitution.
132. At this juncture, it may occur in one’s mind that
what are the judicial powers. This question has not been
discussed in Mehram Ali’s case (PLD 1998 SC 1445) or in
Liaquat Hussain’s case (PLD 1999 SC 504). However, one of
the learned counsel has placed on record a judgment in the
case of Brandy v. Human Rights & Equal Opportunity
Const.P.76/2007, etc. 202
Commission (183 CLR 245) from the Australian jurisdiction
passed by High Court of Australia, which is the Apex Court
of the country. Relevant portion therefrom is reproduced
hereinbelow for ready reference:-
“9. Difficulty arises in attempting to formulate a
comprehensive definition of judicial power not so much
because it consists of a number of factors as because the
combination is not always the same. It is hard to point
to any essential or constant characteristic. Moreover,
there are functions which, when performed by a court,
constitute the exercise of judicial power but, when
performed by some other body, do not (66 See Reg. v.
Davison [1954] HCA 46; (1954) 90 CLR 353 at 368).
These difficulties were recognized by the Court in
Precision Data Holdings Ltd. v. Wills (67 [1991] HCA
58; (1991) 173 CLR 167 at 188-189):
“The acknowledged difficulty, if not
impossibility, of framing a definition of
judicial power that is at once exclusive and
exhaustive arises from the circumstance
that many positive features which are
essential to the exercise of the power are
not by themselves conclusive of it. Thus,
although the finding of facts and the
making of value judgments, even the
formation of an opinion as to the legal
rights and obligations of parties, are
common ingredients in the exercise of
judicial power, they may also be elements
in the exercise of administrative and
legislative power."
One is tempted to say that, in the end, judicial power is
the power exercised by courts and can only be defined
by reference to what courts do and the way in which
they do it, rather than by recourse to any other
Const.P.76/2007, etc. 203
classification of functions. But that would be to place
reliance upon the elements of history and policy which,
whilst they are legitimate considerations, cannot be
conclusive.
10. It is traditional to start with the definition advanced
by Griffith CJ in Huddart, Parker and Co. Proprietary
Ltd. v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330
at 357) in which he spoke of the concept of judicial
power in terms of the binding and authoritative
decision of controversies between subjects or between
subjects and the Crown made by a tribunal which is
called upon to take action. However, it is not every
binding and authoritative decision made in the
determination of a dispute which constitutes the
exercise of judicial power. A legislative or
administrative decision may answer that description.
Another important element which distinguishes a
judicial decision is that it determines existing rights and
duties and does so according to law. That is to say, it
does so by the application of a pre-existing standard
rather than by the formulation of policy or the exercise
of an administrative discretion. Thus Kitto J in Reg. v.
Gallagher; Ex parte Aberdare Collieries (69 (1963) 37
ALJR 40 at 43) said that judicial power consists of the
"giving of decisions in the nature of adjudications upon
disputes as to rights or obligations arising from the
operation of the law upon past events or conduct". But
again, as was pointed out in Re Cram; Ex parte
Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA
29;(1987) 163 CLR 140 at 149) , the exercise of nonjudicial
functions, for example, arbitral powers, may
also involve the determination of existing rights and
Const.P.76/2007, etc. 204
obligations if only as the basis for prescribing future
rights and obligations.”
133. It is a principle of law that binding judgment,
either of acquittal or conviction, can only be withdrawn by
the Courts of law, therefore, the question for determination
would be as to which forum is a ‘Court’ and which is not.
Answer to this proposition has been given in Rehman Khan
v. Asadullah Khan (PLD 1983 Quetta 52). In this very
judgment the word ‘Court’ has been defined, after a
considerable discussion, and it has been held that “hence, the
Courts are only such organs of the State which follow legally
prescribed scientific methodology as to procedure and
evidence, in arriving at just and fair conclusions. As far as the
definition of ‘Court’ is concerned, the Hon’ble late Mr. Justice
Zakaullah Lodhi (the then Acting CJ) concluded that “the
Courts are only such organs of State which administer justice
under guidance of procedural laws as to conduct of
proceedings as well as evidence; since such methodology
helps the Court in administering justice, in accordance with
law, therefore, all other bodies which have a free hand in the
matter of deciding disputes are not Courts”.
134. Applying the above test on the provisions of
Section 33F of the NAO, 1999, inserted through Section 7 of
the NRO, 2007, relating to withdrawal or termination of cases
Const.P.76/2007, etc. 205
or proceedings, inescapable conclusion would be that the
legislative authority of the President had acted contrary to
judicial norms by allowing withdrawal and termination of
cases and proceedings. However, as noted hereinabove, that
on the basis of judicial interaction by the Court of law,
having jurisdiction, appropriate orders can be passed.
135. Essentially withdrawal or termination of cases or
proceedings in the manner as it has been done by means of
contents of Section 33F of the NAO, 1999, inserted through
Section 7 of the NRO, 2007, does not fall within the definition
of ‘pardon’, ‘amnesty’ or ‘commutation of sentence’. As per
the Corpus Juris Secundum, Vol.67, ‘pardon’ and ‘amnesty’
has been defined as follows:-
“Pardon.- a pardon is an executive act of grace which
exempts and individual from the punishment the law
inflicts for a crime, he has committed. It is full or partial
accordingly as it absolves the recipient of all or only a
portion of the legal consequences of his crime; and it is
conditional or absolute accordingly as it does or does
not make its operation or continued operation, depend
on a condition precedent or subsequent.”
“Amnesty.- Amnesty is an exercise of the sovereign
power by which immunity to prosecution is granted by
wiping out the offence supposed to have been
committed by a group or class of persons prior to their
being brought to trial.”
Who May Exercise Authority.- Under constitutional
provisions, the granting of pardons is within the
Const.P.76/2007, etc. 206
province of the executive department of the State or
nation, as the case may be.
……….………………………………………………………..
Legislature. As a general rule, the legislature cannot
exercise the pardoning power where the constitution of
the State does not confer such power on the legislature,
but lodges it else where.”
The expressions ‘pardon’ and ‘amnesty’ have been defined in
Black’s Law Dictionary, 7th Edn. (1999), as under:-
“Pardon.- The act or an instance of officially nullifying
punishment or other legal consequences of a crime; a
pardon is usu. granted by the chief executive of a
government [the President has the sole power to issue
pardons for federal offences, while State Governors
have the power to issue pardons for State crimes].”
“Amnesty.- A pardon extended by the Government to a
group or class of persons, usu. for the political offences;
the act of a sovereign power officially forgiving certain
classes of persons who are subject to trial but have not
yet been convicted; unlike an ordinary pardon, amnesty
is usu. addressed to crimes against State sovereignty –
that is, to political offences with respect to which
forgiveness is deemed more expedient for the public
welfare then prosecution and punishment. Amnesty is
usu. general, addressed to classes or even
communities.”
Admittedly, neither the ‘holders of public office’ have been
pardoned nor amnesty has been given to them and similarly,
their sentences have also not been commuted. Therefore, on
the basis of such legislative document i.e. the NRO, 2007,
Const.P.76/2007, etc. 207
which has no legal sanctity behind it, the benefit drawn by
the ‘holders of public office’ is not sustainable.
136. Article 5 of the Constitution in unambiguous
terms provides that loyalty to the State is the basic duty of
every citizen; and obedience to the Constitution and the law
is the inviolable obligation of every citizen, wherever he may
be and of every other person for the time being within
Pakistan. Therefore, while promulgating the NRO, 2007, the
President has to conform to the norms and response to the
voice of the Constitution, as per the mandate of Article 5 of
the Constitution and any action on his part which negates the
dictates of the Constitution including the fundamental rights
shall be tantamount to promulgating a law which is neither
acceptable by the nation or internationally, being not in line
with the dictates of the Constitution. Therefore, the President
who is under oath to protect the Constitution in all
circumstances is not competent to promulgate an Ordinance
in the name of national reconciliation, which is not
permissible under any of the legislative lists i.e. Federal or
Concurrent, as per Fourth Schedule of the Constitution,
perusal whereof abundantly makes it clear that no law in the
nature of the NRO, 2007 can be promulgated which instead of
eliminating exploitation etc. amongst the citizens, as per
Const.P.76/2007, etc. 208
Article 3 of the Constitution, tends to perpetuate corruption
and corrupt practices as discussed above. There is no need to
cite any judgment in this behalf except making reference to
the case of Ch. Zahur Ilahi v. Zulfikar Ali Bhutto (PLD
1975 SC 383) to emphasize that it is the duty of every one to
obey the Constitution.
137. It is the prerogative of the Parliament or
Provincial Assembly to promulgate laws according to their
respective spheres allocated to them, inter alia, taking into
consideration the provisions of Article 227 of the
Constitution, relating to promulgation of law according to
Islamic provisions. Sub-Article (1) of Article 227 has two
parts; according to its first part all existing laws shall be
brought in conformity with the Injunctions of Islam as laid
down in the Holy Quran and Sunnah. As per its plain
reading, it refers to the laws which were existing when the
Constitution of Pakistan, 1973 was enforced i.e. on 14th
August 1973. As per its second part, which commands that
no law shall be enacted which is repugnant to such
injunctions. Clause (2) of Article 227 of the Constitution
provides that effect shall be given to the provisions of clause
(1) only in the manner provided in Part-IX of the
Constitution, thus it leads to a reference to Article 228, which
provides for composition of Council of Islamic Ideology, to
Const.P.76/2007, etc. 209
which a reference may be made by the Parliament, the
President or the Governors of the Provinces on a question
whether a proposed law is or is not repugnant to the
injunctions of Islam, in terms of Article 229 of the
Constitution. On receipt of such question so referred under
Article 229 of the Constitution, the Council has to inform
within 15 days, from the receipt of the reference, to the
House, the Assembly, the President or the Governor, as the
case may be, of the period within which the Council expects
to be able to furnish that advice. Article 230 of the
Constitution further provides that where a House, a
Provincial Assembly, the President or the Governor, as the
case may be, considers that, in the public interest, the making
of the proposed law, in relation to which the question arose,
should not be postponed until the advice of the Islamic
Council is furnished, the law may be made before the advice
is furnished; but at the same time it is also provided that,
where a law is referred for advice to the Islamic Council and
the Council advises that the law is repugnant to the
Injunctions of Islam, the House or, as the case may be, the
Provincial Assembly, the President or the Governor shall
reconsider the law so made. This is how the scheme of Part
IX of the Constitution, relating to Islamic provisions, works.
Const.P.76/2007, etc. 210
138. As it has been discussed hereinabove, by making
reference to a book tilted as “Muhammad (PBUH)
Encyclopedia of Seerah”, that principle of equality in Islam
is an essential requisite of justice because when there is
discrimination and partiality between the people, there is no
justice. A code of Allah demands absolute equality of rights
between the people without any discrimination or
favouritism between man and man, and man and woman, on
any count. Therefore, without any fear of doubt, it can be
held that Article 25 of the Constitution, namely, all citizens
are equal before the law and are entitled to equal protection
of law and there shall be no discrimination on the basis of sex
alone, has its origin in Quranic injunctions. Once it has been
held that any law is void, insofar as, it is inconsistent with or
in derogation of fundamental rights, therefore, it would also
be against the injunctions of Islam and no such law shall be
enacted which is repugnant to such Injunctions.
139. Thus for the foregoing reasons, we are of the
opinion that the NRO, 2007 has been promulgated not in
consonance with Injunctions of Islam in terms of Article
227(1) of the Constitution. We may add a word of caution
since there is a tendency among some litigants to invoke such
precepts of Islam as do not have universal acceptance even
Const.P.76/2007, etc. 211
among the jurists and schools of Islamic Sharia, or who will
invoke, on vague and unspecific grounds, recourse to the
morality and conscience of the Constitution or to
international conventions. These cannot be invoked as a
matter of course, and certainly not to strike down formal
legislation or executive action which is otherwise found to be
within the scope of the Constitution and the law. The
Constitution remains supreme and the primary reason for
striking down the NRO, 2007 has been its being ultra vires the
express and stated provisions of the Constitution. The
observations relating to the application of Article 227 and to
the morality and conscience of the Constitution are only
further supportive observations that can be construed as a
reconfirmation of the essential and inherent invalidity in the
light of the other express provisions contained in the
Constitution. The Primary touchstones remain the other
provisions of the Constitution specified in the judgment.
140. This Court in more than one cases including the
Azizullah Memon’s case (PLD 1993 SC 341), I.A. Sherwani’s
case (1991 SCMR 1041) and Liaquat Hussain’s case (PLD
1999 SC 504) has held that different laws can be enacted for
different sexes and age groups, but in the present case the
basic question is as to the vires of the NRO, 2007 on the
Const.P.76/2007, etc. 212
ground of being violative of Article 25 of the Constitution as
it has provided protection to a certain class of persons against
the crimes committed during a certain period.
141. It may be noted that newly inserted Section 33F
of the NAO, 1999, under Section 7 of the NRO, 2007, has not
only made classification between the general public and the
‘holders of public office’ but also amongst the ‘holders of
public office’ on account of time period, as well, on the basis
of which, benefit to a particular class i.e. the persons against
whom the proceedings were initiated prior to 12th October
1999, has been extended on the criteria that prolonged
proceeding are pending against them. At this juncture, it may
be noted that prior to the NAO, 1999, Ehtesab Act, 1997 was
in field, which was repealed on the promulgation of the
NAO, 1999, as a result whereof, the proceedings initiated
under the said Act, were protected by means of Section 33 of
the NAO, 1999, which provides that any and all proceedings
pending before the Court under the Ehtesab Act, 1997 shall
stand transferred to a Court, as soon as it is constituted under
this Ordinance, within the same Province, and it shall not be
necessary to recall any witness or again to record any
evidence, that may have been recorded. As far as Ehtesab
Act is concerned, it was enacted on 31st May 1997 and was
made effective w.e.f. 6th November 1990, so through the
Const.P.76/2007, etc. 213
NRO, 2007 benefit of withdrawal or termination of the cases
or proceedings has been extended to persons whose cases are
covered between the period from 6th November 1990 and 12th
October 1999. Interestingly, neither the benefit of the NRO,
2007 has been extended to the ‘holders of public office’,
against whom cases were registered prior to 6th November
1990 nor to those ‘holders of public office’ against whom
cases have been registered after 12th October 1999, although
the cases were registered against such persons, even before
and after these cutoff dates. Thus for this reason as well, all
the ‘holders of public office’ against whom cases have been
initiated before 6th November 1990 and after 12th October
1999 are also entitled for equal protection of law because they
are similarly placed. Therefore, on the basis of intelligible
differentia, no distinction can be drawn between both the
groups, as such the above sub-classification within the class
of ‘holders of public office’ is not based on an intelligible
differentia, having no rational nexus to the object, sought to
be achieved by the relevant classification under the NRO,
2007 as such, it, being a discriminatory law, deserves to be
declared void ab initio [I.A. Sherwani’s case (1991 SCMR
1041)].
142. It is also contended with vehemence by the
petitioner’s counsel, particularly Mr. Abdul Hafeez Pirzda
Const.P.76/2007, etc. 214
and Mr. A.K. Dogar, learned Advocates that the NRO, 2007
was promulgated against the morality and the conscience of
the Constitution. To elaborate their argument, they relied
upon R.S. Jhamandas’ case (PLD 1966 SC 229), Benazir
Bhutto’s case (PLD 1988 SC 416) and D.S. Nakara’s case
(AIR 1983 SC 130).
143. It is a universally accepted principle that
Constitution of the country, may be written or otherwise,
represents the voice of the people. The Constitution being a
supreme law of the country provides for guarantee of peace,
welfare and amity of the people, subject to their rights and
obligations, against all forms of exploitation, socio-economic
justice and principles of good governance, transformed in the
principles of policy, to make the document as a living
instrument, sufficient to cater for the present and future
requirements of a nation. An instrument like the Constitution
of 1973, to achieve the objects spelt out in the preamble, has
the support of 176 million people, meaning thereby that this
instrument has on its back moral strength of the nation,
therefore, it would be their earnest desire and wish that
everyone must show loyalty to the State and obedience to the
Constitution and the law, as it has been envisaged under
Article 5 of the Constitution. This object can be achieved if
the moral or ethical values, the desires of the nation, have
Const.P.76/2007, etc. 215
been transformed into a legally enforceable formulation. In
instant case the Parliamentarians i.e. the representatives of
the people of Pakistan, by their high moral conduct have
already demonstrated, by not allowing the NRO, 2007 to
become the Act of the Parliament, as manifested from the
proceedings of the National Assembly, referred to
hereinabove, as well as by the act of the Federal and
Provincial Governments of not defending and supporting it.
As it has been discussed earlier that will of the people of
Pakistan was not included in the promulgation of the NRO,
2007 because despite availability of the National Assembly
the same was not placed before it as the then legislative
authority, being holder of highest office under the
Constitution, is presumed to know that it is a legislation
which is being promulgated against the conscience of the
Parliamentarians representing the people of Pakistan and
inconsistent with the constitutional provisions discussed
hereinabove, including Article 63(1)(h) of the Constitution,
which provides for disqualification of a person from being
elected or chosen as, and from being, a member of the
Parliament, if he has been convicted by a Court of competent
jurisdiction on a charge of corrupt practices, moral turpitude
or misuse of power or authority under any law for the time
being in force. The Constitution has its own conscience being
Const.P.76/2007, etc. 216
a living document, therefore, any law which negates any of
the constitutional provisions shall be considered to be
inconsistent with it. In R.S. Jhamandas’s case (PLD 1966 SC
229), this Court being conferred with the powers of judicial
review in the orders passed by Land Commissioner under
para 27 (1) of the West Pakistan Land Reforms Regulation,
1959 overruled the objection and observed that “what is hit is
something which in the terms of the present Constitution, may well
be described as the constitutional conscience of Pakistan”. This
judgment supports the arguments that any law which is not
promulgated in accordance with the Constitution would be
considered against its conscience. As far as the question of
morality is concerned, it has already been discussed
hereinabove. However, note of it was also taken by this
Court in Benazir Bhutto’s case (PLD 1988 SC 416) while
examining the implications of Article 17(1) of the
Constitution. An elector, while exercising his right of
franchise, confers/places trust upon the representative, being
chosen by him. If such representative betrays his trust by
involving himself into corruption or the offence of moral
turpitude, he disqualifies himself to continue as a member of
the Parliament, according to the guidelines provided in
Article 63(1)(h) of the Constitution. It is also to be noted that
plain reading of Article 63(1)(h) of the Constitution reveals
Const.P.76/2007, etc. 217
that it introduces two types of situation; one disclosing
disqualification qua a candidate to become a member of the
Parliament and; second disqualification qua the elected
member of the Parliament.
144. It may be noted that Section 33F(1) in the NAO,
1999, inserted through Section 7 of the NRO, 2007, giving it
overriding effect, by using non abstante clause, has allowed
the prolonged pending proceedings to be withdrawn with
immediate effect. In Black’s Law Dictionary, 7th Edn. (1999)
word ‘proceeding’ has been defined as follows:-
“(1) the regular and orderly progression of a law suit,
including all acts and events between the time of
commencement and the entry of judgment. (2) any
procedural means for seeking redress from a tribunal
or agency. (3) an act or step that is part of a larger
action. (4) the business conducted by a Court or other
official body; a hearing. …………”
As per the above definition, the cases or proceedings have
been withdrawn or terminated contrary to law, as it has been
discussed hereinabove, initiated before 12th October 1999,
including pending trial proceedings, conviction/acquittal
appeals, etc., inasmuch as the transfer of pending
proceedings under Section 33 of the NAO, 1999 have also
been withdrawn or terminated. The manner in which Section
33F of the NAO, 1999, has been couched, suggests that the
Const.P.76/2007, etc. 218
‘holders of public office’ involved in any proceedings, not
only under the NAO, 1999 but also in the cases under other
laws i.e. Pakistan Penal Code, Anti-Terrorism Act, etc. have
been withdrawn or terminated, considering the ‘holders of
public office’ as a distinct class from the accused/convicts
against whom similar proceedings are pending in any Court,
with immediate effect. How the Constitution, as per its
conscience coupled with morality, can allow this Court to
maintain a law which is against all the norms of justice. As
explained above, two things have become very significant;
one is category of cases, initiated on a reference by the NAB
inside or outside Pakistan and; second is that of the cases
under any other law, for the time being in force covering all
nature of crimes, heinous or minor. It may be noted that a
‘holder of public office’ when enters into Parliament, he
enjoys moral authority as he has been elected by the
constituents, enjoying their trust. But a ‘holder of public
office’ whose case falls under disqualification prescribed in
Article 63(1)(h) of the Constitution, which includes
conviction by a Court of competent jurisdiction, on the
charge of corrupt practices under Section 9 of the NAO, 1999,
identifies persons, who are said to have committed the crime
falling under this category. Second charge which falls under
the definition of disqualification under Article 63(1)(h) of the
Const.P.76/2007, etc. 219
Constitution is in respect of moral turpitude. The expression
‘moral turpitude’ has not been defined under the
Constitution, however, in Black’s Law Dictionary, 6th Ed. its
definition as under:-
“The act of baseness, vileness or the depravity
in private hand social duties which man owes to his
fellow man, or to society in general, contrary to
accepted and customary rule of right and duty
between man and man. Act or behaviour that gravely
violates moral sentiment or accepted moral standards
of community and is a morally culpable quality held
to be present in some criminal offences as
distinguished from others. The quality of a crime
involving grave infringement of the moral sentiment
of the community as distinguished from statutory
mala prohibita.”
Similarly, in Webster Dictionary, the term ‘moral turpitude’
has been defined as “an act or behaviour that gravely violates
moral sentiment or accepted moral standards of
community.” In Law Lexicon by P. Remnatha Aiyar Vol.III,
3rd Ed. (2005), the term ‘moral turpitude has been defined as
under:-
“Anything done contrary to justice, honesty,
principle, or good morals; an act of baseness, vileness
of depravity in private and social duties which a man
owes to his fellowmen, or to society in general,
contrary to accepted and customary rule of right and
duty between man and man. ………………..
Const.P.76/2007, etc. 220
Everything done contrary to justice, honesty,
modesty, or good morals is done with turpitude, so
that embezzlement involves moral turpitude.”
Likewise, in Corpus Juris Secundum, Vol.1, 8th Ed. the term
‘moral turpitude’ has been defined as under:-
“ ‘moral turpitude’ is not a new term, but, rather,
it is a term which is old in the law, and which has
been used in the law for centuries. It is a term
which has been the subject of many decisions and
which has been much defined by Courts.
……………..”
145. Third category relates to the cases of misuse of
power or authority under any law for the time being in force.
This category also squarely falls within the definition of
corruption and corrupt practices as defined in Section 9 of
the NAO, 1999.
146. Thus question arises, whether a law which
instead of eliminating, has encouraged the offence of
corruption and moral turpitude, can at all not be enacted in
exercise of powers under Article 89 of the Constitution;
whether promulgation of such a law would not be against
the morality and the conscience of the Constitution; whether
the constituents, in exercise of their right of franchise, have
not made out a case to strike down such a law, which is not
only contrary to the constitutional provisions, discussed
Const.P.76/2007, etc. 221
hereinabove, but also calls upon this Court to strike down
such law as they believe that on account of their high moral
and ethical codes, it has become their enforceable legal
formulations [D.S. Nakara’s case (AIR 1983 SC 130)]; and
lastly whether it is not against the conscience of the
Constitution which prohibits enactment and promulgation of
any law inconsistent with its provisions. Answer to all above
questions is in affirmative and could not be else.
147. It is mentioned in Section 33F of the NAO, 1999
inserted by means of Section 7 of the NRO, 2007 that ‘holders
of public office’ shall also not be liable for any action in
future as well for acts having been done in good faith before
the said date. This immunity from future actions has also
been provided contrary to the Constitution and the law.
There are two provisions in the Constitution i.e. Article 12,
according to which protection to a person against
retrospective punishment has been made permissible; and
Article 13, which protects a person against double
punishment and self-incrimination. Thus, operation of
Section 33F of the NAO, 1999, inserted through Section 7 of
the NRO, 2007 seems to be in contravention to the mandate
of Section 31B of the NAO, 1999, which provides mechanism
for withdrawal from the prosecution of any accused person
in the manner prescribed therein, but as far as the protection
Const.P.76/2007, etc. 222
against double punishment is concerned, it would only be
available to a person who has already been punished but
criminal proceeding right from the date of commencement
up to final judgment has been withdrawn or terminated,
making such a person as innocent, as he was before initiation
of such proceedings at investigation stage. So far as Article 13
of the Constitution is concerned, no case can be made out
under this Article of the Constitution against double
punishment or self incrimination. It seems that the ‘holders
of public office’ have been saved from future action for the
crimes committed by them as well as the crimes charged
against them on the basis of reference filed by the NAB
including corruption and corrupt practices. Neither the
Constitution nor any other law permits the legislative
authority i.e. the President to promulgate a law, which fails
to stand the test of Articles 12 and 13 of the Constitution.
148. By promulgation of the NRO, 2007, the ‘holders
of public office’ have been saved from being charged of
certain acts committed by them in good faith. Essentially,
Section 33F of the NAO, 1999, inserted through Section 7 of
the NRO, 2007, in generality, is dealing with the persons,
facing criminal charges under any provision of law or the
crime defined under the NAO, 1999. As far as the last
Const.P.76/2007, etc. 223
mentioned law is concerned, under it no exception has been
created for the crimes committed under good faith except
under some of the provisions of PPC, whereby protection has
been given for committing an act in good faith. Section 52 of
PPC defines the expression ‘good faith’ as ‘nothing is said to
be done or believed in ‘good faith’, which is done or believed
without due care and attention’. In Black’s Law Dictionary,
7th Edn. (1999), the expression ‘good faith’ has been defined
as ‘a state of mind consisting in (1) honesty in belief or
purpose, (2) faithfulness to one’s duty or obligation, (3)
observance of reasonable commercial standards of fair
dealing in a given trade or business or (4) absence of intent to
defraud or to seek unconscionable advantage – also termed
bona fide”. In Industrial Development Bank of Pakistan v.
Saadi Asamatullah (1999 SCMR 2874), the expression ‘good
faith’ has been defined as ‘an act is said to be done in good
faith when it is done with due care and attention’. Similarly
in Fazal Ullah Siddiqui v. State (2006 SCMR 1334), it has
been held that ‘nothing done without due care and caution
can be accepted as having been done in good faith’.
149. It may also be noted that a public servant
performing duty on behalf of State has been provided
immunity in different statutes with reference to the nature of
the crime etc. This expression has been used in Section 36 of
Const.P.76/2007, etc. 224
the NAO, 1999, which provides that no suit, prosecution, or
any other proceedings shall lie against the Federal
Government, Provincial Government, Chairman NAB, or any
other member of the NAB or any person exercising any
power or performing any function under this Ordinance or
the Rules made under it for any act or thing, which has been
done in good faith or intended to be done under this
Ordinance or the rules thereof. As far as the persons against
whom proceedings or investigation are pending before the
Court of law including a High Court or Supreme Court,
cannot be said to have committed the crime, in good faith,
either heinous or minor in nature, as well as relating to
corruption or corrupt practices, inside and outside the
country. The legislature while enacting a law has to adopt
certain measures before extending immunity to the
functionaries of the State but at least we can say that an
accused or convict cannot enjoy protection for offences, noted
hereinabove, or for his deeds, in the garb of good faith.
150. Another important aspect of Section 7 of the
NRO, 2007 is that while inserting Section 33F in the NAO,
1999, a mechanism has also been provided for ‘withdrawal
and termination of prolonged pending proceedings, initiated
prior to 12th October, 1999’. One of the so-called reasons,
prevailed upon the legislative authority to promulgate such
Const.P.76/2007, etc. 225
provision on account of ‘prolonged pending proceedings
initiated prior to 12th October 1999’. It may be noted that in
the preamble of the NRO, 2007, besides other things, the
prolonged pending proceedings was never the consideration.
It does not seem to be that on account of prolonged pending
proceedings, initiated prior to 12th October 1999, the cases
have been withdrawn as according to it, necessity to
promulgate the NRO, 2007 is “to promote national
reconciliation, foster mutual trust and confidence amongst
‘holders of public office’ and to remove the vestiges of
political vendetta and victimization, to make the election
process more transparent and to amend certain laws for that
purpose and for matters connected therewith and ancillary
thereto”. Assuming that the conditions so mentioned therein
for terminating the cases being prolonged pending
proceedings is acceptable, then why the cases which have
been finalized, resulting in the conviction or acquittal and
proceedings in respect thereof were pending, have been
withdrawn. Therefore, instead of withdrawing or
terminating the proceedings, mechanism should have been
followed for the disposal of cases by increasing manpower of
investigating agencies and the number of Courts etc. In
Liaquat Hussain’s case (PLD 1999 SC 504), somehow
identical objection was raised on the creation of Military
Const.P.76/2007, etc. 226
Courts and this Court while disposing of the matter,
provided a mechanism to monitor the proceedings with a
view to ensure expeditious disposal of cases pending in
Courts. Relevant para therefrom has already been
reproduced hereinabove. In addition to it, prolonged
pending proceedings, in no way, can constitute a ground for
the withdrawal or termination of the proceedings, in view of
discussion made hereinabove elaborately. More so, Article 37
of the Constitution casts a duty upon the State to ensure
inexpensive and expeditious justice, therefore, the
Government by invoking this provision can increase the
number of Courts and paralegal staff to ensure expeditious
disposal of the cases of persons charged for various offences.
151. This Court while interpreting different provisions
of the Constitution has an authority to make an observation
with an object that the State must realize its duty. As in the
case in hand, the Court is empowered to pass appropriate
orders, as it deemed fit under Article 187 of the Constitution
as well as keeping in view the earlier precedents providing
for monitoring of the cases pending in the Courts and the
increase in number of Courts. As far as the supervision of the
High Court is concerned, it has already been discussed
hereinabove and for comprehending powers of this Court
under Article 187 of the Constitution, reference can be made
Const.P.76/2007, etc. 227
to Sabir Shah’s case (PLD 1995 SC 66). In this case, Chief
Justice Sajjad Ali Shah (as he then was) while discussing the
powers of this Court, observed as under:-
“22. In support of the proposition that this Court
has more than ample powers to do complete justice,
as contemplated under Article 187 of the
Constitution, reference can be made to Order XXIII
Rule 6 of the Supreme Court Rules, 1980, which also
provides that nothing in these Rules shall be deemed
to limit or otherwise affect the inherent powers of the
Court to make such orders as may be necessary for
the ends of justice or to prevent the abuse of the
process of the Court. This rule is consistent with the
spirit and amplitude of the jurisdiction and power as
conferred upon it by the Constitution.”
Likewise, Justice Saleem Akhtar (as he then was) observed as
under:-
“10. The Supreme Court is the apex Court. It is the
highest and the ultimate Court under the
Constitution. In my view the inherent and plenary
power of this Court which is vested in it by virtue of
being the ultimate Court, it has the power to do
complete justice without in any manner infringing or
violating any provision of law. While doing complete
justice this Court would not cross the frontiers of the
Constitution and law. The term "complete justice" is
not capable of definition with exactitude. It is a term
covering variety of cases and reliefs which this Court
can mould and grant depending upon the facts and
circumstances of the case. While doing complete
justice formalities and technicalities should not fetter
its power. It can grant ancillary relief, mould the
Const.P.76/2007, etc. 228
relief within its jurisdiction depending on the facts
and circumstances of the case, take additional
evidence and in appropriate cases even subsequent
events may be taken into consideration. Ronald
Rotunda in his book "Treatise on Constitutional Case
Substance" (Second-Edition), Volume 2 at page 90 has
stated that "The Supreme Court is an essence of a
continual Constitutional convention". The jurisdiction
and the power conferred on the Supreme Court does
empower it to do complete justice by looking to the
facts, circumstances and the law governing a
particular case. Article 187 does not confer any
jurisdiction. It recognises inherent power of an apex
Court to do complete justice and issue orders and
directions to achieve that end. Inherent justification is
vested in the High Court and subordinate Courts
while dealing with civil and criminal cases by virtue
of provisions of law. The inherent jurisdiction of this
Court to do complete justice cannot be curtailed by
law as it may adversely affect the independence of
judiciary and the fundamental right of person to have
free access to the Court for achieving complete
justice. This enunciation may evoke a controversy
that as Article 175(2) restricts Article 187 it will create
conflict between the two. There is no conflict and
both the Articles can be read together. The conflict in
the provisions of the Constitution should not be
assumed and if apparently there seems to be any, it
has to be interpreted in a harmonious manner by
which both the provisions may co-exist. One
provision of the Constitution cannot be struck down
being in conflict with the other provision of the
Constitution. They have to live together, exist
together anti operate together. Therefore, while
Const.P.76/2007, etc. 229
interpreting jurisdiction and power of the superior
Courts one should look to the fundamental rights
conferred and the duty cast upon them under the
Constitution. A provision like Article 187 cannot be
read in isolation but has to be interpreted and read
harmoniously with other provisions of the
Constitution. In my humble view this Court while
hearing appeal under a statute has the jurisdiction
and power to decide the question of vires of the
statute under which the appeal has arisen and can
even invoke Article 184(3) in appropriate cases.”
152. It is worth to mention here that by means of
Section 33F of the NAO, 1999, inserted through Section 7 of
the NRO, 2007, cases or proceedings have been withdrawn or
terminated, without spelling out the reasons, namely, as to
whether an accused himself is responsible for causing the
prolonged delay or the prosecution or the Courts have failed
to decide the case expeditiously. After the promulgation of
National Judicial Policy, 2009 by the National Judicial Policy
Making Committee, despite strict monitoring of the
proceedings of the Court, we have observed that the Courts
and the Investigating Agencies are taking all necessary steps
to dispose of the cases expeditiously according to law but it is
a hard fact that accused, for one or other reasons, known to
them, attempt to protract the proceedings.
Const.P.76/2007, etc. 230
153. By means of Section 3 of the NRO, 2007,
amendment has been made in Section 39 of the
Representation of the People Act, which reads as under:-
“3. Amendment of section 39, Act LXXXV of 1976.
(1) In the Representation of the People Act, 1976
(LXXXV of 1976), in section 39, after sub-section (6),
the following new sub-section (7) shall be added,
namely:-
“(7) After consolidation of results the Returning
Officer shall give to such contesting candidates
and their election agents as are present during
the consolidation proceedings, a copy of the
result of the count notified to the Commission
immediately against proper receipt and shall
also post a copy thereof to the other candidates
and election agents.”
Intention enshrined in above said Section cannot be doubted
but it seems that this provision is cosmetic in its nature,
comparing to Sections 2, 6 and 7 of the NRO, 2007. However,
the benefit of the same cannot be drawn immediately by a
candidate, who is always interested to get the certified copy
of the result and such arrangement is already available in
Section 38 of the Representation of the People Act, 1976,
which provides that the Presiding Officer shall give a
certified copy of the statement of count and the ballot paper
account to such of the candidates, their election agents or
polling agents as may be present and obtain a receipt for
such copy because as far as the consolidation of a result is
concerned, it takes place subsequent to polling day, as per
Const.P.76/2007, etc. 231
the schedule fixed by the Election Commission. If at all, the
intention of the legislature was to ensure transparent election
free from rigging of any kind, then emphasis should have
been for the strict compliance of Section 38 (11) of the
Representation of the People Act, 1976, which reads as
under:-
“38. Proceedings at the close of poll .-
………………………………………………………
……………………………………………………....
(11) The Presiding Officer shall give a certified copy of
the statement of the count and the ballot paper account
to such of the candidates, their, election agents or
polling agents as may be present.
………………………………………………………
……………………………………………………....”
154. Mr. Shaiq Usmani, learned Amicus curiae started
his arguments by saying that he would draw the canvas
before the Court, which is necessary to be seen, that what
possible arguments could be raised in defence of the NRO,
2007 by the other side. He argued that in criminal justice
system, there are two systems of justice; one is retributory
and the other is restorative; first one entails prosecution and
punishment, just very simple, whereas restorative does not
believe in prosecution or punishment rather it tries to resolve
the issues through accountability. According to him if,
presumably, it was an act of amnesty by means of the NRO,
2007, then the question arises whether it was legitimate and if
so, could it justify the derogation from the fundamental
Const.P.76/2007, etc. 232
rights. He added that amnesty is manifestation of restorative
justice and is resorted to, with a view to end the internal
conflict on the basis of negotiation with the leaders, who
committed the crimes, either political or the other. He stated
that there are two further types of amnesties; one is
compromised by the two parties for their mutual interest;
and other is accountable amnesty where there is open
admission of guilt, because victims do not, necessarily,
always want punishment, but certainly want the admission
of guilt. According to his version, the only legitimate
amnesty is the one which is accountable, so in the case in
hand, the amnesty, if it could be called as amnesty, is not a
legitimate one, hence not permissible; therefore, on this
ground, too, it falls. He further stated that the NRO, 2007 is
violative of Article 25 of the Constitution on the ground of
discrimination because on the face of it, it is discriminatory;
therefore, looking at the I.A. Sherwani’s case (1991 SCMR
1041) there was a definite classification of people. He argued
that the NRO, 2007 is violative of the salient features of the
Constitution and principle of trichotomy of powers, as it is
the domain of the judiciary to see whether a criminal case
should be withdrawn or not, inasmuch as there is
encroachment upon the domain of judiciary, which is
certainly violative of the principle of trichotomy of powers,
Const.P.76/2007, etc. 233
as such it is void. He strenuously argued that corruption is
nothing but theft of public money; when the National
Assembly cannot make a law to condone theft, how can the
President issue an Ordinance to condone theft. While
referring to Section 21 of the NAO, 1999, he argued that
Attorney General has no power at all to withdraw the cases;
therefore, anything done by the then Attorney General, is of
no consequences.
155. The above arguments of the learned Amicus
Curiae have been considered and need no further
deliberations being comprehensive in their form, in view of
above discussion on different aspects of the case noted in the
forgoing paras.
156. Mian Allah Nawaz, another learned Amicus
Curiae submitted his formulations on the NRO, 2007 by
saying that man is a complex, complicated in it; there is no
definition of man; even the Allah Almighty has said that the
creation, which is being sent to this globe, is flawed, and is a
blend of two great positive and negative reservoirs of
instincts; one instinct is goodness, the good, the tranquility,
peace; and the other is greed, lust, bloodshed etc.; so the man
is beautiful combination of both. He quoted the saying of
Jeremy Bentham, a great philosopher, that ‘if you keep twenty
Const.P.76/2007, etc. 234
wolfs at one place and twenty men at the same place, it would be
difficult to manage the men’. According to him another
philosopher has rightly said that ‘law is necessity of the man’
because he can’t discipline himself; he can’t undertake his
own examination; man is such a creature that he needs three
instincts, i.e. instinct of preservation, instinct of peace and the
instinct of law, which compel him to travel on the path of
law. He added that laws are those minimum requirements,
patterns, modes; which if recognized, each man will be saved
from the warring, lust and greed; and this is beginning of the
law. According to him law is not necessarily be a divine law,
it may be a temporal law and it may be a secular law but
whatever it is, the main thing is that it is for the peace,
tranquility and goodness. He stated that any law, which
violates the ‘intrinsic value of the law’ or ‘intrinsic value of
behaviour’, is not a good law, and it has to be struck down
otherwise it would create simple anarchy, lust, greed and
would lead to monumentally horrendous things. He argued
that if the basic fundamental philosophy of law was not kept
in view, neither the Constitution nor the law or the problem
facing the nation could be understood and no solution could
be found. In this behalf he referred to Surah Al-Baqarah from
the Holy Quran. According to him the morality of law has
Const.P.76/2007, etc. 235
two aspects to be assumed as sine qua non; one is internal
voice of a human being and the other is external voice i.e.
conduct of a human being; these two can be called as a soul,
conscience, discipline, etc. of human being; as the same are
contemporaneous not simultaneous; naturally embodied in
the human being, who is to be tested on these touchstones.
157. With regard to NRO, 2007, he stated that the
NRO, 2007 is not only a bad law but it’s a dirty law, a
kleptocratic law, which converts the very form of the
Government. While explaining the word ‘kleptocracy’, he
stated that it is a classical manifestation of evolution of
gradual supremacy of satanic forces. He further stated that
there is not a single provision in the Constitution, validating
the NRO, 2007 or giving a conscience to it under any statute,
because our Constitution is based upon morality of Muslims.
According to him the NRO, 2007, from the beginning to end,
after preamble, is a master piece of savagery, therefore, from
the commencement to finish, irrespective of certain cosmetic
provisions, it is a so bad law that it must be struck down, as a
piece of paper, which never deserved to be put on the statute
book.
Const.P.76/2007, etc. 236
158. The above arguments of the learned amicus
curiae are self-explanatory; therefore, there is no need to
further dilate upon them.
159. Mr. M. Sardar Khan, learned amicus curiae, made
his submissions to the effect that the NRO, 2007 is not only
discriminatory and inconsistent with fundamental rights,
enshrined in Article 25 of the Constitution but also in conflict
with other Articles of the Constitution such as Articles 62, 63
and 175, therefore, it is not a valid law rather it is a bad law.
According to him Article 5 of the Constitution postulates that
it is inviolable obligation of every citizen to obey the
Constitution and the law, whereas, Article 8 (2) prohibits the
State from making any law which takes away or abridges
fundamental rights conferred by the Constitution; therefore,
if a law does so, then it shall be void, as such, the NRO, 2007,
so promulgated, seems to be an intentional violation and
disobedience of the Constitutional provision, contained in
Article 8 of the Constitution. He further contended that
Article 2A of the Constitution requires that the authority of
Allah Almighty, conferred upon the chosen representatives
of the people of Pakistan, is to be exercised by them in
accordance with the Constitution and within the limits
Const.P.76/2007, etc. 237
prescribed by Allah Almighty. According to him various
provisions of the NRO, 2007 i.e. 2, 3, 4, 6 & 7, are not valid
provisions as they are void for various reasons, including,
being against the Injunction of Islam, violative of the
mandate of Article 175 of the Constitution, and repulsive to
the provisions of Article 62 & 63 of the Constitution. He
argued that the object of this law, for all intents and
purposes, does not seem to be ‘reconciliation’ but it paves the
way and facilitates to those, charged with corruption and
corrupt practices, plundering of national wealth and fraud, to
come back, seize and occupy echelons of power again; its aim
seems to be to legalize corruption and the crimes committed
by those in power, in the past. He further argued that Courts
have been deprived, by virtue of this law, from their judicial
functions by conferring powers to the administrative
authority. He contended that the NRO, 2007, besides being
discriminatory, has also been applied discriminately.
160. With regard to Article 247 of the Constitution,
learned counsel contended that this Court has always
favoured application of fundamental rights to ensure that
there should not be any discrimination amongst citizens and
the State shall not make any law which takes away or
Const.P.76/2007, etc. 238
abridges the rights so conferred. In this behalf he relied upon
the case of Government of NWFP v. Muhammad Irshad
(PLD 1995 SC 281), wherein Regulation No. I of 1975 dated
26th July 1975, known as Provincially Administered Tribunal
Areas Criminal Laws (Special Provisions) Regulation, 1975
was declared void, being inconsistent with the fundamental
rights guaranteed under Article 25 of the Constitution. On
the arguments that under Article 8(1) of the Constitution,
examination of Regulation, framed by the President or the
Governor in exercise of powers under sub-Articles (4) and (5)
of Article 247 of the Constitution, is not included in the
expression ‘any law’, this Court maintained the judgment of
the High Court, in the following terms:-
“20. It seems difficult to subscribe to the view canvassed
by Mr. Samadani that the expression `any law' as used
in Article 8(1) does not encompass a Regulation made
under Article 247(4) or that the term `State' as occurring
in Article 7 does not include the President and the
Governor. Article 8(1), ibid, reads as follows:
"Any law, or any custom or usage having the
force of law, in so far as it is inconsistent with
the rights conferred by this Chapter, shall, to the
extent of such inconsistency, be void."
The word `any' is ordinarily used to enlarge the
amplitude of the term to which it is attached and there
seems to be no reason why the expression `any law' as
occurring in Article 8(1) be so narrowly construed as to
Const.P.76/2007, etc. 239
exclude from its purview a Regulation which possessed
the efficacy of law in a part of Pakistan, particularly
when its effect has been extended to all customs and
usages which have the force of law. Article 7 falls in
Part II of the Constitution which bears the rubric
Fundamental Rights and Principles of Policy. The said
Article reads as follows:
"7. Definition of the State.- In this Part, unless the
context otherwise requires, `the State' means the
Federal Government, Majlis-e-Shoora (Parliament), a
Provincial Government, a Provincial Assembly, and
such local or other authorities in Pakistan as are by
law empowered to impose any tax or cess."
It will be noticed that the definition of the `State' as
given in this Article is fairly wide; on its plain reading it
would appear to encompass all authorities which
perform executive and legislative functions in any part
of the country. So far as the Areas are concerned, the
President and the Governor while exercising their
powers under Article 247 stand in the position of the
Federal and the Provincial Governments. There is
therefore no reason why they should be excluded from
the definition of the `State' so far as the Areas are
concerned. In fact, to hold otherwise, would tend to
deprive a sizeable part of the Pakistan citizenry of the
Fundamental Rights enshrined in the Constitution
which could never have been the intention of the
Constitution-makers.”
161. Learned counsel, while heavily relying upon the
above judgment, stated that this Court has not shown any
flexibility, while interpreting constitutional provisions,
dealing with the case pertaining to Tribal Area, where the
Const.P.76/2007, etc. 240
President and the Government have dominating authority to
issue regulation, then as to why not the NRO, 2007 be
declared ultra vires to the Constitution, void ab initio and of
no consequences for the reason discussed hereinabove.
162. We are in agreement with the above arguments of
the learned counsel.
163. Raja Muhammad Ibrahim Satti, learned counsel
appearing in Civil Appeal No. 1094 of 2009, however,
supported the NRO, 2007 for the following reasons :-
i) On 12th October 2007, while admitting the
Constitution Petition, challenging the NRO,
2007, its operation was not suspended,
therefore, presumably it was a good law.
ii) On 27th February 2008, order dated 12th
October 2007 was modified without
declaring the NRO, 2007 ultra vires the
Constitution, as such presumably the NRO,
2007 is a valid law.
iii) The President, in exercise of powers under
Article 89 of the Constitution, on having
been satisfied that the circumstances
prevailed for issuing the NRO, 2007,
exercises his authority with immediate
effect and it is no body’s case that the NRO,
2007 has been issued by the President in
exercise of powers, beyond the scope of the
Const.P.76/2007, etc. 241
Constitution, therefore, it being a valid law
deserves to continue.
iv) The NRO, 2007 along with other
Ordinances was not declared ultra vires the
Constitution at the time of examination of
the validity of Proclamation of Emergency
of 2007 and Provisional Constitution Order,
2007 by this Court in Sindh High Court
Bar Association’s case (PLD 2009 SC 879),
as by extending its constitutional life, it was
sent to the Parliament for examination and
making it an Act of the Parliament,
therefore, it may be presumed that this
Court having ample powers, refused to
exercise the same for declaring the NRO,
2007 ultra vires the Constitution.
v) Appellant is entitled for the same relief,
which has been extended to the
beneficiaries, between the period from 5th
October 2007 to 1st February 2008, so that he
is not discriminated.
164. As far as the reference of the learned counsel for
the appellant to order dated 12th October 2007 is concerned,
on this date notice was issued to the respondents and while
examining the request of the counsel for the petitioners for
suspending the operation of the NRO, 2007, it was observed
that “ordinarily the provisions of a law cannot be suspended
because this Court can only suspend a particular order, judgment
Const.P.76/2007, etc. 242
or action, etc.; however, we are inclined to observe in unambiguous
terms that any benefit drawn or intended to be drawn by any of the
public office holder shall be subject to the decision of the listed
petitions and the beneficiary would not be entitled to claim any
protection of the concluded action under Sections 6 and 7 of the
impugned Ordinance, under any principle of law, if this Court
conclude that the impugned Ordinance and particularly its these
provisions are ultra vires the Constitution. Therefore, the
argument of the learned counsel is of no help to him.
165. Next crucial date pointed out by the learned
counsel is 27th February 2008, when order dated 12th October
2007 was modified, which does not mean that the law has
been validated. In addition to it, it may be stated that the
appellant Fazal Dad Jat was not a party in those proceedings,
therefore, this argument has no substance.
166. So far as the argument of the learned counsel
regarding referring of the NRO, 2007 along with other
Ordinances to the National Assembly in the case of Sindh
High Court Bar Association’s case (PLD 2009 SC 879), is
concerned, reasons in this behalf have already been explicitly
explained therein and discussion in this regard had already
taken place hereinabove, whereby, it has been held that this
Const.P.76/2007, etc. 243
Court believes in trichotomy of powers, therefore, instead of
examining the constitutionality of such Ordinances,
including the NRO, 2007, for the detailed reasons, mentioned
in the judgment, the Ordinances along with the NRO, 2007
were sent to the National Assembly for examination. It is an
admitted fact that the National Assembly had not made the
NRO, 2007 as an Act of the Parliament, although it was
tabled before it; therefore, the argument of the learned
counsel that its constitutionality being inapt is not acceptable.
167. As far as the question of extending relief under
the NRO, 2007 to the appellant and the convicts, who have
filed applications being Human Right Case Nos. 14328-P to
14331-P & 15082-P of 2009, is concerned, it is to be observed
that it depends upon the final verdict about the
constitutionality of the NRO, 2007.
168. Now turning towards the arguments of the
learned counsel about the Ordinance issuing powers of the
President, there is no denial to it, but subject to discussion
made hereinabove on this subject.
169. It may be noted that the President has an
authority under Article 89 of the Constitution to promulgate
an Ordinance, but cannot issue temporary legislation, which
Const.P.76/2007, etc. 244
the Parliament is not empowered to do. A thorough perusal
of the Federal and the Concurrent Lists persuades us to hold
that the President was not empowered to issue the NRO,
2007 as the subjects covered by its Section 2, 6 and 7 fall
beyond the scope of these lists. As far as its manifestations is
concerned, it has already been done by the Parliament before
whom the NRO, 2007 was placed, but the same was
withdrawn subsequently under Rule 139 of the Rules of
Procedure and Conduct of Business in the National
Assembly, 2007, as impliedly the National Assembly
refrained itself from making it as an Act of Parliament.
Inasmuch as, the actions taken from the date of its inception
till the expiry of its constitutional life of 120 days under
Article 89 of the Constitution from 5th October 2007 to
1st February 2008, benefits derived by some of the person
have not been protected, and the Government (either Federal
or Provincial) has also not insisted to allow retention of the
benefits derived out of it to the accused persons during the
said period. More so, none of the beneficiaries, who have
drawn benefit during the said stipulated period from 5th
October 2007 to 31st July 2009, when vide judgment dated 31st
July 2009, all the Ordinances were declared to have been
Const.P.76/2007, etc. 245
shorn of permanency, have not come forward to protect their
benefits, although hearing of these petitions has been widely
publicized in print and electronic media. Thus in view of
theory of ultra vires, explained in Cooley’s Constitutional
Limitations, reference of which has been made by Chief
Justice Cornelius (as then he was) in Fazlul Quader
Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC
486), wherein it has been observed that “for the constitution
of the State is higher in authority than any law, direction, or
order made by anybody or any officer assuming to act under
it, since such body or officer must exercise a delegated
authority, and one that must necessarily be subservient to the
instrument by which the delegation is made; in any case of
conflict the fundamental law must govern, and the act in
conflict with it must be treated as of no legal validity”, we are
of the opinion that the NRO, 2007 is void ab initio, therefore,
the parties who have derived benefit shall not be entitled for
the same from 5th October 2007 and all the cases withdrawn
under Section 2, 6 & 7 of the NRO, 2007 shall stand revived
immediately. The Courts seized with the matters shall
proceed to decide the same, considering that the NRO, 2007
was never promulgated.
Const.P.76/2007, etc. 246
170. It is also to be noted that while examining the
vires of a statute the Court is free to examine the same on the
touchstone of different constitutional provisions as it has
been held in Muhammad Mubeen-us-Salam v. Federation
of Pakistan (PLD 2006 SC 602):
“52. In this behalf it may be noted that this Court, in
exercise of constitutional Jurisdiction conferred upon
it under various provisions of the Constitution,
including Articles 184, 185, 186, 187(1) and 212(3),
enjoys enormous power of judicial review. Besides, it
is well-settled by this time that being the apex Court,
it has also been vested with inherent Powers to
regulate its own authority of judicial review,
inasmuch as, that in Zafar Ali Shah v. Pervaiz
Musharraf, Chief Executive of Pakistan (PLD 2000 SC
869), it has been held by the full Court that "so long
as the superior Courts exist, they shall continue to
exercise powers and functions within the domain of
their jurisdiction and shall also continue to exercise
power of judicial review in respect of any law or
provision of law which comes for examination before
the superior Courts. " Argument by one of the
learned counsel that in the absence of violation of any
of the fundamental rights, guaranteed by the
Constitution, section 2-A of the STA, 1973 can be
struck down only if in derogation of Article 8 of the
Constitution and there is no other specific provision
in the Constitution, authorizing this Court to exercise
powers in this behalf is untenable on the face of it. A
reference to the case of Mr. Fazlul Qader Chowdhry
(ibid) would indicate that "superior Courts have
inherent duty, together with the appurtenant power,
Const.P.76/2007, etc. 247
to ascertain and enforce the provisions of the
Constitution in any case coming before them." In the
case of A.M. Khan Leghari v. Government of
Pakistan (PLD 1967 Lahore 227), it has been
emphasized that " ----------in cases of conflict between
the supreme law of the Constitution and an
enactment it is the duty of the superior Courts as its
protectors and defenders to declare the enactment in
question as invalid to the extent of its repugnancy
with the constitutional provision in the absence of
any bar either express or implied." Similarly, in
Messrs Electric Lamp Manufacturers of Pakistan Ltd.
v. The Government of Pakistan (1989 PTD 42), it has
been held that "the Parliament in England is
sovereign in the real sense and it is not subject to any
constraints as in England there is no written
Constitution, whereas in Pakistan the Parliament is
subject to constraints contemplated by the
Constitution in accordance with the procedure
provided therein, but so long as it is not amended the
Parliament has to act within its four corners; so a
statute or any of its provisions can be struck down on
the ground of being ultra vires of the Constitution."
Likewise, in the case of Fauji Foundation v.
Shamimur Rehman (PLD 1983 SC 457), it is held that
"-----------when a Court, which is a creature of the
Constitution itself, examines the vires of an Act, its
powers are limited to examine the legislative
competence or such other limitations as are in the
Constitution; and while declaring a legislative
instrument as void, "it is not because the judicial
power is superior in degree or dignity to the
legislative power" but because it enforces the
Constitution as a paramount law either where a
Const.P.76/2007, etc. 248
legislative instrument is in conflict with the
constitutional provision so as to give effect to it or
where the Legislature fails to keep within its
constitutional limits." In the case of Liaqat Hussain v.
Federation of Pakistan (PLD 1999 SC 504), the
conclusion was that "Court cannot strike down a
statute on the ground of mala fides, but the same can
be struck down on the ground that it is violative of a
constitutional provision. In Collector of Customs and
others v. Sheikh Spinning Mills (1999 SCMR 1402),
this Court struck down the imposition of preshipment
inspection service charge under the
Customs Act, 1969 as unconstitutional, which of
course was not based on any fundamental rights.
Relevant para reads as under:--
"Considering the case from all angles, although
the Federal Legislature is competent to legislate
for the imposition of fees within the meaning of
Entry 54, in the Federal Legislative List, Fourth
Schedule to the Constitution, but again as already
discussed hereinbefore, one has to see what is the
nature of the legislation and whether the same
could have been legislated within the ambit of the
powers of the Federal Legislature. No doubt,
legislation can be made to impose fee in respect of
any of the matters in the Federal Legislative List,
but definitely not for pre-inspection, the benefit of
which has to go to the companies appointed to
carry out the inspection and not to the payees of
the fees. The imposition of such fee is not in lieu of
services to be rendered for the benefit of its payees
--------------------------
For the foregoing reasons, we are of the view that the
imposition of service charge as imposed under
section 18-B of the Act towards the pre-shipment
inspection is ultra vires of the powers of the Federal
Legislature."
Const.P.76/2007, etc. 249
53. Likewise, in the case of Zaman Cement Company
(Pvt.) Ltd. v. Central Board of Revenue and others
(2002 SCMR 312) this Court observed that "the
function of the judiciary is not to question the
wisdom of Legislature in making a particular law nor
it can refuse to enforce it even if the result of it be to
nullify its own decisions provided the law is
competently made; its vires can only be challenged
being violative of any of the provisions of the
Constitution and not on the ground that it nullifies
the judgment of the superior Courts." In this
judgment the use of expression `any, has widened the
jurisdiction of the Court and extended it to the extent
of the violation of any of the provisions of the
Constitution including fundamental rights. Similarly
in Ghulam Mustafa Ansari v. Government of Punjab
(2004 SCMR 1903) it was held that "ordinarily it is not
for us to question the wisdom of the Legislature
merely on the ground that a provision of law may
work some inconvenience or hardship in the case of
some persons, unless it be violative of a constitutional
provision including the fundamental rights".”
171. We have examined the respective contentions of
the learned counsel for the parties as well as the vires of the
NRO, 2007 on the touchstone of various Articles of the
Constitution, and have come to the conclusion that the NRO,
2007 as a whole, particularly its Sections 2, 6 and 7, is
declared void ab initio being ultra vires and violative of
Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of
Const.P.76/2007, etc. 250
the Constitution, therefore, it shall be deemed non est from
the day of its promulgation i.e. 5th October 2007 as a
consequence whereof all steps taken, actions suffered, and
all orders passed by whatever authority, any orders passed
by the Courts of law including the orders of discharge and
acquittals recorded in favour of accused persons, are also
declared never to have existed in the eyes of law and
resultantly of no legal effect.
172. Resultantly, all cases in which the accused
persons were either discharged or acquitted under Section 2
of the NRO, 2007 or where proceedings pending against the
holders of public office had got terminated in view of Section
7 thereof, a list of which cases has been furnished to this
Court and any other such cases/proceedings which may not
have been brought to the notice of this Court, shall stand
revived and relegated to the status of pre-5th of October, 2007
position.
173. All the concerned Courts including the Trial, the
Appellate and the Revisional Courts are ordered to summon
the persons accused in such cases and then to proceed in the
respective matters in accordance with law from the stage
Const.P.76/2007, etc. 251
from where such proceedings had been brought to an end in
pursuance of the above provisions of the NRO, 2007.
174. The Federal Government, all the Provincial
Governments and all relevant and competent authorities
including the Prosecutor General of NAB, the Special
Prosecutors in various Accountability Courts, the Prosecutors
General in the four Provinces and other officers or officials
involved in the prosecution of criminal offenders are directed
to offer every possible assistance required by the competent
Courts in the said connection.
175. Similarly all cases which were under
investigation or pending enquiries and which had either
been withdrawn or where the investigations or enquiries had
been terminated on account of the NRO, 2007 shall also stand
revived and the relevant and competent authorities shall
proceed in the said matters in accordance with law.
176. It may be clarified that any judgment, conviction
or sentence recorded under Section 31-A of the NAO, 1999
shall hold the field subject to law and since the NRO, 2007
stands declared as void ab initio, therefore, any benefit
derived by any person in pursuance of Section 6 thereof is
Const.P.76/2007, etc. 252
also declared never to have legally accrued to any such
person and consequently of no legal effect.
177. Since in view of the provisions of Article 100(3) of
the Constitution, the Attorney General for Pakistan could not
have suffered any act not assigned to him by the Federal
Government or not authorized by the said Government and
since no order or authority had been shown to us under
which the then learned Attorney General namely Malik
Muhammad Qayyum had been authorized to address
communications to various authorities/courts in foreign
countries including Switzerland, therefore, such
communications addressed by him withdrawing the requests
for mutual legal assistance or abandoning the status of a civil
party in such proceedings abroad or which had culminated
in the termination of proceedings before the competent fora
in Switzerland or other countries or in abandonment of the
claim of the Government of Pakistan to huge amounts of
allegedly laundered moneys, are declared to be
unauthorized, unconstitutional and illegal acts of the said
Malik Muhammad Qayyum.
178. Since the NRO, 2007 stands declared void ab
Const.P.76/2007, etc. 253
initio, therefore, any actions taken or suffered under the said
law are also non est in law and since the communications
addressed by Malik Muhammad Qayyum to various foreign
fora/ authorities/courts withdrawing the requests earlier
made by the Government of Pakistan for mutual legal
assistance; surrendering the status of civil party; abandoning
the claims to the allegedly laundered moneys lying in foreign
countries including Switzerland, have also been declared by
us to be unauthorized and illegal communications and
consequently of no legal effect, therefore, it is declared that
the initial requests for mutual legal assistance; securing the
status of civil party and the claims lodged to the allegedly
laundered moneys lying in foreign countries including
Switzerland are declared never to have been withdrawn.
Therefore the Federal Government and other concerned
authorities are ordered to take immediate steps to seek
revival of the said requests, claims and status.
179. In view of the above noticed conduct of Malik
Muhammad Qayyum, the then learned Attorney General for
Pakistan in addressing unauthorized communications which
had resulted in unlawful abandonment of claims of the
Government of Pakistan, inter alia, to huge amounts of the
Const.P.76/2007, etc. 254
allegedly laundered moneys lying in foreign countries
including Switzerland, the Federal Government and all other
competent authorities are directed to proceed against the
said Malik Muhammad Qayyum in accordance with law in
the said connection.
180. We place on record our displeasure about the
conduct and lack of proper and honest assistance and
cooperation on the part of the Chairman of the NAB, the
Prosecutor General of the NAB and of the Additional
Prosecutor General of the NAB, namely, Mr. Abdul Baseer
Qureshi in this case. Consequently, it is not possible for us to
trust them with proper and diligent pursuit of the cases
falling within their respective spheres of operation. It is
therefore, suggested that the Federal Government may make
fresh appointments against the said posts of persons
possessing high degree of competence and impeccable
integrity in terms of Section 6 of the NAO, 1999 as also in
terms of the observations of this Court made in Khan
Asfandyar Wali’s case (PLD 2001 SC 607). However, till such
fresh appointments are so made, the present incumbents may
continue to discharge their obligations strictly in accordance
Const.P.76/2007, etc. 255
with law. They shall, however, transmit periodical reports of
the actions taken by them to the Monitoring Cell of this Court
which is being established through the succeeding parts of
this judgment.
181. A Monitoring Cell shall be established in the
Supreme Court of Pakistan comprising of the Chief Justice of
Pakistan or a Judge of the Supreme Court to be nominated by
him to monitor the progress and the proceedings in respect
of Court cases (explanation added in detailed reasons) in the
above noticed and other cases under the NAO, 1999.
Likewise similar Monitoring Cells shall be set up in the High
Courts of all the Provinces comprising the Chief Justice of the
respective Province or Judges of the concerned High Courts
to be nominated by them to monitor the progress and the
proceedings in respect of Court cases (explanation added in
detailed reasons) in which the accused persons had been
acquitted or discharged under Section 2 of the NRO, 2007.
182. The Secretary of the Law Division, Government
of Pakistan, is directed to take immediate steps to increase
the number of Accountability Courts to ensure expeditious
disposal of cases.
Const.P.76/2007, etc. 256
183. Hereinabove are the reasons of our short order
dated 16th December 2009.
Chief Justice.
Judge (1) Judge (2) Judge (3)
Judge (4) Judge (5) Judge (6)
Judge (7) Judge(8) Judge (10)
Judge (11) Judge (12) Judge (13)
Judge (14) Judge (15) Judge (16)
Judge (17)
Islamabad
16.12.2009
Irshad /*
APPROVED FOR REPORTING.
Const.P.76/2007, etc. 257
CH. IJAZ AHMED, J. I have had the benefit and privilege of going
through the judgment recorded by Mr. Justice Iftikhar Muhammad
Chaudhry, Hon’ble Chief Justice of Pakistan and generally agree
therewith. In view of the importance of the matter, I deem it prudent to
add few words in support thereto. The facts and contentions have already
been narrated in detail by the Hon’ble Chief Justice of Pakistan,
therefore, reiteration thereof are not required.
2. Legislative history/past events are relevant for interpreting
constitutional provisions on the principle of historical modalities. The
Muslims had ruled sub continent for a considerable period. During the
period of the Muslim rule, sub continent was rich in all spheres of life. It
is interesting to note that rate of literacy was very high above 90 percent
as highlighted by Frishta while writing history of the sub continent.
Even otherwise sub continent was known as the richest part of the world.
The western countries also had belief that sub continent was rich qua all
types of resources such as minerals, wheat, rice etc as the land of the sub
continent was very fertile as compared to other parts of the world. Sub
continent was almost surrounded by mountains and large open area due
to which according to the western countries this area is known as
“Soonay ke Chiria”. The kingdom of Britain and France had entered in
sub continent for the purpose of business.
3. After death of Aurangzeb the system of justice, established
by the Muslims, was totally dis-regarded and Muslims were fighting
with each other for securing power. This was the time when the East
India Company had taken benefit of its experience and ultimately had
become rulers of the sub continent. It is pertinent to mention that Lord
Const.P.76/2007, etc. 258
Macaulay had made speech at the floor of the British Parliament on 2nd
February, 1835 which is to the following effect:-
“I have traveled across the length and
breadth of India and I have not seen one
person who is a beggar, who is a thief. Such
wealth I have seen in this country, such high
moral values, people of such caliber, that I
do not think we would ever conquer this
country, unless we break the very backbone
of this nation, which is her spiritual and
cultural heritage, and, therefore, I propose
that we replace her old and ancient
education system, her culture, for if the
Indians think that all that is foreign and
English is good and greater than their own,
they will lose their self-esteem, their native
self-culture and they will become what we
want them, a truly dominated nation”.
(a) HISTORY OF CONCEPT OF EQUALITY BEFORE
LAW.
4. Holy Quran says; “if Ye Judge between mankind, that Ye Judge
justly”. The Holy Prophet (PBUH) proclaimed; “people are all equal as the
teeth of a comb”.
5. The concept was introduced by Islam and further highlighted,
implemented and explained by the Holy Prophet (PBUH). See Pakistan
Petroleum Workers Union’s case (1991 CLC 13). The relevant observations
are as follows:-
“This Article guarantees to all citizens of Pakistan equality
before law and equal protection of law. These rights
guaranteed by the Constitution are now universally applied
and practised in all the civilized world. It finds recognition in
Universal Declaration of Human Rights and the Covenant on
Human Rights, 1950. An examination of Constitutions of
Const.P.76/2007, etc. 259
various countries will show that the written Constitutions
have invariably used the expression “equality before law” but
“equal protection of law” has not so commonly been used.
According to the jurists term “equal protection of law” finds
it origin in the 14th Amendment of the American Constitution.
In my humble view the concept of both terms “equality
before law” and “equal protection of law” is not of so recent
origin in jurisprudence as described by various authors and
jurists. From a comparative study of the legal history and
jurisprudence we find that the concept of equality before law
and principles of “equal protection of the law” were for the
first time given and firmly practised by the Holy Prophet (be
peace on him). Therefore, it can be traced as far back as 1400
years, i.e. much before the Magna Carta, 14th Amendment of
American Constitution, Declaration of Human Rights and the
theory of Rule of Law as enunciated by the Western Jurists.
The Last Sermon of the Holy Prophet (be peace on him) is a
landmark in the history of mankind which recognizes the
inalienable Rights of a man conferred by Islam which are
now known as Fundamental Rights. The following extracts
from the farewell Sermon can be reproduced for reference:-
“……..O Ye people, Allah says: O people We created you
from one male and one female and made you into tribes and
nations, so as to be known to one another. Verily in the sight
of Allah, the most honoured amongst you is the one who is
most God-fearing. There is no superiority for an Arab over a
non-Arab and for a non-Arab over an Arab, nor for the white
over the black nor for the black over the while except in Godconsciousness.”
“All mankind is the progeny of Adam and Adam was
fashioned out of clay.
Behold! Every claim of privilege whether that of blood or
property, is under my heels except that of the custody of the
Ka’ba and supplying of water to the pilgrims…………..”
“Behold! All practices of the days of ignorance are now
under my feet. The blood revenges of the days of ignorance
are remitted……..All interest and usurious dues accruing
from the times of ignorance stand wiped out…….”
“O people, verily your blood, your property and your honour
are sacred and inviolable until you appear before your Lord,
as the sacred inviolability of this day of yours, this month of
yours and this very town (of yours). Verily you will soon
Const.P.76/2007, etc. 260
meet your Lord and you will be held answerable for your
actions.”
6. The extract from last Sermon of the Holy Prophet (PBUH) is
landmark in the history of man kind which is reproduced hereunder:-
“12. The concept of equality amongst the mankind was
introduced for the first time by Islam. The Holy Prophet (peace
be upon him) preached and practised equality throughout the
life and sermon delivered on the occasion of last Haj performed
by the Holy Prophet (peace be upon him) is the first landmark
in the history of mankind. It was clear for all times to come that
there is no difference amongst the individuals on the basis of
race, colour and territory. The relevant portion reads as under: -
-
16. The Holy Prophet (peace be upon him) said in his
address at the Hajjat-ul-Wida, the last Haj, performed by him,
that ………O! people, hear me, your Lord is one and your
father is one. No Arab has any superiority over a non-Arab, nor
any non-Arab over an Arab nor any white man over a black
man, nor a black man over a white man save in respect of piety
and fear of Allah’.”
7. The source of insertion of Article 25 is on the basis of the
aforesaid history highlighted hereinabove. Similarly our constitution also
ensures dignity of every individual as is evident from atticle 14 of the
constitution. See:-
i) Francis Corolie Mullin’s case (AIR 1981 SC 746)
ii) A.K. Roys’ case (AIR 1982 SC 710)
iii) Bandhu Mukti Moracha’s case (1984 SC 802)
iv) Bachan Singh’s case (AIR 1982 SC 1235)
v) Weereja Chaudhry’s case (AIR 1984 SC 1099)
vi) Suo Motu Constitutional Petition: (1994 SCMR 1028)
8. It is a settled maxim that the very concept of fundamental right
is that it being a right guaranteed by the Constitution cannot be taken away by
the law. See Jibendra Kshore’s case (PLD 1957 SC 9).
Const.P.76/2007, etc. 261
9. It is settled principle of law that where a statute is ex facie
discriminatory but is also capable of being administered in a discriminatory
manner and it appears that it has actually being administered to the detriments
of a particular class in particular, unjust and oppressive manner then it has
been void ab initio since its inception. See Waris Mehi’s case (PLD 1957 SC
(Pak) 157), Benazir’s case (PLD 1988 SC 416) and I.A. Sherwani’s case (1991
SCMR 1041) and Azizullah Memon’s case (PLD 1993 SC 341 at 358). In
Azizullah Memon’s case vires of the criminal law ordinance were attacked on
the ground that they were in conflict with fundamental rights guaranteeing
equality before law, equal protection of law etc. Saleem Akhtar, J (as then he
was) had discussed all previous precedents rendered by superior courts. The
relevant observation is as follows:-
“(i) that equal protection of law does not envisage that every
citizen is to be treated alike in all circumstances, but it
contemplates that persons similarly 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 in different age groups, persons having different
financial standings, 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 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 exclus ion 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 -----
Const.P.76/2007, etc. 262
(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.”
(b) CONCEPT OF ISLAM AS UNDERSTOOD BY
DEWAN
“This judgment cannot be completed without having a glimpse
of Islamic Legal System. Mr. Vijay Kumar Dewan in his Book
Prosecuting System in India (Practice and Procedure) discussed
the legal system of Islam in the following terms:--
“As like the Hindu law the concept of Muslim Law also held
that the king derived his authority from Qura’n and the ruler
was subordinate to law the main source of Islamic law of
Muslim Law i.e. Shar in Qura’n and Sunnah or Hadis. The
Prophet was considered to be the best interpreter of Qur’an. On
all matters on which Qura’n was silent Sunnah or Hadis was
regarded as authority. Because of divergent views taken on
various provisions of Qura’n by eminent Muslim Jurists, four
well defined braches or schools of Muslim law came to be
recognized by different sections of the Muslims. Out of the
four the Hanafi School founded by Abu Hanifa (699-767 A.D.)
was the most popular in India, few in India however, followed
the Shafi School founded by Muhammad Ibn Idris Ash-Shafi
(767-820 A.D.). The other two i.e. the Maliki School founded
by Malik Ibn Annas (713-797 A.D.) and the Hanbali School
based on the teachings of Ahmad Ibn Hanbal (780-855 A.D.)
were not popular in India.”
The author further classified criminal offences under the Islamic
Penal law as follows:-
(i) Offences against God.
(ii) Offences against the State, and
(iii) Crimes against private individuals.
10. The same author discussed the Islamic Justice in the following
terms:--
“… The works of judiciary however, worked systematically in
view of considerable importance attached by Akbar and his
Const.P.76/2007, etc. 263
successors and Akbar had definite zeal to administer justice
impartially and he had once remarked. If I were guilty of an
unjust act I would rise in judgment against myself. What shall I
say then of my sons, my kindred and others. (In this regard
reference may be made to the book History and Culture, Vol. 7,
pages 547 to 552, Aini Akbari Vol. III p.434; Akbarnama,
Vol.III and Storia do mogar, Vol. I, p. 167) Akbar used to
devote some time every morning for judicial works at the
Jharoka Darshan and Thursday was exclusively kept for judicial
work, wherein the top officers such as Chief Qazi, Mufties and
other law dignitaries and Kotwal of the town used to participate.
He used to decide cases after hearing and ascertaining the law
from the jurists. Abdul Fazal the Chronicile Writer of Akbar’s
Court has given an account of the Royal Court –
‘He (Akbar) opens the gates of justice and holds an open Court.
In the investigation in to the cases of the oppressed, he placed
no reliance on testimony or on the oaths, which are resources of
the crafty, but draws his conclusions from the contradictions in
the narratives, the physiognomy, and sublime resources and
noble conjectures. Truth takes her place in this centre. In this
work he spends not less than one and half pahars (i.e. about five
hours)’.
Jahangir followed the ideals of his father. He also in addition to
deciding cases every morning had set apart Tuesday exclusively
for judicial work. Shahjahan also upheld the maxim of his
father that justice must be enforced. Aurangzeb was also very
keen in administrating impartial justice except in cases which
concerned the interest of prestige of Islam the arrangement of
transacting judicial business personally by the sovereign was
not disturbed even when the Emperor happened to be on tours
on when he was engaged in a military expedition. The Emperor
decided both civil and criminal cases and his Court was not only
the highest Court of appeal, but also sometimes a Court of first
instance. Sometimes the Emperor used to appoint a
commission of inquiry and issue instructions to decide cases on
the basis of facts revealed in the investigation on the spot.
Usually the cases deserving capital punishment were decided by
the King himself. Such cases even if tried by Governors or
other authorities, were forwarded to the capital for the Kings’
Const.P.76/2007, etc. 264
final order. The standing instructions were that no one was to
be executed until the Emperor had given his orders for the third
time.”
Keeping in view the historical background of the creation of the
country beginning with the struggle started by late Sultan
Haider Ali of Maysor and his noble, brave and courageous son
Tipu Sultan Shaheed who gave his precious life including life of
his two beloved sons who fought for freedom, and ultimately
achieved the goal of freedom under dynamic leadership of
Quaid-e-Azam Muhammad Ali Jinnah, who was motivated by
the spirit of great national poet Dr. Allama Muhammad Iqbal;
and sacrifices made by millions of Muslims of this subcontinent,
we must remember that this freedom was formally
recognized by the imperial power by passing the Independence
Act, 1947 which gave birth to our esteemed country.
Before coming to final conclusion, let me quote that once late
Mian Muhammad Mushtaq Gormani met Lord Wavel who
during discussion made some remarks about the founder of
Pakistan which are very relevant to reproduce here for the
purpose of building national character. Lord Wavel said:--
“He(Founder of Pakistan) is not only honest but he is
intellectually honest.”
11. Once the rulers of Muslims had deviated from the said principle of
providing justice to the people then Great Britain who had entered initially
through East India Company for the purpose of commercial business, had got
the opportunity to get the benefit of said situation and had been able to take
over the power and continued till 1947. Muslims had launched freedom
movement in 1857 but could not succeed due to their internal contradictions
and on account of non cooperation of the Hindu community with the Muslims.
12. Subsequently, British established its rule in the sub-continent
with active support and connivance of Hindus and few Muslim pho nies. Bal
Gangadhar Tilak, first popular independence fighter after war of Independence
of 1857 was convicted and sentenced by the trial Court where Founder of
Pakistan appeared as his counsel. Interestingly, Bal Gangadhar Tilak again
Const.P.76/2007, etc. 265
engaged Quaid-e-Azam at the appellate stage in the High Court where Quaide-
Azam for the first time distinguished between the offence against the state
and the offence against public functionaries on ground of which appeal was
accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This
episode of Muslim counsel of a Hindu convict gave birth to a little lived
assumption that both the nation can together toil hard for self rule.
The founder of Pakistan did not want division of the sub continent but on
account of behaviour of the Hindu community, he had demanded a separate
homeland on the basis of two nations theory. See Benazir Bhutto’s case (PLD
1988 SC 416).
13. It is settled maxim that nations can achieve goal under dynamic
leadership and the nations who had a vision to see ahead as is evident from the
speech of Lord Macaulay on the floor of the house and also from the character
of the founder of Pakistan alongwith his vision.
14. The founder of Pakistan was nominated as member of legislative
assembly and participated in the proceedings of Legislative Council qua bill
relating to Criminal Law (Emergency Powers) Bill on 14th March, 1919 but
according to his conscience he did not support government and tendered his
resignation from the membership of council as a protest against passing of the
Bill and the manner in which it was passed.
(c) AFTER CREATION OF COUNTRY.
15. The constituent assembly had promulgated objective resolution
in 1949. Ultimately it was incorporated in preamble of the constitution of
Islamic Republic of Pakistan and thereafter it was made substantive part of the
constitution by adding article 2-A. It is evident from the history of human
being that leader/nation would only progress on the basis of its good character.
Once an individual leader or nation had deviated from this then destruction is
the result. The best example in the recent history of human society is of China
when this nation with its birth two years after Pakistan, has attained a position
Const.P.76/2007, etc. 266
of super power (an economic joint and a permanent member of the security
council).
16. The word “Ameen” difined in the following books which is to
the following effect:
1 The Concise Encyclopedia of Islam at page 41:
“al-Amin. A name of the Prophet, given to him by the
Quraysh before the revelation of Islam, meaning the
‘Trustworthy One’. The word is used as a title for an
organization official in a position of trust, such as the
treasurer of a charitable organization, a guild, and so
forth”.
2. Urdu Daera-e-Maharafil Islamia at page 279-80
Const.P.76/2007, etc. 267
Const.P.76/2007, etc. 268
3. The Encyclopaedia of Islam (New Edition) Vol.1 at 436-
37
“Amin, ‘safe’, ‘secure’; in this and the more frequent
from amin (rarely ammin, rejected by grammarians) it is
used like amen and (Syriac) amin with Jews and
Christians as a confirmation or corroboration of prayers,
in the meaning ‘answer Thou’ or ‘so be it’ see examples
in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al-
Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is
enhanced at especially pious prayers, e.g. those said at
the Ka’ba or those said for the welfare of other Muslims,
when also the angels are said to say amin. Especially it
is said after sura i, without being part of the sura.
According to a hadith the prophet learned it from
Gabriel when he ended that sura, and Bilal asked the
prophet not to forestall him with it. At the salat the
imam says it loudly or, according to others, faintly after
the fatiha, and the congregation repeats it. It is called
God’s seal (taba or khatam) on the believers, because it
prevents, evil.
“Amin” (Ar. Pl. umana), ‘trustworthy, in whom one can
place ones’s trust’, whence al-Amin, with the article, as
an epithet of Muhammad in his youth. As a noun, it
means ‘he to whom something is entrusted, oversear,
administrator’: e.g. Amin al Wahy, ‘he who is entrusted
with the revelation’, i.e. the angle Gabriel. The word
also frequently occurs in titles, e.g. amin al-Dawla (e.g.
Ibn al-Tilmidh others), Amin al Din (e.g. Yakut), Amin
al-Mulk, Amin al-Saltana”.
“MORALITY”.
Words and Phrases, Permanent Edition Volume
27A:
“Morality” The words “morality” and “character” may
have the same meaning when standing alone, but when
used together the word “moral” defines the kind of
character required by the rule, that attorney must be of
good moral character. When so sued, the word “moral”
Const.P.76/2007, etc. 269
is in contradistinction, to the word “immoral”.
Warkentin v. Klein-watcher, 27 P.2nd 160, 166 Okl.
218.”
“Morality” The word “morality” is not used in any
narrow sense, but in a general sense, such as the law of
conscience, the aggregate of those rules and principles
of ethics which relate to upright behavior and right
conduct of elected representatives and prescribe the
standards to which their action and in particular those
who are Muslims, who are guided by the Holy Qur’an
and Sunnah should conform, in their dealings with each
other or with institutions or the State”. M. Saifullah
Khan Vs. M. Afzal. :PLD1982 Lah.77.
(d) CONSTITUTION BE READ AS AN ORGANIC
WHOLE
17. The body of human being consists of 99 elements with
proportionate qua each body of human being. Once the imbalance in the
said elements occur then the body as a whole would be disturbed and
affected. The body of human being otherwise consists of two parts.
Body alongwith the elements and “Rooh- spirit”. All of us have an
experience that once the rooh/spirit is missing from the body then body
would become dead automatically that is why the body of human being
is a compound of aforesaid elements and spirit. The scheme of the
Constitution of Pakistan is based on rights and obligations wherein
chapter 1 contains fundamental rights and principles of policy in chapter
2. According to my understanding every chapter and every article has its
own significance but chapter 1 & 2 had a unique significance. Once
these two chapters be held in abeyance as part of the Constitution or to
do the things in violation of these two chapters by any organ of the state
then according to me constitution would be dead organ that is why
Const.P.76/2007, etc. 270
chapter 1 and 2 be called as flowers and beauty of the Constitution. The
preamble of the Constitution has its own significance which shows the
will of the people to frame the constitution and passed their lives within
the four corners and that is why it is settled principle of law that
preamble is the key to understand the constitution. This is the first door
to open the book which prescribes its values, comments, obligations,
rights and commitments. There is no doubt that no provision of the
Constitution or law be struck down in case it is framed in violation of
preamble of the Constitution but at the same time it is very important
that while framing the law or taking the action every organ/authority
must keep in its mind the preamble of the constitution which is the
command of the forefathers and the nation emerged from the document
of Objectives Resolution passed by the Constituent Assembly in 1949.
Our Constitution is based on trichotomy consisting of following basic
pillars of the State:-
a) Legislature to frame laws.
b) Executive to implement laws.
c) The Judiciary to interpret the laws
18. This is a very beautiful scheme and defined areas of each
and every organ to keep the balance. Once this balance is disturbed then
the document is dead. Article 7 of the Constitution prescribes all
elements and pillars of the State for the purpose of imposing cess and
tax, legislature and executive. The legislature had specifically not
mentioned the judiciary in article 7 as the judiciary is duty bound to
maintain the balance between all the organs, therefore, judiciary is
mentioned in part VII under the heading of “Judicature” vide Article
175. It is settled proposition of law that other two organs i.e. legislature
Const.P.76/2007, etc. 271
and executive have no authority whatsoever to usurp or to take role of
the judiciary as it is in violation of the salient features of the constitution
which cannot be changed by any canon of justice as laid down by this
Court in various pronouncements. Se Zyed Zafar Ali Shah’s case (PLD
2000 SC 869), Mehmood Khan Achakzai’s case ( PLD 1997 SC 426)
and Farooq Ahmed Khan Leghari’s case ( PLD 1999 SC 57 ). It is
pertinent to mention here that Supreme Court of India had taken this
view which is before us that basic features of the Constitution could not
be changed but unfortunately we could not take that stand earlier except
the aforesaid judgments that is why the country since creation on 14-8-
1947 till to date most of the time there was no democratic government
around for about 37 years. Now it is high time that each and every organ
must resolve to save the nation and country to remain within their
spheres and discharge their duties in accordance with law. Article 4 of
our Constitution compels every body to act in accordance with law
whereas article 5 of the Constitution cast duty upon each and every
organ/person to obey the command of the Constitution. Similarly
Articles 189 and 190 of the constitution has prescribed duty to every
organ to implement judgments of the courts.
19. It is pertinent to mention here that 3rd organ is also duty
bound to remain within its sphere in terms of article 4 of the
Constitution. The provisions of the impugned ordinance are directly in
conflict with the aforesaid provisions of the Constitution. In fact through
the impugned ordinance, the salient features of the constitution were
changed in violation of the aforesaid judgments and command of the
various provisions of the Constitution.
Const.P.76/2007, etc. 272
(e) POWER OF PRESIDENT TO PROMULGATE
ORDINANCE.
20. It is pertinent to mention here that President had power to
frame ordinance under Article 89(1) subject to certain conditions which
are as follows:-
b) National Assembly is not in session.
c) President if satisfies that circumstances exist which render
it necessary to take immediate action make and promulgate
the ordinance as the circumstances may require.
21. The President had the same power as of the National
Assembly to frame the laws, that is why principle of check and balance
was incorporated in article 89 sub article 2 that life of the ordinance
would be four months and the parliament had power even to pass
resolution disapproving the said ordinance by the assembly that it would
automatically stand repealed after expiry of four months from its
promulgation or before the expiration in case of resolution of its disapproval
is passed. The president had also power to withdraw the
ordinance at any time. The President had to promulgate the ordinance at
the advice of the cabinet. This fact brings the case in the area that it was
the satisfaction of the Parliament under Article 89(1) as is evident from
the summaries produced before the Court by Acting Attorney General
for Pakistan. It was merely mentioned as a ‘draft ordinance’ and nothing
else. The preamble of the ordinance also does not reveal that any
satisfaction was made before promulgating of the ordinance. It is settled
law that when a thing is to be done in a particular manner, it must be
done in that manner and not otherwise. The said Ordinance was
promulgated even in violation of Article 89. The scheme of the
Constitution as mentioned above in our Constitution is based on
trichotomy but in case we read the constitution as a whole then it
Const.P.76/2007, etc. 273
automatically emerges that there is 4th pillar i.e. people of Pakistan for
whose benefit every law be framed who are the real sovereign because
the people of Pakistan had chosen the representatives of National
Assembly and provincial assemblies and Senate. The Ordinance has not
been framed for the welfare of the people of Pakistan. It had been
framed by the then President of Pakistan for his benefit and benefit of the
other privileged class. It is very difficult for me to imagine that any
written or unwritten constitution can allow framing law against the
welfare of people of the country. Similarly the President had a power to
pardon by virtue of Article 45 of the Constitution but had no right
whatsoever to give clean chit or to withdraw the case of the complainant
whose near relations were murdered. The whole ordinance and preamble
to Section 7 is in violation of various provisions of the constitution
mentioned hereinabove.
(f) PRINCIPLE OF CHECK & BALANCE.
Hazrat Abu Bakr Siddique (RA), First Caliph of Islam in
his first address had said that in case he violated any
injunction of Islam, then people should guide him to be on
right path. And there rose a Bedouin sitting in the audience
who remarked that in case he violated the principles of
Islam, then they would set him on right
path (Nazay ki nook par)
The second Caliph Hazrat Umar Farooq (RA) had a shirt
(Choga) on his body. He was asked to explain regarding
the cloth of that shirt because the cloth of shirt according to
his share ~~~ was much less than the body of Caliph. The
Caliph replied that he had used the share of his son for
Const.P.76/2007, etc. 274
making his own shirt. This is the type of accountability
which we have to follow to save the nation to put on a right
path.
(g) IMPUGNED ORDINANCE VIS-AVIS
FUNDAMENTAL RIGHTS.
22. The word corruption has been defined as it has diverse
meanings and far reaching effects on society, government and people. In other
words it has always been used in a sense which is completely opposite to
honesty, orderly and actions performed according to law. A person working
corruptly acts inconsistent with the official duty, the rights of others and the
law governing it with intention to obtain an improbable advantage for self or
some one else.
23. The word corruption is well known to our nation as National
Assembly and Provincial Assemblies were dissolved by the President and
Governors under Article 58(2)(b) and article 112 of the constitution
respectively as these articles were part of the constitution which were
introduced through 8th amendment. See:-
i) Khalid Malik’s case (PLD 1991 Karachi 1)
ii) Khawaja Ahmed Tariq Rahim’ds caxse (PLD 1990 Lah. 505)
iii) Khawaja Ahmed Tariq Rahim’s case (PLD 1991 Lah. 78)
iv) Khawaja ahmed Tariq Rahim’s case (PLD 1992 SC 646)
v) Aftab Ahmed Khan sherpao Case (PLD 1992 SC 723)
vi) Mian Muhammad Nawaz Sharif’s case (PLD 1993 SC 473)
vii) Benazir Bhutto’s case (PLD 1998 SC 388)
24. Our Constitution clearly envisages that sovereignty over the
entire universe belongs to Almighty Allah alone and the authority to be
exercised by the people of Pakistan within the limits prescribed by Him as a
sacred trust. See Shahid Nabi Malik’s case (PLD 1997 SC 32).
Const.P.76/2007, etc. 275
25. The word corruption is also defined by this Court in Mian
Muhammad Nawaz Sharif’s case (PLD 1993 SC 473 at 837-838) which is to
the following effect:-
“The word ‘corruption’ has not been defined by any law, but it
has diverse meaning and far-reaching effects on society,
Government and the people. It covers a wide field and can
apply to any co lour of influence, to any office, any institution,
any forum or public. A person working corruptly acts
inconsistent with the official duty, the rights of others and the
law governing it with intention to obtain an improbable
advantage for himself or someone else. Dealing with
corruption in Khalid Malik’s case I had observed as follows:-
“This bribe culture has plagued the society to this extent that it
has become a way of life. In Anatulay VIII (1988) 2 SCC 602
where Abdul Rehman Antulay, Chief Minister of Maharashtra
was prosecuted for corruption Sabyasachi Mukharji, J. laments
as follows:--
“Values in public life and perspective of values in public live,
have undergone serious changes and erosion during the last
few decades. What was unheard before is commonplace today.
A new value orientation is being undergone in our life and
culture. We are at threshold of the cross-roads of values. It is,
for the sovereign people of this country to settle these conflicts
yet the courts have a vital role to play in these matters.
The degeneration in all walks of life emanates, from corruption
of power and corruption of liberty. Corruption breeds
corruption. ‘Corruption of liberty’ leads to liberty of
corruption’.”
……………………………………………………………………………
…………………………
Const.P.76/2007, etc. 276
Corruption and bribery adversely affect the social, moral and
political life of the nation. In society rampant with corruption
peoples lose faith in the integrity of public administration. In
India in 1964 Committee on the Prevention of Corruption
known as Sanathanam Committee observed as follows:--
“It was represented to us corruption has increased to such an
extent that people have started losing faith in the integrity of
public administration. We had heard from all sides that
corruption, in recent years, spread even to those levels of
administration from which it was conspicuously absent in the
past. We wish we could confidently and without reservation
assert that at the political level Ministers, legislators, party
officials were free from the malady. The general impressions
are unfair and exaggerated. But they very fact that such
impressions are there causes damage to social fabric.’
The Committee also observed that there is a popular belief of
corruption among all classes and strata which ‘testifies not
merely to the fact of corruption but its spread’. Such belief has
a social impact causing’ damage to social fabric.’
The anti-corruption and penal laws have remained ineffective
due to their inherent defect in adequately meeting the fast
multitudinous growth of corruption and bribery. Corruption in
high places has remained unearthed leading to a popular belief
that immunity is attached to them. To combat corruption the
whole process and procedure will have to be made effective and
institutionalized.”
26. In other words written constitution of county is a
document which defines the regular form or system of the government,
containing the rules that directly or indirectly affect distribution or
Const.P.76/2007, etc. 277
exercise of the sovereign power of the state and it is thus mainly
concerned with creation of three organs of State and the distribution of
authority of the government among them and the definition of their
mutual relation. We must remember that a constitution is not just a
document but a living frame work for the government of the people and
its successful working depends upon the democratic spirit underlying it
being respected in letter and spirit. Whenever the spirit of the
Constitution was violated, the result was chaos and this fact finds
support from following extracts of Shahabnama by Qudrat Ullah
Shahab:
Const.P.76/2007, etc. 278
Const.P.76/2007, etc. 279
27. The raison d’etre of any constitution is to constitute a country
and it is the document which contemplates the grundnorms of State and its
laws. Aim of all jurisprudence is “public good” or “Welfare of the people”.
No Law can be wholesome and no state can be a welfare State unless the
principles of amr bil maruf wan hi anil munkar
is strictly adhered to. God Almighty has created mankind and He loves those
who love its creation and strives for its welfare. Our forefathers were
conscious of this principle and, therefore, the objective resolution was passed.
The preamble, containing objective resolution, of the Constitution of Islamic
Republic of Pakistan, 1973 cast a sacred duty on the chosen representative of
the people and, that is, to exercise powers and authority to run the State in such
manner which promotes: (i) principles of democracy, freedom, equality,
tolerance and social justice, as enunciated by Islam; (ii) Muslim to order their
lives in the individual and collective spheres in accordance with the teaching
and requirements of Islam as set out in the Holy Quran and Sunnah; (iii)
protection of minorities and backward and depressed classes; (iv) autonomy of
the units of Federation; (v) Fundamental Rights, including equality of status, of
opportunity and before law, social, economic and political justice, and freedom
of thought, expression, believe, faith, worship and association, subject to law
and public morality; (vi) independence of judiciary; (vii) integrity of the
territories of the Federation, its independence and all its rights, including its
sovereign rights on land, sea and air, in fact the above said are the grundnorms
and limitations of each organ of the State.
28. Validity of any law can be tested by its result or fruit. If a law
evokes healthy feelings/atmosphere, then it is valid otherwise it is void. An
illegal morsel gives birth to evils. Similarly any legislation which hurts the
Const.P.76/2007, etc. 280
welfare of the people should not be allowed to stand among the people. In this
regard, I may quote the following couplet from Molana Roumi’s Masnevy:-
29. From the legal morsel which born knowledge, love and
tenderness. If you see that jealousy, deception, ignorance, negligence is born
from a morsel, know that it was unlawful. The morsel is a seed and thoughts
are its fruit. The morsel is the seed and thoughts are its pearls.
30. In view of above perspective if we allow to hide/swallow
corruption and corrupt practices, then obviously it would not be conducive for
the people of Pakistan and for the welfare of the State. The people of Pakistan
may prosper and attain their rightful and honoured place amongst the nations
of the world and make their full contribution towards international peace and
progress and happiness of humanity if grundnorms stated in preamble are
strictly followed. In this view of the matter, the national Reconcilliation
Ordinance, 2007 being an illegal morsel is declared a legislation viod abi- nitio.
31. However, taking advantage of brevity, I simply hold that the
National Reconciliation Ordinance, 2007 is not valid and in this regard, I
endorse the view of our celebrated poet Sagar Siddiqui, which he expressed in
this following poetic couplet:-
Const.P.76/2007, etc. 281
32. For the purpose of maintaining balance between each and every
organ of the State, I conclude the note and suggest all organs to obey the
command of the Constitution from core of their hearts which is possible on
working as per saying of Wasif Ali Wasif (Philosophical Islamic Writer) and
Moulana Roomi respectively which are to the following effect:
(Justice Ch. Ijaz Ahmed)
Const.P.76/2007, etc. 282
JAWWAD S. KHAWAJA, J.- I have gone through the detailed
reasons recorded by Hon’ble the Chief Justice, for the short order announced
on 16.12.2009. These reasons exhaustively examine the arguments advanced
before us by learned counsel for the parties and by the amicii curiae who ably
assisted us in these matters. While agreeing with the reasoning of Hon’ble the
Chief Justice, I would like to add this note to emphasize aspects of the case
which I consider to be of special relevance when examined in the context of
the constitutional history of Pakistan.
2. At the very outset it must be said, without sounding extravagant, that
the past three years in the history of Pakistan have been momentous, and can
be accorded the same historical significance as the events of 1947 when the
country was created and those of 1971 when it was dismembered. It is with this
sense of the nation’s past that we find ourselves called upon to understand and
play the role envisaged for the Supreme Court by the Constitution. The Court
has endeavoured to uphold the Constitution and has stood up to
unconstitutional forces bent upon undermining it. It is in this backdrop that
these petitions have been heard and decided.
3. It is to be noted that though there was no significant opposition to these
petitions and even though the Federal Government did not defend the NRO,
the important constitutional issues raised through these petitions were thrashed
out to ensure that there is adherence to the provisions and norms of the
Constitution, not only for the sake of deciding these cases but also to lay down
precedent for the institutions of the State and its functionaries in terms of
Article 189 of the Constitution.
4. I would also like to add that there can be no possible objection to the
avowed objectives of the NRO as set out in its preamble, viz. promotion of
national reconciliation and removal of the vestiges of political vendetta and
victimization. These objectives, however, must be achieved through means
which are permitted by the Constitution. The Court while exercising the
judicial function entrusted to it by the Constitution is constrained by the
Const.P.76/2007, etc. 283
Constitution and must, therefore, perform its duty of resolving matters coming
before it, in accordance with the dictates of the Constitution and the laws made
thereunder. If the Court veers from this course charted for it and attempts to
become the arbiter of what is good or bad for the people, it will inevitably
enter the minefield of doctrines such as the ‘law’ of necessity or salus populi
suprema lex, with the same disastrous consequences which are a matter of
historical record. This Court has, in its judgment in the case of the Sindh High
Court Bar Association Vs. Vs. Federation of Pakistan (
PLD 2009 SC 879) emphatically held that it will not deviate from strict
adherence to the law and the Constitution. Decisions as to what is good or bad
for the people must be left to the elected representatives of the people, subject
only to the limits imposed by the Constitution.
5. It has now been firmly and unequivocally settled that the Court cannot
and should not base its decisions on expediency or on consideration of the
consequences which may follow as a result of enforcing the Constitution. It is
for this reason that while deciding the case of Sindh High Court Bar
Association Vs. Federation of Pakistan ( PLD 2009 SC 879 ), the Court
assiduously avoided validating any of the unconstitutional acts of General
Musharraf including his attempt to clothe 37 Ordinances (NRO included) with
permanence in violation of the Constitution. It was, in accordance with the
scheme of the Constitution and its democratic character that the right of the
legislature to enact these Ordinances with retrospective effort was recognized
and upheld. It is a matter of record, as noted in the reasons recorded by
Hon’ble the Chief Justice, that the elected representatives of the people chose
not to resurrect the NRO or to give cover to any acts thereunder through
retrospective legislation.
6. In the foregoing context it will be evident that while the Court is
obliged to eschew expediency and any other extraneous considerations such as
the fall- out and consequences of its judgments, the executive and legislative
limbs of the State do not suffer from similar constraints. As such the
Const.P.76/2007, etc. 284
consequences of executive and legislative decisions are a legitimate concern of
these organs of the State. Legislators and functionaries performing executive
functions may resort to expediency, compromise and accommodation in
achieving political and policy objectives considered appropriate in their
judgment. As long as such decisions conform to and are not violative of the
Constitution, the executive and the legislature are only accountable to the
electorate and not to Courts. This is the democratic principle enshrined in the
Constitution.
7. One reason for giving the above background is to examine and
comment on the applications (CMA Nos. 4875 and 4898 of 2009) submitted
by Mr. Kamal Azfar, Sr. ASC on behalf of the Federal Government. The
relevant contents of these applications have been duly noted in the main
judgment. Of particular concern to me are the following excerpts from these
applications:-
“Pak today is poised at the cross roads. One road leads to
a truly federal democratic welfare state with the balance of power
between an independent judiciary, a duly elected Govt. representing
the will of the people and a determined executive which is fighting
the war against terrorism and poverty. The second road leads to
destabilization of the rule of law. The people of Pakistan await your
verdict.”
8. There is, implicit in the above words, a plea to the Court to once again
revert to the disastrous and rejected route of expediency and to tailor the
outcome of these petitions by looking at the consequences which will follow,
rather than the requirements of the Constitution. I would like to state most
emphatically that the path of expediency and subjective notions of ‘State
necessity’ are dead and buried. I find it quite extraordinary that a
democratically elected Federal Government should be imploring the Court to
act in a manner otherwise than in accordance with law. It was emphasized to
Mr. Kamal Azfar while considering the aforesaid applications in Court, and it
now needs to be reiterated in the strongest terms that this Court will not take
into account extraneous considerations while exercising its judicial powers and
Const.P.76/2007, etc. 285
also that adherence to the Constitution can never lead to “destabilization of the
rule of law.” On the contrary, any breach of Constitutional norms is likely to
destabilize the rule of law.
9. The onus, therefore, of stabilizing the rule of law falls on and must be
assumed by the executive organ of the State which also commands a majority
in the legislature. This is the requirement of the Parliamentary democratic
dispensation ordained by our Constitution. Political stability and the rule of
law will flow as a natural consequence of giving sanctity and respect to the
Constitution, both in letter and in spirit. The Court can only strengthen the rule
of law by upholding the Constitution, which is, in fact, the supreme law. The
executive and legislative limbs of the State are also constitutionally obliged to
apply the powers and resources at their command, in enforcing the
Constitution and the rule of law without discrimination or undue favour to any
person or class.
10. Almost a millennium before ‘good governance’ and ‘rule of law’
became fashionable buzz-words in political discourse, the importance of good
governance and the rule of law and their direct co-relation with political
stability was recognized by enlightened rulers. In the Siyasatnama written by
Nizam- ul-Mulk Toosi the incident is narrated where the Governor of Hamas
(in present day Syria) wrote to the Caliph seeking funds to rebuild the
protective wall to defend the State against its enemies, that is, to ensure the
stability of the government. The reply he received is instructive. He was told
to build the walls of justice i.e. the rule of law and this would ensure peace,
stability and freedom from the fear of enemies.
11. This brings me to the decisions recorded in the short order of
16.12.2009 and the detailed reasons for the same. The NRO has been declared
unconstitutional and void ab initio. It has thus met the fate it richly deserved as
a black law created and prolonged by the corrupt and malevolent hands of a
military dictator. The fact that the incumbent democratic government chose not
to defend such a vile law bodes well for constitutionalism and the rule of law.
Const.P.76/2007, etc. 286
There is, of course, the matter of persons who may be innocent of any wrongdoing
but were victimized due to political vendetta. For such persons this
judgment ought to be seen as a boon. Instead of living in the shadow of a
malignant cloud for the rest of their lives, their reputations sullied by the foul
intervention of a scheming mind, these persons are enabled through this
judgment to clear their good name of any taint with which they of necessity,
stood branded on account of the NRO. This indeed would be the most potent
rejoinder to those who maliciously may have initiated false cases to harm
their reputations for ulterior political considerations. As the sage Sheikh
Saadi said centuries ago, in these ageless words:-
12. It should also be mentioned that by striking down the NRO the
Court does not foreclose the possibility or impinge on the prerogative of
the legislature to enact a non-discriminatory law which can pass
constitutional muster and is motivated by a desire to bring about a true
and inclusive reconciliation which is genuinely national in its outreach
and attempts to bring within its fold disparate groups harbouring valid
grievances against oppressive and vindictive use of State machinery in
the past. Even those who may have committed wrongs in the past and
were not wronged against, are not beyond being redeemed through a
compassionate law which heals the fissures in the nation’s divided
polity. These are, however, matters which fall squarely within the
legislative and executive domains, should these organs of the State wish
to act.
13. The concept of tauba and sincere repentance coupled with
restitution of any ill-gotten gains and the expression of genuine remorse
Const.P.76/2007, etc. 287
for past excesses provide an age-old matrix for fostering reconciliation.
It has been applied successfully in ancient as well as modern societies,
the most recent example being that of South Africa where a Truth and
Reconciliation Commission has been able to bring about a genuine
national reconciliation between staunch opponents divided among other
things, by race and embittered by decades of apartheid. An example of
national reconciliation also appears in our own nation’s history. This has
been commented upon in the main judgment. It would, as noted above,
be for the executive and the legislature to consider the potential and the
possibilities of what can be achieved by way of reconciliation, as
opposed to perpetuation of the venom and mutual recriminations which
continuously divide the nation at the cost of its well-being. This Court,
however, can only abide by the rule of law and in order to do so it must
limit itself to the adjudication of controversies in accordance with the
Constitution and with laws made consistently therewith.
Judge

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